preserving the privileges immunities and powers which Parliament enjoyed at the

Preserving the privileges immunities and powers which

This preview shows page 6 - 8 out of 8 pages.

preserving the “privileges, immunities and powers” which Parliament enjoyed at the date ofthe enactment of 1961, was also to preserve the provisions of section 36 of Act 19 of 1911which provided inter aliathat save as otherwise expressed in that Act, the members of theHouse of Assembly would enjoy the same privileges enjoyed by the House of Commons ofthe Parliament of the United Kingdom or the members thereof. The third proposition is thatone of the privileges or powers, which the House of Commons in the United Kingdom enjoys(although rarely exercised) is the power to suspend a member of the House for contempt andother breaches of privilege. This power, it is argued, is part of the law and custom ofParliament in the United Kingdom. The fourth proposition is that the end result of theprevious three propositions is to render lawful the respondent’s suspension, because it wouldbe lawful in terms of the parliamentary law and custom of the United Kingdom which isincorporated through an interpretation of a successive web of South African legislation over aperiod of more than eighty years. [20] Central to the edifice which the appellant seeks to erect on the strength of thesepropositions in defence of the respondent’s suspension is one basic premise. It is this: Byincorporating a reference to other laws which in turn incorporate further laws whichincorporate the Parliamentary law and custom of the United Kingdom which arguably allowsfor the suspension of members of Parliament, section 36 of the PPP Act is “prescribing”“other privileges and immunities of the National Assembly” and its members within themeaning of these expressions in section 58(2) of the Constitution. In my view this basicpremise is unsound in law. Section 58(1) expressly guarantees freedom of speech in theAssembly (subject to its rules and orders). It is a crucial guarantee. The threat that a memberof the Assembly may be suspended for something said in the assembly inhibits freedom ofexpression in the Assembly and must therefore adversely impact on that guarantee. Section58(2) must not be interpreted in the manner contended by Mr Gauntlettso as to detract fromthat guarantee. What section 58(2) does is to authorise national legislation which will itself6
Background image
clearly and specifically articulate the “privileges and the immunities” of the NationalAssembly which have the effect of impacting on the specific guarantee of free speech formembers in the Assembly. It does not contemplate a tortuous process of discovery of someobscure rule in English Parliamentary law and custom justifying the suspension of a memberof Parliament which is not identified within section 36 itself, but is to be inferred from aSouth African statute in 1911 which is inferentially incorporated in another statute in 1961which is itself incorporated by reference in section 36 of the PPP Act. Section 36, in myview, therefore, does not constitute “national legislation” which “prescribes” any “privileges
Background image
Image of page 8

You've reached the end of your free preview.

Want to read all 8 pages?

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture