JOINT SUBCOMMITTEE ON POWERS AND PRIVILEGES Report on the powers and privileges of Parliament

JOINT SUBCOMMITTEE ON POWERS AND PRIVILEGES

JOINT SUBCOMMITTEE ON POWERS AND PRIVILEGES
6 September 1999
REPORT ON THE POWERS AND PRIVILEGES OF PARLIAMENT

Documents handed out:
Powers and Privileges of Parliament: Second Interim Report
The Speaker of the National Assembly v Patricia De Lille

SUMMARY
Members were introduced to the Report on the Powers and Privileges of Parliament and the need for existing legislation to be changed or amended. The report was not discussed in great detail but members were rather requested to go back to parties and look at the report in more detail.

MINUTES
The Speaker said that due to the constitutional changes and the need as well as the desire of Parliament to reconsider its procedures led to the commissioning of a study on the powers and privileges of Parliament. This study was commissioned last year and a report on the Powers and Privileges of Parliament was compiled. The objectives of the study were firstly, to obtain clarity and certainty on the powers and privileges enjoyed by Members of Parliament and secondly, to establish whether The Powers and Privileges of Parliament Act of 1963 (1963 Act) has to be amended or whether new legislation is required.

The Speaker raised several open questions relating to the powers and privileges of Parliament. Amongst these questions were the following:

• Is there anything that Parliament needs to run its affairs?
• What does Parliament need to serve its function?
• Can parliamentarians override the rights of citizens?

The Speaker expressed the view that parliament cannot create a set up to protect parliament from the public.

Mr D Schutte (NNP) expressed the opinion that there is no doubt that present legislation (1963 Act) is outdated and fundamental changes are necessary. The concern is, however, that the procedural aspects of changing present legislation must be approached with caution. Mr Schutte further proposed that the speaker identify some aspects for consideration.

Several members said that they would like to read the report first before any valuable input could be expected from them.

Mr L Landers (ANC) said the report is well prepared and echoed the view that existing legislation is outdated. He said that committee needs to identify, from the report, the important ideas and move forward from there.

The Speaker admitted that at this stage it is difficult to determine how proceedings should follow and proposed that members go back to their respective parties and discuss the report. Specialist teams within parties should look at the report and it seems inevitable that members would have to be brought aboard as discussions around the issue proceed. As a starting point, the speaker said that in looking at the issue one needs to look at the founding principles of the constitution and the functioning of Parliament as set out in the constitution.

A members asked the Speaker to give specific examples of why something is wrong with the present tradition of powers and privileges. The Speaker said that if one looks at the two judgments in the "Patricia De Lille matter", there are conflicts. In the Cape High court the judge said the speaker has the power to suspend members and the Supreme Court confirmed this. The Supreme Court however also said that should a member be suspended the right of citizens to be represented in Parliament will be infringed upon. Therefor in this instance it would have been preferable and convenient to refer to the rules and be certain as to what the actual position is. Furthermore not only will new legislation create certainty, but the exercise is also going to help the public understand the powers and privileges enjoyed by parliamentarians.

A member raised the question of whether there is a time frame in which to complete the task. The Speaker suggested that parties look at the report and setting time frames could be considered at the next meeting. It is also important that this is not dealt with in a great hurry. The committee will also be in a better position once members are familiar with the report and the surrounding issues.

Since there were no further matters to be discussed the meeting was adjourned.

Appendix 1:

Powers And Privileges Of Parliament: Second Interim Report

January 1999

Prepared by C Murray
assisted by F Soltau

TABLE OF CONTENTS

Brief overview of the Report and the political questions that it raises

Chapter 1: Introduction

Chapter 2: Basic Concepts and Terms

Chapter 3: General Implications of New Constitution

3.1 The Constitution is supreme

3.2 Certain traditional privileges are constitutionalised .

3.3 The Constitution expressly limits or amends certain privileges

3.4 Certain traditional privileges implicitly excluded

3.5 The Constitution requires other privileges to be 'prescribed by national legislation'

3.6 The Constitution affects processes and decision-making power of Parliament

3.7 Conclusion

Chapter 4: What rights does Parliament need in a democratic process?

4.1 Powers and privileges

4.2 Codifying privilege

Chapter 5: Contempt of Parliament

5.1 What acts or omissions constitute contempt of Parliament? The present position

5.2 Reforming the law of contempt of Parliament

5.3 Creating contempts in the rules

Chapter 6: Parliament's power to punish contempt

6.1 Courts and Parliament: Who should punish contempt?

6.2 Fair procedures

6.3 Procedures for raising contempts

6.4. Punishment

6.5 Penal jurisdiction of provincial legislatures

Chapter 7: Miscellaneous issues

Annexure A: List of recommendations of the Australian Joint

Select Committee on Parliamentary Privilege

concerning clarification of contempt of Parliament

Annexure B: Sri Lanka: Parliament (Powers and Privileges Act)

Annexure C: Powers and Privileges of Parliament Act

Annexure D: Bibliography

BRIEF OVERVIEW OF THE REPORT AND THE POLITICAL QUESTIONS THAT IT RAISES

PARLIAMENTARY PRIVILEGE IN A NUTSHELL

The law relating to the powers and privileges of Parliament has developed over centuries and has become extremely complex. However, it is based on a number of clear principles.

1. Separation of powers

The doctrine of separation of powers protects government by requiring that power is not all concentrated in one place. It gives Parliament the power to regulate its own affairs without outside interference. This power (or privilege) was initially claimed by the Westminster Parliament when it was threatened by a jealous and domineering executive. Traditionally, it has also meant that courts should not have jurisdiction over parliamentary matters but in many jurisdictions the exclusion of courts is not as absolute now as it was in the past.

2. Open democracy

Democracy requires open and critical debate of matters of public interest. Often such debate cannot occur freely. For instance, political violence or threats may curtail it. In addition, law protecting individuals, their privacy and their reputations, may sometimes limit the debate. Thus, a newspaper may suspect that a certain person is involved in illegal dealings but, without strong evidence, could not report on the matter.

The usual restraints on freedom of speech do not apply in Parliament. This is known as the privilege of freedom of speech in Parliament. It ensures that parliamentary debate can be completely open and that members will not be intimidated by threats of legal action for defamation etc. Other parliamentary privileges are the exemption of members from civil proceedings while Parliament is sitting and the protection of the publication of parliamentary proceedings. In addition, Parliament has the right to control its internal proceedings.

Parliament's powers and privileges are intended specifically to protect it and to ensure that it can fulfil its role properly. Because parliamentary privileges grant immunity to Parliament and parliamentarians from the normal operation of the law, it is important that they should be no wider than is absolutely necessary.

All institutions in South Africa are subject to the Constitution. This has implications for the powers and privileges of Parliament just as it does for the Executive and Judiciary and other state institutions. In claiming privileges, Parliament will have to respect the Constitution.

Parliamentary privilege in South Africa

The powers and privileges of the houses of Parliament and the provincial legislatures are dealt with in the Constitution and in the 1963 Powers and Privileges of Parliament Act.

The Constitution protects freedom of speech for members of the National Assembly (section 58), the NCOP (section 71) and every provincial legislature (section 117). It also stipulates that members cannot be liable in criminal or private law for anything that they have said in a house or a committee of the house. This means, for instance, that a member cannot be sued for making defamatory statements about either another member or someone else in a speech in the House. It does not mean that members of Parliament or members of provincial legislatures are protected for speeches they make that are not part of parliamentary proceedings. Speeches in constituencies are not protected, nor are discussions in Parliament that do not relate to parliamentary proceedings.

The Constitution also gives the National Assembly (section 57), the NCOP (section 70) and provincial legislatures (section 116) the power to 'determine and control [their] internal arrangements, proceedings and procedures'. This means that each legislature can determine how its committees operate, what its rules of procedure should be and so on. Of course, in determining internal proceedings Parliament and provincial legislatures must comply with the provisions of the Constitution. For instance, generally speaking, committee meetings must be open to the public.

The Powers and Privileges of Parliament Act of 1963 sets out the powers and privileges of Parliament in greater detail. Although the Act is drafted to apply to Parliament as constituted under the 1983 Constitution, its protection of powers and privileges remains important and applies to our new Parliament. It supplements the constitutional provisions in important ways and provides procedures for Parliament to protect its powers and privileges.

The most important privileges protected in the Act:

• freedom of speech and proceedings in Parliament

Like the Constitution, the Act protects the privilege of freedom of speech. However, the protection in the Act seems broader than that in the Constitution because it prohibits courts from investigating parliamentary speech under all circumstances. (The Constitution seems only to protect members from being taken to court for speech in Parliament.)

• freedom from arrest or molestation

The Act exempts members from participating in civil court cases while Parliament is sitting unless the case is heard in Cape Town.

It also stipulates that members may not be required to give evidence in another house without the permission of their presiding officer.

• protection of parliamentary publications

publications under the authority of Parliament are given the same protection as speech in Parliament

Contempt of Parliament

The Powers and Privileges of Parliament Act sets out acts that constitute contempt of Parliament. Broadly speaking, it is contempt of Parliament to act in a way that impedes the functioning of Parliament. Contempts specified in the Act include disobeying the Rules and Orders, failing to appear before a committee on request, bribing (or attempting to bribe) a member of the house, obstructing any member on his or her way to Parliament and making defamatory statements about members that touch on their conduct as members. The Act also allows Parliament to create other contempts in its Rules.

Breaching a parliamentary privilege is contempt of Parliament. For instance, a person who sues a member of Parliament for a defamatory statement made in parliamentary proceedings is guilty of contempt.

Punishing breach of privilege and contempt

The Powers and Privileges of Parliament Act, following the tradition of Westminster parliaments, gives Parliament the power to try and punish contempt of Parliament. It can fine and, if the fine is not paid, imprison, offenders. As far as we are aware, these powers have not been used in South Africa but Parliament has reprimanded offenders and required them come to the bar of the House to apologise formally .

KEY ISSUES

Although the Powers and Privileges of Parliament Act was obviously very carefully drafted, the Report recommends entirely new legislation. This is because -

• The new Constitution raises substantial issues about the extent and enforcement of parliamentary powers and privileges that should be considered in legislation
• The Constitution establishes new political institutions, the 1963 Act is formulated to apply to the political institutions of the 1983 Constitution
• The 1963 Act incorporates in our law the practice of the House of Commons in 1909 - this makes the law obscure and dated
• The 1963 Act has been amended many times and has become repetitious and disjointed. It is difficult to follow

The Report generally just refers to Parliament. However, the discussion is as relevant to provincial legislatures as the national Parliament. To refer to all legislatures throughout would have been unduly cumbersome.

Decisions are required on the following issues. Other, more technical matters are raised in the Report.

1. Should Parliament retain its power to punish contempt?

This is the first - and main - question that must be answered in considering new legislation. Parliament's power to punish contempt is controversial partly because it involves Parliament judging its own case. In addition, it has been argued that the politically-charged nature of any parliamentary proceedings makes fair proceedings impossible.

A number of options arise:

• retain the status quo in terms of which Parliament can punish contempt (or hand matters over to the Attorney-General to be dealt with in the ordinary courts)
• abolish Parliament's right to punish contempt
• limit Parliament's right to abolish contempt (either by abolishing Parliament's right to punish offences by outsiders but maintaining its right in relation to members and officers of Parliament or by limiting the specific offences Parliament can punish giving the courts exclusive jurisdiction over more serious contempts)

There are two reasons for limiting Parliament's present powers. First, the power to punish for contempt has a criminal element and, at least in the case of offenders who are not members or officials of Parliament and when a fine or imprisonment is a possible penalty, it may be unconstitutional to use this power without a proper trial in an ordinary court. Secondly, although the notion of contempt of Parliament is intended to protect Parliament, Parliament's status is seldom enhanced by in-house proceedings of this sort.

These issues are discussed in Chapter 6.

2. What are appropriate sanctions for contempt of Parliament?

Sanctions that have been used in Commonwealth parliaments for contempt include fines, imprisonment, reprimands, and, for members, suspension and expulsion.

If the power to punish contempt of Parliament, or any part of it, is given to the courts, the question of appropriate sanctions is not particularly difficult. But, what sanctions Parliament itself can impose needs careful consideration.

At present, as mentioned above, Parliament has the potential power both to fine and imprison. As far as we know, these sanctions have not been used. In relation to members the common law appears to have given Parliament the power to expel or suspend members. We do not believe that the power to expel has survived the 1996 Constitution. However, the power to suspend has been used.

The sanction that has most commonly been used is that of reprimand. Editors and journalists have been called to the bar to apologise to the house.

These issues are discussed at 6.3.

3. Procedures for dealing with contempt

Parliament will need to implement fair procedures whether it retains a wide power to punish contempt or limits its power to deal with contempt to the punishment of members and officers of Parliament for breaches of the Rules.

In setting up procedures consideration needs to be given to establishing a standing committee, the composition of the committee, the rights of the person accused of contempt (opportunity to state his or her case, representation, right to call witnesses etc), and the role of the House in confirming a committee recommendation.

These issues are discussed at 6.2.

4. Privilege

The Constitution protects the privilege of freedom of speech in Parliament. The Report suggests that further privileges should be included in legislation and that the ambit of freedom of speech should be extended and clarified.

See Chapter 4 and the recommendations made there.

5. Contempt

Breach of privilege is contempt of Parliament. In addition, other actions which impede Parliament's ability to function constitute contempt. Certain decisions need to be made about contempt:

• its definition and what actions constitute contempt
• whether Parliament should have the power to create new contempts
• whether 'defamatory contempt', a common-law contempt committed when someone defames Parliament, should be retained in its present form, revised or abolished

These issues are dealt with in chapter 5.

6. Other matters

A number of ancillary matters also arise

• terminology - do we wish to retain the term 'privilege'?
• treatment of witnesses in hearings before parliamentary committees.

CHAPTER 1

INTRODUCTION

The Constitution contains a number of provisions that have direct relevance to the powers and privileges of Parliament. It constitutionalizes Parliament's power to control its own proceedings but at the same time limits it in a number of ways (the provision requiring Parliament to conduct proceedings in public in all but exceptional circumstances is a restriction of the traditional right of Parliament to exclude the public). The privilege of freedom of speech in Parliament is enshrined in the Constitution but other privileges are left to be prescribed in national legislation.

These constitutional changes and Parliament's desire to reconsider its procedures led to the commissioning of research on the powers and privileges of Parliament. The objectives of the research are to -

(i) obtain clarity on the powers and privileges to which Members of Parliament are entitled; and

(ii) establish whether the 1963 Act has to be amended or whether new legislation is required.

Specific areas requiring attention in the research were identified in the terms of reference. They are -

• Parliamentary privilege in general
• Freedom of speech
• Privilege of freedom from arrest and molestation
• Penal jurisdiction of Parliament
• The powers of Presiding Officers
• Parliamentary privilege and the courts
• Other privileges

In addition, the researchers have been asked to take up any other issues raised during the research and relevant to the subject. As a result, the Report ranges fairly widely. As the first attempt at a systematic study of the powers and privileges of Parliament in ten years - and the first under the new Constitution - it seems appropriate to incorporate as much as possible. The short history of our new legislatures means that many problems are unresolved and the Report hopes not only to provide guidance on drafting new legislation but also to clarify some issues.

In October we met with certain members of the parliamentary administrative staff and discussed a preliminary paper outlining issues that seemed relevant to the research. Following that meeting we drafted the first interim report. That report was discussed with some members of the Rules Committee in early December.

This 'Second Interim Report' builds on the December meeting by incorporating a number of issues raised at that meeting. It goes further than the first report in certain areas, attempting to clarify the present legal situation and provide a sense of debates around parliamentary powers and privileges in other countries. We included as much material from new democracies as possible. Unfortunately, this is very difficult to procure. Nevertheless, the Sri Lankan Privileges Act provides an interesting model and widens the options we can consider. This Report relies fairly heavily on Australian and New Zealand material. Both these countries have innovative legislatures, often breaking away from the more conservative 'House of Commons model'.

We think that the 1963 Act should not be amended but instead replaced and this Report is based on this approach. As the 1989 Report on Parliamentary Privilege emphasised, the Act was obviously drafted with a great deal of care (Report para 8.1). In many ways it is remarkably up to date with international developments in the field. Nevertheless, it is inappropriate in a number of ways. First, the result of numerous amendments over the past 30 years is that it is very difficult to read. Both the language and the organisation of the Act are complicated. Commenting in 1955 on the 1963 Act's predecessor, the 1911 Powers and Privileges of Parliament Act, Ralph Kilpin said that its treatment of the powers and privileges of Parliament was to be found 'in somewhat scattered provisions'. The 1963 Act followed this trend. Parliamentary law and particularly issues relating to contempt and privilege are notoriously complicated. It is important that legislation governing the area should be as clear as possible.

But there are also substantial legal and constitutional reasons for replacing the Act. This preliminary Report is written on the assumption that Parliament wishes to incorporate the values of the Constitution in its mode of operating. The Constitution raises both technical and substantive issues in relation to the way in which we should deal with parliamentary powers. From a technical point of view, the constitutional requirement that any privileges in addition to freedom of speech in Parliament should be prescribed by national legislation may require a codification of parliamentary privilege. In addition, certain provisions of the Act have been made redundant by the Constitution. More substantially, complex questions constitutional are raised about the relationship between parliamentary proceedings and the Bill of Rights and Parliament and the courts. It is essential for these matters to be resolved in a way that is sensitive both to Parliament's role in a democracy and to the values enshrined in the Constitution. It seems appropriate to draft a new Act that responds to these needs.

Not all issues relating to parliamentary powers and privilege should be dealt with in legislation. Some are more appropriately included in Rules. At this stage the Report does not attempt to distinguish these issues because determining where matters should be dealt with will depend on the type of powers Parliament wishes to assert.

Chapter 2

BASIC CONCEPTS AND TERMS

This section sets out some of the terms and concepts used in the rest of the Report explaining the way in which they are used.

Parliament

The Constitution deals with privilege for the National Assembly, the NCOP and provincial legislatures. By and large the provisions are the same. The report generally refers to the power of 'Parliament' as short hand for the powers of each of the houses of Parliament or the power of the houses acting together. Usually, comments about Parliament will also apply directly to provincial legislatures.

Privilege, immunity and contempt of Parliament

The terms 'privilege', 'immunity' and 'contempt of Parliament' are used in a range of different ways in decisions and writing on Parliament. In this Report the terms are used in a way that allows one to distinguish these different concepts clearly, and that now appears to be the most generally accepted usage.

'Privilege' will refer to the rights and immunities which in law belong to the Houses of Parliament and to the individual members and officers of Parliament and, where appropriate, provincial legislatures. 'Privileges' grant immunity from the regular operaton of the law. Privilege exists to protect the democratic operation of Parliament. It exists only insofar as it is necessary to allow Parliament and its members to fulfil their functions properly. The privilege of freedom of speech is often described as the most important privilege.

'Immunity' flows from privilege. It is a consequence of privilege. MPs and sometimes officers of Parliament are `immune' from any judicial proceedings that rely on privileged information or a privileged occasion. The most well-known example of an immunity based on a parliamentary privilege is the immunity that the privilege of freedom of speech in Parliament gives members of Parliament. Its practical effect is that members may not be sued if they make defamatory statements in the course of parliamentary proceedings and that they may not be prosecuted if the statement constitutes an offence.

'Contempt of Parliament' covers offences against Parliament which impede its ability to function properly. The Powers and Privileges of Parliament Act sets out a list of acts that constitute contempt of Parliament. 'Contempt' covers a wide range of actions. It may include rowdy behaviour by visitors to Parliament, the use of disrespectful language in writing about Parliament outside Parliament and a wilful breach of the rules of Parliament (Powers and Privileges of Parliament Act section 10(3)(c)). An example of a contempt that is a breach of rules is the use of unbecoming language in Parliament by a member.

Contempt of Parliament includes breaches of privilege - for instance when a member is summonsed to court on the basis of a privileged statement made in Parliament contempt of Parliament is committed.

* Should the traditional terminology be retained?

In 1967 the Report of a Select Committee of the House of Commons suggested that the terminology be revised. In particular, it suggested that the term 'privilege' has connotations not appropriate in a modern democracy. The alternative that it proposed was to replace 'rights and privileges' with 'rights and immunities' and to replace 'breach of privilege' with 'contempt of Parliament'. This proposal was rejected by the House of Commons.

Parliamentary privilege is a right of members and the legislature. A possible alternative to the word 'privileges' is simply 'rights' or 'parliamentary rights'. This is an accurate description but may not be considered to capture fully the fact that 'privilege' exists to protect the democratic operation of Parliament and is not intended as a bonus to individuals for being parliamentarians. In this connection Marshall writes:

In one sense the term 'privilege' may be used to point a contrast with a facility enjoyed as a right. The soldier's leave, said to be a 'privilege rather than a right' is nevertheless not undeserved. A 'privilege' may also carry the idea of a power or facility exercised as an adjunct of some specific role, office or status.'

Marshall thinks that the use of the word privilege may permit a useful link with the law of defamation which recognises privileged occasions.

Although the Australians passed legislation reforming substantial areas of their law relating to parliamentary privileges and powers they have retained the term 'privilege' and their Act is called the Parliamentary Privileges Act. However, the author of the standard text on Australian Senate Practice (Odgers' Australian Senate Practice) chose to use the word 'immunity' rather than privilege. He explains:

The term privilege, in relation to parliamentary privilege, refers to an immunity from the ordinary law which is recognised by the law as a right of the Houses and their members. Privilege in this restricted and special sense is often confused with privilege in the colloquial sense of a special benefit or special arrangement which gives some advantage to either House or its members. Privileges in the colloquial sense, however useful or well-established they might be, have nothing to do with immunities under the law.'

What are the Rules and Orders?

The Constitution refers to the Rules and Orders of Parliament on a number of occasions. For instance -

• Rules and orders are to deal with the joint business of the houses (section 45).
• The NA and NCOP may make rules and orders concerning their 'business' (ss 57 and 70).
• Freedom of speech in each house is 'subject to its rules and orders' (ss 58 and 71).

The most obvious rules and orders are the 'standing' rules of each house and the published 'joint rules' which govern joint business. These are the rules adopted by the House, or in the case of joint rules, both houses. However, certain rules are not included in the formal rules book. A new rule, agreed to by the relevant house, would apply even if it is not yet included. Certain rules are so well-established that it is not considered necessary to record them.

Recently the word 'Orders' was dropped from the title of the 'Standing Rules for the National Assembly' and the NCOP has 'Rules' rather than the traditional 'Rules and Orders'. This terminology is not important. (In the House of Commons the term 'Standing Orders' is used.) These published standing rules and other rules clearly carry out the function alluded to when the Constitution speaks of 'rules and orders'. To avoid confusion the following paragraphs set out the current usage in Parliament in relation to 'rules', 'rulings' by the Speaker and 'orders'.

Rules

The Standing Rules of the National Assembly, the 'Preliminary Rules' of the NCOP and provincial 'Rules' or 'Rules and Orders' are adopted under the constitutional power granted to each house of Parliament (in sections 57 and 70) and every provincial legislature (section 116) to make rules and orders concerning their business.

As 'standing' rules these rules have continuing effect and are binding unless they are suspended or changed. Generally it is considered that parliamentary rules and orders should not be inflexible. This enables parliaments to respond to new needs and unexpected situations. Thus our parliamentary rules can be suspended by the relevant house. Rule 2 of the NA Standing Rules states:

(1) Any provision of these Rules relating to the business or proceedings at a meeting of this House or of a committee of this House, may be suspended by resolution of this House....

(3) The suspension of any provision shall be limited in its operation to the particular purpose for which such suspension has been approved.

In addition, the house can amend rules at any time and NA Rule 1 and NCOP Rule 2 permit the Speaker or Chairperson to 'give a ruling' or 'frame a rule' in respect of a matter not covered by the Rules. If the Speaker chooses to 'frame a rule' in such circumstances, the rule holds until it is considered by the Rules committee.

Nevertheless, the Constitution restricts the content of the rules and orders of our Parliament in general terms (for instance they must comply with section 1 of the Constitution and must have 'due regard to representative and participatory democracy, accountability, transparency and public involvement' - sections 57 and 70). They must also comply with the Bill of Rights. In addition, certain specific provisions of the Constitution determine (or limit) the content of rules and orders. For instance, the requirement that, in general, Parliament must be open to the public, prevents a rule prohibiting all public access to Parliament (sections 59 and 72).

Rulings

Rules need to be applied to a variety of different situations. It is usually the presiding officer who makes decisions concerning the application of rules and they are most frequently made in response to a point of order. In order to assist future decision-makers and to ensure consistency, these 'Speaker's rulings' (or 'chairperson's rulings') are recorded. However, such a ruling is not a rule but an interpretation of a rule.

It is also possible that rulings may become binding over time. Rulings clarify the practice in a parliament and, as that practice becomes well-established it may become regarded as binding. Thus the Australian House of Representatives Practice states:

The question sometimes arises as to whether rulings are 'binding' and, in a literal sense, the answer is 'no', but the question is more complex than it may appear. There have been many rulings given over the years which are consistent with one another, consistent with the standing orders and conventions of the House, and which are supported, implicitly or explicitly, by the House, Such rulings form part of the body of practice which continues to govern the operations of the House and rulings with that status are, in effect, regarded as binding, although even then Speakers are able to give rulings which take account of new factors or considerations. In this way rulings and interpretations may be developed and adapted over time. From time to time rulings may be given which are inconsistent with previous rulings and interpretations, and which may be made in circumstances which do not allow any opportunity for reflection. Even though such rulings may go unchallenged at the time, it would be incorrect to say that they are binding on future occupants of the Chair.'

The situation will vary from parliament to parliament. The Australian House of Representatives Practice points out that the position is different in the Australian Senate where certain rulings have the status of resolutions. It continues to state:

The situation in the [Australian] House of Representatives is in contrast with that in the United Kingdom House of Commons, where many rulings are given after the Speaker has been forewarned of the subject by a Member who may advise that he or she will take a point of order on it, and the Speaker thus has an opportunity to take account of any relevant precedents and of all the considerations involved. 'Such a ruling forms a precedent, often fitting into its place in a series of precedents from which a general rule may be eventually drawn for all future practice in a particular range of procedure'.

Like the presiding officer, the house itself can make a decision on the meaning or application of a rule. Again, such a decision or 'ruling' is not a new rule but an application of a rule.

The Speaker may give rulings in the house or make 'private rulings'. The latter are often given in response to a question about a future point of procedure or to clarify points of practice. For instance the meaning of 'day' in a decision of the House of Assembly to suspend certain members was subject to a private ruling to the effect that 'day' meant 'working day'.

Orders

In the past motions resulted in either a resolution or an order. Thus Kilpin wrote 'a motion when agreed becomes a "resolution" if a wish or opinion is expressed and an "order" if a command is expressed.' Nowadays this distinction is not maintained in the South African Parliament and the term 'resolution' is used for most decisions although sometimes 'instructions' are issued to committees and the Powers and Privileges of Parliament Act envisages 'ordering' someone to attend before Parliament.

The reference to 'rules and orders' in the Constitution is no more than a reference to what are now known of as 'rules' and in the light of the current practice there seems no reason to give the word 'order' any special constitutional meaning.

Accordingly, this Report uses the term 'rules' to cover the constitutional concept of 'rules and orders'.

Freedom of speech and parliamentary rules

Particularly important in the context of privilege is the fact that the constitutionally guaranteed freedom of speech in Parliament is subject to parliamentary rules. This means, for instance, that the National Assembly can make rules restricting speech in Parliament. As this Report argues later, such rules are subject to provisions of the Constitution protecting democracy, accountability and rights. National Assembly Standing Rules presently contain restrictions on a member's freedom of speech. For instance, rule 83 permits the presiding officer to stop a member from repeating arguments, rule 96 prohibits offensive language (so-called 'unparliamentary speech'), rule 99 prohibits 'reflections upon the competence or honour of a judge'. Some of these limits on speech, such as the prohibition on offensive language, may seem very unclear. However, as they are applied, both here and elsewhere, an understanding of their meaning has developed. For instance, by examining Speakers' rulings one can clarify what would constitute 'offensive language'.

This description of rules and their application, allows one to distinguish between a rule which could legitimately limit a member's speech in Parliament and a Speaker's 'ruling' which would be an application of such a rule. Unless the situation envisaged in NA Rule 1 or NCOP Rule 2 arises, a presiding officer would not be able to impose a new rule limiting speech.

CHAPTER 3

GENERAL IMPLICATIONS OF NEW CONSTITUTION

3.1 The Constitution is supreme

The most important implication of the change of legal order in South Africa is that the Constitution is now supreme. Among other things this means that, like all other state institutions, Parliament and the provincial legislatures derive any power that they have from the Constitution. It also means that decision-making in Parliament is subject to the provisions of the Constitution including the Bill of Rights. This does not mean that Parliament loses its independence and powers. It simply means that Parliament must act in a way that accords with the Constitution and the values that it protects.

The Constitution has certain direct implications for powers and privileges of Parliament. These are outlined in the following sections.

3.2 Certain traditional privileges are constitutionalized

The Constitution constitutionalizes certain aspects of privilege. Amongst those privileges constitutionalized are -

• Parliament's power to determine and control its own proceedings (NA s 57(1); NCOP s 70(1); PL 116(1));
• Parliament's power to summons people (NA s 56; NCOP s 69; PL s 115);
• freedom of speech of MPs (NA s 58(1)(a); NCOP s 71(1)(a); PL s 117(1)(a)); and
• immunity from civil and criminal proceedings (s 58(1)(b); NCOP s 71(1)(b); PL 117(1)(b)).

3.3 The Constitution expressly limits or amends certain privileges

The Constitution amends or limits certain traditional privileges. For example, it limits Parliament's right to control its internal arrangements by the requirements that, in general, committee meetings must be open to the public (section 59) and that certain committees must be established (section 45).

3.4 Certain traditional privileges implicitly excluded

Many if not most legislatures have the power to expel members for contempt of Parliament. The South African Constitution seems to envisage using this penalty in one situation only: when a member is absent without permission and the Rules and Orders prescribe loss of membership (section 47(3)(b)). This matter is discussed further in Chapter 6.

3.5 The Constitution requires other privileges to be 'prescribed by national legislation'

At present the Constitution protects certain privileges, some are expressly incorporated in the Powers and Privileges of Parliament Act, and yet others are included in our law because they were privileges of the House of Commons in 1910.

3.6 The Constitution affects processes and decision-making power of Parliament

In the past courts could determine whether or not a certain privilege existed but a certificate from Parliament that a matter concerned privilege and that the court should, accordingly, stay the action, was decisive. No appeal was possible from a decision by Parliament under its rules relating to privilege or contempt of Parliament.

The Constitution changes this position in certain ways. Although it clearly leaves the determination of privilege primarily in Parliament's hands by giving Parliament control over its internal arrangements, proceedings and procedures (s 57(1)(a)), it requires privileges to be established by legislation and gives the courts the power to review such decisions for compliance with the Constitution. In other words, Parliament's power to control its own procedures and determine privileges and immunities is subject generally to the Constitution and more particularly to the Bill of Rights and the values of accountability, transparency and responsiveness enshrined in section 1.

This view of the constitutional relationship between the courts and Parliament is not accepted by all. It may, for instance, be argued that the right to control internal arrangements and determine further privileges is constitutionally granted and therefore not itself subject to limitation by other constitutional provisions. This interpretation of the Constitution does not seem to be correct. First, in President of South Africa v Hugo 1997 (6) BCLR 708, the Constitutional Court found that constitutional powers granted to the President are subject to the values in the Bill of Rights. Second, section 1 which contains very basic constitutional values, is specially entrenched and thus both by virtue of its subject matter and by virtue of its specially entrenched status it must control action taken by the state.

A third factor that must be taken into account in this regard is the political commitment to the values enshrined in the Constitution generally and in the Bill of Rights. There is no indication that Parliament wishes to operate in a way that disregards rights. Instead, as we understand it, it is seeking for an approach which honours rights at the same time as respecting the separation between the legislature and the courts and accommodating the political nature of the legislative process. The Bill of Rights anticipates situations such as this by allowing the limitation of rights in certain circumstances.

3.7 Conclusion

The Constitution thus has a number of implications for the powers and privileges of Parliament -

(i) It deals expressly with certain matters relating to privilege.

(ii) It requires other privileges to be spelt out in national legislation.

(iii) It requires parliamentary affairs to be conducted in a manner that is consonant with the other values enshrined in the Constitution.

CHAPTER 4

WHAT RIGHTS DOES PARLIAMENT NEED IN A DEMOCRATIC PROCESS? POWERS, PRIVILEGES AND IMMUNITIES

SUMMARY

This Chapter deals with the privileges of Parliament, the most important of which is the privilege of freedom of speech. It also discusses briefly whether all privileges of Parliament should be spelt out in statutes or whether privileges in the common law should be retained. Related to Parliament's privileges is its power to define and punish contempt of Parliament. This is dealt with in chapters 5 and 6.

Under the privilege of freedom of speech the most important question is whether the protection of freedom of speech in the Constitution is adequate or whether it should be extended. Here the Report recommends that consideration be given to extending the constitutional protection in certain ways -

• to the houses themselves (at present the Constitution protects the privilege for members but not the house )
• by defining the ambit of the privilege - does it cover only speech in the house and its committees or does it extend further to parliamentary proceedings understood more broadly?
• to joint sittings of the NCOP and National Assembly
• to protect parliamentary speech from being examined in Court not only when it is the basis of an action against a member but also in other circumstances

The Chapter proceeds to discuss the way speech may be limited by the House itself. It does this in two ways in its rules: (i) by controlling proceedings and thus when members may speak and (ii) by controlling the content of speech such as repetition and unparliamentary language. It then considers the abuse of freedom of speech (for instance when it is used to defame members of the public). This raises the question whether members of the public should have some form of recourse when defamatory statements are made about them in Parliament. The Australian approach of allowing a response to be published in Hansard is described. Another issue is whether abusive speech about members in other houses (for instance a provincial legislature) should be classified as unparliamentary.

The next section discusses the possibility of waiving the privilege of freedom of speech. This is a question that has been raised both in the UK and New Zealand where MPs have wanted to waive privilege so that they could pursue actions for defamation against the media. Finally, the question of the publication of parliamentary proceedings, reporting on Parliament and broadcasting Parliament is considered. The Report suggests that new legislation is urgently needed to clarify the position in relation to broadcasting parliamentary material.

The right of Parliament to control its internal arrangements is discussed more briefly. This right is more narrow in South Africa than in many other Commonwealth parliaments because the Constitution lays down certain requirements for Parliament, including requirements relating to public accessibility of Parliament.

The last privilege discussed in this Chapter is freedom from arrest or molestation. This privilege, it is suggested, is now very narrow, offering only an exemption from attending civil cases while the House is in session and an exemption from giving evidence before another house without the permission of the presiding officer. Consideration needs to be given to whether the first aspect of this privilege (exemption from civil proceedings) should be retained in its present form or limited in some way. The Report suggests that new legislation might give the Speaker a discretion in such matters.

Over the past three or four years questions have been raised about other privileges. Is it true, for instance, that courts have no jurisdiction over crimes committed within the precincts of Parliament? The Report suggests that this is not part of South African law. A more complicated issue concerns the right of a house of parliament to determine its membership. This ancient privilege has been given up in most jurisdictions and there seems no reason to revive it here.

The last part of this Chapter considers codifying privilege in an Act of Parliament. The Constitution states that privileges may be laid down in national legislation. It has been argued that such legislation need only refer to the common-law privileges that existed when the Constitution was adopted and need not specify what they are. However, the Report suggests that some form of codification should be attempted. The usual objection that a necessary privilege might be 'left out' seems unduly alarmist. A study of privilege in many jurisdictions suggests that those discussed in this Report and presently found in the Powers and Privileges of Parliament Act are all that are needed in a democracy to protect Parliament's role. In addition, specifying exactly what privileges Parliament has seems appropriate. Citizens should not be left to guess the ambit of parliamentary privilege.

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INTRODUCTION

As explained in chapter 2, the term parliamentary privilege refers to certain special rights which the houses of Parliament and their members have. Parliamentary privileges exist to enable Parliament to carry out its functions properly. Freedom of speech in Parliament is perhaps the most important privilege. It ensures that matters that may be controversial or disputed can be aired by members of Parliament without the fear that they will be harassed for having done this. An immunity from court proceedings flows from the privilege and means that a member cannot be sued for defamatory statements made in Parliament and cannot be prosecuted for statements made in Parliament that may be criminal.

The fact that privilege exists to enable the legislature to fulfil its functions itself indicates the limits of parliamentary privilege. Parliament should have only those privileges necessary for it to fulfil its functions. Griffith and Rye quote Hatsell, writing in the 18th century, as saying the privileges of Parliament are rights which are 'absolutely necessary for the due execution of its powers'. In other words they should extend no further than is necessary.

A number of different issues can be included under the broad heading 'powers and privileges of Parliament'. Rights that attract immunity from the normal operation of the law usually form the main focus of discussions on the privileges of Parliament. Other closely related matters are Parliament's right to define what is contempt of Parliament and its penal power, both of which protect the independence of the legislature. Ancillary powers, such as the power to summon witnesses and to require people to report to Parliament, enable it to fulfil properly its primary functions of passing legislation and overseeing executive action. Because these powers do not involve immunities they are better characterised as 'powers' rather than 'privileges' of Parliament. Accordingly, this Report discusses privileges and their related immunities in this chapter and Parliament's related powers in subsequent chapters. However, it should be remembered that the law in this area is far from clear (both here and elsewhere) and one should not attach too much importance to the labels attached to the 'powers and privileges' of Parliament.

This Chapter of the Report first considers:

(1) Freedom of speech and debate, and proceedings in Parliament (including matters relating to the publication and reporting of proceedings)

(2) The right to control internal arrangements.

(3) Freedom from arrest and molestation.

(4) A number of uncertain issues: criminal acts in parliament, serving summons, and determining the membership of Parliament.

The second part considers whether all parliamentary privileges should be contained in legislation or whether privilege can be governed by the common law.

The penal power of Parliament and ancillary matters such as the summonsing of witnesses are covered in later chapters.

4.1 POWERS AND PRIVILEGES

4.1.1 FREEDOM OF SPEECH AND DEBATE AND PROCEEDINGS

The right of South African legislatures to freedom of speech, debate and proceedings is derived from the right won by the British House of Commons and incorporated in the 1688 Bill of Rights. There it is stated, in article 9, 'That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached in any court or place out of Parlyament'.

The right is fully protected in section 2 of the Powers and Privileges of Parliament Act. Following generally the traditional understanding of the privilege, section 2 states:

'(1) There shall be freedom of speech and debate or proceedings in or before Parliament and any committee, and such freedom shall not be liable to be impeached or questioned in any court or place outside Parliament.

(2) Anything said by a member in or before Parliament or a committee, whether as a member or as a witness, shall be deemed to be a matter of privilege as contemplated in section 5.

(3) The provisions of subsection (1) shall not apply to any person, other than a member, giving evidence before Parliament or any committee.'

and

This section thus protects speech in Parliament and parliamentary proceedings from being impeached or questioned in court. The privilege of freedom of speech is now also protected in the Constitution. Separate sections of the Constitution also give South African legislatures the right to determine and control their internal arrangements etc. But the constitutional provisions may be interpreted to be more limited than those in the Act.

The following section of this Report sets out the constitutional provision and comments on its adequacy. It then deals with a number of related issues:

Limiting speech in Parliament

Abuse of freedom of speech

Waiving the privilege of freedom of speech and proceedings

The publication of proceedings in Parliament both by Parliament and by others.

4.1.1.1 Constitutional protection of freedom of speech in Parliament: Is it adequate?

Section 58(1): Cabinet members and members of the National Assembly -

(a) have freedom of speech in the Assembly and in its committees, subject to its rules and orders; and

(b) are not liable to civil or criminal proceedings, arrest, imprisonment or damages for

(i) anything that they have said in, produced before or submitted to the Assembly or any of its committees; or

(ii) anything revealed as a result of anything that they have said in, produced before or submitted to the Assembly or any of its committees.

Section 71(1) provides for freedom of speech in the NCOP in similar terms, and section 45(2) grants Cabinet members, members of the National Assembly and delegates to the NCOP the same privileges in joint committee meetings as they have before the Assembly and the Council. Section 117 protects freedom of speech in provincial legislatures.

The constitutional protection of freedom of speech seems to be more limited than the traditional right taken up in the Powers and Privileges of Parliament Act. In particular:

(i) the Constitution protects only Ministers and members of the houses and does not appear to grant the right to the houses of Parliament themselves;

(ii) the constitutional protection may not extend to 'proceedings';

(iii) it does not cover joint sittings of the houses; and

(iv) the immunity it gives seems limited to proceedings in which the member concerned is a defendant or accused and does not prohibit other investigation of parliamentary speech in courts.

Section 2 of the Powers and Privileges of Parliament Act, which protects freedom of speech and debate in Parliament, is broader than the constitutional provisions as it covers Parliament as well as its members. It extends the protection to 'proceedings' in Parliament, covers joint sittings and protects parliamentary speech and proceedings from being 'impeached or questioned' in a court. The following sections cover each of these issues.

(i) The Constitution protects the privilege in relation to members only. Should legislation or constitutional amendment extend the privilege to the Houses?

Traditionally the privilege of freedom of speech and proceedings has been characterised as a privilege of the legislature itself. However, some writers describe it as a privilege vested in both the legislature and in its individual members. Viewing the privilege as vesting in both the individuals and the House serves to emphasise that a member holds it only as a consequence of his membership of a collective - the privilege is not a personal bonus but relates to the activities as a member.

The narrowness of the constitutional provision may be problematic. First, attaching the privilege to members only and not to the legislature as a whole obscures the fact that privilege exists only to enable the legislature to fulfil its functions. Secondly, the protection may be too narrow for technical reasons. For instance, it is conceivable that legislation forbidding the discussion of certain matters by Parliament or a house of Parliament could undermine the ability of Parliament itself to fulfil its functions. In addition, some argue that this privilege can be waived. If it is open to waiver, as a privilege of the legislature it is the legislature that must agree to the privilege being waived, but if it is merely a privilege of individual members they might be able to waive it in specific cases without consulting the house. (See further below on waiver.)

Recommendation: Constitutional amendment should be considered to ensure that this privilege is fully protected in relation to legislatures and not limited to their members. Alternatively a new Powers and Privileges of Parliament Act could extend the privilege to legislatures.

(ii) Proceedings

In Commonwealth jurisdictions where the privilege of freedom of speech is derived directly from the 1688 Bill of Rights it has two components. First, 'speech' that is part of parliamentary proceedings is protected. Secondly, 'parliamentary proceedings' more generally are protected. Generally these two components of the privilege do not raise separate problems: parliamentary proceedings are protected, including speech that is part of such proceedings.

The South African constitutional provisions concerning speech in Parliament and provincial legislatures cover the houses and their committees. For instance, section 58(1) grants 'freedom of speech in the Assembly and in its committees' and gives members immunity from legal proceedings for anything said or revealed in the Assembly or its committees.

The extent of the section 58(1) immunity is not clear. First, because 'proceedings' are not mentioned the section could be interpreted as being limited to speech in the respective houses and their committees only and not to parliamentary proceedings generally. Secondly, even if section 58(1) is interpreted to encompass the full traditional privilege and thus to include 'proceedings', the meaning and extent of 'proceedings' of Parliament are disputed.

Two questions arise here: Should legislation contain a definition of this privilege which clearly extends to matters beyond the formal debates of the House (as section 2 of the 1963 Act does by including a reference to 'proceedings')? Secondly, should the meaning of proceedings or the full extent of protected speech be spelt out clearly?

Extension of privilege to 'proceedings': Limiting the privilege to speech alone makes it too narrow. For instance, it could mean that submitting a matter to be put on the order paper would not be covered by privilege. In an early United States case the question arose whether voting on a resolution was covered by the privilege of 'freedom of speech and debate' which is protected in the US Constitution. Clearly, if only speech itself is covered the protection would be very limited.

The US Supreme Court found that their Constitution covered not only debate and speech narrowly interpreted but also anything 'generally done in a session of the House by one of its members in relation to the business before it'. It based this interpretation on the history of the privilege and its function in the United States system of government. Similar arguements should succeed here. Nevertheless, the extreme specificity of the South African constitutional provisions and the fact that it is desirable to avoid litigation suggest that it would be wise to define the privilege more clearly.

Definition of 'proceedings': The meaning of 'proceedings' has caused difficulty in many jurisdictions. It is clear that a speech formally delivered in the House is privileged but, for instance, is a letter written by a member to a Minister protected? Is a prepared but never-delivered speech which falls into the wrong hands protected?

As a result of these difficulties some jurisdictions have sought to define it or, at least, provide statutory guidance as to the extent of 'proceedings'. More often, parliamentary committees have recommended that 'proceedings' be defined but those recommendations have not been implemented.

At present the 'proceedings' protected in the Powers and Privileges of Parliament Act cover:

'What is said and done by a Member in the exercise of his functions as a Member and in the transaction of Parliamentary business' (Corbett CJ in Poovalingam v Rajbansi 1992 (1) SA 283(A) at 294C).

This approach means that the privilege does not extend to everything done within the confines of Parliament but is limited by reference to the functions of an MP and the transaction of parliamentary business. It may accordingly also cover actions outside Parliament. It is unusually wide because the reference to 'functions as a member' can easily be construed to cover constituency work.. This was clearly not intended by Corbett CJ who also emphasised the need to limit privilege so that the legitimate claims of individuals could be protected. Constituency work is generally not considered to be protected by privilege.

In section 16 the Australian Parliamentary Privileges Act, 1987 defines 'proceedings in Parliament' (which are privileged in Australian under art 9 of the Bill of Rights of 1688) as meaning -

'all words spoken or acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes -

(a) the giving of evidence before a House or a committee , and evidence so given;

(b) the presentation of submission of a document to a House or a committee;

(c) the preparation of a document for purposes of or incidental to the transacting of any business; and

(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document to formulated, made or published.'

This approach retains a broad definition but, in the list of examples, settles certain disputes. It thus clarifies the position to a certain extent without jettisoning the flexibility of the concept.

Recommendation: Provide either a definition of 'proceedings' or at least an indication of what it means (as the Australians have done) in new South African legislation. In this way one could anticipate and avoid some of the likely disputes that the vagueness of the term will give rise to. It would also provide better guidance to members than at present where determining the extent of the privilege depends on a detailed knowledge of the law.

A statutory definition of 'proceedings' could not limit the constitutionally protected freedom of speech in Parliament. It could, however, extend that provision because the Constitution permits national legislation to prescribe other privileges. In addition, courts are likely to defer to a carefully considered definition of 'proceedings', acknowledging that Parliament is an appropriate body to determine such matters and overriding such legislation only when it is clearly unconstitutional.

In providing a definition or indication of the extent of protected 'proceedings', legislators will have to consider a number of border line cases. The following list, which is based on cases which have arisen in South Africa and elsewhere, is intended to give an indication of situations in which there is agreement that privilege exists, more controversial situations, and, finally, situations which are generally considered to fall outside the scope of legitimate parliamentary privilege. Legislation could not (and should not attempt to) determine every possible question about the existence of privilege. Thus the Australian approach of providing a definition followed by some examples seems appropriate. Parliament and the courts will then refine the definition as actual cases arise, guided by the wording of the legislation. Nevertheless, in framing the definition and indicating its limits it is necessary to consider likely problems and to test any definition against them.

In determining the ambit of privilege the key must be whether privilege is necessary for Parliament's proper functioning. In Poovalingam v Rajbansi, Corbett CJ states that privilege is protected for two reasons: (i) to ensure Parliament has complete control over its own proceedings; and (ii) to give members a complete right of free speech in Parliament (p 286). However, he emphasises that it should not be readily interpreted to defeat or limit the legitimate claims of litigants (p 294).

Situations in which it is generally agreed that the privilege of freedom of speech and parliamentary proceedings applies

• A speech delivered in Parliament
• Discussion in parliamentary committees - this would include any sub-committee established by a parliamentary committee
• Proceedings of Parliament conducted outside the precincts of Parliament

In May 1988 the Extended Public Committee on Provincial Affairs: Transvaal met in the auditorium of the Reserve Bank in Pretoria. Members were subjected to security checks on entering the building. The Cahirperson of the Committee ruled that the part of the building used by the committee could for time being be termed parliamentary precincts (Annotated Digest of Rulings from February 1988, 180)

Situations in which application of the privilege of freedom of speech and parliamentary proceedings is controversial or uncertain

• Parliamentary officials

A member of Parliament's staff may be asked for advice on a matter during committee proceedings. If, in answering, he or she quotes a defamatory statement made by a member he or she is not protected under the present Powers and Privileges of Parliament Act. The official would be able to claim qualified privilege under the common law if he or she were sued for defamation. In terms of the common law qualified privilege is given if a statement is made in the discharge of a duty. The privilege is qualified rather than absolute because it does not apply if it can be shown that the person who uttered the defamatory statement acted with malice. Parliamentary privilege, on the other hand, is absolute - members are protected whether or not they acted with malice.

• Correspondence with ministers - the Strauss case in Britain

Strauss, an opposition MP, wrote to a Minister complaining about the activities of a deregulation board. The Minister passed the letter on to the Board. The Board threatened to sue for libel. The Committee of Privileges reported that Strauss' activity did fall within the meaning of 'proceedings of Parliament' but the House of Commons rejected this finding. A point that is often made in arguments against allowing letters such as that by Strauss to be protected is that he could have raised the matter in the House (say on adjournment or as a Question). It should be noted that the Australian definition of proceedings in Parliament does not cover correspondence such as that in the Strauss case.

• Prepared but undelivered speech

A prepared but undelivered speech may fall into the wrong hands through no fault of the member. The Australian Parliamentary Privileges Act covers this through its express inclusion of 'the preparation of a document for purposes of or incidental to the transacting of any [parliamentary] business' in its definition of proceedings in Parliament (section 16).

Note: A speech released to the press 'check against delivery' is not protected. Handing a speech to the press does not seem to fall into any accepted definition of proceedings in Parliament. Accordingly the member may be liable if the speech contains defamatory comments because they are 'published' when the speech is released to the press whether or not the press is constrained from using it before delivery.

• The application of labour law to employees of Parliament

A line of English cases suggested that Acts of Parliament would not apply to Parliament unless they were expressly made applicable. It also allowed the House of Commons to avoid price restraint legislation and increase refreshment prices, and it formed the basis of arguments that labour law provisions do not apply to employees of Parliament.

This approach was rejected in Australia in 1981 in a matter between Parliament and an employee: 'The plain fact of the matter is that her [the employee's] relationship with Parliament is not part of the internal business of Parliament but rather it is a relationship between Parliament and a stranger.' The Australian judge distinguished the [Liquor] Licensing Act from the Compensation Act saying that applying the Licensing Act to Parliament would have the effect of regulating the conduct of the internal business of Parliament whereas matters under the Compensation Act do not fall within Parliament's internal arrangements.

• Register of Members' Interests

In Rost v Edwards, an English case, the plaintiff, an MP brought an action for defamation against the defendant for a defamatory article. In his defence, the defendant wanted to rely on information in the Register of Members' Interests and to ask the court to examine whether the plaintiff had made appropriate disclosures. The Court found that the Register did not form part of parliamentary proceedings. The defendant had argued that both criteria for registration and the Register were public documents and that questions to a member about a failure to register could not affect free speech in the House or the dignity of the house - it only concerns the conduct of the particular MP.

Situations in which the privilege of freedom of speech and parliamentary proceedings is generally agreed not to apply

• Activities within the precincts of Parliament which are not related to the transaction of parliamentary business or members' functions.

Poovalingam v Rajbansi: Both P and R were members of the House of Delegates. R 'hand delivered' a letter to all 45 members of that House 'at their seats in Parliament' (in fact on their desks in the House). The letter concerned allegations (of corruption etc) that P had made against R in the House. It attempted to contain the 'mischief' that R felt those allegations did. It included defamatory statements. Both P's allegations and R's letter dealt with the possibility of calling for a commission of enquiry. Corbett CJ concluded that the letter was not protected by privilege because it had nothing to do with the parliamentary business to be transacted on the day the letter was delivered and it did not fall within a parliamentary procedure (ie it was not a question, motion etc). The reference to a commission of inquiry which could be established by the House was too tenuous to bring the letter within the ambit of 'parliamentary proceedings': 'In truth [the letter] was a further salvo discharged in the running battle which had been going on between [R and P] for years.'

• Constituency work
• Statements made during the transaction of parliamentary business which are unrelated to parliamentary business

May state that 'particular words or acts may be entirely unrelated to any business which is in the course of transaction or is in a more general sense before the House'. Such acts and words are not protected. This means that a casual conversation between members - even if it concerns a matter before the house - is not protected.

(iii) Does privilege extend to joint sittings of the houses?

Separate sections cover privilege in the different houses (s 58 - NA and s71 - NCOP) and in joint committees (s 45). Joint sittings of the two houses anticipated by ss 42(5) and 84(2)(d) are not covered.

Two interpretations of these provisions are possible. First, one could argue that freedom of speech in this context must be interpreted to cover all parliamentary business because this is its traditional meaning both in South Africa and in other parliaments. This would mean that further provisions protecting speech in joint sittings are not necessary. An alternative approach would be to legislate specifically for freedom of speech in joint sittings. This would address a possible technical interpretation of the Constitution which would say that the careful protection of the freedom in three specific situations (the NA, the NCOP and joint committees) means that it does not extend to joint sittings. Even if this interpretation seems unacceptably technical and therefore unlikely, there can be little doubt that, should the issue arise, it would be strongly contested. Clarification in legislation would put the matter beyond doubt.

At present no debate occurs at joint sittings. For this reason it may be argued that protection is not required. However, this may change as the President's right to summons Parliament to 'an extraordinary sitting to conduct special business' (section 42(5)) could be used to conduct a debate.

Joint proceedings - whether in the houses sitting jointly or in joint committees - raise a procedural question also. Each house may have different practices and rules. A decision needs to be taken about the applicable rules and procedures for dealing with matters of privilege in joint meetings.

Recommendation: Extend the privilege of freedom of speech to joint sittings of the NCOP and National Assembly. This could be done either by constitutional amendment or legislation. In addition, Rules need to be adopted to deal with matters of privilege in joint sittings.

(iv) The extent of the constitutional immunity: can speech or proceedings be 'impeached or questioned' in court?

Odgers points out that the immunity accorded to parliamentary proceedings and speech has two aspects. First, members have immunity from criminal and civil action and examination in legal proceedings for their contributions to proceedings in Parliament. Secondly, the courts may not enquire into or question proceedings in Parliament.

The immunity of members to court proceedings usually also means that statements made in Parliament may not be enquired into in court cases even where their use is not for the purpose of an action against a member or when the cause of action arises from something done outside Parliament. A New Zealand case, Prebble v Television New Zealand, provides a good example. Prebble, a former government minister, brought a defamation action against TVNZ. TVNZ argued that they were not liable because the comments made in the programme concerned were true and constituted fair comment. To establish truth and fair comment, TVNZ wanted to rely on speeches made in Parliament. These speeches, TVNZ claimed, revealed a conspiracy. The highest court of appeal for such matters for New Zealand, the Privy Council, held that that evidence of speeches in Parliament was inadmissible. Its introduction in the trial would involve inquiring into a member's motives. This was prohibited by the privilege of freedom of speech and proceedings since it would amount to a questioning of the proceedings of Parliament.

Initially the prohibition on inquiring into something said on Parliament was also considered to prevent courts from using Hansard as an aid to statutory interpretation. However, nowadays this is considered a legitimate use of parliamentary speeches and reports and other reasons (relating to the difficulty of establishing the intention of Parliament) form the basis of the reluctance of some courts to use Hansard in this way.

The second aspect of the immunity - that courts may not enquire into or question proceedings in Parliament - means that courts may not investigate parliamentary procedure. However, where a Constitution lays down procedural requirements, courts may enquire into whether they have been properly followed. This issue is considered in the section on Parliament's right to control its internal arrangements, below.

Is the immunity granted by the constitutional provision as broad as that contained in section 2 of the Powers and Privileges of Parliament Act? This question is difficult to answer. Section 58(1)(a) appears to incorporate the traditional privilege of freedom of speech. Usually this would mean that speech in Parliament may not be subject to any form of questioning in courts. It is possible that our courts would interpret the provision in that traditional way. However, section 58(1)(b) which spells out the immunity is precisely formulated and more limited. It protects members from 'civil and criminal proceedings, arrest, imprisonment and damages'. It does not prohibit courts from inquiring into speech or proceedings in Parliament for other reasons. It may not be interpreted to cover situations such as Prebble.

If the section is interpreted in the second, more limited way, the traditional privilege granted to Parliament would be significantly reduced. Although members themselves would retain their immunity from prosecution, speech in Parliament could be examined in courts in defamation actions such as Prebble.

Recommendation: Legislation should exclude the 'examination' of parliamentary speech and proceedings in courts whether or not a member is the defendant or accused in the case.

(v) Summary

It is arguable that the constitutional protection of freedom of speech and proceedings in Parliament is more limited than that contained in the Powers and Privileges of Parliament Act. It may be that courts will recognise that the intention was to preserve parliamentary privilege and the necessary separation between the courts and Parliament and following the lead of the US Supreme Court, interpret the provisions to encompass the full traditional privilege. Relying on this obviously carries a risk; it also leads to uncertainty as it would require litigation to clarify the situation. A more cautious approach would be either to amend the Constitution to make it clear that all the elements of the privilege referred to above are covered or to include in an Act of Parliament a fuller description of the privilege.

4.1.1.2 Abuse of freedom of speech and limiting freedom of speech in Parliament.

Although freedom of speech in Parliament cannot be limited in the usual way (by common law or statutes), the Constitution subjects the freedom of speech in Parliament to the Rules and Orders. At present the Standing Rules for the National Assembly do this in two ways:

(i) by controlling the proceedings of the Assembly (limiting the time of debates, structuring the way in which different issues are to be dealt with etc); and

(ii) by specific provisions controlling the content of speech (interruptions are not permitted - rule 80, irrelevance or repetition may be stopped - rule 83, offensive or unbecoming language may not be used - rule 96).

These provisions have two main purposes. First they control debate, allowing the presiding officer to maintain order in the House and to ensure that debate appropriate to a democracy occurs. Secondly, they compensate to some extent for the absence of normal remedies for defamatory speech. Thus although a member cannot bring a legal action for defamation against another member, the presiding officer protects members by controlling the use of defamatory language.

One implication of this is that legislation outlawing or criminalising certain types of speech, such as hate speech, for instance, would not apply in Parliament. However, parliamentary rules and orders could impose similar limits on speech.

Cross-parliament sledging: It is considered unparliamentary to use abusive language or impute dishonesty to other members of the same House. In South African parliamentary practice this does not extend to members of other legislatures. Abusing members of other legislatures is known as 'cross-parliament sledging' and can become particularly problematic during elections if national and subnational elections are not synchronised.

As far as we can ascertain, most jurisdictions do not regulate this matter. However, Standing Order 193 of the Australian Senate prohibits Senators from making allegations about members of State and territory parliaments as well as ... members of the Commonwealth House of Representatives. Odgers comments that this order reflects the 'need for mutual respect between ... the Commonwealth and state governments'. In South Africa, a rule such as this would be consonant with our constitutional commitment to co-operative government.

Parliament, cases and judges

Two rules regulate discussion of matters relating to courts in Parliament, the so-called sub judice rule which disallows discussion of matters in which a judicial decision is pending and a rule which prohibits discussion of judicial conduct except by means of a motion demanding dismissal of the judge.

National Assembly rule 100 and NCOP rule 44 contain the so-called sub judice rule. Thus the NCOP rule states: 'No delegate may reflect on the merits of any matter on which a judicial decision is pending.'

The basis of the rule is two-fold: first that cases should not be prejudiced by their discussion in Parliament and, secondly, that the independence of the judiciary should be maintained and the separation of powers between Parliament and the judiciary respected.

This provision is not uncontroversial. The Standing Rules of the Gauteng Provincial Legislature (Version 3, Revision 10, 1998) contain a revised version of the rule: 'In the interests of preserving the rights of litigants to a fair trial, members shall refrain from comment upon matters pending before the courts, which actually interfere with the proper administration of justice.'

In reconsidering the rule consideration needs to be given to the fact that Parliament itself may be a party to court proceedings (as in the present De Lille case) and that in such circumstances prohibiting all discussion of the matter is inappropriate.

Reflections on the holders of an office whose removal is dependent on a decision of the House: National Assembly rule 99 disallows any reflection on the 'competence or honour' of anyone (including judges) whose removal from office is dependent on a resolution of the house unless such comments are made 'upon a substantive motion alleging fact which, if true, would in the opinion of the Speaker prima facie warrant such a decision [ie removal]'. This rule serves a number of functions. It protects the independence and dignity of holders of certain offices and ensures that, if a substantive motion for removal is introduced, challenges to the fairness of the procedure cannot be based on the fact that views were aired on the matter before.

The rule that judicial conduct may not be discussed has been criticised by Gilbert Marcus who argues that it is too restrictive.

The rule carries with it the concern that Parliament's oversight role may be compromised. For instance, the Human Rights Commission, Pubic Protector, Auditor-General and other chapter 9 institutions report to Parliament. In debating those reports, parliamentary committees may wish to comment on the quality of the report without intending to suggest removal of the officer concerned.

Some of the concern raised in connection with the Rule, however, appears to be caused by the range of different officials who are subject to removal from office by Parliament. The function should be reserved for those cases in which the threat of removal by the executive would undermine the particular official's role.

Defamation of outsiders

Although freedom of speech in Parliament is widely accepted to be necessary to protect democracy, it carries costs for ordinary people because it deprives them of their right to sue members for defamatory statements made in Parliament. In Australia a number of legislatures, including the Senate, have responded to this concern by providing an opportunity to people who have been adversely referred to have a response recorded in Hansard.

The Australian Senate procedure for this is that an aggrieved person must make a submission to the President of the Senate requesting that a response be published. The Privileges Committee considers this request but, in doing so, may not inquire into the truth or merits of either the original statement or the response. According to Odgers, provided that the response is not offensive and meets certain other criteria, it may be incorporated into Hansard or ordered to be published.

In commenting on the procedure, Odgers writes:

This resolution was opposed in the Senate and was agreed to only after a division, with cross-party voting by the senators. The main grounds of the opposition were that persons referred to in the Senate had the normal political avenues open to them to respond, the suggested procedures could be over-used and the President [of the Senate] and the Privileges Committee could be unduly occupied by these submissions.

These criticisms have not be justified by experience so far, as several cases of such responses have been dealt with ... without the apprehended difficulties.

4.1.1.3 Waiving privilege

(a) May the privilege of freedom of speech and proceedings be waived in South Africa? In other words, can Parliament itself or an individual member permit parliamentary speech or proceedings to be questioned in a court? We have not found authority on this point and so assume that, following the Westminster approach, privilege may not be waived here.

(b) Should it be possible to waive privilege? This question has a number of facets. It has been argued in other jurisdictions that it should be possible to waive privilege (see Television New Zealand v Prebble (1993)3 NZLR 513 (CA) at 521 but see the contrary view at 535). Legislation has been passed in the UK to allow the waiver of privilege.

Comment: Prebble, Hamilton and the English Defamation Act

Two cases in the last 10 years have led to the argument that privilege should be waived in certain cases.

In Television New Zealand v Prebble which is described above Prebble, an MP and Minister, sued TVNZ for defamation as a result of allegations made in a news commentary programme. TVNZ claimed that it was not libel because the allegations were true and fair comment. To substantiate this argument, TVNZ relied on certain statements made and things done in Parliament. The court of first instance ruled that these matters could not be considered because they were covered by privilege. On appeal and again in the Judicial Committee of the Privy Council this decision was upheld.

The problem that this use of the privilege raises is that an MP (like Prebble) can bring an action for defamation against a newspaper or broadcaster (like TVNZ) but the newspaper or broadcaster may be unable to put up a proper defence because material that it relied on in putting together its report or programme is protected by privilege. In short, the exercise of the privilege prevents the newspaper or broadcaster from being able to defend itself properly.

In the New Zealand Court of Appeal this problem was resolved by finding that if the material covered by privilege is central to the defence the action should be stayed. This would protect the public's right to comment on and criticise the actions of MPs but it deprives MPs of libel actions in certain cases.

A question discussed in the Prebble case was whether privilege could be waived. If so, Prebble could have waived the privilege, and TVNZ would have been allowed to rely on the parliamentary proceedings in its defence. the NZ Privileges Committee has said that a waiver of privilege is incompatible with the privilege. When members speak in the legislature they need to be assured that they will be protected under all circumstances.

A similar situation in Britain led to a different result. The politician concerned (Neil Hamilton) was obliged to resign as Minister because of allegations against him in The Guardian (the 'cash for questions' affair). He sued the paper for libel. The paper responded by saying that parliamentary privilege prevented it from putting its defence properly. The court stayed the proceedings. At that time the Defamation Act was before Parliament. It was amended to permit an individual member to waive parliamentary privilege in defamation proceedings. (See English Defamation Act 1996 section 13.) This meant that Hamilton could continue with his action against The Guardian. However, he chose not to.

These cases and the English response to them raise a number of issues. The argument in favour of the English amendment was -

• The traditional operation of privilege left MPs who were defamed unable to clear their names.

Arguments against the amendment and for the position that the privilege could not be waived were -

• The privilege is a collective privilege of the House (or Parliament) and is not susceptible to waiver by an individual member.
• MPs can waive privilege in cases in which it suits them but accept its protection in other cases - thus the amendment allows arbitrariness.
• Members of public defamed in parliamentary proceedings are not able to 'clear their names'.
• MPs will find themselves under pressure to waive the right and knowledge of such potential pressure will, in turn, have a 'chilling' effect on freedom of speech in the House. In other words it will act as a restraint on members.
• It will interfere with the freedom of speech of the media as the press and broadcasters will not know in advance whether, or on what basis, the privilege will be waived.

Would it be constitutional to waive privilege in South Africa?

This question needs to be divided into two parts. First, the legality of waiver of any privilege provided for in legislation rather than the Constitution would depend on the wording of the legislation and its intention. Express provision for waiver could be made. Secondly, the waiver of constitutionally granted privilege (the privilege of freedom of speech) will depend on our understanding of the purpose of protecting the privilege in the Constitution. A court is likely to decide that, although it is granted to individuals, as its purpose is to protect democratic processes, individual members cannot waive it. It could perhaps be argued that waiver agreed to by the house and the individual concerned should be permissible. This argument is not likely to succeed. This conclusion is backed by the fact that as far as we are aware there is only one precedent internationally for waiver of privilege (contained in the British Defamation Act).

Recommendation: Waiver of the privilege of freedom of speech should not be permitted because the function of the privilege is to protect open debate in the house. If waiver of the privilege is desired it should be provided for in legislation.

4.1.1.4 Publication of parliamentary proceedings

Three specific issues arise here:

(i) the publication of parliamentary proceedings, reports etc;

(ii) reporting on parliamentary proceedings; and

(iii) broadcasting of parliamentary proceedings.

(i) The publication of parliamentary proceedings, reports etc

Parliament controls the official publication of its proceedings. This privilege, which is generally regarded as an aspect of the privilege of free speech, is protected in section 29 of the Powers and Privileges of Parliament Act.

Section 29 of the Act specifically covers the publication of 'any report, paper, minutes or minutes of proceedings' under the authority of Parliament (that is 'a House, the Houses, any committee or the Speaker'). It stipulates that any court proceedings 'instituted on account of or in respect of the publication' of such material must be stayed if the Speaker or Secretary of Parliament certifies that the material was published under the authority of Parliament.

In addition the Act provides in section 28 that it is an offence -

• to print something claiming that it has been printed under the authority of Parliament when it has not been printed under that authority; and
• to tender in evidence a document claiming that it has been printed under the authority of Parliament when one knows that it has not been printed under the authority of Parliament.

This provision accords with the situation in other jurisdictions.

Recommendation: The provisions of the Powers and Privileges of Parliament Act should be retained.

(ii) Reporting on parliamentary proceedings.

Reporting on parliamentary proceedings is, generally speaking, regulated by the common law. There is a common-law right to publish reports (both in written form - say in the press - and orally - eg on TV or radio) on the proceedings of Parliament. Such reports are not protected absolutely as speech in Parliament is. They receive qualified protection. In legal terms they are subject to 'qualified privilege'. This means that a fair and substantially accurate report of parliamentary proceedings cannot form the basis of a successful claim for damages for defamation unless the person claiming to have been defamed can establish that the report was actuated by malice.

Section 30 of the Powers and Privileges of Parliament Act extends the common-law protection of reporting on proceedings in Parliament to the publication of extracts from or abstracts of authorised parliamentary publications. It stipulates, in effect, that a person cannot be successfully taken to court for publishing a defamatory statement, for example, if the case is based on the publication of such an abstract or extract provided that the publication was bona fide and without malice.

Recommendation: The common law protecting reporting on parliamentary proceedings will develop in line with the Constitution. A new Powers and Privileges Act need not deal with the matter but should retain the protection of parliamentary reports presently found in section 30.

(iii) Broadcasting and electronic reporting

Broadcasting (by radio or TV) and reporting electronically (on the Web, for instance) are forms of publication and section 29 is probably broad enough to cover broadcasting of parliamentary proceedings under the authority of Parliament and the reporting of proceedings electronically. However, the section was clearly not drafted with this in mind and new legislation should deal explicitly with these matters.

Members are, of course, protected from action by the privilege of freedom of speech in Parliament. The question is whether the broadcasters (or electronic reporters) will be protected. At present, to be protected by absolute privilege, broadcasting and electronic reporting must be 'under the authority of Parliament'. Whether or not this is the case will depend on the arrangements that have been made with the broadcasters and reporters. If it is not 'under the authority' of Parliament, the broadcaster or other reporter will have to rely on the common-law defence of qualified privilege in cases of defamation and will usually be adequately protected. They will, however, have no protection against criminal charges. For instance, section 29 of the Films and Publications Act makes it an offence to broadcast a film which amounts to propaganda for war. Legislation criminalising racist speech may also threaten a broadcaster or the provider of electronic reports.

Broadcasting and electronic reporting could be protected in the same way as other reports of parliamentary proceedings. This would mean that continuous live broadcasts would be absolutely privileged while occasional broadcast reports would be granted qualified privilege (in other words they would be privileged if they are fair and accurate and not malicious). Similar provisions could apply to information on the Internet.

In legislating on broadcasts of parliamentary proceedings consideration needs to be given to comments picked up in a broadcast which would not normally be considered to fall under privileged 'proceedings in Parliament', for instance, a casual conversation between members inadvertently included in a live broadcast.

Recommendation: Broadcasting should be expressly dealt with. Broadcasters should be given absolute privilege for all live and continuous broadcasts of proceedings in Parliament. This should be dealt with expressly in legislation. Broadcast reports of parliamentary proceedings, like their written counterparts, should be given qualified privilege. Qualified privilege would also be appropriate to protect inadvertent reporting of speech in Parliament that is not technically part of parliamentary proceedings.

Special provisions should also cover electronic media. They should, as far as possible, be consistent with those applying to other reporting.

4.1.2 The right to control internal arrangements

The right to control its internal arrangements is sometimes considered part of Parliament's privilege of freedom of speech and proceedings. It protects Parliament's independence from the executive and judiciary. In Britain this extends to a right to determine how legislation is passed. In case decided in South Africa under the 1983 Constitution, the English authorities were followed. The court held that it had no power to inquire into the validity of, or compliance with, Parliament's internal procedures. The rule goes further as it has been held that even where a statute prescribes parliamentary procedure the procedural steps specified are not mandatory.

This right is limited in many countries by constitutions which specify the procedure for passing legislation. In South Africa the Constitution imposes additional limits on the right to control internal arrangements. As discussed in chapter 3, it has been limited by the constitutional requirement that most parliamentary proceedings should take place in public. Requirements relating to committees (sections 45 and 57) impose further limits. The right has also been circumscribed by the constitutional direction that public participation in parliamentary proceedings should be facilitated (sections 59 and 72). The implications of this provision need further consideration. It is unlikely that it limits Parliament's control over its internal arrangements and proceedings or that it gives the public a right to demand participation. This conclusion can be drawn from the fact that structures of democratic government in South Africa are essentially representative and not participatory in nature.

The effect of a Constitution on the right of Parliament to regulate its own proceedings was considered by the Privy Council in two cases which arose in Tonga. The Council concluded in both that it had jurisdiction over matters dealt with in the Constitution but not over other matters.

In the first case it was argued that members had received certain allowances to which they were not entitled. The second case involved a challenge to legislation which had been pushed through the Assembly without any opportunity for debate and probably in a way that was inconsistent with the standing orders. Neither case involved a breach of a constitutional provision and in both the Council said that the matter concerned the legislature's internal proceedings and that courts did not have jurisdiction.

The breadth of the provisions in the South African Constitution relating to Parliament and provincial legislatures may mean that a different outcome would have been reached in a South African court. For instance, section 57(2)(b) requires that rules and order must provide for 'the participation in the proceedings of the Assembly and its committees of minority parties represented in the Assembly, in a manner consistent with democracy'. A flagrant breach of standing orders would render legislation unconstitutional for infringement of this provision.

Recommendation: None. The matter of 'control over internal proceedings' is dealt with in the Constitution and will be adequately covered if freedom of parliamentary proceedings is protected as suggested above.

4.1.3 Freedom from arrest or molestation

This ancient privilege apparently originated in the English King's protection of his servants. Writing in 1955, Kilpin stated that it had been narrowed down to three established immunities. One, exemption from serving on a jury no longer concerns us. The second is exemption from attending civil cases, whether as a witness or defendant, The third is exemption from attending another House without permission of the House of which the person concerned is a member.

4.1.3.1 Exemption from civil cases

This privilege is contained in section 7 of the Powers and Privileges of Parliament Act. It provides two things:

(i) a member or officer of Parliament 'while in attendance on Parliament' is exempted from participating in a civil case in a court sitting outside the seat of Parliament (subsection (1)); and

(ii) no civil proceedings in which a member or officer is a defendant may be brought to trial in a place outside the seat of Parliament while that member or officer is in attendance on Parliament (subsection (2)).

A certificate provided by the Speaker, simply stating that Parliament is sitting, puts the exemption into effect.

Section 7 covers only proceedings in which a member or officer is required to pariticpate. It does not exempt a member from an application for summary judgment.

The retention of these provisions needs to be reconsidered for the following reasons:

(i) Parliament now sits all year; and

(ii) The ease of travel makes attendance at a court in another part of the country less difficult than it was when this privilege was established.

In addition, the privilege is extended to officers of Parliament. In terms of the Act, 'officer' includes anyone employed by Parliament and, given the size of the establishment in the present Parliament, this seems to grant exemption to an unnecessarily large group of people.

Recommendation: The privilege could be abolished entirely or limited so that members and officers are exempt from proceedings only when their presence at Parliament is essential. In the latter case the Speaker could determine whether or not a person's presence in Parliament is essential.

4.1.3.2 Exemption from attending before another House

This privilege is contained in section 6 of the Powers and Privileges of Parliament Act which stipulates that a member may 'attend before' another house only on request of that house and with permission of the Speaker of the house of which the person concerned is a member. The term 'attending before' means that a member of one house may not be required to address or give evidence before another house

Relationship of national Parliament and members of provincial legislatures: Consideration needs to be given to whether this provision should apply to members of provincial legislatures summoned to give evidence in the national Parliament.

The NCOP has an oversight role over certain provincial activities. In fulfilling this role it may be necessary to request the relevant MEC to appear before an NCOP committee. For instance, under section 139 the NCOP must approve a province's assumption of responsibility for a municipality's affairs. To determine whether the assumption of responsibility is reasonable and in reviewing the intervention, it may be appropriate for the NCOP to call the MEC responsible for local government as a witness. Similarly, the NCOP and National Assembly have an oversight role to play when, in terms of section 216(2), the national treasury stops funds to a province. Again, it would be appropriate to be able to examine the relevant MEC in Parliament.

Whether the NCOP and the National Assembly should have a general right to examine members of provincial legislatures without the permission of the provincial Speaker is a more difficult question. In sections 56 and 69 the Constitution gives the National Assembly and the NCOP respectively the right to summon any person to give evidence. However, like their counterpart relating to provincial legislatures (section 114), these sections need to be read in context. They give the two houses of Parliament the power to fulfil their constitutional role. They cannot be used in a way that offends other constitutional provisions, such as those relating to co-operative government. Most importantly, the Constitution assumes that provincial politicians will be accountable to provincial legislatures and the provincial electorate. The right to summons any person could not be used to move the provincial accountability function to the national Parliament.

The national houses of Parliament thus would be entitled to summons provincial parliamentarians in situations in which the provisions of chapter three relating to co-operative government are not infringed. In most cases political relations between legislatures would settle these matters.

Recommendation: Legislation should retain the privilege of exemption from attending before another house for national politicians but should not extend it to situations where a provincial politician is summonsed to appear before the National Assembly or NCOP in a circumstances which satisfy the provisions of chapter 3. Provincial politicians should be exempted from appearing before another provincial legislature without the permission of their speaker.

4.1.4 CRIMINAL ACTS IN PARLIAMENT, SERVING SUMMONS AND DETERMINING MEMBERSHIP: DOES PRIVILEGE APPLY?

4.1.4.1 Criminal acts in the precincts of Parliament

Criminal acts committed within the precincts of Parliament are not immune from criminal prosecution unless they are considered part of parliamentary proceedings.

Criminal words spoken in a speech in the house, for instance, cannot be prosecuted in the ordinary courts because they would be part of the proceedings. However, it is very unlikely that a criminal act would be protected. It would be protected only if it could be shown to be part of the proceedings. May comments that 'it would be hard to show that a criminal act committed in the House by an individual member was part of the proceedings of the House'.

4.1.4.2 Serving summons

The service of criminal or civil process within the precints of Parliament while either of the Houses is sitting without obtaining the leave of the House is contempt. This contempt has been recognised in England for some time. Since the Powers and Privileges of Parliament Act incorporates privileges that applied in the House of Commons at Union in 1909, this privilege is part of our law.

Recommendation: If we wish to retain this privilege, it should be included in legislation.

4.1.4.3 Determining membership

Many legislatures originally claimed and exercised the power to determine their membership. Accordingly, it was the legislature which resolved electoral disputes. Most parliaments have now relinquished this power to the ordinarly courts.

Results of an election: In South Africa, the Electoral Act (Act. 73 of 1998) makes the Electoral Commission responsible for the determination of election results for the National Assembly and the provincial legislatures (section 57). The Electoral Commission Act (Act 51 of 1996) provides for the establishment of an Electoral Court. It has the power to review any decision of the Commission relating to an electoral matter, and to hear appeals against a decision of the Commission in certain circumstances.

Eligibility questions between elections: A member may become ineligible after he or she has been elected. This may occur if the member is expelled from his or her party or if one or other of the disqualifications listed in section 47(1) of the Constitution comes into play.

A dispute over such an issue must finally be resolved by the Constitution Court which has jurisdiction in all constitutional matters. In the past, questions concerning eligibility have been dealt with by the courts (see, for instance, decisions concerning whether or not a member holds an office of profit under the government). Parliament may, in any event be loath to become involved in such matters. They are likely to be messy and, particularly when they relate to loss of membership as a result of expulsion from the member's party, highly political. It seems appropriate that the courts rather than Parliament should decide such matters.

4.2 CODIFYING PRIVILEGE

Privilege in South Africa is partially codified. As described above, the Constitution expressly protects certain of the traditional legislative privileges. In addition, the 1963 Powers and Privileges of Parliament Act is still in operation and it deals extensively with parliamentary privilege, spelling out the most significant ones. But the Act also grants Parliament, members, and officers of Parliament any privileges, immunities and powers that existed at the time the 1961 Constitution was promulgated (s 36).

Can all privileges be specified or should we retain a residual category as is done in section 36 of the 1963 Act?

The Constitution enshrines the privilege of freedom of speech and protects Parliament's power to control its own procedures. It also provides that additional privileges may be provided for in national legislation. National legislation could do one of two things. It could provide a closed list of privileges. This would mean that only those privileges listed in the legislation and the Constitution would exist. Alternatively it could follow the example of the Powers and Privileges of Parliament Act. This Act lists certain privileges (the most important ones) but also incorporates other privileges into our law by stipulating that any privileges that existed in the House of Commons in 1909 are part of our law. To ascertain these privileges one needs to consult the parliamentary law of the time.

New legislation should attempt to provide a comprehensive list of privileges. There are a number of reasons why this approach would be better than the present approach.

First, every privilege granted to Parliament involves a limit of an ordinary person's right (such as the right to sue for defamation, the right to summons a member to give evidence in a civil matter etc). To have rights such as these limited by obscure provisions of the common law is undesirable.

Secondly, over the past 50 years or so a limited number of well-know privileges have been relied upon. These are presently incorporated in the Powers and Privileges of Parliament Act. The commonly expressed fear that a statute may omit an important privilege is unfounded. The omission from legislation of a privilege that has not been used for many years and has been forgotten cannot create significant problem for Parliament. Legislation can also always be amended to add forgotten privileges.

Thirdly, using a 'savings provision' such as section 36 of the Powers and Privileges of Parliament Act may not meet the Constitution's requirement that further privileges should be 'prescribed' in national legislation (see section 58(2)). The word 'prescribe' suggests that a degree of definition is required that is not provided by a reference to our common law. (A similar point is being argued by the respondent in the De Lille appeal.)

CHAPTER 5

CONTEMPT OF PARLIAMENT

This chapter deals with contempt of Parliament. A contempt of Parliament is an act which impedes the functioning of Parliament. Parliament's power to define and punish contempts is often described as a privilege of Parliament. Although, loosely speaking, this is a privilege it is probably more accurate to distinguish between the privileges of Parliament which are rights that offer Parliament and parliamentarians immunities from the normal operation of the law, on the one hand, and, on the other, the powers of Parliament which include the right to define and punish contempts. In South Africa powers relating to contempt of Parliament are granted to Parliament in the Powers and Privileges of Parliament Act.

South African law deals with contempt of Parliament in an ad hoc way. The Powers and Privileges of Parliament Act contains a list of specific actions which would constitute contempt of Parliament and Parliament itself is given the authority in the Act to define further contempts. This Chapter describes those acts which constitute contempt of Parliament at present. It then suggests a revision of the law of contempt to make it clearer and less fragmented.

Chapter 6 deals with the question of punishing contempt of Parliament.

5.1 WHAT ACTS OR OMISSIONS CONSTITUTE CONTEMPT OF PARLIAMENT? THE PRESENT POSITION

Most people understand contempt of Parliament to refer broadly to anything that impedes Parliament in its functioning. In practice, however, specific 'contempts' have been identified and Parliament has been given the power to identify further contempts in its Rules.

Contempts of Parliament have four sources in South Africa:

(i) Certain contempts are specifically defined in the Powers and Privileges of Parliament Act

(ii) The Rules and Orders of Parliament

(iii) The common law

(iv) Breach of privilege constitutes contempt

(i) The Powers and Privileges of Parliament Act, section 10(3) sets out a list of acts that constitute contempt. They are:

(a) disobedience to any order made by a House or any committee duly authorised thereto, for the attendance before or the production of any paper, book, record or document to that House or committee, except where the person concerned has been excused from such attendance or production in terms of section 20;

(b) refusing to be examined before, or to answer any lawful and relevant question put by, a House or any committee, unless such refusal has been excused in terms of section 20;

(c) wilful failure or refusal to obey any rule, order or resolution of a House or the Houses;

(d) offering to or acceptance by any member or officer of Parliament of a bribe to influence him in his conduct as such member or officer, or offering to or acceptance by any member or officer of Parliament of any fee, compensation, gift or reward for or in respect of the promotion of or opposition to any bill, resolution, matter, rule or thing submitted or proposed to be submitted to Parliament or any committee;

(e) assaulting, obstructing or insulting any member proceeding to or going from Parliament, or on account of his conduct in Parliament, or endeavouring to compel any member by force, insult or menace to declare himself in favour of or against any proposition or matter depending or expected to be brought before Parliament;

(f) assault upon, interference with or resistance to an officer of Parliament in the execution of his duty or while proceeding to or going from Parliament in the course of or in connection with his official duties;

(g) sending any threatening letter to a member, or challenging him to fight, on account of his conduct in Parliament;

(h) while Parliament is sitting, creating or joining in any disturbance in Parliament or in the vicinity of Parliament, whereby the proceedings of Parliament are or are likely to be interrupted;

(i) tampering with, deterring, threatening, beguiling or in any way unduly influencing any witness in regard to evidence to be given by him before a House or any committee;

(j) presenting to a House or any committee any false, untrue, fabricated or falsified document with intent to deceive that House or committee;

(k) prevarication or other misconduct as a witness before a House or any committee; and

(l) the publication of any false or scandalous libel on any member touching his conduct as a member.

Section 11 adds to the list of contempts a member voting on or discussing a matter in which he or she has a direct pecuniary interest. (An exception is made of votes and discussions concerning members' remuneration and of matters in which the member's interest is held 'in common with the public generally or with any class or section thereof' (section 11(3)).)

(ii) The rules and orders are relevant for two reasons. First, section 10(3)(c) of the Powers and Privileges of Parliament Act makes a wilful breach of a rule or order contempt of Parliament and, secondly, the Act permits Parliament to set out further contempts in its Rules and Orders. Although the power given to Parliament to create new contempts in the Rules may seem very broad, it is in fact not so. As indicated above, a contempt of Parliament is an act which impedes Parliament in the exercise of its functions. Parliament's power to create new contempts is limited by this.

(iii) The common law (in this case the law applying in the House of Commons at Union in 1909) is expressly retained as part of our law through section 36 of the Powers and Privileges of Parliament Act. However, an examination of the list of contempts in Kilpin suggests that the only common-law contempt not included in either the Act or the Rules is t