The objects of the Davidson Proposal were to prohibit contracting between an organ of state in the national sphere of Government and companies or entities, whether public or private, listed or unlisted, in the following circumstances:
- Where the company or entity had serving political party public representatives, or political party office bearers, as directors, irrespective of the sphere of Government they served in;
- Where any serving political party public representative or political party office bearer individually held more than 2% of the shares of the relevant company or entity; and
- Where a political party, directly or indirectly, held any shares in any company or entity.
Concerns were raised about the constitutionality of the proposal.
A Parliamentary Legal Advisor saw no real constitutional problems with the proposal, but was concerned that it could have practical implications. To have those mechanisms made for good governance, but in a proportional electoral system such as ours, there could be practical problems. It would block those parties having only one or two Members from being able to do business. To be a Member of Parliament was not to have a job for life, so the practical implications were worrying and the Committee would need to take that into account.
Both the Ethics and Members' Interest Committee and the Power and Privileges Committee would be requested to give their input, as well as the Justice and Constitutional Development Portfolio Committee.
The Committee would be consulting further before arriving at a determination.
The Chairperson announced that input had been received from the Portfolio Committee on Public Service and Administration on the Davidson proposal to regulate interest of State employees.
A legislative proposal had been received from Mr R Trollip (DA). This sought to amend the Members’ Ethics Act 1998 (Act No. 82 of 1998). The proposal was similar to that the Committee was dealing with where the Committee’s decision was pending a decision of the Minister of Justice on the process of amending the Members’ Ethics Act, but focused only on certain elements.
Davidson Proposal: Prohibit contracting between an organ of state in the national sphere of Government and companies whose directors are party political office bearers of public representatives or political parties
Ms J Kilian (COPE) asked for clarity. There were two different proposals from Mr Davidson; one dealt with officials and the other with party political office bearers and politicians. When the Committee had engaged with the Minister of Public Service and Administration he had explained the Integrity Management Framework. How did that impact on the political side? In previous deliberations Ms Kilian had mentioned that other countries, such as
Ms Kilian commended the Researcher's paper, but thought that the Committee should not involve itself in the detail. The role of the Committee was merely to see what was available, to go through the six criteria used as guidelines in assessing a proposal, and on that basis direct it to the relevant committee concerned with the ethics of politicians. By doing that the Committee would be identifying the need for legislative clarity.
Ms Kilian supported the principle that there must be limitation on politicians conducting business with the State.
She asked how the Minister’s briefing affected the research document? The Committee had to be mindful not to mix politicians and public service administration, which was a separate issue. The document should be revised.
The Chairperson pointed out that the research document was merely intended to assist the Committee in its deliberations.
Ms A van Wyk (ANC) concurred that Members must be very careful not to confuse the research report with the Committee report. Ms Kilian was correct in terms of the Committee's applying the criteria, which the Committee had already done, and it now needed to take the process forward, aware that Public Service and Administration was coming up with legislation, and to take a decision based on that.
The Chairperson said there were leaders of political parties who were not necessarily public representatives. Only the president of the Azanian People's Organisation (AZAPO) was a Member of Parliament, and the same applied to the Pan African Congress of Azania (PAC). The rest of their political party office bearers were not public office bearers. The revenue generated by a political party that had only one Member of Parliament, in order for their political office bearers to survive, was very minimal. How would the proposal balance with that?
Ms M Kubayi (ANC) said the Minister’s briefing had been on the proposal to regulate the business interest of state employees contracting with the State, not on the political party office bearers. The issues were very difficult, because if one was an office bearer but not a public representative it was that person’s constitutional right to do business with the State. The consequences could be indirectly pushing people not to participate in political parties. She was concerned with the constitutionality of the proposal.
Adv Gary Rhoda, Parliamentary Legal Advisor, explained the main difference between the two proposals. One focused on state employees, and the one that was being discussed focused on public officials and public representatives. He did not see any real constitutional problems with the proposal before the Committee, but his concern was that it could have practical implications. It was good to have those mechanisms in place for good governance, but when it came to an electoral system such as ours which was proportional, then practically there could be problems. It would block those parties that had only one or two Members from being able to do business. A Member of Parliament’s career was not a job for life and so the practical implications were worrying; the Committee would need to take that into account.
Ms Kilian stated that part of the problem was that the research paper spoke of deliberations on the Public Service Act; this was confusing because the heading of the document related to political office bearers. That was not appropriate because there were two separate issues and this confused the Committee.
Ms Kilian concurred with Adv Rhoda. As there was no constitutional blockage, the proposal belonged with the Ethics Committee. The idea was to prevent people in decision-making positions taking decisions that would benefit themselves. The Committee did not have to agree with all the elements in the proposal, but it was desirable. In
The Chairperson clarified that the research document referred to the joint meeting of 8 June.
Ms Kubayi referred to the name of the proposal. The Ethics Committee, as well as the Executive, dealt with public representatives. She still felt there was an issue constitutionally because if a person did not have any influence but was sitting in some regional structure of a political party as a public political office bearer, that person would be prohibited. Legislation could not be developed for the sake of developing legislation, it had to be implemented and it was costly. The Ethics Committee dealt with public representatives, and also with the conduct of ministers. She would refer the proposal to that committee if it did not include the political party issue.
Ms Kilian understood that the proposal related to contracting between an organ of state in the national sphere of Government whose directors were party political office bearers or public representatives of political parties. It did not speak to political parties as such; it spoke to the political office bearers. She acknowledged the weakness in that some political office bearers had very little influence. She concurred with Ms Kubayi that it could impact on exercising one’s political rights. It would be more appropriate to say that it related to sitting politicians who had an inside trading opportunity, which was essentially what the proposal tried to do.
Ms Van Wyk agreed that if the Committee wished to take the proposal further, it should take it to the Ethics Committee. Another option could be the Power and Privileges Committee.
Ms N Mdaka (ANC) also supported Ms Kubayi’s proposal.
The Chairperson concluded that both the Ethics and Members' Interest Committee and the Power and Privileges Committee would be requested to give their input, as well as the Justice and Constitutional Development Portfolio Committee.
The Committee would be consulting further before arriving at a determination.
Committee minutes: adoption
The Committee adopted, with technical amendments, the minutes of 31 August 2011.
The meeting was adjourned.
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