Advocate Jeremy Gauntlett told the Western Cape High Court it was interesting that the opposition party’s lawyer was not questioning the legality of Speaker Baleka Mbete’s decision on February 12 to call on police to forcibly eject all Economic Freedom Fighter MPs from the National Assembly.
“Instead the applicant has decided to go for bust,” he said.
“The point is a rather fundamentalist one — that Members of Parliament are not as other people. They can do anything they like if it relates to speaking.”
He was trying to counter argument by Sean Rosenberg, contending on behalf of the DA that section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures’ Act was unconstitutional because it allows the presiding officer to use police to clamp down on any form of fallout from MPs’ exercise of their privilege.
This, he said, was a direct violation of Section 58 of the Constitution which protects ministers, deputy ministers and MPs from arrest and criminal and civil charges for anything they said in the National Assembly.
Moreover, Rosenberg told the court, in the current political dispensation this power to use police to curtail privilege and in effect freedom of speech now resided in the hands of an official — Mbete — a ruling party member.
Rosenberg argued the point — often made by the DA in recent months –that letting police into the chamber when life and limb were not at risk was a violation of the doctrine of separation of powers.
Gauntlett countered that while the Constitution clearly aimed to encourage “vigorous and open debate in the process of decision-making”, the Constitutional Court had commented in the Swartbooi v Brink case, that there may be conduct so at odds with constitutional values it could not be considered protected.
He recalled how, as Prime Minister Hendrik Verwoerd was stabbed to death in the legislature in 1996, PW Botha, then an MP for George, had accosted lone Progressive Party MP Helen Suzman.
Gauntlett said in his heads of argument that the DA’s “extreme notion of the separation of powers would mean that Parliament would have to create a quasi-police service of its own to maintain public order and uphold and enforce the law within its precincts”.
Judge Andre le Grange reserved judgment.
Outside court, DA federal executive chairman James Selfe said the party was prepared to go all the way to the Constitutional Court to have section 11 declared invalid.
“We are pretty sure that at some point we will end up there,” Selfe said.
The DA went to court after armed police entered the National Assembly ahead of President Jacob Zuma’s state of the nation address on February 12, and dragged all EFF members out of the chamber, although Mbete had only ordered three out.
Selfe said as the law stood she had acted within her rights, but this was untenable.
The DA had originally asked for interim relief in the form of an interdict barring presiding officers from sending police into the chamber. It however withdrew this after the parties agreed on February 27 on an early hearing date for the final relief.