The
applicants alleged that the conduct of the Speaker and the President
of the Senate, in “expelling” them from Parliament, infringed
their fundamental right to equal protection and benefit of the law
enshrined in section 56(1) of the Constitution. They also alleged a
violation of the right to form, join and participate in the
activities of ...
The
applicants alleged that the conduct of the Speaker and the President
of the Senate, in “expelling” them from Parliament, infringed
their fundamental right to equal protection and benefit of the law
enshrined in section 56(1) of the Constitution. They also alleged a
violation of the right to form, join and participate in the
activities of a political party of their choice in terms of section
67(2)(a); the right to stand for election for public office, and, if
elected, to hold such office in terms of section 67(3)(b); the right
to administrative justice in terms of section 68; and the right to a
fair hearing in terms of section 69(3) of the Constitution.
The
respondents opposed the applications. They argued that the conduct of
the Speaker and the President of the Senate, in announcing that the
seats occupied by the applicants in the respective Houses had become
vacant, was lawful….,. The respondents' contention was that the
seats became vacant as a result of the operation of the provisions of
section 129(1) as read with section 129(1)(k) of the Constitution.
Section
129 of the Constitution provides:
“129
Tenure of seat of Member of Parliament
(1)
The seat of a Member of Parliament becomes vacant -
(a)–(j)…,.(not
relevant);
(k)
If the Member has ceased to belong to the political party of which he
or she was a member when elected to Parliament and the political
party concerned, by written notice to the Speaker or the President of
the Senate, as the case may be, has declared that the Member has
ceased to belong to it.”…,.
The
ancillary question is whether an act done in terms of the provisions
of the Constitution can violate a person's rights in terms of the
same Constitution. The question is answered in the negative. An act
lawfully done in terms of the Constitution cannot violate a person's
rights under the same Constitution.
The
applicants sought to challenge the validity of the actions by the
Speaker and the President of the Senate on the basis of the
allegation that they violated the fundamental rights enshrined in
sections 69(3), 68(1) and 56(1) of the Constitution.
A
Member of Parliament loses his or her seat in the specific
circumstances prescribed under section 129 of the Constitution.
Section 129(1)(k) of the Constitution provides for one of the
circumstances prescribed. One cannot read any other value into the
section because section 129(1)(k) of the Constitution is a complete
provision that is not subject to the Bill of Rights. The wording of
section 129(1)(k) of the Constitution is clear. Like any other
provision of the Constitution, section 129(1)(k) is a fundamental
law, partaking of the status of supremacy of the Constitution against
which the validity of conduct can be measured. It is not permissible
to import notions from other constitutional provisions to impose a
duty that was not intended to be part of the requirements of a
particular constitutional provision.
