High Court judgement in Ms De Lille case

2. Statement to Joint Rules Committee from Ms de Lille (attached to the end of the minutes)

3. Minutes of meeting with the Speaker, the Chief Whips and members of the Subcommittee on Powers and Privileges, discussing the situation created by the court's judgement.

Present: Speaker of the NA, Ms Ginwala (NA Co-Chair, ANC), Chairperson of the NCOP, Mr Lekota (NCOP Co-Chair, ANC), 11 ANC members of parliament (including the NA Chief Whip and the NA Deputy Chief Whip), 10 members of parliament of the opposition parties and a number of clerks and advisors.

High Court's judgement in the case of Ms de Lille versus the Speaker of the National Assembly.

The Speaker first of all emphasized that some aspects of the court's judgement impinge on the powers of parliament. The judgement raises a number of constitutional issues that are of concern to both Houses of Parliament. There has been a meeting of the Speaker with the Chief Whips, members of the Subcommittee (of the Joint Rules Committee) on the Review of Rules and members of the Subcommittee on Powers and Privileges to discuss the situation created by the court's judgement. It is now up to the Joint Rules Committee to decide how to proceed, to decide what action parliament (not just the National Assembly) wishes to take.

Mr Gibson (DP) started the discussion on this matter by saying that the judgement has come as no surprise to the Democratic Party. Parliament is not above the law and the Powers and Privileges of Parliament Act is unconstitutional. The Act was framed for a different era, in different circumstances; for a parliament that was above the law. Parliament should now recognize that the Act and its rules are outdated and outmoded and urgently draft a new Powers and Privileges Act and review its rules, rather than spending energy on another court case (appeal).

The Speaker responded that the Subcommittee on Powers and Privileges of Parliament was established a year ago to review the Act. However, parties have not attended meetings and therefore parliament as a whole did not succeed in proceeding with this matter.

The ANC Chief Whip, Mr Sisulu, subsequently stated that there are two aspects to the case, the first one being the disciplinary procedure against Ms de Lille. The ANC already agreed that parliament should accept the ruling of the court and not take any further steps in this matter. With regard to the other aspect of the case, the running of parliament and the constitutional issues, the ANC would like the Speaker to be mandated to seek the necessary legal advise on how parliament should proceed and to take the steps necessary in the interest of parliament.

Mr. Meyer, legal adviser to parliament, presented a document explaining the legal options open to parliament. Since the High Court found that section 5 of the current Powers and Privileges of Parliament Act is unconstitutional and invalid, one option would be for parliament to appeal directly to the Constitutional Court - under clause 172.2 9d of the Constitution - to confirm or vary this finding. Should parliament decide to take this route, the Constitutional Court might do just that - confirm or vary the finding on section 5 - without giving any clarity on the other constitutional issues that were raised by the judgement of the High Court. To prevent this, parliament could choose another route and apply for leave to appeal directly to the Constitutional Court under clause 167.6 of the Constitution. This could improve the chances of a broader opinion by the Constitutional Court. However, it remains difficult to make a choice between the two options at this moment. In both cases, there is an element of uncertainty: although the national legislation on the rules and procedures of the Constitutional Court is ready to be promulgated, it will not be promulgated in time to be applied in this case (not within the appeal period). Furthermore, the Constitutional Court itself is still working on its own rules.

After this explanation of the legal side of the situation, there was a short adjournment in order to clarify party positions.

After the adjournment, the Deputy Chairperson of the National Council of Provinces, Mr Ngcuka (ANC), pointed to the interests of the provincial legislatures in this matter. Although the case as such is one between Ms de Lille and the National Assembly, it has wider ramifications. Suspensions have happened in the provinces as well. On the basis of the judgement of the High Court it is unclear whether those suspensions were correct, whether provincial legislatures had the power to suspend members. Therefore, clarity on a number of issues is desirable. According to Mr Ngcuka, the NCOP is an interested party in this case, wants to take this matter to the Constitutional Court and proposes to give a mandate to the Presiding Officers to proceed.

Mr Maree (NP) subsequently argued that parliament should not instigate anything. The Constitution (clause 172.2a) states that a judgement of constitutional invalidity has no force unless it is confirmed by the Constitutional Court. This implies automatic referral of the case to the Constitutional Court. Therefore, the matter will come to the Constitutional Court sooner or later without the interference of a political party or parliament. Mr Maree suggested that parliament could perhaps write a letter to the High Court and the Constitutional Court to explain this position. Mr Maree also argued that there is no benefit in any appeal by parliament since the Constitutional Court will only deal with the de Lille case as such and the matter around section 5 of the Powers and Privileges of Parliament Act. It will not give any opinions on any other constitutional matters.

Mr Hofmeyr (ANC) and Mr De Lange (ANC) responded by pointing to the existing uncertainties around the appeal procedure: the NP may be right but it would be unwise for parliament to count on it. The route and outcome Mr Maree described may very well not become reality. According to both ANC members, it is crucial to get an answer to the question whether the views of the High Court are legally binding for parliament. Therefore, the Presiding Officers should be given a mandate to go ahead. They should seek legal advice and take the necessary steps in the interest of parliament to ensure that the matter gets to the Constitutional Court, while keeping all parties informed via the Chief Whips.

The Speaker added the current concerns of the Presiding Officers about their ability to manage the House. Some members already started to tease by saying 'you can't suspend us now' and changing of the current rules is rather difficult without more clarity on the matter. She further added that a mandate is necessary, given the appeal period, simply because there is no time to deal with the matter in any other way. Another meeting of the Joint Rules Committee (the wish of DP, NP and PAC, among others) in which a proposal by the Presiding Officers can be discussed and a final decision on the best way forward can be made is impossible.

Discussion (with members from the DP, NP, IFP, PAC and ANC) continued for a while along the same lines, but at the end of the meeting, all parties agreed

to give a mandate to the Presiding Officers to proceed. The interests of the parties would be represented at the Chief Whip's level. Such meetings with the Chief Whips are a way to keep all parties on board, not a forum where final decisions on this matter can be made. If final decisions are needed the matter will be sent to the right forum.

Before this consensus was reached, there was a rather heated debate along partisan lines around the position of Ms de Lille. Several members of opposition parties argued that an apology by the ANC to Ms de Lille was in order. During this debate, Ms de Lille stated that she reserved the right to oppose the appeal. She also stated that parliament, by giving a mandate to the Presiding Officers to proceed, was again defining the situation as one of parliament versus Ms de Lille, as if she was not a member of parliament. Several parties then asked the ANC to move a motion clearly stating that the decision to suspend Ms de Lille was incorrect. The Speaker subsequently explained the current situation: after consultation with all parties, implementation of Ms de Lille's suspension was suspended. Mr De Lange (ANC) then explained the ANC position: should the Constitutional Court decide not to confirm the High Court's judgement the ANC would still be committed not to implement the suspension. However, a motion as asked for by the opposition parties is impossible because it would interfere with the legal proceedings.

There were other items on the agenda of this meeting:

• the Language Policy for Parliament, which wasn't discussed because there was not any time; will be discussed at the next meeting

• the symbols of parliament; will be dealt with by the Internal Arrangements Committee

• the parliamentary budget; the Joint Subcommittee on the Parliamentary Budget is still working on the 1998/1999 budget and the cuts that have to be made. A member of that subcommittee reported that involvement of the Joint Rules Committee is needed with regard to the budget item 'payments to ex-members of parliament'; the Speaker said the Presiding Officers would deal with the matter.

• the matter of 'mixed bills' (see minutes of Joint Rules Committee meeting of March 10); an opinion on mixed bills was circulated; will be discussed at the next meeting.

• a request to place "Subcommittee on Delegated Legislation" on the agenda of this meeting was not granted because establishing such a subcommittee is a matter for the National Assembly Rules Committee and not for the Joint Rules Committee.

Appendix 1:

MEMORANDUM

TO: Speaker

FROM: Parliamentary Law Adviser

DATE: 18 May 1998

SUBJECT: DE LILLE CASE: REFERRAL TO THE CONSTITUTIONAL COURT

1. As requested, I discussed possible avenues of referring the case to the Constitutional Court with Counsel who acted for Parliament.

2. We are in agreement that there are two possibilities:

2.1 With respect to the finding of the Court that section 5 of the Powers and Privileges of Parliament Act, 1963, is unconstitutional, the Constitutional Court could be approached in terms of section 172(2)(d) of the Constitution. In our view, it would not be advisable to seek the referral of the entire case to the Constitutional Court, or to appeal directly to the Constitutional Court, solely on the basis of the Court's finding concerning section 5. The Constitutional Court might hold that a direct appeal in terms of section 172(2)(d) will not encompass the other issues in the case which are not contingent on the High Court's finding in respect of section 5 of the Act. If so, those other issues, many of which are of considerable importance to the Speaker and Parliament generally, will not be determined by the Constitutional Court when exercising its powers under section 172(2) of the Constitution.

2.2 The other possibility is to apply to the Constitutional Court in terms of section 167(6) of the Constitution for leave to appeal directly to the Constitutional Court. Section 167(6)(b) of the Constitution provides that national legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court to appeal directly to the Constitutional Court from any other court. Section 167(7) defines a constitutional matter as including any issue involving the interpretation, protection or enforcement of the Constitution. In our view, this case is a constitutional matter.

The main difficulties with any appeal directly to the Constitutional Court are the fact that the Supreme Court of Appeal now has jurisdiction to hear and determine appeals involving constitutional issues (see section 168(3) of the Constitution), and the fact that the provisions of the Constitutional Court Complementary Act Amendment Act, 1997, and the new rules the Constitutional Court; have not yet been put into operation.

In terms of Rule 17 of the (existing) Rules of the Constitutional Court direct access to the Court will be allowed only in exceptional circumstances where a matter is of such urgency, or otherwise of such public importance, that it would not be in the public interest or the interests of justice and good government for the Court to acquiesce in the delay which the use of the ordinary procedure would produce. In order to succeed with an application for leave to appeal directly to the Constitutional Court, therefore, the Speaker will have to demonstrate that that matter is so urgent or so important that the delays attendant on an (intermediate) appeal to the Supreme Court of Appeal would not be in the interests of justice. We would, point out that in the past the Constitutional Court has shown some reluctance to allow litigants to "leapfrog" the other courts in the hierarchy (see e.g. Transvaal Agricultural Union v Minister of Land Affairs 1997(2) SA 621 (CC) at par 18). There are, however, certain features in this case which, in our view, may render appropriate an application for direct access.

It would seem that leave to appeal in terms of section 167(4) should

be applied for within 14 court days of the judgment (see S v Pennington 1997(4) SA 1076 (CC) at par 52).

3. In terms of section 172(2)(a) of the Constitution an order of Constitutional invalidity by a Court has no force unless it is confirmed by the Constitutional Court. Section 172(2)(c) requires that national legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court. Provision has been made in Act 79 of 1997 for the referral of such an order to the Constitutional Court; however that Act has not yet been put into operation. In the absence of such legislation the Court would not seem to have the jurisdiction to refer the matter to the Constitutional Court.

Appendix 2:

PAN AFRICANIST CONGRESS (P.A.C.)

OF AZANIA

PARLIAMENTARY OFFICE

OFFICE OF THE CHIEF WHIP

STATEMENT TO JOINT RULES COMMITTEE - 19 May 1998

The incorrigible persistence by the ANC of its own agenda at the cost of thousands of rands to the taxpayer is shocking not to mention irresponsible. The concept of Representative Democracy is well-known and hardly requires clarification. What the ANC is in effect doing, is soliciting a second bite at the cherry.

They went to Court and lost and are now trying to avoid embarrassment by purporting to refer issues to the Constitutional Court for clarification. In fact the matter is clear and no clarification is required. This is an abuse of the fiscus and the right to litigate fairly.

PAC propose that the matter be stopped and refer to Independent Senior Counsel for an opinion.

Issued: P de Lille, Chief Whip - PAC