Assembly Rules Review: Chapters 1 to 5: Deliberations

Rules of the National Assembly

26 April 2013
Chairperson: Mr M Mdakane (ANC)
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Meeting Summary

The Task Team met to discuss the progress on the draft review of the Rules of the National Assembly (the Rules). The Chairperson noted that the Task Team had been through the first nine chapters of the Rules, but there remained a substantial amount of work to be done. The process was taking longer than expected but it was a very interesting and useful exercise. There was still a challenge of how to get MPs to actively engage with the exercise, but this was something to be addressed by the Rules Committee, whilst the Task Team’s main role was to work on the drafting.

The technical staff of the Task Team took Members through Chapters 1 to 5 of the Rules, which was all that time constraints allowed. There was a request for an introductory section to Part 2, stating the sources of authority of the National Assembly (NA) to make the flow clear, and perhaps better cross-referencing of Speaker’s rulings across Chapters 1 and 5. A COPE Member raised her concerns with hierarchy of orders, directives and guidelines, but was assured that the Rules or conventions would not trump the Constitution. It was explained that directives and guidelines did not have to be formally adopted by the House, but if they were, would be regarded as a Resolution and Standing Order. Another Member then suggested that the wording on this needed to be clarified in the Rules. There was not yet clarity on minimum support for suspension of rules. It was noted that a House Chairperson could not make rulings on procedural issues, and the position of Expanded Public Committees was explained. It was important that some international research be done on the aspect of the selection of matters for debate. Some Members noted that one political party should not be allowed to decide what may be debated upon by others, but the Chairperson said that the Task Team must clearly separate the content of the Rules from “political management”. Members disagreed on whether Parliament had a role to debate the constitutionality of a rule, and a COPE Member said she was concerned that conventions had the potential to be used as a blockage to debate.

There was still some concern about the position of a sitting or “about to be elected” President, in Chapter 2. There were no significant issues on Chapter 3, but there was a proposal that Rule 13(3) be worded less rigidly, and the word “induction” was suggested instead of “introduction” in relation to new Members. There was a proposal that Rule 20, dealing with leave of absence, be suspended, but the Task Team was concerned about leaving rules in place if they were not to be implemented, and suggested that opinions from the parties be presented at the next meeting. Under Chapter 4, Members noted that committee work was considered as proceedings of the House, but was dealt with separately, and Monday would be named as a Parliamentary working day. The sections dealing with Expanded Public Committees would have to be discussed by the Rules Committee before being re-drafted. Serious concerns were raised about the increasing use of offensive language by Members reflecting upon the physical conditions, appearances and family circumstances of other members. Members of the majority party expressed the view that the rules against offensive and unbecoming language also applied to the President and other members of the Executive. Members were asked to reflect how the Rules could be worded to allow for freedom of expression without permitting offensive speech.

Meeting report

Chairperson’s introductory comment
The Chairperson said that the Task Team of the Sub-Committee had worked through the first nine chapters of the National Assembly (NA) Rules (the Rules) but there was still a lot of work to be done. The process was taking longer than expected, but it was a very interesting and useful exercise. There was still some challenge in how the Committee could persuade Members of Parliament to actively engage in the exercise. It was the duty of the Rules Committee to facilitate this engagement, whilst the role of the Task Team was to work on the actual drafting. He encouraged Members not to lose momentum, as they had to complete the task and hand over the final results.

He reiterated that the Team had completed its review of Chapters 1 to 9. The following chapters would be  more difficult as they had not been dealt with before. Today, he wanted the sub-committee to focus on whether the drafting captured the spirit and the letter of the discussions that had already been held, at a political level.

Review of new Draft of Rules Drafted Rules
Mr Kasper Hahndiek, Lead Expert of the Subcommittee, tabled the new reviewed Rules, in draft (see attached document), noting that this comprised a new draft of Chapters 1 to 9.

He took the sub-committee through Parts One and Two of the Draft, which had to deal with definitions and the sources of authority of the National Assembly respectively. Part 2 comprised of Rules of National Assembly, suspension of the Rules, orders of the National Assembly, unforeseen eventualities, and an application to the President of the Republic.

Mr J Jeffery (ANC) said that he would have liked to see an introductory section to Part 2 ,stating the sources of authority of the National Assembly. The flow had to be visible and clear. He said that he was unclear as to what “a directive from the Rules Committee” actually was.

Mr Jeffery further made the point that the rulings of the Speaker were limited to conduct during debate and this was dealt with more thoroughly in Chapter 5. If there was a mention of this in Chapter 1 as well, then the Task Team should ensure that there was no repetition. He suggested that it may be preferable to refer to “rulings made in terms of Chapter 5”, rather than repeating the issue.

Mr Jeffery questioned, in relation to suspension of the Rules, where the two alternatives came from.

Ms J Killian (COPE) said that she disagreed with some of the issues which were raised by Mr Jeffery. However, her main concern was with the hierarchy of the orders, directives and guidelines. She was also concerned about the fact that guidelines became resolutions, and therefore developed a different status. In relation to conventions and practices, it was very unfortunate that the Rules of Parliament trumped the Constitution. Many of the conventions developed in Parliament were not in compliance with the Constitution.

Mr Hahndiek replied on the point raised about directives. The Rules were meant to establish the broad framework of how the National Assembly should operate. There were details on procedural issues which could be fixed by way of directives and guidelines issued by the Rules Committee. These could also apply to details that the Committee did not want to necessarily write into the Rules themselves, but where there was a need to agree on the criteria. The House could be informed of, but was not required to formally adopt these criteria as well. Once criteria were adopted, this would be regarded as a Resolution and Standing Order.

Mr Jeffery said that in such a case, the section should be reworded to state that the Rules Committee may develop directive or guidelines to assist members with the implementation of the Rules. The current wording was not clear on this point.

Mr Hahndiek expanded further on the rulings related to Chapter 5. There were private rulings by the Speaker to a Member, which did not happen in the House, and that also became of general relevance. There was a whole range of issues which related to rulings but were not about maintaining order in the House.

In relation to suspension of the Rules, Mr Hahndiek said there was some confusion as to what the minimum support was for the suspension of rules, and the staff had not been clear on the options from the Task Team.

Mr Jeffery said that presiding officers could make rulings in the House that would extend to any presiding officer, but other rulings had to be made by the Speaker or the Acting Speaker. The House Chairperson could not make a ruling on a procedural issue.

Ms S Kalyan (DA) asked if that also applied to Extended Public Committees (EPCs).

Mr Jeffery replied that EPC Chairpersons had no powers outside the House, and that was there were two kinds of rulings.

Mr M Ellis (DA) said that this was an important issue, and that Mr Jeffery was correct about the rulings. Overall, it was important to note that a rule could not be written for every single situation.

Mr Perran Hahndiek, Committee Secretary, answered Ms Kilian’s concern and said it was important to note that the Rules must be consistent with the Constitution and all relevant legislation.

Mr Jeffery said that no conduct or rule that was inconsistent with the Constitution was valid. The issue was one of interpretation, as various courts and judges could give several arguments around consistency with the Constitution, and that would apply to conventions, rules, rulings and even legislation. This was unfortunately going to be the subject of debate between the parties, and if no common ground was found, it was going to be taken to the Constitutional Court.

He said that it was important that some international research be done on the aspect of the selection of matters for debate.

Mr Ellis said that Mr Jeffery’s point was crucial, but he wanted to express his concern that it was not acceptable that one party could be allowed to decide what other parties could or should debate upon.

The Chairperson said that it was important for the Task Team to separate the issue of the Rules from matters of political management. The Rules could not be used to deal with politics, and neither the rules nor the courts could address political management, which was an entirely separate issue. However, there was no harm in putting in particular rules to emphasise points. That was good political management.

Ms Kalyan said that the Chairperson had brought in a new term of “political management”, which was precisely where she believed that there was a problem.

Mr Kasper Hahndiek said that it would seem strange to him if one political party could decide the subject of debate of another political party.

Mr Jeffery said that it was important for the Task Team to note that it was not Parliament’s role to debate on the constitutionality of a rule.

Ms Killian disagreed with Mr Jeffery, saying that Parliament could debate on the constitutionality of the implementation of Acts, policies or even legislation. The final decision was not going to be taken by Parliament, but at least the debate had to be held, on behalf of the nation. In her view, Parliament was continuously making itself irrelevant because it was limiting debates on matters that were being discussed in the media and public space. It was true that not all the issues could be all covered by the rules, but the Task Team had to make sure that it made the Rules were open enough for public debate. This was related to her concern on conventions used as blockages to debate and democracy. She said that many of the apartheid rules were finding their way back into the current Rules.

The Chairperson said that the issues and concerns identified were the very reason why the Rules were now being reviewed. Chapters 1 to 9 of the Rules had never been reviewed before, and the original drafters had not considered all possible problems. He noted that there were good practices from the past that could be carried on, provided that these were in line with transparency and democracy.

Mr Hahndiek said that it was important for Members to realise that what was at the core of their work was not the Rules, and the Rules should not be seen as getting in the way of their work. The Members should focus more on the content of their work, as the more focus away from their core duties towards debate on the Rules, the more Parliament was shifting away from its core business. It was for this reason that the Rules had to be clear and understood by all parties.

The Chairperson said that it had been agreed that the Rules were going to be worked on. He proposed that the Committee should move forward to the discussions on Chapter 2.

Mr Hahndiek said that Chapter 2 dealt with proceedings in connection with commencement of session. He outlined the details of the rules relating to the convening notice being read, oath or affirmation by Members; election of the President of the Republic; election of Speaker and Deputy Speaker; opening of Parliament or annual session; and the State of the Nation Address.

Mr Jeffery said that the only thing he was concerned about was the confusion where there was a sitting President and “about to be elected” President, who were the same person. This was the situation with President Mbeki and Acting President Motlanthe.

Mr Hahndiek proceeded to read out Chapter 3 of the Rules.

The Chairperson said that there were no significant issues with this Chapter but it was important for the Committee Members to note and identify any concerns.

Mr Hahndiek said that the State Law Advisers were concerned about Rule 13(3), which stated that the Member elected must from his or her own place express his or her sense of the honour conferred upon him or her. This was the practice which was followed, but the State Law Advisers thought that it was a strange thing to put in the Rules. Mr Hahndiek said that his proposal was that the Rule should be made less rigid on this point.

The Chairperson suggested, and the Committee Members confirmed, that this was an appropriate proposal.

Mr Hahndiek read out Part 2 of Chapter 3, which dealt with oath or affirmation, leave of absence and leader of the opposition.

Ms Marina Griebenow, Parliamentary Table Staff, asked if it was appropriate to use the word “introduction” in relation to the presentation of new members to the House.

Mr Jeffery replied that the word that had traditionally been used was “inducted” and not “introduced”.

The Chairperson said that, after the work done by the Task Team and the technical team, most of the concerns with the rules related to issues of wording, and not content issues.

Mr Hahndiek said that his proposal with regards to Rule 20 dealing with leave of absence was that it should be suspended in the meantime so that it could not be invoked.

Ms Killian suggested that the Task Team should not tamper with Rule 20. Her proposal was that the Team should keep this rule as it was, until such a time when the National Assembly was confident that the issues would not become a “free for all” if the sanction component was lifted.  

Mr Hahndiek said that the reason he had raised the issue was that it was difficult to have rules that were not being implemented. Such rules could be challenged, because the rules were meant to guide processes, and could be challenged if in fact they did not do this. Allowing a defunct rule to stay would undermine the authority of the entire Rule book.

Mr Jeffery said that this was a matter to be discussed at party level, and suggested that the opinions from the various parties should be discussed in the next Rules Committee meeting.

The Chairperson urged the Committee to speed up the discussions, seeing that the intention of the Committee was to cover the first nine chapters during this meeting.

Mr Hahndiek then read through Chapter 4 of the Rules, dealing with sittings of the National Assembly. He started with Rule 22, which dealt with forums for public proceedings of the National Assembly. He said that the most significant change in this regard related to the fact that proceedings had to be held in public.

Mr Jeffery asked if committee work was considered as proceedings of the National Assembly.

Mr Hahndiek replied that it was, but the committee work was covered separately.

Mr Jeffery said that if committee work was part of National Assembly proceedings, then the Rule had to be worded to include that or at least to indicate the position of committees.

Ms Kalyan said that it was necessary to clearly state if Monday was regarded as a Parliamentary working day. 

The Chairperson said that Monday was Constituency Day, but constituency work was still parliamentary work. However, he agreed that it was important for the Rules to be clear on such matters.

Ms Killian suggested that it should be stated that Monday was a parliamentary working day. If this was not stated, the incorrect and unfortunate perception might be created that Members worked for only three days a week.

Mr Hahndiek read the Rules in Part 2, relating to quorums, absence of quorums and sequence of proceedings.

Mr Hahndiek then noted that the next set of rules had to deal with EPCs. The EPCs had to be discussed in the Rules Committee before the Task Team could discuss and proceed with the drafting of the Rules related to them.

The Chairperson proposed that the meeting should be adjourned, so that the outstanding matters could be dealt with appropriately during the Task Team’s next meeting. Some Members had other appointments and had to leave, and these matters could not be appropriately discussed in their absence.

He noted that the corrections and the essence of what the Task Team wanted to achieve were very clear. The technical staff and the legal team were going to draft the revisions to the Rules, as suggested, so that the Committee could get a comprehensive draft for discussion in the next meeting.

Since there was a little time remaining, he asked Mr Hahndiek to continue until the meeting was formally adjourned.

Mr Hahndiek took the Committee through Part 2 of Chapter 5, which dealt with rules of debate. He said that it was made clear in Rule 59 that a member may only speak when recognised by the presiding officer, and had no right to merely speak as they wished. The presiding officer could manage and disallow points of order. Points of order and points of privilege could be raised by Members at any time during proceedings.

Mr Hahndiek emphasised the point that no Member should refer to any other Member by his or her first name or names only.

This led the Committee to discussions on Rule 63, which dealt with offensive language. The rule stated that no member may use “offensive or unbecoming language”. Mr Hahndiek said that the main concern with this Rule was whether the word “may” should be replaced by the word “shall”.

Mr Jeffery said that the essence of the Rule was to ensure fairness, and it was also linked to the issues about the President, Ministers and so on. The same also applied to Rule 66, which extended this fairness to judges, and,  from a practical viewpoint, it also pertained to the President and Ministers.

Ms Killian asked what Mr Jeffery’s authority was for saying that Rule 63 also applied to the President and Ministers.

Mr Hahndiek replied that there were earlier rules in Chapter 1 and 2 that covered the President, Ministers, and even Ministers who were not Members of Parliament, from offensive language.

Ms Killian said that she wanted to be sure about whether the Rule related to private life and public life. She asked if this meant that one Member could not raise aspects of another Member’s private life that were hindering the latter from efficiently executing his duties, even when the Member raising the matter did not have any improper motive. She said that there was a need to be cautious about this, as it could lead to limitations and censorship. There was a difference between statements such as “you are ugly and fat and you must do something about your hairstyle” and statements such as “you are not doing your work and you have to step up your game”. Encouraging someone to work harder and to carry out their duties could not be termed as offensive and unbecoming. Such limitations could get in the way of accountability.

Mr Hahndiek reminded Members of the situation where one MP had referred to the story of the Emperor without clothes, to try to say that an official was not doing the work properly. In that case, the Speaker ruled that there was nothing unparliamentary about the statement. It was mostly a matter of the culture that developed in the House, and the distinguishing factor was whether it involved improper motives or the harming of the integrity of the member. Political criticism could not be denied.

Ms Griebenow said that there was an increasing trend of making reference to Members’ physical appearance, such as size and looks, or personal circumstances, such as wives and children. Serious remarks had been made in debates and interjections. It was not necessarily verbal abuse, but it was not proper.

The Chairperson said that not every situation could be anticipated, but it was important to curb the raising of issues about race, sex, appearance or family situation, which were uncalled-for. However, the intention of the Members had to be identified. Some of the statements were jokes, with no offensive motive. It was the duty of Whips within the various parties to call their fellow Members to order. Members were very creative, as there were situations where, if one Member wished to suggest that another was a liar, he may just say that the other Member was “economical with the truth” but the current rule covered these situations.

Mr Jeffery said that this was a matter where there was going to be significant contestation and the Task Team could therefore not discuss it lightly. He proposed that this issue be left aside for the moment, so that Members could mull over it, and that it be placed on the agenda for discussion first at the next meeting.

Ms Killian said that she wanted to place it on record that her concern was that this Rule was going to limit freedom of expression and debate in the House. She proposed that the Task Team should request research to be done, to establish how other parliaments regulated the issue, to allow criticism yet guard against offensive language.

Mr Jeffery said that the objective was to allow Members to say what they wanted to say, yet prevent “dirty speech”. The bottom line was that the speech should not be personal and should not have malicious motive.

The Chairperson said that he did not see how regulating the use of offensive language was going to limit accountability and freedom of speech. However, he agreed that the matter stand over for consideration and conclusions on this would be reached at the next meeting of the Task Team.

The meeting was adjourned.


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