De Lille and Another v Speaker of the National Assembly,1998 (3) SA 430 (C). an important case in South African constitutional law, was heard in the Cape Provincial Division from April 3 to 7, 1998, with judgment handed down on May 8. It was subsequently confirmed, on appeal, by the Supreme Court of Appeal.
The High Court dealt with the issue of the powers of Parliament and parliamentary privilege, and found that such powers and privilege, to the extent of their inconsistency or incompatibility with the Constitution, are invalid. Where the privilege breaches the provisions of the Constitution, the aggrieved party is entitled to seek redress from the courts, to which is entrusted the task of ensuring the supremacy of the Constitution.
The certificate issued by the Speaker in terms of section 5 of the Powers and Privileges of Parliament ActAct 91 of 1963 had the effect of undermining the independence of the courts and interfering with their functioning. Section 5, therefore, was unconstitutional to the extent that it purported to place parliamentary privilege beyond judicial scrutiny, and thus beyond the supreme Constitution, on the mere ipse dixit of the Speaker.
Nor, the court found, does Parliament have the power to act mala fide. The Constitution was not intended to authorise bias on the part of Parliament.
In particular, section 57(1)(a) of the Constitution does not embrace the power to suspend a Member of Parliament as punishment for contempt. Such suspension, the court found, was inconsistent with the requirements of representative democracy, because it penalised not only the Member or her party, but also the electorate which voted for that party. The punishment of suspension, therefore, was unreasonable and unjustifiable in an open and democratic society based on freedom and equality, and accordingly failed the limitations test set in section 36 of the Constitution. In this regard, the court found also that parliamentary privilege does not qualify as a law of general application for the purposes of section 36.
Finally, the High Court noted that section 58(1) of the Constitution, providing for freedom of speech in Parliament, was an absolute freedom, subject only to the rules and orders of the National Assembly, and that it was not a right subject to the limitations clause in section 36.
The Supreme Court of Appeal (SCA) dismissed an appeal against the ruling of the High Court, but on narrower grounds. It noted that no national legislation or Rules or orders of Parliament provided for the suspension of a Member where she was not obstructing or disrupting or unreasonably impeding the management of orderly business within the Assembly, but merely making a non-obstructive and non-disruptive speech. Such a suspension, accordingly, had no constitutional authority, and was therefore void.
Facts During an interpellation debate in the National Assembly, the first applicant, Patricia de Lille, named inter alia eight senior members of the majority party in the House, the African National Congress, as being accused of having been spies of the previous government. The respondent, the Speaker of the House, intervened and ruled that the reference to spies was unparliamentary. The first applicant unconditionally withdrew the statement she had made. Thereafter, and after having examined Hansard, the respondent found that the first applicant had made two further remarks which she considered to be unparliamentary. The first applicant also withdrew those allegations unconditionally.
Subsequently a motion, proposed by a member of the ANC, was adopted appointing an ad hoc committee to report to the House on the conduct of the first applicant in making serious allegations without substantiation against members of the House and to recommend what action, if any, the House should take in light of its report. Only the ANC supported the motion. The ad hoc committee met under the chairmanship of "D" and was constituted in proportion to the parties' representation in the House, with the ANC having eight members and the opposition parties seven. When the meeting of the committee commenced, the ANC members attempted to exclude the first applicant. The first applicant insisted on being present.
At the first meeting of the committee, "D" had announced that the ANC had a motion which he wanted to put. He then began reading an ANC proposal on the recommendation to be made to the House. An ANC member of the committee intervened to explain that the recommendation was merely being put to the first applicant and was in the nature of a charge rather than a conclusion. "D" refused to disclose the document from which he was reading when called upon to do so and even tore up some of his papers.
Prior to the committee's finalising its task, "C" took over as chairperson, in the absence of "D," who was apparently overseas. "C" had explained that the committee had been set up because he and his comrades had "been actually offended" by the first applicant's statement, and because she had flouted a rule of Parliament.
The first applicant had been formally charged with abusing her privilege of freedom of speech and, secondly, with contravening the Powers and Privileges of Parliament Act,Act 91 of 1963s 10(3)(c). in that she had wilfully failed to obey a National Assembly resolution to the effect that members should not impute improper conduct to others except by way of a separate substantial motion. She was never formally found guilty by the committee of the two charges against her. "C" had commented, when this was drawn to his attention, that "there is not anybody else who has said that [the first applicant] is actually innocent in her conduct."
The committee recommended to the House, inter alia, that she be suspended for fifteen parliamentary working days. These recommendations were adopted by the House.
Arguments The applicants applied to a Provincial Division for the resolution adopted by the House to be set aside. The first applicant contended that she had not had a fair hearing before the ad hoc committee, in that
the ANC members of the committee had tried to exclude her from its deliberations; they had prejudged the issue; and they had never seriously attempted to enquire into her conduct.
Accordingly there was actual bias, or, alternatively, a reasonable suspicion of bias, on the part of the ANC members of the ad hoc committee. She further averred that she had not understood the previous resolution of the House to be anything more than a ruling in a particular matter and did not understand it to create a new rule or convention in the House.
It was argued on behalf of the respondent that the ad hoc committee merely made recommendations to the National Assembly, which took the ultimate decision. Therefore it was not necessary for the committee to give the first respondent a hearing. The respondent further argued that the National Assembly was merely exercising its privilege when it passed the resolution; accordingly, it was not open to the Courts to enquire into or pronounce upon the exercise of any such privilege. In the alternative, it was argued that judicial review in such cases was limited to caprice or mala fides.
The respondent, in exercising her powers in terms of the Powers and Privileges of Parliament Act,s 5. issued a certificate stating that the present application concerned the privilege of the National Assembly and that the matter should be permanently stayed.
High Court The court held that the ad hoc committee's investigation and subsequent recommendations had led to a decision seriously affecting individual rights and interests. The committee could never have been sure that it was properly acquainted with all of the considerations relevant to its recommendations unless it had properly heard the views of everyone involved. The first applicant had not been given a hearing at all in the National Assembly, whereas the purported hearing before the ad hoc committee had violated the common-law rules of natural justice. De Lille had been entitled to be heard fairly by an unbiased committee and had been entitled to make representations regarding the proposed sanction against her. The common-law rules of natural justice applied unless the relevant statute had expressly or by necessary implication excluded them. These rules required that, when a statute empowered a public official or body to give a decision prejudicially affecting an individual's rights or interests or legitimate expectations, such an individual must be heard before the decision is taken or any serious recommendations prejudicially affecting such rights, interests or legitimate expectations are made by the body concerned.443H/I--444C/D.
There had also, the court found, been a breach of the nemo iudex in sua causa rule, which required that an affected party be heard by an impartial and unbiased tribunal. At no stage was the first applicant given a real and meaningful hearing. The ANC had been the complainant, and then the prosecutor and ultimately the judge in its own cause. This had violated the rules of natural justice. In the circumstances of the case the inference that the ad hoc committee was in fact biased was irresistible.444E.445A/B--C. The court held, further, that the ad hoc committee had acted mala fide, and that no-one had the power to act mala fide, Parliament included. The Constitution also did not intend to authorise bias.445C--D.
The committee had never enquired into the wilfulness of the first applicant's conduct and, on the information before it, could not have concluded that she had deliberately disobeyed a rule or order or resolution which was to her knowledge binding upon her. Accordingly she could not have been guilty of any "wilful" disobedience.442F. The Constitution is the supreme law of the Republic,s 2. and any law or conduct inconsistent with it is invalid. The Constitution also provides that the Bill of Rights applies to all law and binds the Legislature, the Executive, the Judiciary and all organs of State.s 8(1). Thus, the court held, any privilege inconsistent or incompatible with the Constitution is invalid. The extent of privilege is inextricably bound with the exercise thereof. The determination of the extent of privilege must relate to its exercise; otherwise, the court noted, Parliament would have a blank cheque to set the limits of its own powers.446G/H--447B/C.
On a proper interpretation of the Constitution,s 57(1)(a). the power to determine and control the National Assembly's internal arrangements did not embrace the power to suspend a Member as punishment for contempt. The powers under section 57(1)(a) of the Constitution were meant to facilitate the proper exercise of powers and functions of the Assembly which the Constitution intended. Had Parliament intended otherwise, the Constitution would say so in as many words, particularly, the court held, because the principles of representative democracy lay at the heart of the Constitution. The suspension of a Member of the Assembly from Parliament for contempt was not consistent with the requirements of representative democracy. It would be a punishment calculated to have penalised not only the Member for contempt, but also his or her party and those of the electorate who voted for that party and who are entitled to be represented in the Assembly by their proportional number of representatives.449H/I--450E.