Constitutional Review Committee: Election of Chairperson, Advertisement for public submissions, Committee Programme

Meeting report

Election of new NCOP Co-Chairperson
Co-Chairperson from the National Assembly, Mr P Holomisa, announced that it had been brought to his attention that the Co-Chairperson from the NCOP, who had been elected on 2 July, was not the candidate that the NCOP had decided upon. He believed that a Member of the NCOP would be moving a new motion.

Mr C De Beer (ANC, Northern Cape) moved that the nomination of Mr T Chaane (ANC, North West) be withdrawn, and replaced with the nomination of Mr B Mnguni (Free State, ANC).

Mr A Watson (DA, Mpumalanga) raised a point of order that it was the ANC, and not the NCOP, who had decided on the nomination of Mr Mnguni.

Mr de Beer confirmed that this was so.

A Member noted that since Mr Chaane had been duly elected by a quorum of the Committee at the 2 July 2009 meeting, the correct procedure was for him to resign. There should then be a new proposal. He asked for confirmation that the due process was being followed.

Co-Chairperson Holomisa said that he had been advised that the Committee, having elected Mr Chaane, could also remove him. The results would be the same no matter the procedure that was followed.

Adv H Schmidt (DA) said that the correct procedure to be followed was either that Mr Chaane should resign, or, if he did not do so voluntarily, then the Committee should take a decision to relieve him of his Co-Chair duties.

Co-Chairperson believed that the Committee could still go ahead with Mr de Beer’s motion.

Ms B Mncube (ANC, Gauteng) said that, in order to overcome any difficulties, she would formally propose that Mr Chaane be relieved of his duties as Co-Chairperson.

Advocate T Masutha (ANC) seconded the motion, and Members raised no objections.

Co-Chairperson Holomisa announced that Mr Chaane had thus been removed as Co-Chairperson. 

Mr de Beer moved that Mr B Mnguni be nominated as the new Co-chairperson.

Since no other nominations were received, and Members supported the motion, Mr B Mnguni was declared duly elected as Co-Chairperson and took his seat.

Adoption of Agenda
Co-Chairperson Holomisa read the draft agenda that had been circulated.

Mr Watson said that it was only proper to circulate a formal agenda in a format befitting a Parliamentary document. 

Notice of meetings and documentation
Mr Watson said that he had received the notice of this meeting in his pigeonhole that morning, and had received an SMS text message the previous night. He had, however, been unable to attend the meeting on 2 July, when this morning’s meeting was fixed, and was only aware of it at a late stage. He asked that due notice of meetings should be given to Members further in advance.

Co-Chairperson Holomisa said that he had been surprised that the meeting did not appear to have been in the Order Paper, commented that there had been changes in the support staff, and said that, whilst he agreed with Mr Watson, permission that the NCOP could sit had been given only on 7 July 2009. He agreed that problems such as this should be eliminated.

Adv Masutha commented that, according to the practice of Parliament, it was not the prerogative of a Committee alone to decide alone when it could sit. The Committee’s decision or recommendation was referred. He himself chaired another Committee and was well aware of these frustrations. He noted that it was impossible for the Committee Secretary to confirm and issue notice of a meeting until this meeting had been sanctioned, a venue allocated and the time confirmed by the relevant authority.

Co-Chairperson Holomisa said that there was a meeting of Chairpersons today, and he hoped that these concerns would be addressed there.

Adv Masutha asked that documentation should not only be circulated well in advance, but that it should also be sent also in electronic format, which had the added advantage of enabling small print to be enlarged to ensure legibility.

Advertisements for Public Submissions in terms of the Joint Rules
Mr S Swart (ACDP) said that the Committee was tasked with reviewing the Constitution annually. There was nothing to prevent this Committee, at the present time, from advertising for submissions from members of the public. The drafters of the legislation must have foreseen that in an election year the new Parliamentary year would begin directly after the election, and he believed that the Committee could send out advertisements before the recess, so that Members could being reviewing submissions on their return.

Co-Chairperson Holomisa replied that the Joint Rules stated that the advertisements for submissions must be published in April of each year.

Mr Swart objected that that particular rule could not apply when Parliament was not in session. If the Committee was in breach of the rule, this occurred because of the elections.

Mr G Snell (ANC) suggested that the Committee should write a letter to the Rules Committee to explain this Committee’s predicament and ask for a directive.

Mr Watson agreed with Mr Swart that the Committee could not have advertised in April as only now was Parliament in the first of the three terms of the new Parliamentary year. He suggested asking the Speaker of the National Assembly and the Chairperson of the National Council of Provinces to move motions that, notwithstanding the stipulation of the Joint Rules, the advertisements could still be published. 

Adv Schmidt said that he did not think that the Committee, by advertising now, would be in breach of the Constitution although it might possibly in breach of the rules set by the Rules Committee. He agreed with Mr Watson.

Adv Masutha said that there were no scheduled sittings of the National Assembly (NA) and National Council of Provinces (NCOP) before the recess began, although there would be a joint sitting on the afternoon of 8 July. A joint sitting, however, could not take a decision collectively, so that each House would have to take a separate decision on this matter. If there was no forum to which the issue could be referred now, then it would have to be dealt with in the first week of August. It was unfortunate that this problem had not been raised at one of the first meetings of the Committee.

Co-Chairperson Holomisa said that he thought that the Committee should address a letter to the Joint Rules Committee to ask for a waiver of the rule. Alternatively, the Committee could write to the presiding officers of each House, asking them to ratify the decision at the next sitting.

Mr Watson noted that there was a sitting of the NCOP that afternoon.

Co-Chairperson Holomisa said that the Committee staff should prepare a letter to the two Houses after the meeting ended. He hoped that the advertisements calling for public submissions would have been published by the time that Members returned in August.

Committee programme: Matters arising from Legacy Report and Five Year Review (prepared by Parliamentary Research Unit) and those remaining outstanding from 2008 submissions
Co-Chairperson Holomisa asked for suggestions on how the Committee should establish its programme.

Adv Masutha said that the Committee should first consider its “end product”, being the Committee’s Annual Report.

Ms Mncube, said that, as a new Member of the Committee, she would suggest, having browsed through the documents, that Members should receive summaries of the documents that identified the issues still outstanding. Perhaps Members who were well-versed with the contents of the Committee Report could identify particular issues to form part of the programme. She believed that in the meantime a short-term programme could be compiled that the Committee could follow whilst studying the full reports.

Mr Swart noted that documents were provided for 2005 and 2006, and then for 2008, but nothing was given for 2007. Although he had been serving on the Committee for ten years, he did not understand the sequence in which the documents were presented. He presumed that the aim was to highlight issues still outstanding. However, because there was a new Parliament, there should also be a defined process, and he believed that it was not in the public interest to make the work “too procedural”. He believed that outstanding issues should be isolated and re-tabled.

Members expressed general agreement.

Mr N Koornhof (COPE) said that he agreed. However, many of the matters arising from the reports were not constitutional in nature, so he suggested obtaining legal advice and referring these matters to the appropriate bodies. He also noted that some, such as the first item from the 2008 document, had been resolved, and Government had also dealt with the second item concerning the Electricity Regulator.

Adv Masutha said that the Parliamentary Research Unit should take the lead, by listing outstanding issues in one composite document, which would avoid Members have to study a multiplicity of different documents. Ideally, the Committee should always have a researcher in attendance.

Constitutional amendment bills and the role of the Committee
Co-Chairperson Holomisa said that the Committee, during its first meeting of the new term, would deal with outstanding constitutional matters, and would also address its role around the consideration of amendments to the Constitution. It was commonly believed that all matters pertaining to Constitutional amendments should be referred to this Committee.

Adv Masutha wondered whether the vision and mission of the Committee were not determined when the Committee was first established. If this was not done, then the Committee’s role would now have to be defined clearly, as a matter of priority. Several Committees were now reviewing their strategies. This Committee’s programme must conform to its mandate. The draft document to be compiled jointly by the Research Unit and the Committee Section should reflect that priority.

Co-Chairperson Holomisa said that the Committee should include a representative from the South African Local Government Association (SALGA). He believed that the Committee’s role was not to consider changes to the Constitution in order to suit Departmental interests, but rather to respond to concerns of members of the public. The Committee, when first set up, had been very large, and had included almost every lawyer who was a Member of Parliament, as well as presiding officers and chief whips.

Mr Swart said that the number of Members required for a quorum must be reviewed, in view of the fact that Committee membership had been reduced, as an interim measure, at the commencement of the third Parliament.

Adv Masutha said that all Committees had been reconstituted by resolution of both Houses after the fourth democratic elections. That redetermination of Committee composition had included this Committee, otherwise Members would not have been able to decide what quorum applied at the meeting on 2 July.

Co-Chairperson Holomisa was not entirely satisfied. He felt that the ‘interim measure’ of 04 August 2004 [Rule 98] to reduce the membership was still in force, and needed to be rectified. 

Mr Watson confirmed that Adv Masutha was correct. The Joint Rules Committee had sat for this very purpose two weeks previously. He said that this Committee was legally constituted.

Mr Swart said that the resolution must be reflected in that Rule.

Adv Masutha said that Rules were always subject to amendment.

Co-Chairperson Holomisa noted that he was working with the fourth edition of the Rules and asked if there was a fifth edition.

Adv Masutha suggested that the legal staff should confirm the point.

Co-Chairperson Holomisa asked the Committee Researcher to follow-up on the matter.

Scheduling of meetings
Mr Watson suggested that Fridays, as agreed to in the previous Parliament, should continue to be reserved for the meetings of joint committees. 

Co-Chairperson Holomisa conceded that Members often found it difficult to meet on Fridays. He suggested that Members should try to identify issues that might require only a short meeting, similar to the issues considered today, so that the Committee could meet for an hour or after the sitting of Parliament. Friday was indeed a Parliamentary day, indeed, but from a practical point of view it had proved difficult to reach a quorum on this day.

Adv Masutha said that he was aware that the Chair of Chairpersons was involved in an exercise that was expected to lead to a re-clustering of Committees, which would determine the days to be allocated to Committee meetings. However, even on Fridays, there would still meetings that would clash, and joint Committee Members also sat on other committees. This would be a serious challenge, and he suggested it be referred to the Chair of Chairpersons or the Chairpersons’ Forum. A co-ordinated approach was required.  

Ms J Sosibo (ANC) agreed with Adv Masutha, but commented, from past experience, that the main problem was caused by Members who were unwilling to attend. She suggested that the Committee try to fix its meetings for an afternoon on a day other than Friday, provided that suitable transport could be arranged for Members who lacked their own transport.

Co-Chairperson Holomisa said that he and Mr Mnguni would estimate how much time would be required for each meeting, and advise Members accordingly.

The meeting was adjourned.