Can a Court Review the Internal Affairs and Processes of the Legislature? Contemporary Developments in South Africa

Abstract

In the exercise of its constitutional authority to review legislation for unconstitutionality, can a court review the internal affairs or processes of the legislature? In other words, can the court intervene in the legislative process, the internal affairs of the legislature, or in a dispute between members and officials of the National Assembly notwithstanding the principles of separation of powers, the rule of law, and supremacy of the Constitution? Assuming that the court can intervene, then, on what ground(s) can such intervention take place? The recent split decision by the Constitutional Court in Mazibuko v Sisulu, Speaker of the National Assembly 2013 6 SA 249 (CC) affirms two approaches: the traditional common-law, noninterventionist approach epitomised by the minority judgment, and the modern South African constitutional-interpretation approach represented by the judgment of the majority. The question common to both approaches, however, is whether the conduct of the functionaries of the Assembly violated a member’s right to free speech and debate in the Assembly. This question is investigated alongside those instances where Parliamentary Bills have been challenged for constitutionality. The conclusion inevitably is that the common-law, non-interventionist approach to the privileges of the legislature does not apply unconditionally in the modern South African constitutional state where the Constitution provides otherwise; conduct of the Speaker or any other official of the legislature violates individual or minority members’ rights; or where the rules of the Assembly are defective and, therefore, inconsistent with the Constitution.