Van Der Merwe's Constitution Fifteenth (Floor Crossing), Swart's Constitution Sixteenth Amendment Bills

Meeting Summary

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Meeting report

07 November 2006

Ms P Mentor (ANC)

Documents handed out:
South African Council of Churches submission on Civil Union Bill
Southern African Catholic’s Bishop’s Conference Submission: Civil Union Bill
Summary of public hearings on Civil Union Bill in the provinces: 20 September to 9 October 2006
United Democratic Movement v President of the Republic of South Africa and Others (African Christian Democratic Party and Others intervening: Institute for Democracy in South Africa and Another as Amici Curiae)(No 2) 2003 (1) SA 495 (CC)
Response to questions from the Committee by Steven Swart ACDP MP, 30 October 2006
Memo on Mr Swart’s Constitution Sixteenth Amendment Bill

The Chairperson noted that there was no quorum and therefore no decisions could be taken. However, three outstanding issues were raised. Firstly, in relation to Member Van der Merwe’s Constitution Fifteenth Amendment Bill (Floor Crossing), it was noted that the Head of Parliamentary Information Services would appear before the Committee to provide its research on floor crossing in other countries. It was noted that the matter would have to be finalised in the first quarter, including the possibility of holding public hearings, if the Rules were changed to allow the Committee to do so. Secondly, in relation to Member Swart’s Constitution Sixteenth Amendment Bill, it was noted that further documentation on this proposal had been provided to the Committee. The finalisation of the Civil Union Bill in the Home Affairs Portfolio Committee on 9 November would be crucial to the decision-making in this Committee and she made an earnest plea for a quorum at this Committee's next meeting. Mr Swart, having made his submissions, should not engage further in the Committee meeting, although he could obviously be present.
The Chairperson noted that she had written to the Speaker asking that the Rules of Parliament be changed to allow this Committee to hold public hearings, which it was not allowed in terms of the current Rules. The response from the Office of the Speaker was that the letter was receiving attention.

The Chairperson explained that this committee was having a problem with meeting times, which clashed with other meetings. The decision to meet earlier had been taken on the understanding that this meeting would require very involved discussion. However, there was once again no quorum and therefore no critical decisions could be taken on the way forward. She said, therefore, that this meeting would gauge progress made on decisions taken the previous week. Minutes of that meeting were not available but would be circulated.

The Chairperson summarised that there were three outstanding issues. Firstly, the Committee had asked Mr Swart for information on the UN Declaration of Human Rights, which was the basis of the South African Constitution’s Bill of Rights. This had been circulated. Some members had felt that the submissions before the committee were one sided. The Members had suggested that they receive information from the Portfolio Committee on Home Affairs with an indication of other opinions put forward. Mr Ainslie had been asked to get this information.

Secondly, the Chairperson was to write a letter to the Speaker requesting that the Joint Rules be augmented to allow the Committee the right to hold public hearings, similar to any other committee.

Thirdly, the Committee wanted to have some indication on the situation in other countries as far as floor-crossing was concerned.

Mr A Ainslie (ANC) reported that he had circulated the documents last week as requested. He commended the very useful PMG (Parliamentary Monitoring Group) web site, which not only gave Minutes, but also listed the documents available and tabled at any particular meeting. He had not needed to attend the Home Affairs Portfolio Committee but had instead chosen from the PMG website the three documents that he had circulated. He had not wished to swamp this Committee with documents. He had chosen the religious theme as evolved in the discussion and the presentation by Mr Swart, and different viewpoints from different denominations. He had circulated the input from the South African Council of Churches and input from the Archbishop of the Roman Catholic Church. He then circulated a thicker document from a coalition of various gay and lesbian groups. He felt that these two viewpoints would serve as a balance.

The Chairperson thanked Mr Ainslie for his efforts, but stated that the Committee would not interrogate the contents at that stage. She had also received documents from Mr Swart but did not find it necessary to circulate these to the committee and would read them for her own information. She did not wish to create the impression that Mr Swart was attempting to unduly pressurise the Committee. Normally, when a Member’s bill was received, the Chairperson would invite that member to present a case before the Committee. Mr Swart had been given two opportunities and technically speaking that interaction had ended. Mr Swart had the right, as a Member of Parliament, to sit in at the meeting and listen to the deliberations.

Mr S Swart (ACDP) apologised to Mr Ainslie that he had not meant to bypass him in forwarding the documentation to the Chairperson.

The Chairperson clarified that Mr Swart had the right to continue to lobby Members of Parliament individually inside and outside of the Committee. He could continue to circulate documents as long as he did not attempt to present them before the committee.

Mr Swart appreciated the Chair’s indulgence and asked for guidance for the future as to in what manner he could engage.

The Chairperson said that she would, in her role as Chair, use discretion. She suggested Mr Swart listen to the deliberations without undue pressure to the Committee.

Mr S Mshudulu (ANC) explained that there were many issues that could have an effect on deliberations. The objective of the committee was to allow Members to act in terms of their constitutional right. Last week had not been open minded and had allowed members who had been present at the meetings of the Committee on Home Affairs still to engage. This was a very progressive demonstration of democracy. Mr Swart should deal with documents and the committee would be able to judge on the basis of facts presented.

The Chairperson welcomed Pastor Tim Makamu, the Pastor from His People Church, and noted his interest, as he had also been in the Home Affairs meeting the previous week.

She continued that the rules governing this committee were different. The committee could invite Mr Swart, as a Member of Parliament, to address it, and could ask a few questions. He was allowed to attend, but it would be unfortunate if he continued to engage..

Mr Swart appreciated the Chairperson’s guidance and would abide by that. It was not his intention to influence the Committee at all.

Floor crossing Proposal : Constitution Fifteenth Amendment Bill
The Chairperson reported that  Dr Gabriel (Manager: Parliamentary Information Services)  had given an undertaking to attend a Committee meeting to give an indication of the research he had done. The Committee should endorse that he was researching and checking the process of floor crossing, whether it was constitutional, acceptable democratically, and, with specific reference to those countries that had floor crossing, would consider whether  members were leaving their seats behind or taking their seats with them. The nub of the research was that if floor crossing continued the law must be amended to ensure that the member who crossed the floor left the seat behind.

Ms I Mars (IFP) agreed, since there were so many different electorate systems in the world.

Mr Ainslie referred to Mr van der Merwe’s presentation where he claimed that floor crossing was fundamentally undemocratic. Research was needed to look at those countries that did allow floor crossing, on what basis they allowed it; and whether or not it was democratic. Mr van der Merwe had also claimed public opposition and public support and so there was a need to go to communities to establish what was the will of the public.

The Chairperson reminded Mr Ainslie that she had received letters, although not a sizeable sample, on which to draw some conclusion. She asked whether the research should also test public opinion, or whether the Committee, if permitted to do so by the Rules, should hold public hearings.

Mr Ainslie thought a survey had been done engaging public information on floor crossing. The Committee should get that research, since it would still no doubt be valid and he did not think further research would indicate any different opinions. Various presentations had also been made and it would be most useful to get that information.

Mr Mshudulu felt if the floor crossing was deemed acceptable at the time the Bill was passed, that should be the starting point. There must have been reasons, and there was engagement that included all the parties. He pointed out that comparison with different countries would not assist in deciding whether the position in South Africa was constitutional, because of the different legislation. Research should be done in context. The committee should be able to state the current position and allow each party to address the challenge.

The Chairperson agreed that, based on the South African constitution, floor crossing was currently regarded as constitutional. To say it was not would be questioning the integrity of the court that allowed it. The committee should research international experience and the records of what transpired.

Ms S Rajbally (MF) agreed that the Committee should wait for the result of the research, but if possible fix a time frame.

Mr A Harding (ID) asked for clarification. His party had asked him to replace Mr C Burgess, a former member of the committee.

The Chairperson  responded that he could not use that argument. She continued that she did not wish to prolong this issue. Having checked the Parliamentary programme, Dr Gabriel would be asked to report to the first meeting of the committee next year.

Mr Ainslie said the Committee must bear the general time frames in mind. The next opportunity for floor crossing was expected to be September next year. The committee would have to do research, hopefully have public participation, change the rules; deliberate in the committee, and possibly also debate in the House, and still give the electorate clarity well before September. This could be a very tight programme.

The Chairperson stated that the plan was to complete everything within the first quarter.

Mr Mshudulu suggested that for the sake of the record, participating parties should be asked to submit written documents explaining the criteria and addressing the concerns.

The Chairperson agreed  that parties had to operate in terms of the rules. She said, in regard to Mr Harding,  that he would not be permitted to participate unless the Committee that had nominated him as a full time or ad hoc member of this Committee.

Mr Ainslie asked for clarity on the matter. Only certain parties, but not all parties represented in Parliament, were on the Committee list. There was a need to establish which parties were not on the list, and what steps they should take to have their representatives registered as members of the Committee.

Mr Harding stated that he had attended this Committee two meetings ago. His office had been in contact with the Committee Secretary. He could not be blamed if it was not reflected in the records.

The Chairperson explained the procedure, and said that the list of members was received from the Announcements, Tablings and Committees (ATC). Mr Harding’s party must contact the office that allocated names of people so that the Committee could know that Mr Harding was properly a member of the committee. He should take up the matter outside the meeting.

The Chairperson stated the Committee would be meeting for the last time next week. There was still a problem with the time. Members must make an effort to attend because decisions were required. There must be a quorum since the Committee must make a pronouncement on the two matters. 

Ms S Rajbally (MF) asked whether the Committee should not rather wait to hear from the Portfolio Committee on Home Affairs.

Mr Ainslie agreed that the Committee had reached the stage where it was ready to take a final decision on Mr Swart’s proposal on the Constitution Sixteenth Amendment Bill. He suggested that it should proceed the following Tuesday.

The Chairperson concurred. The next day’s meeting of the Home Affairs Committee was critical. She proposed meeting at lunchtime and noted that to date the ANC had mostly been at fault in failing to attend to allow a quorum.

Mr C Lowe (DA) noted that he had apologised last week. He agreed the Committee should wait for news from the Home Affairs Committee.

It was agreed that the Committee would meet again with a full quorum next week.

Request to Speaker for permission to hold public hearings
Ms Mentor noted that she had written to the Speaker to allow the committee to hold public hearings, which it was not presently allowed to do in terms of the Rules of Parliament. There had been a response that the letter was receiving attention.

The meeting adjourned.


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