Fourth Draft of Bill: deliberations

AD HOC COMMITTEE ON POWERS AND PRIVILEGES OF PARLIAMENT
15 February 2002
FOURTH DRAFT OF BILL: DELIBERATIONS

RELEVANT DOCUMENTS:
Fourth Draft of Powers and Immunities of Parliament and Provincial Legislatures Bill
Matters Flagged for Consideration (See Appendix)

Chairperson: Mr P Mokaba

SUMMARY
The Committee considered issues it flagged and tasked the Law Advisors to do research on these and present a draft with the requisite formulations for its consideration.

MINUTES
The Parliamentary Law Advisors Mr Eshaam Palmer and Advocate Zuraya Adhikarie assisted the Committee with the consideration of the Bill.

The Chairperson pointed out that before the Committee was a paper listing all matters that were raised and flagged for consideration to see if they can be included and how that can be done. The paper also refers to issues that were sent for redrafting by the Law Advisors. The Committee would at some stage need to confer with the Select Committee before finalising the matter.  The researchers would have to look at how the provinces tackled the issues dealt with in the Bill in their legislation and what differences exist in their respective legislation.

Matters Flagged for Consideration (Refer to Appendix)
1. Constituency Office - privilege protection for members as if at Parliament?
The Chairperson said the Committee decided that constituency offices were party structures.  He asked from the Law Advisors what the current position in the Rules is regarding these.

Mr Palmer said according to rules constituency offices are members' offices.

Ms Rajbally (MP) said in the Rules Committee there was a suggestion that these be made Parliamentary offices.

2.CHAPTER 2: PRECINCTS OF LEGISLATURES
Clause 3 - service of process and arrest of persons within precincts of Legislature and CHAPTER 4: IMMUNITIES, INDEPENDENCE AND PROTECTION OF MEMBERS AND LEGISLATURES
Clause 12 - attendance of members before court
The Chairperson said the decision of the Speaker would be the final word on the matter.  The view was that the nature of the offence or matter a member faces in the courts should not be the consideration but that the Speaker should consider what impact a members attendance would have on Parliament's business.

3.CHAPTER 3: FREEDOM OR SPEECH AND PRECEEDINGS
 Clause 6 -freedom of speech and proceedings in Legislature
Is  freedom of Speech to be extended to caucus meetings?
The Chairperson said caucuses remain the domain and responsibility of political parties.

Mr Hendrikse asked if one could be charged for what they say in a caucus.

Mr Palmer said the general law in the absence of privilege would apply.

Mr Eglin (DP) added that in the history of Parliament since far back as the 1910 Union he knows of no instance where one has been taken to court on what they say in a caucus.  He said the nature of discussions in caucus meetings is very informal.

4.CHAPTER 4: IMMUNITIES, INDEPENDENCE AND PROTECTION OF MEMBERS AND LEGISLATURE
Clause 8 -  interference with Legislature or members
Clause 9 -persons creating disturbance
 - definition of “disturbance� and “interference�
The Chairperson said the Law Advisors still have to redraft these points.

5. The Chairperson said the Committee still needs to come back and discuss who is responsible for determining behaviour of Members.

6.Clause 10(2) - improper influence of members
The Chairperson said the Law Advisors still need to reconsider the wording of the subclause.

7. Clause 11 - matters in which members may have direct financial interest
The Chairperson said there was understanding that the Ethics Code was adequate in the sense that if members have declared their interest there should be no additional responsibility.

8. Clause 12 - attendance of members before court
Mr Hendrikse (ANC) suggested that the words “important legislative business� in clause 12(2) be deleted because they suggest that some business of the Legislature is not important, and that reference should only be to the Speaker's discretion.

Mr Masutha (ANC) said the view in formulating the clause was to prevent a situation where members would circumvent appearing in courts by saying that they were involved in Parliamentary business since they are allowed to sit in any Committee of Parliament.  He suggested that clause 12(3) be deleted instead.

Ms Adhikarie suggested that the matter be flagged as it hinges on the definition of “legislative business� which the Law Advisors still have to come back to the Committee with.

9  Clause 13 - giving evidence of proceedings
The Chairperson said this matter still needs consideration.

10 CHAPTER 5: DISCIPLINARY ACTION AGAINST MEMBERS FOR CONTEMPT OF LEGISLATION
Clause 15 - disciplinary action against members for contempt of legislature
-disciplinary committee
Mr Eglin (DP) said the committee provided for in Rule 191 is not a disciplinary committee but an impartial body appointed for the whole life of Parliament and carries out an investigation of a matter and presents a report to Parliament. The actual disciplining is left to the House.

Mr Masutha said the appeal issue would fall away since the House is the highest decision making body of Parliament and also because decisions of Parliament cannot be taken on appeal on merits elsewhere.  However, the aggrieved member would still be able to take the matter on review to courts.

Mr Hendrikse felt that a recommended sanction should also be included in the report of the committee to the House.

Mr Eglin said it would be wrong to dictate what the sanction should be to Parliament.

Mr Masutha said he feels that the committee should also make recommendations regarding the sanction based on their first hand experience with evidence because not doing so could open up other processes such as members requesting to make representations for mitigation of sentence before the House which would be an undesirable process.

Mr Eglin said the House is not a court of law and that an enquiry and recommendation that the member be found guilty or not is all that the committee should be able to do.  The sanction should be left for the decision of the House.

The Chairperson said the Law Advisors should look at the issue to make sure that what is decided on it is not inconsistent with the Constitution.  They would also have to look at whether the known cases pointed out to the Committee (such as De Lille and Maduna) have been covered.

11. Clause 15(4)(c) - suspension for 30 days
The Chairperson said there was a view that suspension should not be viewed as a glorified holiday by a member's receiving a salary for doing nothing.

Mr Masutha felt that reference to salary of members may be open to constitutional challenges and that instead the reference be made to a fine.

It was agreed that a fine not exceeding R15 000 be imposed in an instance where a member is suspended in the circumstances mentioned in the subsection.

The Chairperson said the Law Advisors should look at the issues discussed and do research and the necessary formulations of the clauses discussed and present a draft to the Committee to consider.

The meeting was adjourned.

Appendix
AD HOC COMMITTEE ON POWERS AND PRIVILEGES OF PARLIAMENT
Matters flagged for consideration:
1.Constituency Office-privilege protection for members as if at
Parliament?
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]