The Equal Education Law Centre (EELC) on behalf of Equal Education (EE) has submitted a comment to the Rules Committee of the National Assembly on the potential unconstitutionality of the sub judice rule. The rule, as currently constructed, prevents any discussion in Parliament on any matter pending before a court even in instances where matters are of public interest.
The rule was recently invoked against EE’s parliamentary liaison officer, Ms Hopolang Selebalo, when she sought to address the Basic Education Portfolio Committee on the Department of Basic Education’s annual performance, including its performance in the area of school infrastructure. Ms Selebalo was informed that she could not touch on the issue of school infrastructure at all as it formed the subject matter of litigation brought by EE against the Minister of Basic Education to compel the Minister to bring into force binding minimum norms and standards for school infrastructure.
In its submission EE argues that the overly broad formulation of the rule renders it susceptible to a constitutional challenge as it unduly impedes Parliament’s law making and executive watch dog functions. It also serves as an unwarranted intrusion on citizens’ ability to address Parliament on matters of public interest.
EE recommends that the rule be reformulated to ensure that an appropriate balance is stuck between the need to avoid an unwarranted interference with the law making and accountability functions of Parliament, to preserve the independence and impartiality of our courts, to protect citizens’ rights to address Parliament and to protect a litigant’s rights to a fair trial.
EE suggests that the sub judice rule be reformulated in order to explicitly preserve the Assembly’s law making functions, to confer a guided discretion on the Speaker of the Assembly in making a ruling on the applicability of the rule, to preserve the public’s ability to address the Assembly on any matters of public concern, to insert a presumption in favour of non-application of the rule and to preserve the Assembly’s ability to interrogate any Ministerial conduct or executive action.
EE’s comment has been endorsed by the Parliamentary Monitoring Group , the Law, Race and Gender Unit (UCT), The Children’s Institute (UCT), the New Women’s Movement, Heinrich Boell Foundation, the Community Law Centre (UWC) and the Public Service Accountability Monitor.
Lisa Draga (EE Law Centre Attorney) on 072 650 0214
Hopolang (EE Parliamentary Liaison Officer) on 074 261 1672