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  • Economic Freedom Fighters and Others v Speaker of the National Assembly and Others (9873/21) [2024] ZAWCHC 160 (10 June 2024)

Economic Freedom Fighters and Others v Speaker of the National Assembly and Others (9873/21) [2024] ZAWCHC 160 (10 June 2024)

The rule of law can be distilled into at least eight basic principles in that laws are required to be: (a) general; (b) publicly accessible; (c) forward-looking; (d) clear; (e) non-contradictory; (f) not impossible to comply with; (g) stable and, (h) congruent with how officials enforce them.

Author

Ross Shepstone
June 14, 2024

The case involves an application by the Economic Freedom Fighters (EFF) political party and some of its members (the applicants) against the Speaker of the National Assembly, Chairperson of the National Council of Provinces, and Minister of Police (the respondents).

This opposed application concerns some complex legal issues. However, it is essentially about applying the rule of law in our new constitutional democracy. While I must accept that there are disagreements about what the rule of law means, we can, however all, without difficulty, accept that the rule of law can be distilled into at least eight basic principles in that laws are required to be: (a) general; (b) publicly accessible; (c) forward-looking; (d) clear; (e) non-contradictory; (f) not impossible to comply with; (g) stable and, (h) congruent with how officials enforce them.

Wille J

The application relates to incidents in 2015 and 2017 where EFF members allegedly disrupted the President's State of the Nation addresses in Parliament. The EFF members were ordered to leave the chamber for their disruptive conduct but refused. Parliamentary protection services and police then forcibly removed the EFF members. The applicants allege the removals involved gratuitous violence and assaults against them on the instructions of the respondents, violating their constitutional rights. The respondents deny ordering any assaults.

"Put another way, where a common law remedy exists, a claimant must first have recourse to that remedy as a matter of pure logic. I say this because, in most cases, our common law is broad enough to provide all the appropriate remedies for a constitutional right violation. An award for constitutional damages is not available where there is no evidence to prove that such damages would serve as a significant deterrent against an individual or systemic repetition of the infringement in question."

Wille J

The applicants seek two-part relief:
(i) a declarator that the forced removals and alleged assaults were unconstitutional and unlawful
(ii) constitutional damages (contingent on the declarator being granted)

The respondents argue the application is fatally flawed because:
- the true cause of action is a delictual claim for damages which has prescribed;
- a statutory notice was not given for the damages claim;
- the respondents have statutory immunity against damages claims; and
- no proper factual basis is laid out for the alleged assaults

The applicants do not challenge the constitutionality of the parliamentary rules and legislation relied on by the respondents. The case was brought over 7 years after the incidents with no explanation for the delay.

The key ratio decidendi or core legal principles underlying the court's decision is:

1. The applicants' claims are essentially delictual in nature and could have been adequately remedied under the common law of delict. A claim for constitutional damages is not appropriate where an effective common law remedy exists.

2. The applicants' claims have prescribed due to the effluxion of time. Prescription applies to their claims, whether framed as delictual or constitutional damages, as both constitute a "debt" that becomes extinguished after the prescribed time period.

3. The respondents are immune from liability for damages under section 22 of the Powers, Privileges and Immunities of Parliament Act for acts done in good faith under parliamentary authority. This statutory immunity covers both delictual and constitutional damages.

4. The applicants failed to give the respondents the mandatory statutory notice of their intention to institute legal proceedings for the recovery of a debt against an organ of state, as required by the Institution of Legal Proceedings Against Certain Organs of State Act.

5. The declaratory relief sought by the applicants is academic and hypothetical in nature, as it would have no practical effect, considering that their damages claims have prescribed and are barred by statutory immunity. A court has discretion to refuse to grant a declaratory order in such circumstances.

The court referred to the following cases in its reasoning:

1. Giant Concerts CC v Rinaldo Investments (Pty) Ltd & others 2013 (3) BCLR 251 (CC) - referred to regarding what comprises a hypothetical interest and when a court should decline to grant a declaratory order (para 25).

2. JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1996 (12) BCLR 1599 (CC) - referred to regarding when a court should decline to grant a declaratory order where the questions raised are wholly academic (para 26).

3. Chisuse v Director-General Department of Home Affairs 2020 (6) SA 14 (CC) - referred to regarding interpreting legislation in a sensible and purposive manner (para 31).

4. Ethekwini Municipality v Mounthaven (Pty) Ltd 2019 (4) SA 394 (CC) - referred to regarding what comprises a "debt" for purposes of prescription (para 38).

5. Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) - referred to regarding when constitutional damages would be awarded and that they are not an alternative to common law remedies (paras 41-44).

6. Residents, Industry House and Others v Minister of Police and Others 2023 (3) SA 329 (CC) - referred to regarding constitutional damages needing to be the most appropriate relief in the circumstances (para 39).

7. Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and Others 2023 (4) SA 325 (CC) - referred to regarding the common law being broad enough to provide remedies for constitutional rights violations (para 40).

8. J T Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514 (CC) - referred to regarding a court not being obliged to declare conduct constitutionally invalid if the matter can be disposed of using subsidiary law (para 72).

9. Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC) - referred to regarding costs orders in constitutional matters (para 79).