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POWERS AND PRIVILEGES OF PARLIAMENT AD HOC COMMITTEE
20 June 2002
ELECTION OF CHAIRPERSON & CONSIDERATION AND ADOPTION OF SECOND INTERIM REPORT
Chairperson: Mr PC Hendrickse (ANC)
Documents handed out:
Powers, Privileges and Immunities of Parliament Bill(eighth draft)
Second Interim Report of the Ad Hoc Committee on Power and Privileges of Parliament (Appendix 1)
Note on Aspects of the Draft Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Bill (Appendix 2)
The Committee met briefly to elect Mr Hendrickse as Chairperson of the Committee and to adopt a report that requests the House to extend the Committee's deadline on introducing the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill.
Mr Hendrickse, previously acting Chair, was elected as Chairperson of the Committee. As his first act, he asked the Committee to stand for a moment of silence in honour of Mr Mokaba.
The Committee adopted a report that requested the House to extend its deadline for introducing the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill. The Committee had recently been requested to consider a number of additional matters for inclusion in the legislation. These matters included issues that arose in the De Lille case and in Report 13 of the Public Protector. The Committee was prepared to discuss an Eighth Draft of the Bill before the passing away of the Chairperson. The Committee hoped to adopt the final Bill and report to the National Assembly during the third term.
The meeting was adjourned.
1. Second Interim Report of the Ad Hoc Committee on Powers and Privileges of Parliament, dated 20 June 2002:
1. On 5 April 2001 the Ad Hoc Committee on Powers and Privileges of Parliament was instructed to consider the recommendations of the 3oint Subcommittee on Powers and Privileges of Parliament1 and to introduce a Bill in accordance with Chapter 13 of the National Assembly Rules.
2. The Committee considered the legislation, research work, written and oral submissions from the public, as well as inputs from provincial legislatures. It conferred with the Ad Hoc Select Committee on Powers and Privileges of Parliament, and incorporated amendments suggested by it.
3. The Committee's scheduled meetings often clashed with other meetings, which many members deemed as of primary importance. This led to this Committee's meetings being cancelled, or discussions going ahead with only a few members in attendance.
4. The Committee last met on 28 May 2002. An Eighth Draft Bill
was prepared for discussion by political parties before the Committee was to adopt the Bill and report to the House by 20 3une 2002. However, due to the passing away of the Committee Chairperson, Mr PR Mokaba, this timeframe could not be met.
5. The Committee has recently been requested to consider a number of additional matters for inclusion in the legislation. It therefore requests the Chairperson of Committees, the Programming Committee, as well as the Whips' Forum, to assist it by arranging suitable dates for this Committee to meet, bearing in mind that many members of this Committee are Chairpersons of their own committees. This Committee needs to consider these matters in depth, amend the legislation where necessary, adopt the final Bill and report to the National Assembly during the third term.
6. With the above in mind, the Committee requests the House to extend its deadline to a date to be determined by the Programming Committee for reporting to it and introducing the final Bill.
Report to be considered.
NOTE ON ASPECTS OF THE DRAFT POWERS, PRIVILEGES AND
IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES BILL
1. We have been requested to provide brief note identifying issues relating to the powers, privileges and immunities of Parliament that arose in the so-called De Lille case and in Report 13 of the Public Protector and to indicate how those issues have been dealt with in the draft Bill.
De Lille case
2 The judgement of the Supreme Court of Appeal is to the effect that the suspension of a Member of the National Assembly is invalid where the Member was not obstructing or disrupting or unreasonably impeding the management of orderly business in the Assembly, since neither national legislation nor the rules or orders of Parliament provide for suspension in those circumstances. The Court did not directly examine the constitutionality of a punitive power of suspension, and seemed to have assumed it was a valid penalty provided it was authorised by law and was not imposed in violation of any constitutional rights.
3. This issue is addressed in Chapter 3 of the draft Bill, which provides for disciplinary action against Members for various acts declared to be a contempt of a legislature. One of the penalties provided for is suspension for a period not exceeding 30 days. In a memorandum dated 19 April 2002 Prof N Haysom came to the conclusion that a penalty of suspension would not be unconstitutional per se.
4. In the first De Lille case (in the Cape High Court) the Court also considered the legal standards that Parliament has to observe to ensure a fair, impartial hearing when engaged in investigating and disciplining or punishing a person who is accused of contempt. This issue is addressed in clause 6(3) of the Bill.
Report 13 of the Public Protector
5. The Report dealt with, amongst others, certain statements made by a Minister about the Auditor-General, which the Public Protector found to be unacceptable and in violation of the spirit of the Constitution, particularly sections 41 and 181. The Public Protector regarded it as a constitutional weakness that neither of those sections provided any sanction for their transgression, and suggested that Parliament should devise a mechanism with which to deal with such matters when they arise.
6. This issue is also covered by Chapter 3 of the draft Bill. In terms of clause
7(a), read with clause 6, the wilful failure or refusal by a Member to obey any rule, order or resolution of Parliament or a provincial legislature constitutes contempt, for which any of the penalties set out in clause 6(4) can be imposed. This would include the contravention of a provision such as rule 66 of the Rules of the National Assembly, which prohibits Members to reflect (during debate) upon the competence or honour of certain persons, including the Auditor-General, the Public Protector and other holders of offices in Chapter 9 (of the Constitution) institutions.
19 June 2002
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