Can you say “The president of the ANC is the greatest thief in the world; I am not going to withdraw. He is a criminal. Everybody in South Africa knows that Zuma is a thief”? Well, that’s an interesting question. Yes and no.
You can’t just insult people in Parliament. You can’t call them a blackguard, coward, git, guttersnipe, hooligan, rat, swine, stoolpigeon or traitor, according to the British tradition. Why not? Well, it’s a balancing act. On the one hand, you can say anything in Parliament. Sections 58(1) and 71(1) of the Constitution provide that the persons who have freedom of speech in the respective Houses and committees in terms of those sections are not liable to civil or criminal proceedings, arrest, imprisonment or damages for anything that they have said in, produced before or submitted to the relevant House or any of its committees. That’s a big deal. That lets you off the hook for saying just about anything.
But on the other hand, you can’t just let loose and say anything about anyone, any time. You need to let them know you are coming, so to speak. High Noon at the OK Corral is not bushwacking someone in an alley – we need to know you are coming, and that the Sheriff knows you are coming too.
Hence the standing order, quoted in Lekota and Another v Speaker, National Assembly and Another, which was adopted by the National Assembly on 16 September 1997 (“the standing order”) and continues to apply, according to that decision. The standing order follows a ruling made by a former Speaker of the National Assembly, Dr Frene Ginwala, on 17 September 1996, and reads as follows:
A member who wishes to bring any improper conduct on the part of another member to the attention of the House, should do so by way of a separate substantive motion, comprising a clearly formulated and properly substantiated charge and except upon such a substantive motion, members should not be allowed to impute improper motives to other members, or cast personal reflections on the integrity of members, or verbally abuse them in any other way.
So was the acting Speaker correct in instructing the Honourable member to leave the podium and the house?
It seems to me that the EFF member was on the floor in a debate in which the motion was substantively concerning whether the president had or had not taken money unlawfully. She said he was a thief. Now, in the classic tradition of Parliament in the UK, where the words ‘blackguard’ and ‘guttersnipe’ have been ruled unacceptable, the trick is to avoid using the word ‘thief’, but say the same thing. So Churchill famously talked about a lie being a ‘terminological inexactitude’.
There is a distinction between ‘thief’ and ‘receiving money or a benefit unlawfully’ – but that is a distinction which may only be obvious to first-language English-speaking lawyers. So, if this were England, the member would have engaged in the sport of saying a thing without saying it – said, ‘a level of inexactitude in relation to his own versus the state’s assets which is breathtaking’ or ‘displays an unusual lack of interest in his own assets ballooning in a way which is not consonant with his income’.
But this is not England. We have a constitutionally enshrined right to freedom of expression, which has been clearly and carefully given in a way which is virtually unlimited to a small group of public representatives.
And this public representative meant ‘thief’. That was not a loose term of abuse –– but an attempt to describe the precise issue which was the concern of the motion. She was arguing that the intent of the president was to steal, and that it was not a negligent accruing of assets.
So her language was surely not in contravention of the rules, was protected under the absolute right to freedom of expression in Parliament, and she should not have been asked to withdraw. She was improperly asked to withdraw. She refused.
What, then, was the next option? Parliament could have then stood down. They could have walked away.
And that may have been a Marikana moment. That may have been a careful, deliberate decision that it was more important to show who was in charge than to follow the tedious procedural negotiated route. The Sunday Times reports that:
Parliament had taken the unusual step of putting members of the riot police on standby in anticipation of an opposition ruckus. They were allocated a committee room on the third floor of the National Assembly to use as a holding venue during sittings of the House.
Is this akin to alerting the hospitals that they can expect casualties? Or was this the post-Marikana moment – when we see that the rules of the game are now changed, and that the police understand that taking the matter into their hands will not result in culpability, but rather a bunch of finger pointing, and running to create inquiries? Well, not see, as a matter of fact – the feed that would have let us see that the rules have changed was apparently cut, and we looked at our coat of arms for a while, which says, “Diverse people unite.” DM
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