THE STATE OF PARLIAMENTARY FREE SPEECH Democratic Alliance v Speaker of the National Assembly 2016 (3) SA 487 (CC)

The last two years have been challenging for the South African Parliament (comprising the National Assembly and the National Council of Provinces). Some of the issues experienced include: wide-ranging disruptions during the President’s 2015 State of the Nation Address; the forceful removal of Members of Parliament (members) from the parliamentary Chamber by the police; cell-phone signal jamming in the Chamber; a failure by the Assembly to fulfil its constitutional obligations in terms of sections 55(2) and 181(3) of the Constitution of the Republic of South Africa, 1996 by not holding the President accountable to the Public Protector’s findings in the Nkandla saga ; members ignoring the rulings of the Speaker and the Chairperson of the NCOP; a challenge to the legitimacy of Parliament’s broadcasting policy and rules (Primedia) and the use of various forms of “unparliamentary” language by members in Parliament (Chairperson of NCOP). Whilst confrontation and robust debate in Parliament are not uncommon and to be expected, incidents such as these are becoming more frequent and have required the repeated intervention of the Courts.The Constitutional Court judgment in Democratic Alliance v Speaker of the National Assembly raises important questions concerning the nature and scope of the parliamentary privilege in section 58(1)(b) of the Constitution. It also demonstrates the difficulty of maintaining a balance between the importance of upholding the guarantee of freedom of speech in Parliament, on the one hand, and the need to ensure internal order and discipline during parliamentary sittings, on the other. There have been a number of recent judgments concerning the internal functioning of Parliament. These judgments illustrate that the South African Constitution is a work in progress and that our constitutional jurisprudence is maturing. As recently observed by retired Constitutional Court Justice, Sandile Ngcobo, “This is not a bad thing … Our Constitution is still a young one and through constitutional adjudication it will generate constitutional rules and principles that will form the core of our constitutional law”. The purpose of this note is to explore the constitutional principles underlying parliamentary privilege, with specific reference to the decision in Democratic Alliance.</jats:p

OF SEMI-COLONS AND THE INTERPRETATION OF THE HATE SPEECH DEFINITION IN THE EQUALITY ACT South African Human Rights Commission v Qwelane (Freedom of Expression Institute as Amici curiae) and a related matter [2017] 4 All SA 234 (GJ)

In South African Human Rights Commission v Qwelane (hereinafter “Qwelane”) the constitutionality of the threshold test for the hate speech prohibition in section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (hereinafter the “Equality Act”) was challenged. Although the court had no difficulty in finding that the publication in question fell squarely within the parameters of hate speech, the judgment is both incoherent and flawed. The court’s conjunctive interpretation of the section 10(1) requirements for hate speech also differs from the disjunctive interpretation given to the same provision in Herselman v Geleba (ECD (unreported) 2011-09-01 Case No 231/09 hereinafter “Herselman”) by the Eastern Cape High Court. The consequence is a “fragmented jurisprudence” which impacts on legal certainty, and which is especially dangerous when the legislation in question is critical to the achievement of the constitutional mandate (Daniels v Campbell NO 2004 (5) SA 331 (CC) par 104 hereinafter “Daniels”).This note demonstrates that the Qwelane court misapplied a number of key principles. These include: the court’s mandate in terms of section 39(2) of the Constitution of the Republic of South Africa, 1996 (hereinafter the “Constitution”); the need to strike an appropriate balance between competing rights in the constitutional framework; the importance of definitional certainty for a hate speech threshold test; the meaning to be ascribed to the terms “hate”, “hurt” and “harm” in the context of hate speech legislation; and the role of international law when interpreting legislation intended to give effect to international obligations.The consequence of these errors for hate speech regulation in South Africa is profound.</jats:p

A study into the changing views of orthopaedic surgeons, neurosurgeons and neurologists of chiropractic in South Africa

Previously it was established that the majority of medical professions such as Orthopaedic surgeons, Neurosurgeons and Neurologists were not comfortable with the Chiropractic Profession. Changes have occurred since this perception was established so it was considered necessary to review the knowledge and perception of these three medical professions in order to ascertain any changes. Objectives The objectives were to establish the demographic factors of Orthopaedic surgeons, Neurosurgeons and Neurologists, whilst also establishing their current views and perceptions of the Chiropractic profession in South Africa in terms of their personal experience of Chiropractic, Chiropractic therapeutic efficacy, the Chiropractic scope of practice and inter-professional relations. Methods This prospective, qualitative questionnaire study required that all 478 Orthopaedic surgeons, 110 Neurosurgeons, and 101 Neurologists who were registered with the Health Professions Council of South Africa at the time receive a questionnaire. Thus a total of 689 Questionnaires were sent out for completion. Results The overall views and perceptions of participating Orthopaedic surgeons, Neurosurgeons and Neurologists regarding Chiropractic has made a positive shift in favour of developing and potentially expanding relations between these professions and the Chiropractic profession. This has been shown by the increased confidence these professions have in the Chiropractic profession both in terms of effectiveness of Chiropractic treatment for neuromusculoskeletal and other conditions, as well as the increased rate of referral between these professions and Chiropractors.</jats:p