Provision for Motions of No Confidence in the Rules of the National Assembly: further discussion

Meeting report

Introduction by Chairperson
The Speaker of the National Assembly, Mr Max Sisulu, chaired the meeting. He proposed that the meeting should start even though there were about two or three Members absent for a quorum to be met. He noted that the meeting of the day was a special one and that was why there was only one item on the agenda for the day.

After apologies were tended, the Chairperson led the Committee through the consideration of the minutes of 22 of February 2013. The minutes were considered and no corrections or amendments were made. The Chairperson said that the Committee was going to adopt the minutes later on during the meeting as there was no quorum yet.

Discussion on the Draft Proposals for the provision of Motions of No Confidence in the Rules of the National Assembly
The Chairperson asked Members to take a few minutes to individually go through the document which contained the draft proposals and had been provided to them. He was hoping that there would be broad consensus on the issues carried in the document as there had been several discussions on the subject within the ANC, the DA and the other parties in Parliament. Members had been asked to consult with their various parties so that the final discussions could be easy and straightforward. He hoped that the Committee was going to be able to do justice to the proposals before it. There was also not much time for Parliament to submit the progress report to the Constitutional Court so a broad consensus was of great importance.

After approximately 10 minutes, the Chairperson asked Mr J Jeffery (ANC) to take the Committee thought the details of the document.

Mr J Jeffery (ANC) said that the document was a proposal from the ANC and was following on from the discussions from the last Rules Committee meeting. The attempt was to address concerns from some other parties. Members of the Committee only got the document on the morning of the meeting because the document was being finalised.

The document dealt with issues which had been substantially dealt with before.

ANC Proposals on Motions of no Confidence
The proposals from the ANC were as follows;

A member may propose a motion of no confidence in the President or Cabinet in terms of section 102 of the Constitution for approval as a resolution of the House, and must state the grounds for the motion.
The Speaker must decide on the scheduling of the motion after consultation with the Leader of Government Business, the Chief Whip of the Majority Party and the Chief Whips’ Forum.
When it is scheduled, consideration of the motion of no confidence by the House must take place within a reasonable time.
If a motion of no confidence cannot reasonably be scheduled by the last sitting day of an annual session, it must be scheduled for consideration as soon as possible in the next annual session as if notice had been given on the first sitting day of that session.
The debate on a motion of no confidence shall not exceed the time allocated for it by the Speaker, after consultation with the Chief Whip of the Majority Party as chairperson of the Chief Whips’ Forum.
If a motion of no confidence is proposed a second time in respect of the same matter, in the same annual session, the Speaker must decide on the scheduling of the motion after :-
The consultation contemplated in subrule (2) above;
Having considered whether the scheduling of the motion is supported by at least a third of the members of the National Assembly; and
Having considered whether another motion of no confidence, brought on the same or materially similar grounds, was rejected during that annual session.
Notwithstanding Rule 96 an amendment to a motion of no confidence may be moved at the conclusion of the debate to express confidence in the subject of the motion.
If a motion of no confidence in terms of section 102 is approved by the House, the Speaker must inform the Leader of Government Business in writing forthwith.

Discussion
Before requesting the Members to engage on the document, the Chairperson asked if the ANC had any additions.

There were no additions from the ANC.

Dr P Mulder (FF+) said that at the end of the last Rules Committee meeting, it was agreed that there had to be some meetings between parties. He was not aware if any of the meetings had taken place as he was not part of any of them. The document contained proposals by the ANC and he was just seeing the document for the first time so it was very difficult for him and his party to take any decision based on the document during the meeting. Owing to the high sensitivity and legal implications of the document, there had to be extensive consultations and for this reason, he could not support the proposals.
He also said that as per proposal 2, it was not supposed to read that “the Speaker must decide on the scheduling of the motion after consultation” as this gave the Speaker the right to decide whether to schedule a motion or not. It was supposed to read “the Speaker must schedule a motion after consultation”.

Dr Mulder said that there was not supposed to be the issue of reasonable time in the scheduling of a Motion of No Confidence as Parliament’s programme could never be so full as to not have space for an issue as serious as a Motion of No Confidence. He and his party were strongly opposed to proposal 7 as it was unacceptable that a Motion of No Confidence could be turned into a Motion of Confidence. The alternative could be to vote down the Motion but not to turn it around completely. He had just seen the document and could therefore not decide on it. However, if he was forced to vote, he would vote against it.

Ms S Kalyan (DA) said that she shared some of the sentiments expressed by Dr Mulder. She was aware of the time constraints but that was the first time her party was seeing the document so it was important for the DA and the other parties to consult and look carefully at the proposals. She asked what the role of the Programming Committee was in respect of proposal 2. As to proposal 3, what was considered as a reasonable time and who was going to be the judge in such a circumstance?

Ms D Schafer (DA) said that there was some improvement from the initial proposal from the ANC but she agreed with her other colleagues. The whole point of the DA’s case was based on urgency and international precedent on Motions of No Confidence. The DA could not accept proposal 3 and although it was going to be taken back to the party, the proposal had to be clear as to time frames. With regards to proposal 6, she said that insisting that at least a third of the members would have to support the scheduling of a motion would deprive individual members of their rights to initiate motions. On  proposal 7, a proviso had to be given which stated that the amendment of a motion of no confidence had to be done based on the grounds stated in the initial motion therefore not providing for just any type of amendment.

Ms J Killian (COPE) said that she was disappointed that there was no opportunity given for further engagements as such discussions was going to positively impact on the proposals which had been brought before the Committee. It was a pity that the document was only completed on the morning of the meeting. This meant that since the previous Rules Committee meeting, there had been no attempt to engage further to try a reach a consensus on the issue. She shared the sentiments echoed by the rest of the Members who had spoken earlier. Besides the fact that there had not been an opportunity for the other parties to look at the document, she was not going to support the proposals of the ANC.

Mr J Van de Merwe (IFP) said that he was not comfortable with the aspects that the Speaker alone had the power to decide whether there was going to be a debate or not and how much time would be allocated for the debate if it were to hold.

Ms Schafer said that the proposal of the DA was that secret ballots be used for the passing of motions of no confidence.

The Chairperson asked Mr Jeffery to respond to the issues raised.

Mr Jeffery said that the Speaker had the discretion to schedule or not to schedule debates in the National Assembly. An individual member had a right to table a motion of no confidence but the issue was whether an individual member had a right to have such a motion debated. It was not an express right but a consequential issue. This was an issue which the Constitutional Court could look at as it was different from the issue of the introduction of Private Members Bills. Many Parliaments around the world had thresholds to get a motion of no confidence.
On the issue of reasonable time, it was important to remember that the issue was put to the Western Cape High Court which declined to insist that a motion must be scheduled. Given the experience in the most recent motion of no confidence, it was understandable that the Speaker would not necessarily delay such a motion.
The Programming Committee was not directly involved in this issue as it was going to be covered in the consultations with the Chief Whips Forum. 
The use of secret ballots was potentially unconstitutional as the Constitution provided for a secret ballot only with regards to the election of the President and not on votes of no confidence. The Constitution provided that the National Assembly must provide rules to govern its business. A secret ballot was also not transparent and accountable. It could open up the door to cheque-book politics.

Adv T Masutha (ANC) said that he aligned himself with what Mr Jeffery had said. The ANC believed that the Speaker provided leadership to the National Assembly within the framework of the Constitution. So free from party influence, his role was to uphold the values of the Constitution. There were sufficient safeguards in the Constitution and the Rules of Parliament to ensure that he could carry out his duties impartially. The discretions given to the Speaker were not to be used in isolation.

The Chairperson said that four members had been co-opted and the Committee could now adopt its minutes.
The minutes of 22 February 2013 were adopted.

The Chairperson said that after listening to the presentation and the parties, there were two possibilities. The first one was to allow further caucus or agree that parties could go back and consult and that the Chief Whip of the majority party will be responsible for arranging for further discussions.

The Committee could meet on Tuesday 12 March 2013 as the report to the Constitutional Court had to be submitted on the 14 March 2013. The last practical date was 12 March so parties could exercise their constitutional right to consult on the issues raised. The meeting of 12 March was not meant to open previous discussions but to identify the way forward on the report to the Constitutional Court.

The meeting was adjourned.