Parliaments and people’s assemblies the world over have deep problems. All democratic systems of governance experience times of crisis. South Africa is no special case. Look at the United States. There is no ideal solution that works for all time. Just imagining improvements can be useful.

Here we look at one aspect of a democratic parliament – its committees.

The article is written for new MPs, to suggest what they could consider to help our Parliament to improve its performance. For it is up to them and their veteran colleagues from the Sixth Parliament to step forward. Rules are made to be amended!

The number and nature of committees is decided by Parliament itself. Only Members of Parliament may sit on committees and it is only MPs that can decide to reform how they work. But the work of committees is visible to all. Comments on the work of committees, both criticisms – and compliments – can strengthen public participation in Parliament.

Zondo – the strongest message the committee system ever got

“The most important work of Parliament takes place in its committees. There is a parliamentary committee responsible for overseeing each government department.” – Peoples Assembly website “The evidence before the Commission is overwhelmingly in support of the view that the institution that is key to the performance of parliamentary oversight over the executive in South Africa is the Portfolio Committee” (Zondo VI(II) para 755).

The reports and hearings of the Zondo Commission demonstrated how our parliamentary representatives, subject to party pressures, again and again shielded their political leaders from accountability.

The centrality of committees to the work of Parliament is written into the Rules (Parliament 2016). Zondo said it was the committee system that did not work (IFAA, 2022:4-6).

The great bulk of evidence used by Zondo came from the time of the Fourth and Fifth Parliaments 2009 to 2019. But the findings and recommendations were published during the term of the Sixth Parliament.

How did the committees of the Sixth Parliament fare?

In responding to the challenges and revelations of Zondo – not well. PMG and HSRC published detailed commentary on what Parliament and its committees had done (and had delayed doing) in response to Zondo. (PMG, 2023; Pienaar & Bohler-Muller, 2023; HSRC, 2023). The Chief Justice himself spoke at an event in November 2023, where he said “I think that it's our duty to do what we can to help Parliament and work with it to try and see what solutions can be found.”¹

Parliament needed help, which it did not manage to assemble during the time of the Sixth Parliament. In March 2024, the Civil Society Working Group on State Capture (CSWG) issued an assessment of the national responses to state capture and called for: “Parliament to take urgent steps to reform its oversight systems" (Pongweni, 2024).

Deep flaws in the functioning of South Africa’s new democratic legislature were flagged during the First Parliament (1994 to 1999) (Corder et al 1999). The same issues have been noted in every Parliament since. Many of the suggested adjustments and reforms hone in on the practical operation of committees. Implementation never follows.

The final instalment of the Zondo report, Part VI, Vol 2, Parliamentary Oversight, released in June 2022 – pages 287 to 483 – includes the most recent analysis of committees, and how they work or fail.²

In summary, Zondo found that “Parliament’s failure to fulfil its cardinal, and constitutional, duty of oversight over the executive allowed state capture to occur. The actual site of Parliament’s failure was the Portfolio Committee system.” (Levy 2023)

In June 2019, a newly-revised 428 page “induction handbook” was issued to the Members of the Sixth Parliament when they came to take up their seats. (Legislative Sector South Africa, 2019). More than half of the content deals with committees, their procedures and duties. But there was no recounting of the critical Nkandla judgment where the National Assembly relied on the reports of parliamentary committees to exonerate the former President – actions that were condemned by the Public Protector and the courts.

The induction handbook did not reflect in any measure on state capture – although several committees had been tasked to inquire about the issue during the Fifth Parliament. The focus was on rules and procedures and guidelines. The 2019 handbook did not present a framework in which the findings and recommendations of Justice Zondo on committee conduct would find much traction.

State capture was followed by Covid-19 and arson

Judging the performance of committees in the Sixth Parliament is complicated by two huge shocks that disrupted the work of Parliament. These were the lockdown measures associated with the Covid-19 pandemic from March 2021 to April 2022, and then the disastrous fire in January 2022 which destroyed much of the National Assembly and its offices and meeting rooms.

The physical brokenness of Parliament and the physical absence of MPs was dealt a further blow in mid-2022 with the release of the last volumes of the Zondo Commission report and its devastating chapters on the conduct of Parliament and its committees.

Covid-19 and the fire, in a most ironic fashion, showed Parliament’s resilience in the face of adversity. For Parliament, with amazing rapidity, and with great technical competence, moved into modes of online meetings and remote work for both officials and Members. The Cape Town City Hall was re-purposed for plenaries and the State of the Nation Address. It was not ‘business as usual’ but it was business.

Again, with some irony, the challenges of Covid upped the game of committees, which continued to meet and involve Executive members. “Connectivity issues” overtook “consequence management” as a characteristic phrase for Parliament. However, electronic meetings allowed busy ministers and senior officials to pop in and out of Committee meetings with ease and without expensive transport arrangements. Productivity may even have risen due to the flexibility of virtual meetings.

Evaluating the effectiveness of Sixth Parliament committees

The volume and scope of work done by committees over the five years 2019 to 2024 is enormous. PMG covers all the parliamentary meetings – which occupy time almost beyond measure of MPs, support staff, government officials, journalists and people and organisations which attend. In addition there is the preparation work for meetings and oversight work in committee oversight visits all around the country - which are undertaken largely out of sight. Committees generate reports that fuel the work of the National Assembly and the NCOP. Quality varies everywhere, but the effort should move mountains.

To say that committees are “busy, but are not working” is harsh.

But that is the truth.

After 30 years of democracy, so much of our country is broken. Parliament has watched and monitored every aspect of government performance over this period – the PMG records of committee meetings are proof of this. Yet it has been totally unable to act as a check and balance on executive authority, as standards of public service have declined and state owned enterprises have been mismanaged and looted.

This is not only about the failure to proceed with votes of no confidence in the president and long delays in processing important legislation (particularly those subject to time limits set by the judiciary). Consider how the executive has largely ignored constructive advice from MPs of all parties through committee reports – in particular the often meticulous comments for improvement provided in the annual Budgetary Review and Recommendations Reports.

This signals the first recommendation for reform, set out below.

Down with the Money Bills Act, down!

Parliament must recognise that the Money Bills Act is a failure. It is this legislation that dictates much of the oversight programme of committees. It binds each portfolio committee into a rigid quarterly schedule to monitor expenditure and performance for each separate budget vote. This is extremely time and resource intensive. The narrow focus on single budget votes is a set of blinkers that hampers oversight of responsibilities that involve more than one department. When introduced, in the Third Parliament, the Act was intended to be the way for Parliament to influence the budgetary decisions of government (and the National Treasury).

But this intense monitoring (and it is extremely intense) has not improved government performance one iota. Departments pay expensive deference to Parliament. The most senior officials take time off their proper work to attend meetings. They present long, long reports painstakingly assembled by armies of junior officials. They answer – or delay answering – complex parliamentary questions. And they take next to no account of what Committees or Parliament says.

Committees can add absolutely nothing to the financial and performance monitoring that is already done by the Auditor-General (AG) for government and all organs of state. The AG has teams of expert chartered accountants working with each government entity over months. Committees duplicate this oversight, much less effectively, repeating the findings of the AG in committee reports to the House. Parliament already has the benefit of its own Parliamentary Budget Office (PBO), staffed with financial experts, to analyse government budgets. This work is complemented (duplicated?) by that of the Financial and Fiscal Commission (FFC), which Parliament created in 1997 to provide recommendations to Parliament on financial and fiscal matters.

Committees may develop their own recommendations, or repeat those of the Auditor-General, the PBO and the FFC. The result is the same – the executive takes no notice and proceeds as normal!

How would a shift to looking at the implementation of legislation (and the passing of new laws) be better? For one, it would encourage more public participation because committees would be looking in detail at the way laws were being administered by responsible departments. This could provide a solid basis for improvements.

Would Parliament have the resources and the capacity? Yes it would. Even the Zondo Report fell for the excuse from some chairpersons that Parliament lacks oversight capacity.³ This need not be true. Information for policy oversight and for the content of new legislation is available easily, eagerly and without cost to Parliament from academics, NGOs, business organisations and policy think-tanks. These resources – from the public and civil society – can be drawn on to interrogate the content of white papers and strategic plans as well as provide evidence ‘from the ground’ on how laws are being interpreted and applied. This wide, expert guidance is there to help Parliament with its oversight functions and recommendations to the executive.

Committees also have their own internal staff support provided by Parliament. Capacity here is strong, although it has suffered in recent times because of a recruitment freeze. The ranks of the parliamentary research unit and committee ‘content advisors’ have been seriously depleted since 2014. There is money and political will to double the pay of the Secretary to Parliament, but not to maintain hard fought-for committee support capacity. Every committee is supposed to have access to appropriate content advisors and research staff. These posts are extremely well-paid – at levels comparable to professors and senior lecturers at a university respectively. Parliament can recruit highly expert and competent support for committees. Parliament should allow more of the research produced by its support services to be published. There should be public scrutiny of the research opinions and evidence produced for committees by Parliament.

This is the place to mention Chapter 9 institutions beyond the Auditor General. These institutions, created by the Constitution are independent of the Executive – they are accountable to the National Assembly. What is more, it was intended that “they also complement and are supportive of Parliament’s oversight function.”⁴

Unfortunately – as the Asmal Committee found in 2007 – “Parliament’s engagement with the institutions currently is wholly inadequate”. (Parliament, 2007:xii)

A key recommendation was that “the capacity of portfolio committees to engage with substantive reports of these institutions should be significantly enhanced.” This was never done, despite the formation of a unit on constitutional institutions and other statutory bodies set up in the Office of the Speaker “to co-ordinate all interactions with these institutions”.

The way in which committees do their oversight work would benefit from innovation – Four suggestions are put forward here, none of which requires changes to the Rules or legislation:

The first is to select committee chairs from all committee members – and not only those attached to the ruling party. The majority will still rule on decisions (when there is a vote), but committees will work better with the most capable possible chairs. The majority party pulls out all its own ‘best’ people to serve as ministers and deputy ministers. The ‘best’ of the minority parties can be voted in as chairs of committees. Committees already work, normally, in a much more collegial manner than the National Assembly. Oversight quality will improve. The ability of the Chairperson is the critical factor in committee effectiveness.

The second is to experiment with ways of holding meetings – sometimes perhaps entering a more inquisitorial mode for questioning officials and ministers by allowing a dialogue to pursue and clear up issues. In most committees, questions are asked in rounds and then responded to together. Points can be avoided or poorly addressed.

In this context, the Fifth Parliament, on many occasions, scheduled “colloquiums” on particular topics – policy on rhino poaching, policy on administered prices etc. While the format for these events varied: they all focused on a narrow policy topic, they invited participation from experts, they had general discussions on expert inputs (with all in the meeting allowed to participate) and the event resulted in a report with recommendations to the executive. In some cases, the chair allowed attending members of the public to make comments or ask questions. A huge advantage of colloquiums is their ability to address “cross-silo” issues in a less ‘threatening’ manner. For example, the sector education and training authorities (SETA) – with their billions of public money from the skills levy – would benefit from a colloquium on a particular SETA – even at five year intervals. This would widen and deepen parliamentary oversight.

The third is for each committee to decide its oversight agenda for each term or year. This is to allow for follow-up and continuity in resolving particular issues of policy or service performance. At present, the agenda is dictated by the budget cycle and strictly limited to issues financed by Parliament in one of the separate annual “budget votes” for the particular portfolio of the committee. This is fine for the finance committees – but it utterly destroys the momentum for policy oversight in health, education and the real economy, which are about so much more than the funds voted in the budget.

The fourth is to create more ad hoc committees on particular issues – particularly those that span ministerial portfolios.

A committee’s role in considering new legislation obviously takes precedence over ‘normal oversight’. Parliament corrects and develops policy through legislation. Ideally this will include insights gained from oversight of previous government involvement in the area. There needs to be proper oversight of the legislative process itself, by calling for public participation and weighing the advice of experts and the views of interested parties.

Our Parliament has been captured by party-whips and bureaucrats – Parliamentary staff who have their own agenda for what MPs should do. They will say Members already decided the Rules themselves – which is true, on the surface. Actual Members have to co-operate to take control of Parliament into their collective hands. Not an easy task – but it is their right under the Constitution.

Point summary: committee system reforms to improve oversight potential

Reform measures ‘easy’ to make, now:

• Committee chairs elected freely from all members
• Colloquiums to widen participation in oversight and deal with cross-silo issues
• Placing Vote 1 The Presidency under the oversight of a committee
• ‘Work to rule’ on the Money Bills Act (until it can be amended) – ultra-short BRRRs, and cursory compliance with the need to review Section 32 reports.
• Publishing Research Unit and other internal reports prepared for Members and Committees by Parliament for public scrutiny.

Strong political will is required even for the ‘easiest’ measures.

All changes that involve scheduling parliamentary time – and involve expenses – have to be approved by the House Chair of Committees, appointed by the majority party.

Reform measures that require a change in the NA Rules:

• Rule on matters sub judice – this rule needs to be deleted. It is misinterpreted and abused to prevent scrutiny of many matters of concern to committees.

Reform measures that involve amendment of laws

• Amendment of the Money Bills Act [BRRR] – this would free up the skilled and expert researchers and legal advisors who presently waste months of time duplicating (for committee meetings) work already done (and done well) by the AG.

Reform measures that require amending the Constitution

• ationalising the Chapter 9 institutions (which very usefully assist committees in Parliament with expert and representative comments on the work of government and SOEs) – the Asmal Ad Hoc Committee in 2007 made concrete proposals, all but one of which have been entirely set aside by Parliament. (Parliament 2007) /li>