Judge Andre le Grange said section 11 was invalid to the extent that "it permits a member to be arrested for conduct that is protected by sections 58(1)(b) and 71(1)b) of the Constitution".
These sections provide that members are not liable to civil or criminal proceedings, arrest, imprisonment or damages for anything they have said, produced before or submitted to the National Assembly or any of its committees.
"The provision in section 11 is over-broad and as a result is constitutionally flawed," Le Grange said.
The Democratic Alliance brought the application against Speaker Baleka Mbete, chairperson of the National Council of Provinces Thandi Modise and the government.
State of the Nation address
Mbete and Modise had invoked section 11 during President Jacob Zuma's State of the Nation address on February 12, calling upon Parliamentary staff and security forces to forcefully remove members of the EFF from the joint sitting as a result of disturbances that were caused.
At the heart of the DA's application was the contention that the section, properly interpreted, was only applicable to non-members of Parliament.
"In as much as Parliament is entitled to conduct its own affairs, the privilege of freedom of speech is vital to allow Parliament to perform its function of permitting unrestrained debate about matters of public importance," the judge said.
Le Grange suspended the full bench's order for a period of 12 months to allow Parliament to remedy the defect in the legislation.
He also referred the order to the Constitutional Court for confirmation and said the respondents were to pay the costs of two counsels.
The DA's executive federal chair, James Selfe, said outside the court he was very pleased with the ruling and that it would allow all members to speak "truth to power" and to fulfil their constitutional duty of holding the executive to account.
Newswire ID: 3111
File photo: Gallo Images
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