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AD HOC COMMITTEE ON POWERS AND PRIVILEGES: DELIBERATIONS
2 November 2001
FOURTH DRAFT ON POWERS AND IMMUNITIES OF PARLIAMENT BILL
Chairperson: Mr. Mokaba
Fourth Draft on Powers and Immunities of Parliament Bill
Interim Committee Report dated 2/11/01(see Appendix 1)
Parliamentary Law Advisors Opinion on Absence of Members at Meetings (Appendix 2)
The meeting consisted of a brief 20 minute discussion on the way forward. It was agreed that the National Assembly be requested to approve postponement of the finalisation of the Bill until March 2002. It was agreed that deliberations on the Fourth Draft should start early next year.
The Chairperson addressed the few members present, stating that due to the Committee’s failure to finalise the Bill by 2 November 2001, a proposal had been put to Parliament to postpone finalisation until 31 March 2002. [This had subsequently been approved by Parliament.]
Mr. Cassiem (IFP) suggested that a Committee Report be compiled for Parliament and that outstanding issues stand over until early next year. The few members present concurred with this suggestion.
Mr. Eglin (DP) asked what the difference was between the Ad Hoc Committee and Select Ad Hoc Committee as referred to in the report. Mr. Hendrikse replied that the NA Committee was the Ad Hoc referred to in the Report; whereas the Select Ad Hoc Committee referred to the NCOP Committee.
Ms De Lille (PAC) recommended that the Committee commence deliberations on the Bill between the 14 to 25 January 2002 with the assistance of a consultant.
The Chair agreed with Ms De Lille’s suggestion and asked that all Committee members peruse the Fourth Draft of the Bill prior to this. The Committee agreed.
The meeting was adjourned.
[The meeting scheduled for 7 November 2001 was subsequently cancelled. A final meeting for this session will be held on 14 November 2001.]
Report of the Ad Hoc Committee on Powers and Privileges of Parliament, dated 2 November 2001:
The Ad Hoc Committee on Powers and Privileges of Parliament reports as follows:
- The Committee was appointed on 5 April 2001.
- The Committee was instructed to consider the recommendations of the Joint Subcommittee on Powers and Privileges of Parliament, and to introduce a Bill in accordance with Chapter 13 of the National Assembly Rules, by 7 September 2001.
- The Committee members were appointed on 1 June 2001.
- The Committee met on 6 and 13 June 2001 to elect its chairperson and to plan its work. It was decided to await a third draft of the Bill, which would include the amendments suggested by the Joint Committee on Rules at its last meeting.
- A third draft Bill was prepared by the Parliamentary Law Advisers, and published in the Government Gazette on 11 July 2001. The public was invited to comment on the contents of the Bill and make recommendations to the Committee on it within 21 days, in terms of National Assembly Rule 240(a).
- A few stakeholders suggested possible amendments to the Bill.
- Having considered the draft Bill, written submissions by members of the public, as well as some research work on the subject matter throughout the world, the Committee realised that the scope, range and complexity of the matters to be dealt with in the legislation were of particular consequence to Parliament, and that there was much to be derived from investigating all contributing factors, including incidences which may have bearing on legislation on these matters.
- At its meeting on 21 August 2001, the Committee agreed to utilise its mandate to confer with the Ad Hoc Select Committee on Powers and Privileges of Parliament by holding joint meetings with them. It was the view of the Ad Hoc Committee that it would also save time to co-ordinate the meetings of both Committees. This, however, meant that the programme of meetings had to be amended to accommodate the cyclic nature of the NCOP’s activities. The Ad Hoc Select Committee elected its Chairperson on 21 June 2001, and held its first meeting on 7 September 2001.
- However, one of the Ad Hoc Select Committee’s responsibilities is to consult with the provincial legislatures on matters which affect them. Such consultation was entered into with the legislatures, but to date only two of the nine legislatures have responded. That process has therefore not been completed.
- In view of the above, it became clear that the Ad Hoc Committee would not be able to complete its work within the period it was given to do so, also as a result of the duties of Members of Parliament at that time.
- The Committee was consequently given an extension of its deadline for reporting to the National Assembly until 2 November 2001.
- The Committees requested the parliamentary researchers to do an in-depth study of similar legislation in the world, particularly in Africa, with a view to introducing legislation providing for South African public representatives worthy of high esteem.
- All parties agreed that to save time and meet the new deadline, it was important to run workshops jointly with the Ad Hoc Select Committee. The Committees held workshops on 13, 14, 26 and 28 September and 2 October 2001, at which they considered the third draft Bill. These workshops were successfully concluded and led to the foundation being laid for the fourth draft of the Bill.
- The Committees held public hearings on the legislation on 26 September 2001. Although a number of stakeholders had been invited to participate and had indeed indicated their interest in doing so, only Prof C Murray of the Law Faculty at the University of Cape Town, and Mr R Louw of the Media Institute of South Africa and Mr N Dieltiens of Freedom of Expression gave their views on the third draft of the Bill.
- After earnest discussions on the legislation and identifying numerous provisions to be amended, the Committees requested the Parliamentary Law Advisers on 28 September 2001 to prepare a fourth draft of the Bill, including all possible provisions to be considered for inclusion in a final draft Bill.
- The fourth draft of the Bill was made available on 17 October 2001, and distributed to members of the Committee on 18 October 2001. It is the intention of the Committee to consider the fourth draft with a view to improving it towards preparing a fifth and final draft.
- One of the logistical difficulties encountered by the Ad Hoc Committee is that, unlike other parliamentary committees, ad hoc committees do not have their own time-slots for meetings. This fact makes it well near impossible to find meeting times which do not clash with several other committee meetings which the members of the Ad Hoc Committee should attend, as part of their duties as Members of Parliament.
- The Committee had permission to meet on 24 October, 2, 7 and 14 November 2001 to consider the fourth draft of the Bill. Unfortunately the Ad Hoc Select Committee will not be able to meet on 24 October, and the meeting has therefore been cancelled.
- At its meeting on 2 November 2001, the Ad Hoc Committee resolved to request the National Assembly to grant it a further extension of its deadline until 31 March 2002. It also agreed not to meet on 7 and 14 November 2001, but that the work of this Committee should be prioritised for next year. It is the intention of the Committee to meet from 14 January 2002 in order to finalise its work. The Committee further resolved that the Chairperson of Committees be requested to ensure that the Ad Hoc Committee be granted specific time-slots in 2002, to enable it to hold its meetings independent of other Committees.
Report to be considered.
Ad Hoc Committee on Powers and Privileges of Parliament
10 October 2001
ABSENCE OF MEMBERS
1. You requested our advice as to whether the proposed legislation on the powers and immunities of Parliament can or should deal with the question of members who fail to attend meetings.
2. The Constitution and legislation distinguish between two situations: Firstly, loss of membership of Parliament due to absence and, secondly, some other penalty, short of losing membership, for failing to attend meetings.
LOSS OF MEMBERSHIP
3. Section 47(3)(b) of the Constitution provides that a person loses membership of the National Assembly if that person is absent from the Assembly without permission in circumstances for which the rules and orders of the Assembly prescribe loss of membership. It is clear that this constitutional directive requires those circumstances to be prescribed in the rules of the Assembly. It cannot be done in legislation.
4. There is a similar provision in the Constitution regarding permanent delegates to the National Council of Provinces (section 62(4)(e)). The Rules of the NCOP have given effect to that provision (see NCOP rule 17). However, the NA Rules have not been adapted accordingly.
PENALTY FOR ABSENCE
5. The Payment of Members of Parliament Act, 1994 (as its predecessors under the previous constitutional dispensation), contained a provision to the effect that certain amounts would be deducted from members' salaries for unauthorised absence from meetings. See section 3 of Act 6 of 1994 -copy attached. When that Act was replaced by the Remuneration of Public Office Bearers Act, 1998 (Act 20 of 1998 - the Remuneration Act), the provision dealing with deductions for absence was omitted (on purpose). In its stead section 3(5) of the Remuneration Act provides that the payment of members' salaries is subject to the rules and orders of the respective Houses. The intention is clearly that any deductions from members' salaries should be regulated by the rules and orders.
6. The Remuneration Act contains a similar provision in relation to the salaries of members of the provincial legislatures (section 6(6)). At least one of the provincial legislatures has, on the basis of this section, dealt with this matter in its rules. See rule 19(3) of the Rules of the Eastern Cape Provincial Legislature - copy attached.
7. In view of the above, we would recommend that, if it is considered necessary to provide for salary deductions on account of members' absence, the Houses should give effect to Parliament's directives in section 3(5) of the Remuneration Act, and do so by means of appropriate additions to the respective Rules. If provision for such deductions is to be made in legislation (and not in the rules), sections 3(5) and 6(6) of the Remuneration Act will have to be amended accordingly.
A M MEYER/MM TSHOLETSANE
PARLIAMENTARY LAW ADVISERS
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