now amount to unparliamentary speech, and could only be made upon the tabling of a substantive motion but which, in many circumstances, could not feasibly be placed in such a form. Furthermore, even if feasible, the requirement of such a motion being tabled in itself would not only amount to a significant restriction on the freedom of speech of Members of Parliament but, on occasion, would effectively be an absolute one. In the present instance first respondent herself admits that first applicant could not have moved a separate motion in a joint sitting of Parliament. The result is that he was
23 precluded altogether from making the challenged remarks during the debate on the President’s state of the nation address.  Reverting to the test adopted in Lekota and making due allowance for the deference which must be shown by the courts to the decisions of the Speaker in their area of expertise and responsibility, I nonetheless consider that, in invoking the provisions of the standing order, and in finding that first applicant’s statements were unparliamentary, first respondent materially misconstrued the order’s reach. The irrationality underlying the ruling lay principally in first respondent holding that first applicant’s statement imputed improper motives to those Members of Parliament who were members of Cabinet or reflected on their integrity by literally accusing them personally of murder. The finding of irrationality is also informed by first respondent’s partial reliance, at the time of making her ruling, on an invalid reason viz that first applicant’s statement anticipated the findings of a judicial commission of inquiry. In the light of the far-reaching implications of first respondent’s interpretation of the standing order and its application to first applicant’s statement , I consider that the Court has no alternative but to hold that first respondent’s initial ruling and those that followed therefrom, were unlawful. REMEDY  Flowing from the above findings the Court must consider what remedy, if any, must be afforded to the applicants. In doing so the Court is guided by the provisions of sec 172(1) of the Constitution which provides that a court must ‘ declare that any law or conduct that is inconsistent with the Constitution invalid to the extent of its inconsistency’ and may make ‘ any order that is just and equitable’ . Given the finding that first respondent’s ruling s were unlawful, the primary relief sought by the applicants must be granted, namely, that the various decisions made by first respondent on 19 June 2014 fall to be reviewed and set aside. As far as the further related relief
24 sought by the applicants is concerned, viz that these rulings be declared unlawful and invalid, the very rationale for setting such decisions aside is that they were unlawful and I therefore regard such further declaratory relief as unnecessary.
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- Fall '19
- Democracy, Separation of Powers, Parliament, Member of Parliament, National Assembly, African National Congress