SMITH v MUTASA NO & ANOR 1989 (3) ZLR 183 (S)

Flynote

Constitutional law — Parliament — privilege — limits on — whether D extends to speeches made abroad not touching on Parliamentary business — whether may breach Declaration of Rights — Constitution of Zimbabwe 1980 — s 49 — Members of Parliament — salary — when may be deprived thereof — Privileges, Immunities and Powers of Parliament Act [Chapter 10] — s 6(1) — Speaker's certificate — what it must contain — whether it may be examined — privilege claimed mustbe one known to the law — whether Member's salary a matter of privilege.

Headnote

The appellant, the former Prime Minister of Rhodesia, was in June 1985 elected to the House of Assembly of the Parliament of Zimbabwe. As a member of Parliament he was, in terms of the Parliamentary Salaries and Allowances Act 1975, entitled to a salary and allowances. In April 1986 he was reprimanded and admonished by the House for remarks he made during a television interview while visiting the United Kingdom. The House considered that his remarks constituted a contempt of Parliament. At the end of March 1987 a motion was moved condemning the appellant for remarks he made while in South Africa. These remarks had been against the imposition of economic sanctions against South Africa. In April 1987 the House passed the motion and suspended the appellant for twelve months. It declared that he was not entitled to any salary or allowances during the period of suspension. He applied to the High Court for an order declaring the motion upon which he was suspended to be irregular and illegal and entitling him to resume his seat in the House. Before the hearing, he abandoned the application to have the suspension declared irregular and illegal. At the hearing, counsel for the respondents produced a certificate from the first respondent, the Speaker of the House, staying the proceedings on the grounds of Parliamentary privilege.

At the appeal, the appellant conceded the breach of Parliamentary privilege and the consequent suspension from Parliament. It was argued, however, that the court had the power to determine whether his entitlement to remuneration was a matter of privilege and that he could not lawfully be deprived of that remuneration in the circumstances of his case.

Held, that the court could not interfere with the appellant's suspension from the service of the House. The House is lawfully empowered to punish a member by suspension or by imposing the various penalties specified in the Privileges, Immunities and Powers and Parliament Act [Chapter 10]. The imposition of these penalties is a privilege, but the nature of the punishment is not.

Held, further, that all privileges and powers enjoyed by Parliament are subject to and must be consistent with the provisions of the Constitution. D Parliament may not enjoy, hold and exercise privileges, immunities and powers which are inconsistent with fundamental rights guaranteed by the Constitution. If there is a conflict between fundamental rights and the privileges of Parliament, the conflict can only be resolved by the courts of justice. If a dispute had arisen on whether making a speech which is against the imposition of sanctions on South Africa was a breach of Parliamentary privilege, it would have been within the jurisdiction of the courts to determine the dispute.

Held, further, on the question of whether a speech by the appellant in South Africa was a "proceeding in or before Parliament", that there must be some reasonable nexus between the acts and words of a Member of Parliament and the business of Parliament, so as to make them part of the proceedings in Parliament.

Held, further, that the Privileges, Immunities and Powers of Parliament Act did not give the House of Assembly the power to impose a deprivation of a member's salary as a penalty for contempt.

The House is only empowered to punish a member in contempt of its privileges by imposing penalties expressly prescribed by the Act. Only under ss 42 and 43 of the Constitution may a member be deprived of his remuneration and then only in consequence of a conviction for a criminal offence.

Held, further, that the independence enjoyed by Parliament in the control of its internal affairs does not prevent its members from defending their fundamental rights, should they believe that Parliament has wrongfully abrogated or infringed them. The appellant had a proprietary right in terms of s 16(1) of the Constitution to his salary and allowances. That right cannot be infringed without inviting the intervention of the courts.

Held, further, that when a certificate from the Speaker under s 6(1) of the Privileges, Immunities and Powers of Parliament Act is produced, stating that a matter is one of Parliamentary privilege, the court must examine the certificate in order to establish the legitimacy of the privilege claimed.