Meeting report

These minutes were provided by the Committee Secretary

PRESENT

Hollander, P M       (Mrs)	Deputy Chairperson of the NCOP
Adams, F               (Mr)	Chairperson of Committee on Members’ Legislative Proposals and Special Petitions
Goeieman, C M     (Mr)	Provincial Whip: Northern Cape
Kolweni ,   Z S       (Mr)	Provincial Whip: North West
Mack,       N J         (Mr)	Provincial Whip: Western Cape
Matlanyane, H F      (Ms)	Provincial Whip: Limpopo
Matlhoahela- Ntembe, B L    (Ms)	Party Representative: ID
Mokoena ,  L M     (Kgoshi)	Chairperson of Subcommittee on Review of NCOP Rules
Nyanda, F              (Ms)	Provincial Whip: Mpumalanga
Ntuli, Z C              (Mr)	Provincial Whip: KwaZulu-Natal
Oliphant, M N       (Ms)	House Chairperson: Committees
Setona, T S          (Mr)	House Chairperson: Oversight and Institutional Support
Sulliman, M A        (Mr)	Programming Whip
Terblanche, J F     (Ms)	Party Whip: DA
Van Heerden, F J  (Dr)	Party representative: FFPlus
Watson, A             (Mr)	DA member
Windvoël, V V Z    (Mr)	Chief Whip of the NCOP

 

APOLOGIES

Qikane,   A N D (Ms)

Party representative: UDM

 

IN ATTENDANCE: Staff: Adv L L Matyolo-Dube (Secretary to the NCOP); Adv M Phindela (Undersecretary to the NCOP); Adv B V L Momoti (Legal Counsel: Office of the Chairperson); Ms Z Mene (Section Manager: Committee Section); Mr B Nonyane; Ms J A Borien; Ms V Mnana; Mr M Tyumre; Adv A Gordon (Legal Services Office); Adv R Mathabathe (Legal Services Office); Ms E van der Horst; Mr Z Mvulane; Ms N Nqaba, Mr M C Mbebe; Ms S Bowers.  

 

1. OPENING 

The Deputy Chairperson of the Council opened the meeting at 14:00.

 

2. APOLOGIES 

The apology is indicated in the table above.

 

3. ADOPTION OF AGENDA 

The agenda was adopted without additions. 

5. CONSIDERATION AND ADOPTION OF THE MINUTES OF THE MEETING OF 13 JUNE 2007 

The following corrections were made to the minutes:

On page 2, under item 6.1, second sentence – to delete the word “was”.

On Page 5, first sentence - to delete the word “are”.

On page 9, second paragraph, first sentence, to put the apostrophe in the word “Chairperson’s” in the correct place.

The following members requested that the attendance list be corrected by including their names on it:

Hon. Mr Setona, Hon. Mr Watson, Hon. Ms Terblanche and Hon. Dr Van Heerden.

Hon Mr Windvoël requested that his surname be spelt correctly. 

The Chief Whip proposed that the signed attendance list be attached to the minutes. Mr Setona said that there were clearly problems with recording the minutes. 

The Secretary requested that her office be given an opportunity to look into and correct the minutes. 

6. MATTERS ARISING FROM THE MINUTES OF 13 JUNE 2007 

There were no matters arising that would not be dealt with as part of the agenda. 

7. MATTERS ON THE AGENDA 

7.1. Parking at the Airport 

The Secretary to the NCOP reported that a letter had been written to ACSA to indicate the problems members have been experiencing with their parking cards. ACSA, in its response to the communication from the NCOP, raised concerns with using the same parking card to enter and exit at various parking facilities at the different ACSA airports. According to ACSA, the difficulty with using the same card was that Parliament will be billed on actual usage instead of a flat rate per month per card. This would necessitate each member to have individual cards for each airport as a single card being used to enter at one airport and exit at another would not allow for per use billing. Secondly, ACSA stated that the single card usage negated the security controls at O. R. Tambo International Airport that ensure that cards are matched to vehicles’ number plates using licence plate recognition technology to mitigate against vehicle theft. The Secretary then informed the committee that she had submitted the matter to the POA for consideration and decision due it having financial implications on Parliament as a whole.  

7.2. Leave Policy for Members of Parliament 

The Chief Whip reported that all stakeholders had been allowed to make inputs into the proposed policy and they had been accommodated as far as possible. He referred to the document entitled Policy on Leave of Absence for Members of the NCOP and specifically drew members’ attention to page 5 of the document which deals with the background to the leave policy, the rules of the NCOP, the reasoning behind the leave policy and the scope of the policy. The Chief Whip also referred members to page 6 of the document that speaks to the types of leave. The Chief Whip stated that the policy would be similar to the policy of the National Assembly as it was important to have equity. With respect to the procedures that would be followed when granting leave, the Chief Whip said that the policy tries to deal with it in such a way as to accommodate all types of leave of absence whether it pertains to party or private business. Also, that the specific composition of the NCOP had been taken into account in this regard. The Chief Whip further referred to pages 8 and 9 of the document and stated that those pages contain the provisions governing the periods for leave of absence, record of leave applications, sanctions for unauthorised leave of absence, recourse for grievances, implementation and review and communication of the policy. He informed members that the leave application form was attached to the policy. 

In addition, the Chief Whip stated that enquiries had been made regarding whether the leave policy would not be infringing on the rights of members. He said that he had received a legal opinion which stated that members did not fall under the protection of the Labour Relations Act by virtue of their status as members of Parliament and that members could not embark on industrial action. The Chief Whip then requested comments from members on the policy. 

Mr Watson stated that the Whip of the DA was advised at the Whips meeting, which was held the day before, that negotiations between the Chairperson of the Council and Mr Watson  had no standing in front of the Chief Whip and that the Chief Whip did not recognise correspondence in Mr Watson’s name. Mr Watson requested that the aforementioned be placed on record. He secondly said that he had made the position of the DA regarding the Leave Policy clear in two letters. One letter was addressed to the Secretary of the House wherein he stated that even though members of the NCOP are members of delegations from the various provinces, they are in the NCOP by virtue of the votes in a democratic election, held in a province and in terms of the members of that party in the provincial legislature. He further stated that the DA had sought legal advice on the matter and that it has confirmed that NCOP members are members in terms of the representation of their parties. He stated that the fact that the membership is confirmed by the legislature is of no consequence since it is done after the name is presented by the relevant party who is entitled to the seat of a permanent delegate in terms of the constitution and relevant legislation. 

Mr Watson also said that on receipt of the last copy of the Leave Policy (which was marked the first draft at the top and the third draft at the bottom), he again wrote a letter to the Chairperson of the NCOP. This letter was hand delivered to the office of the Chairperson and the Chief Whip. He said members were confronted at the current meeting with a sixth draft dated 18 October 2007 which means members would have to come back on that date to adopt the document. Mr Watson expressed his concern with the fact that the last draft that was received by members was the third draft dated 20 August 2007, yet members were handed a sixth draft at the meeting. He enquired as to what had happened to the 4th and 5^th drafts. He also enquired as to how members could be expected to adopt a document that they had only seen in the meeting. Mr Watson stated that there were different parties in the NCOP and that the DA rejected the notion that parties should not have the right to sanction leave. He referred to the latest letter that he sent to the Chairperson and said that it stated that the DA recognised the right of the NCOP to have rules but that the DA was of the view that it was the duty of the NCOP to regulate attendance and the duty of parties to regulate the absence of leave. He opined that in the event of conflict the NCOP had to address the matter with the party concerned or the province and not regulate the leave of members. 

Mr Watson then referred to the leave form that is attached to the policy and expressed his dissatisfaction with Members of Parliament  being treated in such a way that they would have to fill in leave forms to the extent that proof would have to be provided for compassionate leave. He said that the DA rejected the notion and was of the opinion that the policy could not be adopted by the committee as it had only been presented to the meeting that day. He continued to say that members did not have time to peruse the document and should be afforded time to negotiate further. 

The Deputy Chairperson informed Mr Watson that she did not have copies of the letters he wrote to the Secretary and the Chairperson and requested him to provide her with such copies. 

Mr Setona asked whether the legal advisers could shed light on the origin of the definition of “three line whip”. He said it was not a term one could find in a dictionary, but developed due to practice and tradition and that it was context bound. He added that he had serious fundamental, philosophical and political problems with the definition in terms of how he understands the practice and concept of a three line whip as applied by modern parliaments. He asked whether leave policies other jurisdictions have been explored as some of the approaches contained in the policy before the meeting were more rigid than a profit capitalist corporate entity. He was of the view that some of the issues entailed in the policy touched on the integrity and standing of the institution itself. He said that Parliament was a party-political driven institution and that the time frames set out in the policy was not sensitive to that factor. He proposed that the matter be deferred to the next meeting in order for clarity to be sought on this and other issues contained in the policy.  

Ms Matloahela - Ntembe was in agreement with previous speakers. She asked how the drafters of the policy arrived at the number of days allocated to personal business and political work respectively. She was also in agreement that the matter be deferred to another meeting.

Dr Van Heerden said that the policy indicated that a legal opinion from the Parliamentary Legal Services Office was attached but that his document did not have such attachment. 

Kgoshi Mokoena referred to the procedure for granting leave of absence as set out in the policy. He said that it provides that a member must apply to the provincial whip, who will refer the application to the leave whip, who will in turn refer the application to the Chief Whip. He was puzzled as to why three people needed to be assigned to approve leave. 

Mrs Oliphant also referred to the approval of leave. She said that there was not any space indicated for an acting provincial whip in the case of the provincial whip not being around. She said it would be a simpler process if the approval could be assigned to the leader of the delegation because if the leader of delegation was not available, the provincial whip will be acting. In the absence of the provincial whip, a member would be delegated to the task. 

The Chief Whip responded as follows to the comments from members: 

With regard to the issue of absence of a provision instructing the provincial whip to approve leave, he responded that any member that would be acting as provincial whip would have the authority to do so.
       

That the date indicated on the document before the committee would be corrected and there was no intention to undermine the integrity of the institution or its members. 

In relation to absolute powers being given to the party vis a vis the institution, he said that it was not an issue of taking away the role of the party. He said that it had happened that members were given leave after consultation with the party and the person responsible for processing of the leave in an attempt to put stopgaps where necessary. He cited an example of a member of the ID who was supposed to do work on behalf of the institution but was then contacted by the leader of the party to do other work on behalf of the party. The Chief Whip said that there was a need to clarify the matter. That the question that should be addressed was how this situation effects the functioning of the NCOP vis a vis the needs that the party may have. He conceded that there were a number of provisions within the policy that needed to be rephrased. He said that the current policy did not make provision for circumstances where members would not be in a position to apply for leave beforehand. 

Ms Matloahela-Ntembe said that she was in a position where she attended a NCOP workshop and was called back by her party. She said that it was important to indicate which activity should be prioritised in such a case. 

The Secretary responded that from a legal perspective, the leave policy was essential. That members had been elected by the electorate to represent their interests at Parliament. The Secretary further said that the constitution allowed Parliament to determine and control its internal arrangements, proceedings and procedures. She added that it is a reality that a quorum needed to be maintained and measures needed to be put in place to ensure a quorum at any given time in Parliament. She stated that there might be a need to get a common understanding at political level of the constitutional composition of the NCOP. That, the main question was, who sends delegates to the NCOP. She said that if that question could be answered, it would assist with the development and adoption of the policy. She requested that the drafters of the leave policy take these concerns into consideration. 

Adv. Gordon said that the policy could be approached from both a legal or policy perspective. That a policy issue falls within the jurisdiction of members in the sense that members determine the extent of the policy, as long as it is constitutional and there is legal compliance. She said that the Legal Services Office had not been the original drafters of the policy but that they were merely requested to test whether the policy complied with the constitution. 

She referred members to section 42(4) of the constitution which provides that the NCOP represents the provinces and contrasted that with section 42(3) which provides that the NA is elected to represent the people. She informed members that this was the theme that filters through the leave policy. That the opinion from the Legal Services Office states that if leave is regulated according to provincial basis, it would be on the basis of constitutional compliance. She explained that in terms of section 42(4), the NCOP represents the provinces and on that basis, when voting takes place, it is ultimately the delegation from the provinces that has to vote. That if there is a sitting and members do not attend, it affects the business of the Council and that by itself has constitutional or quorum implications. She said that it was important for members not to approach the NCOP Leave Policy with a view that its objective is to impose sanctions on members. However, that the focal point of the policy is to provide a working and operational environment where a known standard is applied. 

She reiterated that sections 42(4) and 61(2) were the overriding principles that should govern the provisions of the policy. 

Mr Sulliman was in agreement that there were areas in the policy that needed further attention and proposed that more time be afforded to members to discuss the policy. 

Kgoshi Mokoena drew the attention of the meeting to point 9.2 on page 8 of the policy. He said that there was a need to refine that provision because as it stands it means that once a member is absent, that member has to be referred to the disciplinary committee. Kgoshi Mokoena seconded the proposal that the proposed leave policy be revisited and deferred for decision. 

The Deputy Chairperson said that it was clear from the discussion that the Leave Policy could not be adopted at the meeting. She instructed that the matter stand over until the next meeting and requested political parties to further discuss the policy. 

Agreed: 

• The adoption of the Leave Policy to stand over until the next meeting.
• Political parties to further discuss the policy. 

7.3. Recommendations in terms of Rule 147 

Adv. Momoti reported that he was tasked to liaise with the chairperson of the Committee on Members’ Legislative Proposals on the issue of guidelines for petitions. He informed the meeting that an invitation had been extended to the Chairperson of the said committee, Mr Adams, to attend and brief the meeting with regard to the matter. 

Mr Adams said that he had consulted Adv. Momoti regarding the issue of guidelines for petitions. He also said that the committee had decided to adopt the guidelines that the Gauteng Provincial Legislature was using since those were the only guidelines that existed. He informed the meeting that his committee had agreed to host a workshop where all major role-players would be invited to discuss and refine the guidelines. During this process they will also have regard to international best practice regarding guidelines on petitions. He further stated that the workshop will be held in January 2008 and that he would provide a report to the Rules Committee after the workshop. 

Mr Watson supported the views of the Mr Adams and asked what the relation was between the process outlined by Mr Adams and rule 128. 

Kgoshi Mokoena responded that rule 128 does not refer to petitions but that the relevant rule is rule 147. 

The Secretary enquired whether the Rules Committee had agreed that the committee’s name be changed to reflect that the committee would also be attending to petitions. She explained that the committee had firstly been established as the Committee on Members’ Legislative Proposals. Subsequent to that the committee was assigned the task of dealing with petitions. Then, the Rules Committee decided that in order for the committee to be able to deal with petitions, the name of the committee had to be officially changed.   

Mr Adams asked if the resolution of the Rules Committee regarding the name change of the committee could be communicated to the committee. 

Mr Watson referred the meeting to item 6.4. of the minutes of the previous meeting.

Dr Van Heerden said that he had not interacted with the committee but that he would do so if the committee requires him to do so. 

The Chief Whip said that rule 147 still reflected the initial name of the committee. He requested that the committee be named the Committee on Petitions and Members’ Legislative Proposals. 

Adv. Nonyane responded that the report of the Subcommittee on Review of Council Rules was adopted with the name change. He said that the reason that the changed name was not reflected in the current copy of the rules was that the report still had to come before the House for adoption. He made an undertaking that as soon as the House had adopted the report, a new copy of the rules reflecting the changes the rules committee had agreed to would be circulated to members. 

7.4. International Study Trips for Members 

The Deputy Chairperson requested Mrs Oliphant to provide a report on this item since the Chairperson was not available to do so. 

Mrs Oliphant reported that they were not in a position to have a meeting. 

8. Closure 

The Deputy Chairperson adjourned the meeting at 15:10.