The Constitutional Phenomenon of Parliamentary Privilege and Immunity in South Africa : A Comparison with Jurisdictions in Britain, Canada and France

Abstract

Whereas the doctrine of parliamentary privilege originated in the United Kingdom where it was originally applied to ensure unhindered service to the King by his advisors, this article shows that the privileges and immunity of parliament are interpreted differently in different countries. It further shows that different countries practise different types of privileges and parliamentary immunity. Britain, Canada and South Africa practise nonaccountability immunity which protects members of parliament from civil and criminal liability, whilst France, in addition to non-accountability, also practises a form of inviolability which protects members of parliament from criminal liability arising from any criminal act committed outside of parliament while they are sitting members. This comparative study shows that the content of privilege and immunity comprises exclusive cognisance of a parliament that protects its integrity and so enables it to regulate its own affairs, and the freedom of speech and debates to such an extent that members are protected in the discharge of their parliamentary duties. The scope of the privilege is limited to anything said in, produced before, or submitted to parliament or its committees and which involves the business of parliament. Protection is not limited to members of parliament: national legislation can extend the privilege to other personnel who are linked to the business of parliament. Parliamentary business is not confined to transactions taking place within the precincts of parliament, since parliament can sit anywhere outside its normal seat. The interpretation of parliamentary privilege in foreign jurisdictions sheds light on the interpretation and illuminated the meaning of the privileges and immunities of parliament in South Africa under the 1996 Constitution.