Bernadus and Others v Speaker of the National Assembly and Others (HC-MD-CIV-MOT-REV-2021/00493) [2024] NAHCMD 323 (14 June 2024)

Legislation - Powers, Privileges and Immunities Act of Parliament Act 17 of 1996, ('the Act') - Whether the courts are totally excluded from dealing with all matters involving Parliamentary 'domestic affairs' - Standing Rules and Orders and Internal Arrangements of the National Assembly аnd compliance therewith in matters of disruptive behaviour - The effect of a failure to comply with the said Rules and whether that failure grants the court the right to intervene when approached by a Member of Parliament affected thereby - Constitutional Law - Articles 1, 5, 79(2) and 80(2) of the Constitution and their impact on s 21 of the Act.

The first and second applicants are members of the Landless Peoples Movement, (LPM), a political party duly registered in terms of the applicable law. LPM is cited as the third respondent in the application. The first and second applicants were ordered by the Speaker of the National Assembly, ('the Speaker'), to withdraw from the proceedings of the National Assembly on 15 April 2021 for disruptive behaviour during the State of the Nation Address by the President. The Speaker informed them subsequently, that they would remain withdrawn from the House 'for the time being'. They challenged that decision before this court, which found for the Speaker. That decision was set aside on appeal, the Supreme Court finding that the Speaker did not have power to suspend members of Parliament indefinitely as he had purported to do. The applicants bring a challenge before this court dealing with whether the proper procedures had been followed by the Speaker in meting out the punishments imposed by him in the light of the disruptive behaviour in question. The applicants submitted that the Speaker had not followed the provisions of the Rules in dealing with the disruptive behaviour and that for that reason, the court, because the failures of the Speaker, impacted on the Constitution and the doctrine of legality, was at large to intervene and to set aside the decisions of the Speaker.

Held: That the legislature must, in line with the doctrine of separation of powers, be allowed the liberty to carry out its functions without interference.

Held that: There are certain circumstances in which notwithstanding the operation of the doctrine of separation of powers, the courts are entitled in terms of the Constitution, to intervene in  legislative domestic matters and this is where the actions appear to violate the Constitution,  including of art 1 (1) thereof.

Held further that: S 21 of the Act applies in so far as there is no violation of the Constitution or evidence suggesting that the doctrine of legality is implicated.

Furthermore, the application of s 21, is subject to the provisions of Arts 1, 5, 79(2) and 80(2),  meaning that if the exercise of the rights in s 21 result in a violation of the articles mentioned above, then the jurisdiction of the courts is not excluded by s 21 of the Act.

Held: That the Rules Committee, in the instant matter, referred the investigation of the applicants' case to the Privileges Committee, which was an abdication of their powers and as such, the  procedures and decisions following after that unlawful referral, should be set aside as they do not comply with the provisions of the Rules.

Held that For the reason that the court had found that the Rules Committee had impermissibly referred the matter to the Privileges Committee, it had to that extent acted outside its powers and this implicated the doctrine of legality, thus entitling this court to intervene in the dispute  notwithstanding the provisions of s 21 of the Act.

Held further that In view of the finding that the Rules Committee had acted improperly and contrary to its designated power, the court is empowered to intervene and as such, it is not necessary, for the decision of the case, to decide on the constitutionality of s 21 of the Act.

Held: That the Speaker was central to the decisions made that resulted in the withdrawal of the two applicants. His subsequent involvement in the Parliamentary Committees, which dealt with the applicants' matter, was improper as he had an interest in the matter, having made the decision that triggered the entire case. He should have recused himself and as such, his involvement was inimical to the interests of justice and fairness and an affront to the doctrine of nemo judex in causa sua, thus entitling this court, in any event, to intervene in the proceedings.

Held further that The body empowered by the Constitution to make rules, is the National Assembly in terms of Art 59. It was therefor unlawful for the Privileges Committee to arrogate upon itself the ad hoe rules subsequently applied to the applicants.

Held: That rule 111 does not state what types of behaviour amount to gross misconduct thus warranting the Speaker to order the withdrawal of a member. To that extent, it was held that the said provision is unconstitutional for vagueness.

The applicants' application was granted with costs.