Malema and Another v Chairman of the National Council of Provinces and Another (12189/2014) [2015] ZAWCHC 39; 2015 (4) SA 145 (WCC); [2015] 2 All SA 728 (WCC) (15 April 2015)

Malema and Another v Chairman of the National Council of Provinces and Another (12189/2014) [2015] ZAWCHC 39; 2015 (4) SA 145 (WCC); [2015] 2 All SA 728 (WCC) (15 April 2015)

The court held that the Speaker materially misconstrued the reach of the standing order by interpreting the applicant's statements as imputing improper motives and accusing individual Members of Parliament of murder. The Speaker's expansive interpretation of 'government' was unwarranted in the context and unduly restricted robust parliamentary debate. The Speaker's partial reliance on the sub judice rule regarding the commission of inquiry was invalid. The Speaker's rulings were irrational and unlawful as they unjustifiably limited the constitutional right to freedom of speech in Parliament. The Speaker's subsequent orders to withdraw the statement and to leave the House were consequently...

Citation
[2015] ZAWCHC 39
Parties
Applicant: Julius Malema; Applicant: Economic Freedom Fighters; Respondent: Thandi Modise (Chairman of the National Council of Provinces); Respondent: African National Congress
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 April 2015
Case Number
12189/2014
Procedural Posture
Review Application / Final Judgment After Hearing on Merits
Outcome
Application granted in part; Speaker's rulings reviewed and set aside; costs awarded to applicants.
Judges
Bozalek, Cloete
Legal Topics
Freedom of Speech in Parliament, Parliamentary Privilege, Standing Orders, Judicial Review, Promotion of Administrative Justice Act, Separation of Powers
Constitutional Law Administrative Law Civil Procedure Freedom of Speech in Parliament Parliamentary Privilege Standing Orders Judicial Review Promotion of Administrative Justice Act +1 more

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Parties

Julius Malema

Applicant

Economic Freedom Fighters

Applicant

Thandi Modise (Chairman of the National Council of Provinces)

Respondent

African National Congress

Respondent

Procedural Posture

Review Application / Final Judgment After Hearing on Merits

Legal Issues

  1. 1 Whether the Speaker's ruling that the applicant's statements were unparliamentary was lawful and valid.
  2. 2 Whether the applicant's expulsion from the House was lawful.
  3. 3 Whether the Speaker's rulings infringed the applicant's constitutional right to freedom of speech in Parliament.

Ratio Decidendi

The court held that the Speaker materially misconstrued the reach of the standing order by interpreting the applicant's statements as imputing improper motives and accusing individual Members of Parliament of murder. The Speaker's expansive interpretation of 'government' was unwarranted in the context and unduly restricted robust parliamentary debate. The Speaker's partial reliance on the sub judice rule regarding the commission of inquiry was invalid. The Speaker's rulings were irrational and unlawful as they unjustifiably limited the constitutional right to freedom of speech in Parliament. The Speaker's subsequent orders to withdraw the statement and to leave the House were consequently...

Court Disposition

Application granted in part; Speaker's rulings reviewed and set aside; costs awarded to applicants.

Orders

  • The Speaker's decisions on 19 June 2014 declaring the applicant's statements unparliamentary, ordering withdrawal of the statements, and ordering the applicant to leave the House are reviewed and set aside.
  • The applicants' costs, including the cost of two counsel, are to be paid by the first respondent.