Financial Management of Parliament Act proposed draft amendments: Senior Parliamentary Legal Adviser briefing

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Finance Standing Committee

19 February 2013
Chairperson: Mr T Mufamadi (ANC)
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Meeting Summary

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, briefed Members on the proposed draft amendments for the Financial Management of Parliament Act (No. 10 of 2009). The draft amendments to the FMPA were the product of a technical team. It would be the Committee's responsibility to make them its own product. When it was ready to do so, he suggested that the Committee make the amendments a draft Bill and publish it for public comment.

The oversight mechanism – Section 4
There was a call from the Speaker, the NCOP Chairperson, and the Secretary to Parliament to make the Parliamentary Oversight Authority (POA) the oversight mechanism. It was therefore necessary to amend the membership of the POA, retain existing checks and balances, and prevent any conflict of interest.

Application to provincial legislatures – Constitutional Court Judgement
The amendments would make the whole Act applicable to provincial legislatures. This flowed from the Premier of Limpopo v. the Speaker of the Limpopo Provincial Legislature case. The Limpopo legislature had introduced legislation to enable it to manage its own financial affairs, on the basis that the Financial Management of Parliament Act allowed it to do so. However, the Court found that the provinces did not have this competency, and gave Parliament a certain time frame in which to make a framework for provinces. Parliament was required to report to the Constitutional Court by 09 September 2013

Adjustments budget procedure in respect of Parliament's own funds – Section 17
Last year, National Treasury had told Parliament that it did not want its unspent funds included in the budget reflected in the Appropriations Bill, as it was not money that National Treasury was appropriating to Parliament. It was money that Parliament already had. The existing Act was not very clear on how these funds should be handled.  To resolve the confusion, he suggested restoring, as Section 17(1), the deleted Clause from the original Bill that preceded the FMPA 2009 – a Clause deleted as it was then felt that these issues were already provided for in Parliament's own operations. Effectively, the amendment would provide that the Executive Authority must table in Parliament, for referral to the oversight mechanism – inter alia, any draft revisions to the approved allocations of Parliament’s own funds 

Tabling of annual report – Sections 59 to 62
The amendments would give that a one-month period to the Executive Authority to consider Parliament’s own Annual Report before tabling it to Parliament so as to be consistent with the Public Finance Management Act (No. 1 of 1999) (PFMA).

Other changes 
It would also be necessary to remove Schedule 1 from the existing Act, namely the norms and standards for provincial legislatures. It was also necessary to include amendments to the PFMA.

An ANC Member asked about the tabling of annual reports. Should the Finance Standing Committee itself study the annual report before tabling? Adv Jenkins replied that the Finance Standing Committee would not be involved.  It was the Speaker and the NCOP Chairperson acting jointly [as the Executive Authority] who were accountable to Parliament for the financial management of the Houses. It was the Accounting Officer who was accountable for the financial management to the Executive Authority. Another Member asked for clarity on the definition of ‘working days’ and ‘promptly’. A COPE Member commended the amendment to the oversight mechanism. There was a huge problem in that no one was really exercising oversight over Parliament seriously because of the way that the POA had organised itself, in so far as the Speaker and the NCOP Chairperson sat in on its meetings. It was thus difficult to ask questions about the administration of Parliament. Adv Jenkins replied that the Auditor-General had raised a few concerns as to oversight of Parliament. It was an unresolved issue year in and year out. This was why one sought 'to bring the POA into the operations'. His view from the legal perspective was that public participation was required in the oversight of Parliament's affairs.

An ANC Member understood that the PFMA superseded the FMPA. So what happened if one finalised the draft proposed amendments to the FMPA while there were still no amendments to the PFMA in terms of implementation?  Adv Jenkins replied that the PFMA took precedence. The necessary amendments to the PFMA would be done through the same piece of legislation as the amendments to the FMPA. This would become clearer when the draft Bill was ready.

A DA Member asked what the current status of the POA in respect to oversight was. Was there any? What laws were currently regulating oversight? The Chairperson asked who constituted the POA. What was its structure in practical terms? Adv Jenkins replied that the membership of the POA comprised the Speaker, the NCOP Chairperson, the Chief Whip of the ANC, the Chief Whip of the NCOP, senior whips from all the political parties, the Chief Whip of the Official Opposition, and the Secretary to Parliament (as ex officio member). The POA reported quarterly to the Houses.  The POA would have to transform itself. If it was scrutinising the annual report, the Speaker and NCOP Chairperson could surely not jointly chair the POA, or a sub-committee. Therefore someone else would have to be in the chair, or a sub-committee would have to be formed. Secondly the POA would have to change to allow public participation, as in other committees, unless there were reasonable grounds to exclude the public, as oversight was a constitutional imperative. Parliament must perform oversight and there must be oversight over Parliament's books.

The Chairperson pointed out that the draft Bill was not yet officially before the Committee. However, these discussions were enriching.

Meeting report

Introduction
The Chairperson said that it would be important for the Committee early next week to decide on its programme so as to allocate appropriate time to the various Bills that it would need to process and agree on the process that the Committee should follow. He emphasised that Bills embodying the proposed draft amendments to the Money Bills Amendment Procedure and Related Matters Act and the Financial Management of Parliament Act 2009 had not yet introduced into Parliament.

Financial Management of Parliament Act: Proposed Draft Amendments
Adv Frank Jenkins, Senior Parliamentary Legal Advisor, briefed Members on the Financial Management of Parliament Act 2009 Proposed Draft Amendments. To illustrate his briefing he projected on the screen an image of the electronic version of the draft amendments with tracked comments, and distributed to Members a paper copy without tracked comments. He advised that as the amendments were still very much only a draft it would be inappropriate, to make these documents available to the public and media until a decision to invite public comment.

The draft amendments to the Financial Management of Parliament Act were the product of a technical team. It would be the Committee's responsibility to make them its own product. When it was ready to do so, he suggested that the Committee make the amendments a draft Bill and publish it for public comment.

Application to provincial legislatures – Constitutional Court judgement
In contrast to the Money Bills Amendment Procedure and Related Matters Act draft amendments, the Financial Management of Parliament Act proposed draft amendments flowed from a court case – the Premier of Limpopo v. the Speaker of the Limpopo Provincial Legislature. The Limpopo legislature had introduced legislation to enable it to manage its own financial affairs, on the basis that the Financial Management of Parliament Act allowed it to do so. However, the Court found that the provinces did not have this competency, and gave Parliament a certain time frame in which to make a framework for provinces. Parliament was required to report to the Constitutional Court by 09 September 2013 on its progress in this matter. It would be ideal if Parliament could report that there was a Bill which had been passed, enacted and implemented.

Therefore, following the Constitutional Court case, it was proposed to amend the Act by making it applicable to provincial legislatures.

He explained the amendments to the preamble.

He explained the amendments to the definitions to include a definition of provincial legislature and the provincial annual budget.

The amendments provided that this Act applied to provinces, and where in this Act one read 'Parliament', it should be read as including provincial legislatures, and where one read 'Speaker' or 'Chairperson', it should be read as including the speaker of a provincial legislature, and where one read 'Accounting Officer of Parliament', it should be read as including the accounting officer of a provincial legislature. 

He did not want to pre-empt any public input on the draft Bill, but said that there were certain requirements in the Financial Management of Parliament Act (No. 10 of 2009) (FMPA) to have an internal audit committee Some provincial legislatures might have financial problems with having a separate audit committee. They might have an audit committee shared with other provinces. He suggested obtaining input from provinces on this.

The amendment Bill would definitely be a Section 76 Bill, as it affected the provincial finances. Although there would be a National Council of Provinces (NCOP) process, he recommended that provinces also make submissions to the Finance Standing Committee. He and the team were not in a position to anticipate all the possible issues that might arise in respect of the different provinces, and their input was therefore necessary.

'National Revenue Fund' would also include a provincial revenue fund. The term 'Minister of Finance' must also be understood to include the Member of the Executive Council (MEC) for Financial Matters. The powers of the NCOP must be understood also as those of a provincial legislature.

It would be necessary to amend the Public Finance Management Act (No. 1 of 1999) (PFMA), as had been done when the existing FMPA had been passed in 2009. It would be necessary to insert into the PFMA that the PFMA would no longer apply to provincial legislatures. There were only one or two provisions of the PFMA that applied to Parliament. These provisions pertained to withholding unspent funds, and, even though the PFMA did not apply to Parliament, Parliament must still submit its monthly reports to the National Treasury to consolidate them into the national budget, as well as consolidating them into its own budget.  There were other provisions where the PFMA provided that the speaker of a provincial legislature had certain Treasury functions. Where the PFMA read Treasury one must interpret it as including also the speaker of a provincial legislature. 'That needs to be removed.' To remove it one must include in 'This Act' certain amendments to the PFMA. Those amendments, in terms of the PFMA, would require consultation with the Minister of Finance. He would suggest that when the Committee gave the 'green light' to make the draft amendments a draft Bill, one would take this draft Bill through the consultation process with the Minister as well as through a public participation process, which process would include provincial legislatures.  

Tabling of Parliament's Annual Report - Sections 59 to 62
There was a reporting requirement which the technical team found was not consistent with the Public Finance Management Act (No. 1 of 1999). The PFMA gave an accounting officer five months in which to compile an annual report and the audited financial statements and thereafter the Executive Authority had one month in which to table the report and audited financial statements in Parliament. The FMPA, however, gave Parliament's Executive Authority five months to submit but thereafter it must immediately table Parliament's annual report and audited statements in Parliament. The proposed amendment was that Parliament's Executive Authority needed the same one-month period within which to table the report as other organs of state. Adv Jenkins suggested that one could not simply assume that the Executive Authority would know what was in that report. Time was needed to study the report after receiving it from the Accounting Officer. He explained Section 59 further, and compared it with Section 41(d) of the PFMA.   

Oversight mechanism
There was also a political issue – the oversight mechanism. The Parliamentary Oversight Authority reported quarterly to both the Houses. The issue was put before the technical team that the Parliamentary Oversight Authority should be used as the Oversight Mechanism contemplated in the Act. This could be done, as there were checks and balances built in to prevent any conflicts of interest. The main issue was the membership. 
The long title of the first amendment was to include provincial legislatures, and to remove the provision to provide financial management norms and standards.

He explained in detail that the Speaker [of the National Assembly] and the Chairperson [of the NCOP] as well as the Secretary to Parliament had asked if one could use the Parliamentary Oversight Authority (POA) as the oversight mechanism that was envisaged in the Act. He referred to Section 4 which envisaged that Parliament establish an oversight mechanism to maintain oversight over Parliament's finances. The way in which this provision was drafted at the time was to say that there must be a joint committee, a standing committee of both Houses; the Joint Rules must provide for its operational issues, the membership and so on. The existing provision excluded the members of the Executive Authority – the Speaker and the Chairperson [of the NCOP] acting jointly; also the Deputy Speaker and the permanent Deputy Chairperson of the NCOP might not be members of the Executive Authority, and might only participate on invitation. (See FMPA 2009, Section 4, especially subsection 2).  

At present the POA fulfilled the functions of this oversight mechanism, but it was chaired jointly by the Speaker and Chairperson [of the NCOP].  It would therefore be necessary to remove the provision of Section 4(2). He pointed out that accountability and conflict of interest was dealt with by 'Schedule 3' of the FMPA. He explained further, with reference to Section 37. However, Schedule 2 included a specific prohibition against the Executive Authority putting itself in a situation of conflict of interest. He referred specifically to Schedule 2(2) and 4(b). The POA therefore would have to produce within its own internal operations with a mechanism for when it was doing oversight of decisions taken by the Executive Authority to prevent conflict of interest there.  Perhaps a solution was to use a sub-committee, or for the presiding officers to recuse themselves based on Schedule 2's code of ethics.

Adv Jenkins stressed the need to ensure a provision to ensure conflict of interest.

Adjustments budget procedure in respect of own funds – Section 17
The third amendment was the result of an interesting development the previous year. As Members would be aware, Parliament retained its own unspent funds. In terms of this Act, unspent funds formed part of Parliament's budget under the heading of 'Parliament's own funds'. Parliament's budget must be approved by Parliament itself. (See Section 17). He explained the composition of Parliament's budget. He explained that the annual Appropriations Bill and the Appropriations Adjustment Bill dealt with the funds appropriated by National Treasury to government departments including Parliament.  Last year, National Treasury had told Parliament that it did not want its unspent funds included in the budget that was reflected in the Appropriations Bill, as it was not money that National Treasury was appropriating to Parliament. It was money that Parliament already had. Thus the question arose: how to deal with Parliament's unspent funds? He explained how they were dealt with under the existing Act, which was not very clear on this point. The existing Act was not very clear on how these funds should be handled.  To resolve the confusion, he suggested restoring, as Section 17(1) the deleted Clause from the original Bill that preceded the FMPA 2009 – a Clause deleted as it was then felt that these issues were already provided for in Parliament's own operations. Effectively, the amendment would provide that the Executive Authority must table in Parliament, for referral to the oversight mechanism – inter alia, any draft revisions to the approved allocations of Parliament’s own funds 


Other changes 
Adv Jenkins pointed out that it would also be necessary to remove Schedule 1 from the existing Act, as was illustrated in the presentation, namely the norms and standards for provincial legislatures. 'We're not dealing with norms and standards any more.'

It was also necessary to include amendments to the PFMA.

Discussion
Mr D Ross (DA) requested a summary of Adv Jenkins four main points.  

Ms Z Dlamini-Dubazana (ANC) thought that the confusion came when Members were not aware that Adv Jenkins was looking only at the provisions that it was proposed to amend. She concurred with Mr Ross in requesting a quick summary of just the amendments proposed.

The Chairperson clarified that Members wanted a summary of the four key issues, not the entire legislation that was being amended.

Ms Dlamini-Dubazana agreed. 

Adv Jenkins Summary of Proposed Amendments presentation
 [slide 3 from Financial Management of Parliament Act Review Process presentation [13] November 2012]
Adv Jenkins showed the slide that he had showed last year in the briefing on 13 November 2012, namely slide 3 – summary of proposed amendments

1. The oversight mechanism – Section 4: one wanted to make the POA the oversight mechanism and it was necessary to amend the membership of the POA. The checks and balances were still there in Section 2.
2. The application to provincial legislatures – Constitutional Court Judgement: making the whole Act applicable to provincial legislatures. This amendment included the inclusion of Chapter 2 in this Bill to say that this Act also applied to provinces.
3. Adjustments budget procedure in respect of Parliament's own funds – Section 17: this included the rollovers.
4. Tabling of annual report – Sections 59, 60 and 62: to give that one month period to the Executive Authority to consider that report before tabling it to Parliament so as to be consistent with the PFMA.

Discussion
Ms Dlamini-Dubazana asked about the tabling of annual reports. Was there something missing in the proposed amendment to Section 60(1). For her, the Executive Authority was Parliament itself. Should the Finance Standing Committee itself study the annual report before tabling?

Adv Jenkins replied that the Finance Standing Committee would not be involved.  It was the Speaker and the NCOP Chairperson acting jointly [as the Executive Authority] who were accountable to Parliament for the financial management of the Houses. It was the Accounting Officer who was accountable for the financial management to the Executive Authority. This was the same line of reporting as in government departments. The present time frame did not allow the Executive Authority time to study the annual report on which it needed to answer, as the Executive Authority could be called to a debate or to the POA to answer certain questions.  As with the Standing Committee on Public Accounts (Scopa), the person that needed to know all the nuts and bolts and explained how things worked was the Accounting Officer, not the Executive Authority. Nevertheless, because the Executive Authority must also hold the Accounting Officer to account, it needed to understand what was in that report. Otherwise the question could rightly be asked, as Scopa had asked the Minister, what had the Minister done with his accounting officer who did not know how to do financial management. Scopa could not fire that accounting officer; only the Minister, the Executive Authority, could do so. Therefore the Executive Authority must have full knowledge and understanding of the report. He explained how Parliament's annual report was compiled. All the various units contributed. Parliament's annual report would go to the oversight mechanism, just as the annual reports of government departments went to Scopa. However, Scopa was a National Assembly committee, while the oversight mechanism must be a joint committee because Parliament was bicameral. After a report on the annual report from the oversight mechanism to the Houses, it would then be up to the Houses to decide whether or not to debate the report and it would be the role of the Executive Authority to defend the annual report.  

Ms P Adams (ANC) referred to page 9 of Adv Jenkins' document. Should it not read 'part 2' instead of 'Chapter 2'? Chapter 2 had to do with the oversight, executive authority and administration of the Act. 

Adv Jenkins agreed that it should read 'part 2' and not 'chapter 2'.

Secondly she referred to page 17 of Adv Jenkins' document. The Act said ten working days. She asked for clarity.

Adv Jenkins replied that the term 'working day' was defined. It excluded weekends and public holidays. In Parliament, even Mondays and Fridays, which were considered Constituency Days, were counted as working days.

Thirdly, she referred to page 22 of Adv Jenkins' document. She asked him to explain 'promptly'.

Adv Jenkins replied that there had been a few court cases around the word 'promptly'.  The courts had decided that 'promptly' and alternatives such as 'prompt' and 'within a reasonable time' all meant the same thing.  They meant 'as soon as possible, as soon as you were able to do it, without any delay'. It was important that cash, which was taxpayers' money, was not left lying around Parliament.

Mr N Koornhof (COPE) asked about procedure. He commended the amendment to the oversight mechanism. There was a huge problem in that no one was really exercising oversight over Parliament seriously because of the way that POA had organised itself, in so far as the Speaker and the NCOP Chairperson sat in on its meetings. It was thus difficult to ask questions about the administration of Parliament. It thus became something of a political matter. However, there might be a very good reason why the Speaker and NCOP Chairperson sat in. This amendment should be put to the POA.  

Adv Jenkins replied that the Auditor-General had raised a few concerns as to oversight of Parliament. It was an unresolved issue year in and year out. This was why one sought 'to bring the POA into the operations'.

He said that Mr Koornhof's concern that it was difficult to ask uncomfortable questions needed to be addressed.

He referred to Minister Trevor Manuel's speech in the House on 19 February 2019. Parliament needed to be strong on oversight. If it wanted to be strong on oversight, it must be extra strong in oversight over its own funds. The Committee, when it had drafted this FMPA, has said as much. If the draft amendments to Section 4 could assist in that regard, then one must deal with the internal operation of the POA to make it work effectively. 

Mr Koornhof agreed with Adv Jenkins that there was need for a public participation process within Parliament and outside – mainly only with the legislatures.

Adv Jenkins view from the legal perspective was that public participation required in the oversight of Parliament's affairs.

Mr Ross was concerned that if the PFMA was not to be applicable to provincial legislatures any more, the Act should give details on how one managed the finances of the legislatures. One sought a thorough management system with checks and balances in terms of how Parliament managed its own finances. He thought that the PFMA was the basis, and the FMPA was just an add-on to the PFMA.

Adv Jenkins replied that there was a perception within National Treasury and within the provincial treasuries that the PFMA actually regulated the financial management of provincial legislatures. He pointed out that it did not. Section 3 of the PFMA provided that this Act applied to provincial legislatures only to the extent indicated in the Act. So it applied only when it gave specific instructions to provincial legislatures. He gave examples. It was clear from the Constitutional Court judgement that there was no regulatory framework for provincial legislatures. The legislatures were merely operating 'in the spirit of the PFMA'.

The Chairperson emphasised that Adv Jenkins was referring here to the legislatures, not the provincial governments.

Adv Jenkins agreed. Of course, provincial governments were regulated by the PFMA.

Just as the PFMA applied only to a very limited extent to provincial legislatures, the same could be said of the Treasury Regulations. Moreover, the Treasury Regulations themselves made this clear.

This was why, he thought, the Constitutional Court wanted Parliament to report back to it by 09 September 2013 on how it would fill this gap. The proposed amendments were to fill this gap by making the FMPA applicable to the provincial legislatures.

The Chairperson asked if this required the amendment of the PFMA rather than the FMPA.  He welcomed Ms J Tshabalala (ANC). 

Adv Jenkins replied that it required the amendment of both. In the FMPA, a little Section would be inserted at the end to list laws and provisions being repealed: the Sections of the PFMA that were to be repealed would be listed. However, it would be necessary to consult the Minister of Finance. He did not see that as a problem. 

Mr D van Rooyen (ANC) asked what the implications where in terms of finalising this matter, as he understood that the PFMA superseded this particular Act. So what happened if one finalised the draft proposed amendments to the FMPA while there were still no amendments to the PFMA in terms of implementation?

Adv Jenkins replied that Mr Van Rooyen was correct. In case of a conflict, the PFMA prevailed – took precedence. Thus it was necessary to amend the PFMA, although no conflict was envisaged between the two. The only conflict might be as to whether which provision one should include when submitting something to National Treasury or to the oversight mechanism. Would it be in terms of the PFMA or in terms of the amended FMPA? The content of the issues that could be in conflict did not arise in respect of the financial management of Parliament itself; however, one wanted a smooth transition from the limited application of the PFMA to the amended FMPA applying to the provincial legislatures. The necessary amendments to the PFMA would be done through the same piece of legislation as the amendments to the FMPA. This would become clearer when the draft Bill was ready.     

Dr Z Luyenge (ANC) referred to Adv Jenkins' document, page 21, with regard to the treatment of unspent funds. How did one manage the suspense account?  This account referred to monies that were not necessarily unspent but unclaimed. Did National Treasury recognise such an account?

Adv Jenkins replied that National Treasury was not too keen on hearing the word 'suspense account', but it did exist. He explained the reasons for unspent funds and the process for dealing with them – that they must be allocated in terms of the budget. They could not be spent merely at the discretion of someone in Parliament.

Dr Luyenge was referring to monies that were unclaimed, the beneficiaries of which might not exist, maybe with special reference to civil servants or anyone who was under the payroll of the National Treasury. Did one put those monies in a trust fund? In provinces, this was called a suspense account. How did one designate such an account at the level of Parliament.

Adv Jenkins did not know what one should call such an account, except to say that National Treasury disliked a suspense account to be open at the end of the financial year. It must be closed at the year's end, as he had learned from dealing with the Auditor-General and Scopa. But the question remained – what did one do with money that was reserved for an unfilled position? Also one needed permission to shift money from one purpose to another. The main point was to shun the idea that a suspense account, or unspent funds, was money that was available to be spent in a discretionary manner. It must rather be authorised by Parliament to be spent on specific purposes in Parliament to fulfil its strategic objectives. The critical element of the question was whether Parliament had sufficient oversight over its unspent funds. The FMPA provided for this but one needed the oversight mechanism to provide effective checks and balances and for the POA to be amended.       

Mr Ross asked what the current status of the POA in respect to oversight was. Was there any? What laws were currently regulating oversight?

The Chairperson asked who constituted the POA. What was its structure in practical terms?

Adv Jenkins replied that the Public Audit Act (No. 25 of 2004) and the FMPA required an audit. Other than that the PFMA did not apply to Parliament any more, except for one or two provisions requiring reporting to National Treasury.

If the proposed amendments became law, the POA would have to change. At present it was not a committee open to the public. However, the oversight of Parliament did require public participation. 

On the basis of information provided by Ms Tanya Lyons, Forum Co-ordinator, Office of the Secretary to Parliament (OSTP), the membership of the POA comprised the Speaker, the NCOP Chairperson, the Chief Whip of the ANC, the Chief Whip of the NCOP, senior whips from all the political parties, the Chief Whip of the Official Opposition, and the Secretary to Parliament (as ex officio member). The POA reported quarterly to the Houses. 

The POA would have to transform itself as well. If it was scrutinising the annual report, the Speaker and NCOP Chairperson could surely not jointly chair the POA, or a sub-committee. 'They would have to sit on the other side.'  This could be done in terms of the Schedule to prevent conflict of interest. Therefore someone else would have to be in the chair, or a sub-committee would have to be formed. 

Secondly the POA would have to change to allow public participation, as in other committees, unless there were reasonable grounds to exclude the public, as oversight was a constitutional imperative. Parliament must perform oversight and there must be oversight over Parliament's books.

The Chairperson pointed out that the draft Bill was not yet officially before the Committee. However, these discussions were enriching.

Mr Van Rooyen wanted to double-check on his understanding of the current composition of the POA. The Secretary to Parliament was an ex-officio member, but was the Secretary not the Accounting Officer? This would make him apparently a player and a referee at the same time. The Accounting Officer must report to the POA which reported to the Executive Authority. As it stood, the structure of the POA was 'extremely flawed', and had been established merely for the sake of compliance. 

Adv Jenkins referred to an old document of 2004 on the composition of the POA. He noted that the Secretary to Parliament served on the POA in an ex officio capacity and did not have voting rights. The POA was set up as a governance structure to give certain directives to the Secretary of Parliament. It was not the intention to establish another parliamentary committee. His interpretation was that the Secretary to Parliament was an ex officio member so that he or she was 'forced to attend' to account and take directions from the POA. If one wanted the POA to be the oversight mechanism in terms of this Act, his understanding was that the POA would, firstly, have to provide in its internal arrangements how to deal with the conflict of interest so that it could have effective oversight, and secondly unless it would be closed for Constitutional reasons, as authorised by the Constitution, it must be open to the public, including the media. 'It will have to change.' It would have to operate in terms of the amended Act, not in terms of the original governance model.

Mr Ross asked if the proposed amendment was the clearest way to provide for provincial legislatures in terms of the descriptions. Was it not a little confusing just to say that the Act applied to provincial legislatures? Should the amendments not be more detailed? Were other Members happy with this?

Adv Jenkins replied that the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (No. 4 of 2004) [used as a model in drafting the amendments] was working quite well, so it was 'a way of drafting'. He did not know if it was the best. Another way that had been considered was to have a definition for legislatures, which would include Parliament as well as legislatures, and refer throughout the Bill to the accounting officer of a legislature. Personally he thought the way the technical team had done it so far, which was to follow the Powers and Privileges Act in this respect, worked quite well. However, in contrast to the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, he preferred to put the provision at the beginning.

The Chairperson said that the issue of who became the oversight authority of Parliament was a 'dicey' question. There had been some debate on who should have oversight over the Presidency as its budget was passed by the House. For Parliament, the present multi-party structure was an appropriate structure, unless one wanted to put another committee of Parliament to oversee it – 'because all committees exist for Parliament; there is no committee that its above Parliament.' What Adv Jenkins had shared with Members was sufficient for the Committee to move forward.

The Chairperson reminded Members that he would be checking on their attendance in the National Assembly debate that afternoon, and adjourned the meeting.  
 
Apologies:
Mr T Harris (DA)

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