Fourth Draft of Bill: deliberations

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Meeting Summary

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Meeting report


13 February 2002

Chairperson: Mr P.R. Mokaba

Documents handed out:
Draft Memorandum of Chapter 6 (Appendix 1)
Matters flagged for consideration (Appendix 2)
Fourth Draft on Powers and Immunities of Parliament & Provincial Legislatures Bill

The meeting began by considering an alternative draft for Clause 6 of Chapter 3, which was a point of contention at the 12 February meeting. The Parliamentary Law Advisor then took the Committee through the remainder of Clauses 16 to 32.

Clause 6 Freedom of speech and proceedings in Legislature
A draft memorandum was handed out which would have the effect of replacing section 6(2). A point that was debated between Mr Elgin (DP) and Mr Meyer (Parliamentary Law Advisor) was the difference between "procedures" and "proceedings" and what exactly was being challenged. Mr Elgin stated that "procedures" are always able to be challenged, and "proceedings" has nothing to do with procedures.

Freedom of speech by members of the legislature was raised by Mr Masutha (ANC).
Mr Schmidt (DP) replied that there was no substantial limitation on any rights. Mr Meyer agreed and stated that under the Australian Parliamentary Privileges Act it says more or less the same thing.

Mr Meyer replied that Parliament has an almost administrative role to play and as a result of that, this section is included should they be questioned about mala fides and perhaps appointment of jobs, etc.

Due to time constraints, the Chairperson advised that these issues will be looked at again and asked Mr Meyer to resume going through the Fourth Draft of the Bill, pointing out the changes and options that have been inserted since previous deliberations.

Clause 16 Attendance before House or committee
Mr Meyer stated that this clause is repetitive of the constitutional provision. There had been a suggestion from a previous meeting that provision be made in accordance with Option (b) and that it was something that the Committee should consider.

Mr C. Elgin (DP) commented that clause did not look like a constitutional provision.

Clause 17 Summonsing of witnesses
Mr Meyer stated that the existing Act makes provision for the Speaker / Chairperson's permission for the issuing of summons.

Mr Meyer explained that the Option in Clause 17(3) ensures that it is not sufficient for a summons to be left at last known residence. Therefore it is either through personal service or the alternate method of a newspaper notice.

Mr Elgin (DP) raised Clause 17(4) as a point for discussion, and stated that everybody should be paid by Parliament for their expenses - unless recompensed by the State.

Mr Meyer replied that all state employees would have their subsistence and transport expenses met by the state and that is why they are excluded.

Mr Hendrickse (ANC) raised the issue about people from the private sector, and whether they should also be recompensed by Parliament.

To this point, Mr Meyer responded that the finance sector would have to establish whether they get recompensed.

Mr Schmidt responded that should employers wish to reimburse their employees that should be their concern.

Clause 18 Examination of Witnesses
Mr Meyer stated that this was the same as the previous draft except for the options.

Mr Elgin (DP) asked if a witness is compelled to give incriminating evidence and whether such evidence can be used against him in a court of law?

Mr Meyer replied that Clause 19 was the answer to his question.

Mr Masutha (ANC) asked if there should be a provision stating that a standard warning should be given to a witness not to give self-incriminating evidence.

Mr Meyer responded by pointing out Option (a) to Clause 18.

Clause 19 Privilege of witnesses
This is exactly the same as the previous draft.

Clause 20 Witnesses not liable to criminal proceedings
The three options have been included after previous discussions on this clause.

Clause 21 Offences relating to witnesses
This clause is exactly the same and has not been amended.


Clause 22 Protection in respect of publications
This clause is exactly the same and has not been amended.

Clause 23 Offences relating to unauthorised publishing
Referring to the Note in this clause, Mr Meyer said that one would have to see if it was desirable to override the Promotion of Access to Information Act. He stated that there could be a problem especially with proceedings in camera, as in terms of the Promotion of Access to Information Act, a requestor is entitled to all information unless one of the exceptions listed in that Act is applicable. Thus there might be the need to amend the Promotion of Access to Information Act, but Mr Meyer added that this is undesirable.

The Chairperson stated that it is the intention of this Act to cover Parliament and he flagged the issue to be considered at a future meeting.

Mr Meyer added that he is not sure if the Option in Clause 23 takes the matter further.

Clause 25 Broadcasting and televising of proceedings
This is a new provision.

Clause 26 Financial Arrangements in respect of Legislatures

Mr Meyer stated that this clause had needed to be rewritten because of the new Public Finance Management Act that deals with the finances of public institutions.

Clause 27 Speaker, Chairperson or committee may act on behalf of House
Mr Meyer highlighted the two options to this clause, both of which the Committee would need to consider.

Clause 28 Liability for acts done under authority of legislature
This clause is exactly the same and has not been amended.

Clause 29 Duty of criminal court in respect of members
This clause is exactly the same.

Clause 30 Offences
Mr Meyer indicated that the Committee might want to consider what constitutes offences under this section.

Clause 31 Repeal of Laws
This clause is exactly the same and has not been amended.

Clause 32 Short Title
Mr Meyer pointed out the Option of reverting to the wording in the Constitution and using "Privileges" rather than "Powers" as 'privilege' is a term used widely.

Adjourning the meeting, the Chairperson thanked Mr Meyer for his time and support and his invaluable insight in drafting the Act. He stated that the Committee was greatly assisted by his participation and that he would be missed by all when he retires shortly.

Appendix 1:
MEMORANDUM: Draft of Clause 6
(1) The proceedings of a Legislature may not be challenged or referred to or
commented upon in a court or tribunal for the purpose of -
(a) questioning or relying on the truth, motive or intention of anything
forming part of those proceedings,

(b) otherwise questioning or establishing the credibility, motive
intention or good faith of a person; or
(c) drawing, or inviting the drawing of inferences or conclusions from
anything forming part of those proceedings

(2) Subsection (1) does not apply with respect to the proceedings in a court or
tribunal in connection with -
(a) an offence in terms of this Act, or
(b) the performance by a Legislature or a committee of a duty or
obligation in terms of a law; or
(c) the interpretation of any legislation passed by a Legislature.

Appendix 2:
Matters flagged for consideration:
1.Constituency Office-privilege protection for members as if at
2.Clause 3. and 12.: Law advisers to reconsider wording and report back
to Committee. Consider reasons for appearing in court: as witness; for
minor offence such as traffic violation; and serious crime such as rape
and murder. Speaker to decide which is more important - Parliament
work or court proceedings? Does such a decision put too great a
burden on the Speaker? Etc.
3.Clause 6.: Freedom of Speech to be extended to caucus meetings?
4.Clauses 8. and 9.: Definition of "disturbance" and "interference": Law
advisers to consider more precise wording for the sake of more clarity.
5.Rules to be amended - if necessary - to provide for behavior of MPs
creating a disturbance or interference.
6.Clause 10.(2): Reconsider
7.Clause II: Member a shareholder in a new company - does this mean
he may not participate in debates on such companies? Examples:
Eskom and Iskor, both soon to become private companies, in which
MPs may have shares, and also, particular knowledge and
understanding of such institutions.
8.Clause 12: Parties to discuss.
9.Clause 13: Delete? Quorum needed for such decision.
10.Clause 15.: Disciplinary Committee - composition - where to provide
for this - in legislation, or in Rules?
11.Clause 15.(4) (c): Suspension for 30 days: Member not entitled to
salary. Consider effect on family, including pension, bond, medical aid
and other essential deductions.
12.Powers and functions of disciplinary committee- to make final
decision? Recommendation to House? What about appeal mechanism?
Is House to handle appeals?
13.Clause 15. (4): Suspension not extended holiday. (Cf De Lille case - not
properly dealt with in Rules 0 good to cover in law for all to know?)
Consider provision in law and/or Rules.
14. [Clauses 16 - 32 still to be considered]


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