Walter Bhengu

Testing the constitutionality of the powers and privileges committee

By Walter Bhengu

As the dust settled over the #PayBackTheMoney incident in Parliament, the speaker of Parliament, Baleka Mbete, recommended that the 20 EFF members involved should be charged and faces the music before the powers and privileges committee. Pay back the money is the now famous phrase that was directed at President Jacob Zuma by Julius Malema. This led to the intervention of the speaker of Parliament and subsequently ended with the EFF members being booted out. The booting-out trend has become very popular in the last couple of months, that and the frequent walk-outs. Parliament has indeed become a boiling pot.

EFF has since appeared and walked out of the powers and privileges committee citing that it is a kangaroo court. They contend that the majority party, which is the ANC, will be the judge, jury and executioner in this matter. Furthermore the complainant and the witnesses will be the ANC. It is important to note that one of the counter-arguments to the EFF’s stance is that the ANC as the majority in Parliament will always dominate parliamentary committees. Section 46 of the Constitution is very clear on how the composition of Parliament should be and this is based on votes in a national election. Rule 125 of the rules of Parliament also states that the composition of committees should be proportional to the representation in Parliament. Currently the committee consists of nine members, six of which are from the ANC. The question then is: Does the EFF have a point in its grievance that the hearing will be unfair?



To effectively look into this, one needs to interpret the Constitution, the Powers, Privileges and Immunities of Parliament Act (PPIP Act) and the Rules of Parliament. Section 16 of the Constitution guarantees everyone the right to free speech as long the expression does not incite violence or harm, hate speech and propaganda of war. Freedom of expression is one of the cornerstones of Parliament and it is defended fervently. As such Section 58 of the Constitution states that no member of Parliament is criminally or civilly liable for anything they say in the Parliament. The PPIP Act goes into further details on freedom of speech, forbidden acts in Parliament and how the disciplinary procedures work. Procedural fairness is an important aspect raised in the PPIP Act in line with the Constitution. The rules of Parliament give the speaker of Parliament, in rule 52, the discretion to decide on appropriate action to take against members of Parliament who transgress the decorum of Parliament, in this instance Mbete decided on a disciplinary hearing.

Section 33 of the Constitution preserves the right that everyone has to administrative action that is lawful, reasonable and procedurally fair. Administrative action can be exercised by an organ of state such as Parliament. In this case the administrative action would be the decision to haul EFF MPs before the committee. Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair. The doctrine of legitimate expectation affords the right to a fair hearing. Section 6 of the Promotion of Administrative Justice Act gives guidance as to how administrative decisions should be made. It stipulates that a court may review and set aside an administrative decision if it can be shown that the administrator was biased or reasonably suspected of bias, the action was procedurally unfair, the action was based on an ulterior purpose or motive, the action was in bad faith or it was arbitrarily given. These are the aspects the EFF would have to raise if it were to take the matter to court.

The question then becomes will the court interfere in the machinations of Parliament? This will have to be weighed against the doctrine of separation of power, principles of legality and constitutionalism. The most recent case that comes to mind is when the DA took Parliament to court to rule on the matter of the unconstitutionality of the rules of Parliament in relation to the aspect of no-confidence motions.

Many questions still linger. Could this be much ado about nothing since only one MP since 1994 has ever been suspended? Could the EFF just be concerned about being “managed” by the ANC? Is it time to think of creative ways to structure Parliament in a way that ensures better representation for minority parties? Maybe. Will it have the desired effect? Not necessarily. One thing that is certain is that it is going to be a long five years in Parliament.

Walter Bhengu is a non-practising attorney and aspirant academic with law degrees from the University of Fort Hare and Stellenbosch University.

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    • Sandra Dickson

      Good article and well put together.

    • philosoraptor

      The abiding thoughts seem to be:
      – “How do we appear accountable without ever having to actually account?”; and
      – “How do we – from the outset – exonerate Number One?”;
      That’s why we get nowhere with commissions of enquiry and suchlike investigations.
      These “kicking for touch” and delaying exercises are very clever and very successful in their main aims. People soon tire of a subject and are easily distracted – and Zuma knows that very well.
      Your “To effectively look into this, one needs to interpret the Constitution, the Powers, Privileges and Immunities of Parliament Act (PPIP Act) and the Rules of Parliament. Section 16 of the Constitution etc etc etc” plays right into Number One’s hands!!
      Bottom line: “Behaving” in SA’s Parliament right now is tantamount to “Neglecting Your Duty to Your Constituents”.

    • Jac

      This is a very good analysis….the real question after all is whether our parliament system still serves its purpose effectively and fairly. The republic is in safe hands with vibrant young men like you.

    • http://YAHOO Tman

      It is important to note that rule 72 of the NA makes clear that every member of the NA has a right to raise a point of order and may speak to do so. (Where a speaker refuses to hear a member who raise a point of order – as she did during the debate in which President Zuma refused to answer questions put to him by the EFF – she is in breach of the rules she is supposed to uphold.)
      All this does raise an important question: has the time not come to consider the need to appoint a more independent and impartial person as Speaker to apply the rules fairly and in a more even-handed manner? Should an MP who is elected as Speaker not give up membership of the party or any leadership positions in that party for the duration of his or her speakership? Surely a more fair and impartial Speaker would instil more respect from all MPs, would ensure impartial rulings and could well prevent a recurrence of the kinds of actions taken by EFF MPs last time.

    • Joseph Coates

      Excellently said. We need people who oppose the currently run government like you
      who want fairness displayed in our leadership with new vigour and determination to get South Africa moving forward.

    • Momma Cyndi

      Parliamentarians take a vow to hold the good of our country above all else. Unfortunately, it is a vow which nobody seems to take very seriously. Party politics and self interest is placed high above the country on the priority scale. Parliament has, as a result, become redundant. Instead of a large number of bloated parasites, we should just ask their head office what they stand for. Paying all the puppets, for an answer that can come from one person, seems like a huge waste of time and money.

    • Clarence Esau

      ‘Should Parliament be restructured to ensure better representation for minority parties?”

      The threshold in respect of the number of votes required in a general election to gain access to Parliament in South Africa is, in my view, sufficiently low to ensure that parties with a relatively small support base get into Parliament.

      The reality is, though, that they do then indeed have a small support base and therefore can expect to have concommitant representation in the fora of Parliament.

      This often means that small parties have little or NO representation in portfolio committees etc.

      The answer might be that smaller parties should mobilise around specific issues BUT, as Baleke Mbete pointed out to the opposition during the debate around which documents should be included in the Parliamentary Nkandla process, “It doesn’t matter… You’ll be outvoted anyway.” – It was at THAT point that the opposition should have withdrawn from the process as the Speaker then CLEARLY overstepped the bounds of impartiality and pre-empted the outcome with a certainty improper to any semblance of justice being done, real or imagined.

      Opposition, for now, is about highlighting carefully selected contradictions so that voters finally make their crosses somewhere other than the ANC.

      Our job as ANC members and supporters is, somehow to get our leaders to stop defending the indefensible, jetisson the rot and rotting and take this country forward…

    • Paul Whelan

      A child could have explained that appointing the Chair of the majority party would be ‘not fair’. The opposition are shutting the stable door after the horse has the circumstances they should have stayed in committee and argued it out because this way they lose either way.

    • Paul Whelan

      Above should read: ‘appointing the Chair of the majority party as Speaker…’