The Committee received and considered clear options for the adjustment of the National Assembly Rules to appropriately provide for Motions of No Confidence. The discussion document for the day briefly captured what Members had said in the previous meetings and from this some draft rules were drawn up. Members agreed that they had read the document containing the options and the Committee could proceed with consideration of the options.
In the discussion that followed, an ANC Member proposed that the scheduling of a Motion of No Confidence be determined by the Speaker. He said that the Rules were adequate and scheduling of a motion of no confidence could be accommodated under Rule 104. That was a first option: to consider the current rules as adequate. The second option was to include a rule specifically on Motion of No Confidence - similar to Rule 104 - wherein a Member wanting to propose a motion of no confidence must approach the Speaker and it was up to the Speaker whether to grant that request. This option could go under Chapter 7 or 8. The intention was to leave out the Programming Committee because such a route could be party-politicised.
Members from the opposition parties differed from the ANC Members and suggested the Committee provide that Parliament hear a matter no later than one month of it being tabled. They further suggested that Motions of No Confidence be done by secret ballot.
Parliamentary Legal Services told the Committee that Legal Services had a legal opinion which held that the right to a Motion of No Confidence could not be limited by the National Assembly. The Chairperson said that the details of the opinion could not be heard as there was no time and the agenda of the meeting was limited to getting options for Rules adjustments.
Members of the opposition party however expressed frustration that a legal opinion which was of value to the Committee’s work was not taken seriously.
The Chairperson said that the meeting was going to progress on the assumption that Members had read the document containing the options for the rule adjustments.
Presentation of Options for Rule Adjustments
The National Assembly Table Staff, led by Ms Marina Griebenow, presented the options which the Committee could use in adjusting the National Assembly Rules to appropriately provide for Motions of No Confidence. The discussion document for the day briefly captured what Members had said in previous meetings and from that some draft rules were drawn up. The Table Staff had been instructed to come up with crisp options for the Committee to consider.
Mr M Oriani-Ambrosini (IFP) said that it was not necessary for Ms Griebenow to speak on the document in detail as Members had read the document.
The Chairperson confirmed that the Members had read the document and were versed with the options contained in it so they could now engage in discussion.
Mr J Jeffery (ANC) said that the type of proposal which the Committee was looking at was that the scheduling of Motions of No Confidence be determined by the Speaker. This was a similar arrangement to the matters in Chapter 8 of the Rules which was the scheduling of Matters of Public Interest. He said that the view which was held by Adv Johnny De Lange was that the rules were adequate and scheduling of a Motion of No Confidence could have been accommodated under Rule 104. That was a first option: to consider the current rules as adequate. The second option was to include a rule specifically on Motions of No Confidence - similar to Rule 104 - wherein a Member wanting to propose a motion of no confidence must approach the Speaker and it was up to the Speaker whether to grant that request. This option could go under Chapter 7 or 8. The intention was to leave out the Programming Committee because such a route could be party-politicised.
The Chairperson asked if Mr Jeffery wanted to do a further motivation for a choice between Chapter 8 and 7 if the second option was to be taken.
Mr Jeffery replied that the issue was basically the principle that Motions of No Confidence were determined by the Speaker. Once that principle was agreed to, then the mechanism of where it went in the Rules could be looked at. It could not be said that a Motion of No Confidence was not a matter of public importance. This backed the argument that it could go under Chapter 8. Chapter 7 was called Motions though the motion of no confidence had a different procedure but it could still fall under the Chapter dealing with Motions. However, the person who decided on whether and when was the Speaker.
The Chairperson said that it was important to note that the remarks and positions given by Members at this stage were not necessarily party positions.
Mr Oriani-Ambrosini said that the Committee was writing rules for Parliament which was going to be tested in situations which were unforeseen. There was the need for a broader and institutional perspective. The principle was that the Speaker was above party politics and guaranteed democracy for the benefit of everyone. The Speaker was not supposed to get his or her hands dirty. Before the Rules gave him discretionary powers, the Committee needed to ensure that there were parameters that whatever he or she did was in terms of the Rules and could not be criticized. The matters at hand were controversial and thus there was a need to rely on the Rules.
He said he was satisfied with Rule 98A. The Committee needed to make a provision that Parliament shall hear a matter no later than one month of it being tabled. He had two additional suggestions. The first was that a motion of no confidence should be done by secret ballot. The second one was that if the concurrence of the majority was to be solved, then it had to be done by secret ballot. This meant two secret ballots in the process. This was the only way to ensure confidentiality and to ensure the protection of minorities. Minority in this case meant a political minority which referred to a political party. If a mistake had to be made, it was good to make such a mistake on the side on democracy.
The Chairperson said that the arguments could go either way.
Ms Killian (COPE) said that at some stage the Committee was in fact considering that it was Chapter 8 which gave the Speaker the power to schedule the motion. The court had found that the Speaker had very express powers and therefore Chapter 8 was not the mechanism to be utilized in the case of a motion of no confidence. She said that she strongly disagreed with Mr Jeffery that the rules were fine as they were. She agreed with the proposed new Rule 98A.
The Chairperson said that the preceding judgment in the Cape High Court related and was confined to the issue in Section 102 of the Constitution. None of the judgments go beyond that scope. It would be an exercise of caution for the Committee not to introduce new matrices into the exercise which could practically complicate the Committee’s task and responsibility to the Constitutional Court, in giving a clear indication of how to deal with the issue at hand.
Mr Jeffery said that with regards to a state of emergency and a state of defence, if they were not approved within a particular time, they fell away. So the onus was on the executive to bring them to Parliament failing which they lapsed. The difficulty with putting them all together was that reference was made to 10 days but the state of defence had to be approved with 7 days while the state of emergency had to be approved within 21 days. So they did not fit together. With regards to the removal of judges, it could not be considered as urgent because it was a serious matter which involved many institutions and lengthy investigations had to be conducted.
Ms J Killian said that she disagreed with Mr Jeffery but it was important to focus on the motion of no confidence. The problem was how the Committee was going to do that. It was important for the process to remain a technical procedure because giving the Speaker the discretion to grant the requests for Motion of No Confidence was going against the Constitution.
The Chairperson asked if the principle was accepted that for the purpose of the exercise, the Committee could confine itself to its mandate. The rest of the issues could be left for future engagements.
Mr A Watson (DA) said that he agreed that the Committee should confine itself to its mandate of providing for Motions of No Confidence. However, there were some items in the Rules which could impact on the decisions to be made by the Committee and a blind eye could not be given to such items. The idea of creating a list as to be contained in Rule 98A could lead to a situation where important items or aspects were being rejected because they were not on the list. It was however a good idea to bring in sub rules of some sort to say that if a motion of no confidence was proposed, it must be considered by the House.
Mr Oriani-Ambrosini said that it was important for the Committee to proceed with haste. The Committee was meeting because of a court order and the Speaker of the National Assembly had said that these matters should not be taken to court, but the matter went to court because Members did not apply their minds to it properly.
The Chairperson said that it was important for Mr Ambrosini to realize that there were complications which could not be dismissed with a wave of the hand.
Mr Ambrosini replied that it was true that there were complications but if the matters were not handled now, the complications were going to remain.
Ms S Kalyan (DA) said that she needed clarity on the issue of the Programming Committee becoming a consultative forum in the event of the Speaker having to make a call on a motion of no confidence - and where the Chief Whip makes decision around the Programming Committee.
The Chairperson said that when the issues raised by Ms Kalyan were brought up by Mr Jeffery, he was simply saying that when he put forward the ideas at the previous meetings, there was not much support from the Committee and these issues were not expressly covered in those discussions. The conclusion was that all the ideas, whether they were supported by Members or not, were going to be included in the discussion document outlining the options available to the Committee.
Mr Jeffery said that the issue of the scheduling of the Motion of No Confidence would be a matter for the Speaker and not for the Programming Committee. It was accepted that the majority party should determine the programme of Parliament and one option was to give it a majority on the Programming Committee. The other option was that the Programming Committee becomes a consultative body that must be consulted and the Chief Whip of the majority party determines the programme.
The Chairperson said that it was good for the Committee to listen to the position of the Parliamentary Legal Advisers who were present.
Mr Jeffery said that the meeting had only ten more minutes and it would not be a wise decision to allow all the staff and legal advisers to give inputs as there was no time. The purpose of the meeting was for the Committee to get options as to the appropriate provision for Motion of No Confidence in the Assembly Rules. That had been done. There could be a huge argument which could result and he was going to walk out on such an argument.
The Chairperson said that the Committee could still use three of the ten remaining minutes to listen to the opinion of the legal advisers.
An official from Parliamentary Legal Services, Adv Charmaine Van der Merwe, said that Parliamentary Legal Services had completed an opinion for the Committee on whether the right to propose a motion of no confidence can be limited. Their opinion was that such a right could not be limited; not by way of "the number of times per year" nor by way of a "limit of so many parties" or a "limit of so many Members. The only thing that could be done was that the National Assembly can arrange its own internal proceedings.
The Chairperson asked what the basis for this opinion was.
Adv Van der Merwe replied that the reason the right could not be fettered was that various legal opinions differed on whether the judgment was arbiter.
The Chairperson said that there was no time for the Committee to listen to the rest of the legal opinion.
Ms Kalyan said that it was unfair for the Committee to request an opinion and when the opinion was ready, the Committee was not willing to consider it.
Mr Watson said that it was important for Committee Members to at least be given copies of the opinion from Parliamentary Legal Services.
The Chairperson said that the fears of Mr Jeffery were being confirmed as there was now the introduction of a whole new and long debate. He however said that whosoever was willing to give an opinion related to the rules adjustment process could do so and that the Member had the right to access and read the various opinions.
The meeting was adjourned.
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