Tensions between the powers of parliament and the privileges and immunities of parliamentarians in South Africa.

Abstract

The doctrine of parliamentary privilege is a global phenomenon. It has its genesis in the English history. It came about as a result of confrontations between the monarch and Parliament. Parliamentarians fought for the right to criticize the king in Parliament and for protection against summary arrest. South Africa, like most other Commonwealth countries, inherited the doctrine of parliamentary privileges from England. The Constitution of the Republic of South Africa enshrines parliamentary privileges in sections 57, 58, 70, 71 and 117. The national legislation dealing with privileges and immunities of Parliament, parliamentarians and its members is the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act, 2004. The dissertation outlines the evolution of the concept of parliamentary privileges against the history of South Africa before the attainment of democracy. It also compares approaches adopted by British, Canadian and French jurisdictions on parliamentary privileges and further outlines the model of parliamentary privilege adopted by South Africa. The dissertation critically analyses the position of parliamentary privilege in South Africa and assesses whether it promotes free speech in Parliament. It also discusses judicial scrutiny in measuring the scope of the regulation of autonomy of the National Assembly. The scope of the dissertation is limited to the National Assembly during the 26th Parliament. It also examines whether the Privileges Act is effectively implemented in addressing the regulation of the autonomy of the National Assembly or whether the Act is used selectively as a tool by the ruling party to assert its vested interests and silence opposition in the National Assembly(NA). The dissertation examines the constitutional mandate of the office of Speaker of the National Assembly and discusses how the political affiliation to party politics adversely affects the Speaker in impartially applying the doctrine of parliamentary privilege and holding the Executive accountable. The dissertation also calls for legislative intervention to resolve the selective implementation of the law of parliamentary privilege.