Although our Constitution of 1996 makes a fundamental break with the concept and practice of parliamentary sovereignty, which is one of the definitive characteristics of the Westminster paradigm, the historic term ‘Parliament’ has been retained as the official designation of the legislature of South Africa. The British Parliament at Westminster is the progenitor of all parliaments, and appropriately referred to as the mother of such legislative bodies, that exist throughout the world. Its long and distinguished lineage involved a heroic struggle against monarchical despotism and as a result it emerges as a bastion of liberty and exemplary not only for the British people, but for all nations using and aspiring to a system of parliamentary and responsible government. In this regard its ‘priceless heritage’ is a universal heritage.
The SA Constitution establishes a bicameral legislature, consisting of the National Assembly (NA), and the National Council of Provinces (NCOP), both of which have their seat in Cape Town, and operate as an institution premised on the practice of accountable or responsible government as operates in the Westminster tradition.
The NA, as the democratically elected lower house, like the British House of Commons, must ensure ‘government under the Constitution. It fulfills this function in inter alia, four ways, by firstly, electing the President, secondly by providing a national forum for public consideration of national issues, thirdly by NCOP or upper house represents the interests of the nine provinces into which South Africa is demarcated. Parliament therefore represents a synthesis of the political interests of the nation, involving first, those of the electorate as a whole, and secondly, particular interests of the provinces in a composite state.
The NA has the power to determine and control its own internal arrangements. In this regard, Erskine May’s Parliamentary Practice, dealing with the law, privileges, proceedings and usage of the Parliament at Westminster, is an invaluable source of information for parliaments, to a greater or lesser extent modelled on the Westminster paradigm, involving accountable and responsible government, such as ours. The NA in South Africa, has the power to make rules and orders concerning its business, with due regard to both representative and participatory democracy, accountability, transparency and public involvement.
In following the Westminster tradition provision is made for the office of Speaker and Deputy Speaker. This office is one of singular distinction, the origins of which is veiled in the mists of the past and no records were kept by the House of Commons’. It office is characterised by dignity and fearless independence. This tradition of dignity and political neutrality is retained in the Constitution. In an authentic liberal democracy, Parliament cannot fall under the monopoly of one party or the executive. The legislature is the Parliament of the people of South Africa.
By its very nature parliamentary debate must in the exercise of executive oversight be robust and vigorous. The internal rules of debate determine what can be said and done in Parliament and what constitutes parliamentary language and the decorum must apply befitting the highest political debating forum in the land. Parliamentary tradition furnishes members with privilege in their deliberations. Members cannot function effectively without such privilege, which they need to fulfill their duties openly and without fear of reprisals of any kind. This privilege is accorded to them to enable them to perform their duties ‘without let or hindrance and is not a privilege in a personal sense, but part of the office they occupy, as members.
Cabinet ministers and MPs in the NA therefore have freedom of speech in the chamber and all its committees, subject to only the rules and orders of the house, a serious breach of which may constitute contempt of Parliament. In addition they are not liable for civil or criminal proceedings, arrest, imprisonment, or damages for anything that they have said in or produced before to the assembly or any of its committees. However, they are subject to parliamentary rules of debate, intended to preserve the dignity and decorum of Parliament and are aimed at the proscription of offensive and unbecoming language and conduct. Members have, subject to the rules of parliament, referred to above, absolute freedom of speech in both houses and therefore cannot be sued for common law defamation.
Despite what is discussed above it is of fundamental importance that decorum should be maintained in Parliament. For some time the reputation and decorum of Parliament has not always been maintained and serious lapses have occurred. A very recent incident when decorum was breached was when abhorrent treatment meted out to members of the distinguished Oppenheimer family when they were in Parliament to answer certain questions in Home Affairs Portfolio committee meeting, they were manhandled and verbally abused by the members of BFL movement and its leader Andile Mngxitama who as members of the public were attending the such meeting. This episode epitomises distasteful and rude conduct, lacking in ordinary civility and good manners thereby bringing Parliament into manifest disrepute.
Also the recent fracas in Parliament when two opposition members, Andrew Tloumma of Agang SA and Nazier Paulsen of the EFF virtually came to blows causing havoc and as a result had to be physically restrained. Chaos erupted in the House of Assembly that unfortunately was a reflection of intense incivility by persons designated as honourable and who indeed should be role models of decorum in the way they conduct themselves in Parliament, which is a hallowed and venerable institution in our constitutional democracy. Parliament is not an institution that should be used by members of opposition parties to settle scores between themselves in a manner that brings it into disrepute and ridicule.
This kind of behaviour started with the conduct of the newly elected members of the EFF after the election of 2014, when they started with a tirade against President Jacob Zuma, by chanting the words ‘Pay the money back’, and causing a pandemonium because they were physically removed by members of the security forces which resulted in Parliament being prematurely adjourned by the Speaker. This consequently brought both Parliament and the office of the presidency were brought into disrepute and caused considerable disquiet in the public domain and the media. In effect the EFF was turning Parliament into a circus and it had become a laughing stock in Africa and the world at large. This happened on more than once and it made it difficult for opposition parties, others than the EFF, to exercise their oversight role in the accepted parliamentary manner by vigorous debate, verbal finesse and sophisticated repartee, as had happened in the past, in accordance with the esteemed Westminster tradition that is part of our parliamentary legacy.
The South African Parliament is product of our Constitution and in effect belongs to the people of this beloved country and under no circumstances should be brought into disrepute and ignominy by uncouth language and undisciplined conduct of members of parliament and the EFF or any other party, in government or opposition, which behaves in a fascist manner in order to attract attention as a populist party. It is for the people of South Africa to reclaim Parliament as a venerable institution and demand of its members that they live up to their designation as honourable members and not behave as political thugs.
George Devenish is Emeritus Professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993.