Economic Freedom Fighters v Speaker of the National Assembly; Malema and Another v Speaker of the National Assembly of the Republic of South Africa (14667/2015; 17666/2015) [2016] ZAWCHC 210 (14 December 2016)

Key Facts

Issues

• The court considered the legality of invoking the Parliamentary Protection Services to forcibly remove Mr Malema, who resisted voluntary ejection. The Applicants alleged this breached the separation of powers and constitutional protections, while the Speaker asserted the action was lawful and proportionate to address gross disorder and ensure parliamentary business could proceed.
• The court assessed whether Miss Boroto, as Chairperson, was authorized to direct the removal of Mr Julius Malema after he refused to withdraw statements accusing Deputy President Cyril Ramaphosa of premeditated murder. The Applicants claimed the removal was arbitrary and violated procedural fairness, while the Speaker argued it was justified under Rules 70 and 73 to restore order during a severely disrupted session.
• The court evaluated whether Rule 73 of the National Assembly's Rules, which permits the removal and automatic suspension of members who refuse to leave the Chamber, is unlawful, unconstitutional, or invalid due to its potential infringement on the constitutional right to freedom of speech under section 58 of the Constitution. The Applicants argued that Rule 73 was adopted to suppress the Economic Freedom Fighters (EFF) and other minority parties, while the Speaker contended it was necessary to maintain parliamentary order.

Holdings

• The suspension of Mr Malema under Rule 73(3) following his forced removal from the House was set aside as unlawful and unconstitutional.
• The application to declare Rule 73 of the Rules of the National Assembly as unlawful, unconstitutional, and invalid was dismissed.
• The application to set aside the Chairperson's decision to remove Mr Malema from the National Assembly was dismissed.
• Rule 73(3), which provides for automatic suspension of a member removed from the parliamentary chamber, was declared unlawful, unconstitutional, and invalid.

Remedies

• While the court upheld Mr. Malema's removal from the National Assembly, it set aside his automatic suspension under Rule 73(3). The suspension was deemed unlawful due to lack of procedural fairness and the absence of a prior disciplinary enquiry as required by the PPI.
• The court specifically declared Rule 73(3) of the National Assembly's Rules unlawful, unconstitutional, and invalid. This provision, which automatically suspends a member who is forcibly removed from the Chamber without affording them procedural fairness, was found to be arbitrary and in violation of the Powers and Privileges Act (PPI). The suspension must comply with due process under PPI section 12(3).
• The court dismissed Mr. Julius Malema's application to set aside the Chairperson's decision (Miss Boroto) to remove him from the National Assembly on 9 September 2015. The judgment found his conduct constituted grossly disorderly behavior, justifying his removal under Rule 73.
• In cases 14667/2015 and 17666/2015, the court dismissed the application seeking to declare Rule 73 of the National Assembly's Rules unlawful, unconstitutional, invalid, and of no force or effect. The judgment confirms that the court found no constitutional violation in the adoption of Rule 73 itself.

Legal Principles

• The court considered the separation of powers doctrine in the context of the Parliamentary Protection Services' involvement in removing members from the National Assembly. It addressed whether the recruitment of security personnel from the police and military violated constitutional principles of separation of powers by allowing the executive to influence parliamentary procedures.
• The judgment highlighted that the automatic suspension of Mr Malema under Rule 73(3) lacked procedural fairness, as it deprived him of the opportunity to be heard before a disciplinary committee. This principle, though not explicitly listed in the enum, was central to the court's invalidation of the suspension provision.
• The court applied judicial review principles to determine whether Rule 73 was ultra vires the Constitution. It assessed proportionality by evaluating if the rule's forceful removal and automatic suspension provisions were reasonable and necessary to maintain parliamentary order, concluding that while Rule 73 was generally valid, its automatic suspension clause (73(3)) was disproportionate and unconstitutional.

Precedent Name

• Affordable Medicines Trust and Others v Minister of Health and Others
• Economic Freedom Fighters and Others v Speaker of the National Assembly and Others
• Democratic Alliance v Speaker, National Assembly and Others (DA case)
• Chairperson of the National Council of Provinces v Malema
• Biowatch Trust v Registrar, Genetic Resources, and Others
• Democratic Alliance v African National Congress and Another

Cited Statute

• National Assembly Rules
• Constitution of the Republic of South Africa
• Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act, 4 of 2004
• Promotion of Administrative Justice Act, 3 of 2000

Judge Name

• Steyn, J
• Henney, J

Passage Text

• [89] I am therefore in agreement with the Applicants that Rule 73 (3) which allows for the automatic suspension of a member pursuant to Rule 74, is unlawful and unconstitutional, and falls to be set aside.
• [80] The reasons advanced, based on the evidence for the adoption of the Rules, are eminently reasonable and rational. The fact that it was adopted by all other political parties, even those smaller than the EFF endorses this view. Also given that such disruptions and the incidents of disorderly conduct, went far beyond exercising Parliamentary free speech. The means adopted therefore, which is the forceful removal of a member for proscribed behaviour that would only disrupt and incapacitate the business of Parliament, would be proportionate to achieve order and discipline in Parliament to proceed and conduct its business in an orderly or regular manner acceptable in a democratic society.
• [104] Order ... 1) That the application for an order declaring that Rule 73 of the Rules of the National Assembly be declared unlawful, unconstitutional, invalid and of no force or effect, is dismissed. 2) That Rule 73(3), to the extent that it has as a consequence the automatic suspension of a member subsequent to his or her removal from the parliamentary chamber, is declared unlawful, unconstitutional and invalid and of no force or effect.