Court: Police cannot arrest or remove MPs from Parliament

The Western Cape High Court said it violates their constitutional privilege of freedom of speech.

FILE: Chaos in South Africa's National Assembly. Picture: Screengrab Youtube/Gwandile

CAPE TOWN - The Western Cape High Court has ruled that police are not allowed to remove or arrest members of Parliament (MPs) for things they say, including chanting or singing, in the National Assembly because it violates their Constitutional privilege of freedom of speech.

The court said it also violates their constitutional privilege of freedom from arrest.

Judge Andre le Grange, who delivered the judgment this morning, said Section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, is too broad and "constitutionally flawed".

Section 11 allows the Speaker of the National Assembly and the chairperson of the National Council of Provinces (NCOP) to order the staff of Parliament of security services to arrest and remove any person who creates a disturbance during a sitting of Parliament, house or a committee.

The judge said the argument that in the absence of Section 11, the National Assembly and NCOP will be unduly impeded in their duty and functions and that members may now disrupt the ordinary business of Parliament with impunity is unconvincing.

"Parliament has more than sufficient tools to maintain order in its precincts. It has the rules and power to hold members in contempt," said le Grange.

The Democratic Alliance (DA) took Parliament to court challenging the constitutionality of Section 11 after it was invoked to remove Economic Freedom Fighters (EFF) MPs during President Jacob Zuma's State of the Nation Address (Sona) in February.

EFF leader Julius Malema and his Parliamentary caucus were removed by police in plain clothes for interrupting the President's Sona in the National Assembly chamber.

WATCH: EFF MPs removed

Several EFF MPs interrupted his speech to ask him when he intended repaying part of the money spent on his Nkandla homestead in KwaZulu-Natal.

Last year, Public Protector Thuli Madonsela found that Zuma and his family unduly benefitted from the R246 million upgrades to his home in KwaZulu-Natal.

Madonsela recommended that Zuma pay back a portion of the money spent on the upgrades.

Welcoming today's judgment, the DA's federal council chairperson James Selfe said, "The judgment tells us that section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act as a Parliament Act is inconsistent with the Constitution and the judgement has referred the matter back to Parliament for reformulation and has given Parliament 12 months in order to remedy the defects."

The orders handed down on Tuesday have been sent to the Constitutional Court for confirmation.