Review of PPIPPLA in
light of the key findings
of the Constitutional Court
in DA v Speaker of the NA
and others, CCT 86/15
Ms D Kassan and Ms D Swartz
14 September 2016
Purpose of presentation
• To highlight the provisions of PPIPPLA directly
impacted by the majority judgment of the CC
judgment in the Democratic Alliance v the Speaker
of the National Assembly and others, CCT 86/15;
• To present proposals for amendments in light of
the CC judgment; and
• To highlight certain provisions of PPIPPLA requiring
corrections.
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Key findings of the Constitutional
Court majority judgment
• Freedom of speech contained in section 58(1) and
71(1) may ONLY BE LIMITED by RULES and ORDERS
(and not in an Act);
• The word “PERSON” includes a member unless the
context dictates otherwise or where the provision
specifically excludes a member.
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Provision directly impacted by the
CC majority judgment
- Section 11 of PPIPPLA:
- CC held that the word “person” in S 11 includes a member;
- CC held that S 11 allows for the arrest of a member constitutes
an infringement of parliamentary free speech and directly
infringes the immunities from criminal proceedings, arrest and
imprisonment;
- CC held that S 11 of PPIPPLA was constitutionally invalid to the
extent that it applies to members of Parliament.
- Cure the constitutional defect by reading in the words “other
than a member” after the word “person” in S 11 – to ensure
that the section does not apply to members.
- S 11 will continue to apply to non-members.
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Read-in provision provided by CC
Suggested that S 11 be amended as follows as per
read in:
• “11. A person, other than a member, who creates or takes
part in any disturbance in the precincts while Parliament
or a House or committee is meeting, may be arrested and
removed from the precincts, on the order of the Speaker
or the Chairperson or a person designated by the Speaker
or Chairperson, by a staff member or a member of the
security services.”
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Other provisions identified as
impacted by the key findings:
- Section 7(e):
- “7. Prohibited acts in respect of Parliament and members
A person may not—
(a) …
(b)…
(c)…
(d) …
(e) while Parliament or a House or committee is meeting, create
or take part in any disturbance within the precinct; or
(f) …”
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Section 7(e) cont
• Section 7(e) to be read with sections 13 (Conduct constituting
contempt of Parliament) and 27 (Offences).
• Section 13 provides that a member is guilty of contempt of
Parliament if the member, inter alia, contravenes section 7
(which includes 7(e) – creating or taking part in a disturbance);
• Section 27 provides that a person, including a member, who
contravenes section 7 commits an offence and is liable to a
fine or to imprisonment for a period not exceeding 3 years or
to both a fine and the imprisonment.
• Hence, the word “person” in section 7 includes a member.
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Section 7(e) cont.
• Section 7(e), read with section 13 and 27, can be seen as a
limitation to parliamentary free speech contained in section 58(1).
• Reasons:
– The effect of section 13, which provides that a member may be in
contempt of Parliament for creating or taking part in a disturbance
(iow contravening section 7(e)), is that it limits a members freedom of
speech in an ACT – this should be contained in the RULES and
ORDERS.
– The effect of section 27 is that a member can be held criminally liable
for creating or taking part in a disturbance – this impacts on the
freedom of speech as well as the immunities protected in section 58
of the Constitution. This should be regulated in the RULES and
ORDERS and not in an Act.
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Proposed amendment to S 7(e)
• Delete section 7(e) from section 7 (meaning that
only sections 7(a), (b), (c), (d) and (f) will apply to
members and non-members);
• Include a new subsection 7(2) incorporating the
wording of the current section 7(e) BUT rewording
it in a manner that it would only apply to nonmembers;
• Make consequential amendments to sections 13
and 27 (iow correct the cross-referencing).
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Corrections to certain provisions
• Section 22 – Contains the phrase “No person is
liable in damages…”. It should read “No person is
liable for damages…”. This is the more widely
accepted phrase in SA law.
• Section 32 – correct the year “2003” to “2004” in
the short title so that it is consistent with the Act
number which is “Act No. 4 of 2004.”
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THANK YOU
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