Chapter 12 (Committees) Review: Task Team deliberations

Rules of the National Assembly

20 September 2013
Chairperson: Mr M Mdakane (ANC)
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Meeting Summary

The Task Team on the National Assembly (NA) Rules met to continue deliberations into the Rules specifically with regard to Chapter 12: Committees. The Chairperson noted that in this meeting, Members could make presentations on certain rules. He highlighted the importance of committees as the “engine rooms” of Parliament.

Under Rule 121: List of Committees, the Task Team discussed the need for closed forums, the role of the Manual for Parliament in relation to the Rules, the establishment of informal multiparty bodies, the different categories of Committees and their different powers. They questioned how the committees should be listed and there was a suggestion that an annexure might be useful.

There was quite substantial discussion around Rule 125: Composition. These deliberations related specifically to the resolution taken to reduce the size of committees, the IFP proposal to merge smaller parties for the sake of committee representation, the attendance of smaller parties and the possibility of introducing proportional voting in committees, based on the electoral performance of parties. It was decided that all Members of Parliament should be a full time attendee on at least one committee in order to ensure responsibility and accountability to Parliament, as opposed to the party. The need to have alternates was also discussed, with proposals being made whether one or two alternates, and whether as a minimum or maximum number, being debated.

Under Rule 129: Chairpersons, the Team discussed the balance of powers between the Chairpersons and members, the cooption of members for purposes only of meeting a quorum and rules versus practice. Several members were opposed to coopting of people who knew nothing about the business of the committee, believing that it made a mockery of Parliament. this was again discussed under discussions on Rule 134: Cooption when members and alternates were not available. This again sparked debate on issues of discipline and attendance.

Under discussions on Rule 130: Acting Chairpersons, the opposition parties expressed their agreement that it was unacceptable for Whips to automatically chair meetings when the Chairperson was absent. Under Rule 133: Quorums, Members voiced their concerns about cooption and whether it was practical to suspend a meeting until a quorum was formed.

Under Rule 136: Charges against Members, there were deliberations about whether meetings should ensue once charges were established against Members, the legalities of this Rule and the issue of vested interests of Members. Members debated the use of the wording. For Rule 138: General Powers it was debated whether there should be an oath of people who voluntarily submitted themselves to Committees as whistleblowers, and the issue of committees conferring with each other, particularly the NCOP, and both issues were referred to the  legal section for opinion.

Under Rule 143: Term of Office, Members discussed the procedure for whether the Whip should inform the Speaker or Chairperson of the parent committee in the case of member changes on a subcommittee. The position and powers of subcommittees was discussed. Members agreed, both in respect of the appointment of acting chairpersons of subcommittees, under Rule 145, and the appointment of Chairpersons under Rule 130, that the word “may” should be changed to “must” to ensure that committees functioned.

Members raised the point, when discussing Rule 148, that it was perhaps unwise to try to write too many administrative matters into the Rules. Some suggested that this would be using the rules to control administration, and others felt that it was necessary to ensure proper administration.

Meeting report

National Assembly Rules review
Deliberations on process

The Chairperson noted that this task team would try to meet every Friday to deal with its workload.

Mr P Smith (IFP) said that he might not be able to attend every Friday meeting.

The Chairperson asked that he should try to attend at 75% of all the meetings.

Mr M Ellis (retired- DA) said that he noticed the Chapter 12, which dealt with Committees was very long and suggested the task team meet on Thursday and Friday next week.

Ms S Kalyan (DA) said that she would have to check with her party as she had constituency work.

The Chairperson said Members should start presenting the work done on Chapters 1 to 9  to party caucuses. There would be an ANC workshop, where some would be invited. There was no serious disagreement on some of the proposals made. People argued on the area that they should try to be more specific about the opening of Parliament

Ms J Kilian (COPE) was caught unaware with comments made in the ANC caucus. She thought clarity was needed on deadlines for caucuses, to make comments and suggestions.

The Chairperson said the rules team must look at this. The ANC deadline was the end of this month. No major changes were made at a content level generally, as Members were not really interested in these rules. He did not expect many submissions.

Ms S Seaton (retired - IFP) thought the submissions had already been made to parties for comment on the first nine chapters.  

The Chairperson said the ANC had already dealt with chapters one to nine. The intention was to draft and give them to the parties but there would be no major changes.

Ms Seaton proposed the Task Team write to all parties to reminding them of deadline for comments otherwise the notifications might be sitting in the Chief Whip’s offices and not getting anywhere.

Mr Smith added that caucuses had other things on their agendas and did not necessarily prioritise the need to comment, but all Whips of the parties should be interested in and have knowledge about the Parliamentary rules. He suggested a workshop with all Parliamentary Whips to get an informed, multiparty insight.

Ms Kilian agreed that in her party there was not a lot of interest or understanding, despite many attempts to get MPs interested in the rules. She suggested the process be open to Members, while also making an effort for a workshop.

Ms Kalyan said the DA had set up their own task team to review Chapters 1 to 5.

The Chairperson thought parties should have until the end of the month. He did not expect the parties to make major comments and changes. However, he agreed that a multiparty workshop with the Whips was a good idea to facilitate some areas.

Chapter 12: Committee System
The Chairperson said the purpose of this session was to allow the Members to make presentations on specific rules. He wanted to avoid a general political discussion but rather wanted to refer to certain rules which would facilitate the work of the Committees, to hear which rules made it difficult for the Committees to perform their duties, and debate those which captured the essence of Parliament. The Committee section was important as committees were often termed “the engine rooms of Parliament”. All colleagues were invited to make presentations and some interventions from time to time.

Mr Kasper Hahndiek, Consultant and former Secretary to the National Assembly, provided the broad introduction on how Chapter was put together. It started by a general introduction and then moved straight onto the rules. This was followed by rules applicable generally to the subcommittees. The key area of discussion was around general powers of Committees, how they functioned, how they were put together and so on. He advised the task team go through the rules part by part.   

Mr Mansoor, former Secretary of the National Assembly, read out a note on behalf of Mr Cedric Frolick, House Chairperson of the National Assembly, apologising that he was unable to attend. He had specifically asked: “I would like the Task Team to ensure that the revision takes account of the Oversight Model of Parliament as well as the Sector Oversight Model (as relevant), the Report of the Independent Panel Assessment of Parliament, the Public Participation Model currently in the final stages of development, as well as the provisions of the so called Money Act. Naturally Parliament’s new Governance Structure will remove the many Subcommittees that now fall under the Rules Committee, and the functions of the Rules Committee will need to be adjusted. In addition the document prepared by Ms Fatima Chohan on “Reviewing the Legislative Process in Parliament” provided excellent proposals which needed consideration for possible inclusion in the Rules.

I would like the Task Team to make suggestions on whether the Rules need to reflect that Committees need to adopt minutes of their previous meeting before proceeding with the “new” meeting. I make this request as some Committees tend not take seriously the need to adopt minutes of meetings which led to follow up issues being lost.

 would also appreciate the Task Team considering how we can reinforce writing into the Rules that the final version (form) of a Bill to be put before the House was signed off by the Committee and that all amendments rejected by a Committee was recorded in an amendment “A” version of a Bill (see Rule 251 (3)(c)). This will assist in the application of Rule 254 (Amendments proposed by Member before decision of the second reading). I would like the Task Team to focus particularly on Rule 152- (Closed meetings) and its subsequent application in Rules 154 and 155, as we have had opinion from state counsel that this Rule was ambiguous and may not stand the test in a court.

In addition, in view of recent reports, the treatment of “confidential” documentation may need to be looked at to ensure that we can stand the test in a constitutional democracy.

My last two comments: (1) do we need a preamble to the Rules, maybe, around 48 and 57 of the Constitution? (2) do we need an annotated set of Rules that will give detail in regard to rule application? This will not mean that every rule needed to be annotated? Such annotation will allow for, especially for new Members, having a better understanding of the application of the Rules”.

Mr Mansoor added that he, Mr Frolick, Adv Charmaine Van der Merwe, Mr Perran Hahndiek and Aziza Mohamed went through the rules they considered needed amendment. They had, in mid-July 2012, worked on a document that was also worked on by the National Assembly (NA) Table and the Committee Section, around the rules in Chapter 12. He was not sure how far the document got but noted there was some useful detail, in respect of specific rules, why amendments were needed. Mr Frolick had gone through this document and was agreement with many of the details. He understood the process was to go through the Rules rule by rule. He had been tasked with three interventions, in particular enhancing Committee capacity, of which one was the revision of the Rules.

He noted the presence of Adv Charmaine Van Der Merwe, Parliamentary Legal Adviser, to participate on the legal aspects especially around the issue of closed meetings. He hoped the meeting would later be joined by some senior staff of the Committee Section and Mr Frolick would join as the need arose. 

The Chairperson asked Members to look at specific rules:   

121: List of Committees
Mr Hahndiek said this Chapter was drafted right after the adoption of the Constitution in 1996, by two legal experts who were MPs. They were very comprehensive in the detail. He said that whilst Rule 121 seemed innocuous, apparently merely listing the Committees, but it was more important in that it made the point that these Committees and only these Committees functioned in the NA and were covered by Powers and Privileges and Freedom of Speech. It was not possible to establish just any forum and claim freedom of speech, for it had to be properly constituted in terms of the Rules and the Constitution. Rule 121 also made provision for Ad Hoc Committees and he suggested it may be necessary to change the title to “List of Committees and Other Forums”. This would ensure that if another forum was established in the NA, it could be covered by Freedom of Speech.

Mr Mansoor was concerned about the fact that some of those forums would need to be closed forums.

Ms Kilian wanted to mention a publication of 2011, which was the Manual for Parliamentary Committees. It was an interesting booklet, and she asked for Members to be provided with a copy as it actually had very good proposals on how Committees should function. However, in practice Committees did not function like that, which also underlined a historic problem. She said Parliament was an important organ of state and its procedures, core functions, how records were kept and what should be captured were important. Some of it was covered in the Rules but it was still an interesting book. 

Ms Kalyan looked at rule 121(1)(a) which made reference to “the Rules Committee established by Rule 158” and asked if this still existed or whether it needed to be amended.

The Chairperson said the rules should not be ambiguous but must be written in plain language to avoid too many details which would make presiding over them difficult. He thought the Rules should be meaningful. He asked if there were any other views on this Chapter. 

Mr Hahndiek said the Rules stated that certain forums could be declared closed, and he did not foresee any problems with that. He highlighted Rule 121(2) which stated “other committees may be established but only by — (a) resolution of the Assembly; or (b) the Rules Committee”. He could not see under which circumstances the Rules Committee would establish a Committee. He thought this related back to the time when the Rules Committee was also in charge of the administration of Parliament and thus allowed to create other Committees for the purposes of administration.

Ms Kilian wanted to know where the Constitutional Review and Mediation Committees would be captured.  She knew that in Rule 121(2) stated “other committees may be established but only by — (a) resolution of the Assembly; or (b) the Rules Committee” but since they existed, she felt they should also be listed under 121(1).

Mr Smith asked if they were Joint Committees.

Ms Kilian responded that not all of them were.

Mr Perran Hahndiek, Committee Secretary, said Committees could change, and cited the example of the Committee on the Auditor-General that had now became a Standing Committee, and every time that happened the rules needed to be changed. He asked if there could not be one general rule which would cover all these bases.

The Chairperson asked if this was possible in terms of the law.

Mr Hahndiek said he also agreed with that initially when the Rule was created but saw afterwards that it was useful for Members to be able to see, at a glance, the list of Committees created. He thought the idea was to assist Members upfront, by showing them which Committees had been established.  

Ms Kalyan asked how the committees, and subcommittees, established under the Parliamentary Oversight Authority (POA), would they be slotted in.

Mr Hahndiek responded that the POA would have to be written into the Joint Rules but it would be possible to list them. In his own experience, over time, various forums or bodies were set up at different times which assumed the powers of ordinary Committees, but one should not lose sight of the fact that power to establish bodies, recognise bodies and empower bodies resided with the NA and the NA only. The Constitution was also very specific that when the House set up Committees, it should identify composition, decision making powers, other powers and to whom the committees reported. These were critical issues, of which the Rules should consistently take note, with the establishment of all bodies.

Ms Marina Greibenow, NA Table Staff, pointed out that Committees which were required by statute were called Standing Committees, since they lasted for the duration of Parliament. The practice of calling all committees “standing” had been done away with. 

Mr I Malale (ANC) thought the two rules could be married together.

Mr Smith said the list of Committees could be contained in an annexure, and this would serve both purposes.

The Chairperson said these proposals would be considered. He felt there could be a general clause but did feel that some Committees, like the standing committees, should be listed. 

Mr Smith wondered if informal, multiparty bodies to consider specific issues were catered for in the Rules in any way. They were supported by Parliament in that they had Committee rooms, allocation of staff and so forth, and were not meeting casually. He wondered if they existed in a parallel, informal system?

Mr Hahndiek said the first consideration was how they would be financed if they required funds. This would then have to be backed up by some sort of formal recognition. In this way, informal bodies could be set up in a formal way and still be recognised.

Ms Kilian thought the powers of the different categories of Committees should be noted and captured to make it clear which Committees were reporting to which structure, and they did not become units operating on their own as had been experienced in the past. Secondly, she pointed out that there was no definition for the section on Standing Committees in contrast to Portfolio Committees. 

Ms Seaton understood that the Ethics Committee, as a Joint Committee, did not get raised here. She felt it was most important for Members to know about the Ethics Committee and so suggested that it should be referred to under this Rule, alternatively also to list other Joint Committees so that Members were aware of their existence.  

The Chairperson said Members also needed to be guided by the 19 years of experience in Parliament as to what worked and what did not, and which areas needed improvement. He reminded Members these Rules were, generally speaking, Westminster rules and not hybrid rules. He felt there was no need to reinvent the wheel if it was not necessary to do so.

He said Members should be encouraged to appreciate the Rules, and commented that any Whips who did not know the Rules were not really Whips. He explained this review of the Rules was to cater for new contexts. It was clear that rules made in 16th century England could not work now, and this was the spirit in which the Rules should be reviewed. Certain sections could be removed, as administration was generally now done by the POA, and the powers of the Standing Committees needed to be written in, especially for the accounting of money to protect Members.

Mr Malale questioned the definitions relating to committees.

Ms Kilian thought the different types of committees were usefully written out in the Manual, such as committees established in terms of the Constitution, committees established in terms of Statute, like the Joint Standing Committee on Intelligence, the Standing Committee on Appropriations, the Standing Committee on Finance and so forth. Another category was committees established in terms of the Rules of Parliament. There were also joint committees. She felt this all needed to be unpacked especially in relation to the Constitution, like the specific functions and powers of the Joint Standing Committee on Defence. She felt this categorisation of Committees was useful when going through this section on committees. 

The Chairperson said this would be captured.

Mr Hahndiek said the list of committees under Rule 121(1) referred to certain Rules, and a cross reference to each rule would show how the Committee’s composition, powers and other relevant information was unpacked. To this extent, the information relating to specific committees was provided for already in the Rules.

Mr Smith said other informal type bodies, like the sports bodies, would not be established in the Rules so another generic term would be needed to cover those bodies. He questioned what that would be, and how they were established.

Mr Hahndiek said it would first need to be established by whose decision these bodies would be created, who had the power to create them, what were their functions, and so on.

Mr Smith said they did exist, and were created for a purpose, but not by the Rules but by some executive of the legislature. Sometimes they appeared to be a kind of subcommittee but actually took on the life of a committee, and did get some sort of formal support with assigned staff members. He felt they should be covered by some generic term in order to be formalised.   

Ms Seaton fully supported that, even if it was just from the viewpoint of accounting for funds. She knew for a fact that hundreds of thousands of rands was going to the Rugby Association of Parliament and asked if Parliament was even aware of this. She said it was important, as committees were not allowed to receive sponsorship without the approval of Parliament, and questioned why then a sports body should be so allowed. She felt it should be written into the Rules that no body in Parliament could receive sponsorship without authority, whoever was the body giving that generally.

Mr Ellis cautioned against writing too much into Rules. The funding of bodies like a rugby club should be controlled, but he was concerned as to where the rules should start and end.

Ms Seaton agreed with that point, but reiterated that she had a problem with sports organisations or multiparty prayer groups or similar such groups getting sponsorships, especially since committees, which actually made a difference in Parliament, could not obtain sponsorship. She said there had to be some sort of rule that governed the obtaining of sponsorship by any Parliamentary body.

Mr Smith felt the question was whether such a sports organisation was actually representing the institution. If it was, a rule would need to be established, as an institutional response. 

The Chairperson thought this was a critical point but agreed that the Rules could not be too detailed in regulating everything. The point was, though, that if Parliament provided resources this needed to be acknowledged. 

Mr Malale thought the point was that the Rules should explicitly provide for these informal structures.  

Ms Greibenow said there were previously subcommittees to deal with things such as the Members’ library, catering, and other support functions, but since Parliament became so big and the Rules became cumbersome, a decision was taken to separate core (House) business from administrative business. A rugby club would fall under the latter. In terms of joint business, the Rules Committee and the POA were the senior authorities of the Joint Houses. All POA reports were supposed to go the Houses. Whilst Parliaments may differ in relation to Member requirements, the core business of each would be the business of the House and Committees. Every Parliament adopted its reports in the House, and the power of the decision or resolution lay through that adoption process. She noted that  sports bodies could be part of the POA for a certain Parliament’s duration, and once it was adopted by the House it was given a kind of power. It did not need to be incorporated into the Rules. She urged that the Rules should deal with the core business.

Mr Hahndiek emphasised that the Constitution envisaged that all sorts of Committees and forums could be established, and it went further to require the membership of them be representative. For informal bodies, if they were not multiparty or sufficiently multiparty, their status and the fact that they could claim resources from Parliament could be called into question. The Constitution and the Rules spelt out that all forums needed to be approved by Parliament at a sufficient level, to be recognised as formal bodies of the NA. The NA had the power to decide which bodies would be recognised, what their  powers were, where their resources came from and other matters. It would be very dangerous terrain if all sorts of bodies were simply allowed to spring up. There were several issues of principle being discussed here.

Mr Ellis agreed with this, but asked again where would to start and stop writing this into the Rules. He would have thought that the rugby club operated under the guise of the Sports Council, which was acknowledged by the Speaker.

Mr Smith suggested that all the details would be covered through a regulatory mechanism but that there should be a generic term in the Rules to say such bodies may be established and may seek funding.

The Chairperson said this would be captured in the draft. The Rules were intended to guide processes.

Mr Perren Hahndiek highlighted that sports bodies were established through the POA, and the Rules did apply as the POA ultimately reported to the Houses. He understood the tenor of the discussion.

Mr Mansoor thought these good discussions should be highlighted in the report of this Task Team when reporting to the Subcommittee.

The Chairperson said this would be done in the form of some recommendations.

Mr Hahndiek noted that a whole range of different bodies could be established under the authority of the POA. Here, presiding officers got together with parties and established that there could be a sports council. Again, the emphasis was on identifying the source of any kind of body.

Ms Kilian did not think the Members needed to go into the POA, as the current model was a joint one but this model could change. She did not want to allocate powers to certain structures which were then changed over time. The emphasis was on the Constitution and the NA establishing Committees.

Mr Smith thought the POA reported to the NA, and that this was the same as the NA accepting what was in the POA report. In other words, adopting a resolution of a Committee and adopting a report of the POA was essentially the same. He added that what happened in reality did not always mirror the Rules. In practice, in his experience, committees established ad hoc committees on a regular basis. Very often, committees established multiparty subcommittees, particularly in the case of long and complex bills, who then reported back to the main committee. He said the Rule, as it was written now, did not take cognisance of this. He felt committees should be free to establish subcommittees, unless the Rules Committee said otherwise, rather than first having to seek authorisation. He wanted this noted as a formal proposal.

Mr Hahndiek said the Rules did allow for committees to establish subcommittees.  

Mr Perren Hahndiek noted this was only in the case of portfolio committees. He asked what would happen in the case of a standing committee wanting to establish a subcommittee.

Ms Kilian said this should be looked at in the same way as ad hoc committees.

Ms Seaton said that generally, she believed that all committees could establish subcommittees.

Part Two: Rules Applicable to Committees Generally
Mr Hahndiek said this part backed up what was said in the Constitution. For each committee, general terms were provided around composition, appointment of positions, procedures, functions, how the Chairperson was appointed, quorum, and decision-making powers. For instance, in Rule 126 “Appointment procedures” it was stated, under Rule 126(1), that unless these Rules provided otherwise the parties appointed the Members of a Committee and advised the Speaker accordingly - as was currently the practice and as it should be. Rule 126(2) said that the names of the Members appointed must be published in the ATC without delay. His point was that at various times Ad Hoc and various other committees had been decided upon, but they could not start functioning as they did not have the staff names.

Rule 125: Composition
Ms Kalyan thought there was a recent amendment taken to reduce the number of Members in committees and make them smaller. She was not sure how the resolution to reduce the size of committees tied up with this. She also sought an explanation for Rule 125 “Composition” and in particular paragraph (b) reading: “the number of members in the Committee does not allow for all parties to be represented”.

Ms Kilian  noted that the practice was to have a calculation of the composition of each committee at the beginning of a new Parliament. She wondered whether this should be built into the Rules as a broad principle, to comply with the Constitution, but without going into too much detail.

Mr Ellis thought Ms Kilian made a valid point. He said it should be noted the Rule was drawn up prior to 1999, but today there was a much bigger Cabinet, which meant there were many more portfolio committees. This placed more pressure on the smaller parties, in particular. 

Mr Smith said that his colleague, Dr M Oriani-Ambrosini (IFP) had made a suggestion that smaller parties be allowed to merge for the sake of Committee representation, and be allocated representation accordingly. This was a practical response to a practical problem. He served on committees where there was never 100% attendance because the smaller parties could never attend the meetings, although they were, formally, Members of those committees. Dr Oriani-Ambrosini had made the proposal as a new clause under Rule125(a).

Ms Seaton wanted to raise an issue outside of the current discussion.

The Chairperson asked her to mention this later. He was not sure how parties could represent each other through a merger, when they had differing policy views. He said consideration had to be given as to whether voting in Committees should be proportional, according to election results, which would take away the need for a certain number of members on a committee. He thought smaller parties coming together would be a good idea, but he was not sure how the differing views could be unified.

A Member asked why it was not possible for all the parties to be represented on the Committees, as there was a rule which allowed any MP to attend any committee meeting and participate, although that MP could not vote. He noted that the current composition of committees was 12 Members.

The Chairperson felt every Member of Parliament should have a responsibility, so that there were no “floating” Members, as that could create a problem. All parties should allocate their Members to committees, otherwise they would be free-agents with no accountability or responsibility.

Mr Perren Hahndiek asked if the Constitution said that committees should be composed with representativity in mind, and, if it did, how this would be qualified in terms of Rules. It was a practical situation and the Constitution was not always very practical.

Ms Kilian agreed with the need to be practical and not reinvent the wheel. There were serious problems with quorums already, and if this was extended unreasonably there would be no work done. The Constitution stated, in section 157(2) that the rules and orders of the National Assembly must provide for the establishment, composition, powers, functions, procedures and duration of its committees, and for the participation in the proceedings of the Assembly and its committees of minority parties represented in the Assembly, in a manner consistent with democracy. It did not say anything about proportionality, but merely “in a manner consistent with democracy”. This, however, was not always practical, considering the smaller parties.

The Chairperson again made the point that every Member of Parliament must be accountable, and he did not like the idea of having “floating” members without responsibility to a particular committee, so that they could decide whether to attend a meeting or not.

Mr Smith felt that the party was ultimately responsible for Members and for allocating them and holding them accountable, rather than the institution.

Ms Seaton differed from Mr Smith strongly. She believed that once a person became a Member of Parliament, that person’s obligation was to Parliament first, and then to the party. Parties should study the Constitution on this point.

She said something that needed to be noted and dealt with was non-attendance of Members of Parliament on Boards of Trustees. They had fiduciary responsibilities and Members could not attend if and when they wanted to. Parliament was being let down horribly, and the Boards were being placed in compromising situations every time a Member did not attend a meeting. She did not know how this was going to be dealt with, but reiterated that something had to be done.

The Chairperson said it would be captured as part of the task-team’s report.

Mr Malale agreed it was fair for Members to at least belong to one Committee.

The Chairperson reiterated that every Member must belong to a Committee. He felt it was not right that Parliamentary business was regarded as secondary to party business. Parliament was the primary responsibility. 

Mr Hahndiek said the problem was ultimately about attendance. It was indeed the right of Members to attend and participate in any committee meeting, according to their interests, as was written in the Rules, but they may not vote. Their vote could be exercised when the report of that particular committee came before the House. It could only be checked through attendance records that each Member was part of at least one committee, and if there was not sufficient attendance that Member could lose their seat on the committee. The point was that poor attendance caused major quorum problems which could undermine the committee getting any business done at all.

The Chairperson said the issue would be flagged and Members should try to make some proposals on this. He reiterated that every Member should be on at least one committee.

Rule 124
Mr Smith asked that the Committee should consider Rule 124(a) and thought the phrase “another provision of these Rules applicable in a specific case”  was inappropriate and annoying, as it represented some sort of escape clause. He thought this should be removed.  

Mr Malale thought the Rules, by their very nature, should be guidelines and should not be overly prescriptive.

Ms Kilian fundamentally disagreed on this point, and asked what the point was of these discussions if the Rules were to be regarded as a guideline only. The Constitution was very clear that there should be Rules, and there could not be majoritarian rule in a constitutional democracy. 

The Chairperson agreed, and added that the Rules could not be applied willy-nilly. He said the Rules should not be suspended because of poor planning. He suggested that the Rules could only be suspended if there was some special majority. He said Parliament should work but this did not mean there should be poor planning or suspend the Rules. The Rules must be able to  stand the test of time otherwise there would be no point in them.  

Mr Hahndiek commented that the phrase referred to by Mr Smith was to allow for some level of flexibility in certain circumstances.

The Chairperson summarised that a lot of time had been spent on Rule125, and told Members that the wording would be left.

Ms Kalyan queried how the resolution taken by the House to reduce the size of committees fitted in with the rule of proportionality.

Mr Smith said local government had exactly the same problem, and Constitutional guidelines on that talked to “substantially proportional”. It was impossible to be strictly proportional.

Rule 126: Appointment procedures
The Chairperson felt there should be some deadline for when the members of committees needed to be decided upon.

Mr Hahndiek pointed out Rule 131(1) which said  that the Secretary must call a meeting of a committee within five working days after the names of the members of the committee have been announced. If not all the names were announced, a first meeting could not be called.

Mr Smith thought the provision should not be changed here, but dealt with elsewhere.

The Chairperson agreed, otherwise the Committees would never work. 

Ms Seaton asked whether this should apply to all Committees and not just ad hoc committees. She thought this would make sense. Some  individuals could cause delay, and putting in a time limit made these individuals take responsibility.

The Chairperson asked about urgent situations.

Mr Smith asked under what circumstances anybody else besides the party could appoint Members.   

Mr Hahndiek said with ad-hoc committees there was a time saving measure, to have names of Committee Members already.

Mr Smith said there were some problems caused, although the implication here was to save time.

Mr Hahndiek said in some Committees the Members were chosen by virtue of the office held. The Chief Whips Forum, the Rules Committee, to some extent, and the Programming Committee were examples.   

Rule 127: Alternates
Ms Kilian sought clarity whether this Rule meant that ad hoc committees could also have alternates.

The Chairperson answered that it did.

Rule 128: Term of office
Mr Mansoor sought clarity on Rule 128 (1) which stated “Members of a committee and alternates for members are appointed until the Assembly’s term expires, or the Assembly is dissolved, whichever occurs first”.

The Chairperson said this would be worked on.

Mr Smith said Rule 128(1) had implications only for ad hoc committees.

Mr Perren Hahndiek said ad hoc committees were dealt with separately and later, under the section dealing with  “terms of office” for Subcommittees.

Mr Smith said he was not taking about subcommittees, but ad hoc committees and any other committees.  

Mr Hahndiek noted that Rules 214 and 215 dealt with Ad Hoc Committees.

Mr Smith reiterated that he was referring to any other committees under the three categories already discussed.   

Mr Hahndiek said that all these Committees were created for the duration of a Parliament, and so all of them were required to serve the full four or five year term, with the exception of the ad hoc committees.  

A Member highlighted where in the Constitution this was covered.

Mr Smith did not want to be difficult, but felt that there was the possibility of conflicting provisions.

Rule 129: Chairpersons
Mr Hahndiek noted there were possible practical problems with this Rule in relation to the disciplinary powers of Chairpersons. The usual view was that the Chairperson did not have the powers to discipline the Committee, as such as decision needed to be taken as a Committee. This was unlike with the Presiding Officers, who had a specific function of maintaining order in the House. This could be a problem when considering attempts to disrupt proceedings by Members or someone else. He did not know if there was clarity on the powers of the Chairperson in such a situation.

Mr Mansoor thought this Rule should perhaps be read in conjunction with Rule 136.

Mr Smith said it worked both ways. In some cases there could be Chairpersons who did not want to hear certain things and shutting down discussion, where Members might still insist on speaking when they were told to not speak. He did not know how to get a balance. Usually the maturity of Chairpersons was relied on, but it did happen sometimes that the prerogative of the Chairperson was called into question. It could be argued that this was an issue for the political arena.

Ms Kalyan asked where the rules dealt with the Chairpersons of Extended Public Committees (EPCs) and their powers.

Ms Kilian agreed that there was a delicate balance but she was seriously concerned with the situation where a Chairperson was assigned by the majority in the Committee, yet proceeded with a programme that was not adopted by the Committee. She felt this rule had to be adjusted.

Mr Ellis said he had personal experience with a particular Chairperson trying to throw him out of meeting for raising points that the Chairperson did not like. He cautioned the need to be careful with the powers allocated to Chairpersons, as some were good and some were bad. That was the real crux of the matter.

Mr Malale noted that Rule 135 said “The member presiding at a meeting of a committee may interrupt or suspend the proceedings or adjourn the meeting, and may change the date for the resumption of business”. He felt that Chairpersons should not be helpless, but should be able to take steps to prevent disruption. This may not include the power to eject Members, but at the least they should have power to stop the meeting. 

Mr Hahndiek said the point of Members being able to assign powers to the Chairperson needed to be read with the general powers of committees. A committee would be free to decide on its own procedures, under the committees’ considerable powers. This included whether the committee would allow the Chairperson to do things on their behalf. This was contained in Rule 129(2). However, Rule 129(3) provided that “The chairperson must report to the committee on any steps taken in terms of Subrule (2)(b)”. This provided recognition that power resided ultimately with the committee, and not with the committee Chairperson. 

Mr Smith wanted to look at Rule 129D for clarity on the quorum. He asked if committees were allowed to bring in co-opted Members, in relation to voting.

Mr Hahndiek said there was a possibility. The international practice was that the Chairperson should vote in such a way as to keep the issues open instead of shutting them down.  

Mr Smith said he was not sure whether the parties were at a common understanding. He cited the situation where there would be a quorum, allowing the committee to vote. However, if the opposition parties had more representation than the majority party at that meeting, he wondered if, in terms of this Rule, the Chairperson could suspend the meeting because the majority party would be outvoted, or whether he could co-opt further ANC Members for the purposes of assuring an ANC-majority vote at that meeting.

Mr Hahndiek supposed this could be done.

A Member said it appeared the Rule was not necessarily applicable to the quorum. Members could be co-opted in other instances other than merely to achieve the quorum. 

Ms Kilian said the functioning of the Committees left much to be desired. Some Chairpersons, such as Ms Fubbs, worked exceptionally hard and her committee was happy to give her formally delegated powers. However, some other committees were run like a spaza shop – although she quipped this was perhaps an insult, as the shops ran better than the committees. On a serious note, she asked how to ensure that any abuse of power was stopped, and to make sure Parliament functioned seriously.

Mr Perren Hahndiek noted that many issues were raised in respect of rule 129 but there was not much progress in making proposals. These Rules were based predominately on the Westminster system and not the American Committee system, under which Chairpersons had much more power. He thought more research could be done on other parliaments, and how they “controlled” or regulated the power of the Chairperson, and more reports could then be made back to the Task Team.

Ms Seaton thought the manual Ms Kilian had mentioned earlier should be attended to in the Rules. 

Mr Hahndiek said Ms Kilian raised an important point – and agreed that on the one hand there were the actual Rules, and on the other hand there had been practices. The question was whether the Rules should be amended further. In his view, the Rules were there to ensure that good practice was developed and maintained. If the Rules were ignored, as happened too often, this could result in a Chairperson usurping powers, which was clearly incorrect, yet s/he was not challenged if this happened. This highlighted that Members should be more conscious of the Rules and what they allowed the Chairperson to do and not to do. The fundamental question was if the Rules should be changed to put more stringent measures in place to prevent Chairpersons from usurping or attempting to use powers they did not have, or should they try to bring the practice closer to where the Rules were right now. 

The Chairperson agreed and felt that Members should use the 19 years experience of Parliament to decide what was working and what was not, and then address the issues that were not working. The Rules could not be adjusted for Chairpersons who did not know how to chair properly. It was, however, also not possible to design more rules to help Members in knowing the existing rules. Any MP who did not know the rules was not a good MP. He emphasised that the rules were only known through application.

Mr Hahndiek added that a Chairperson had responsibility for the whole Committee and not just the party, like the presiding officer in the House.

The Chairperson said it was a problem of experience, and not a problem allied to the Rules.

Rule 130: Acting Chairpersons
Mr Hahndiek outlined that Rule 130(1) said that if the chairperson of a committee is absent or unable to perform the functions of chairperson, the committee may elect another of its members as acting chairperson. Rule 130(2) noted that an Acting Chairperson performed the functions and may exercise the powers of the Chairperson”. He said the word “may” should be changed to “must”, otherwise the Committee would not function. He said had heard of cases where committees would not meet for six months because the Chairperson was in hospital. 

Ms Kalyan noted that the convention was for the Committee Whip to chair when the Chairperson was absent. This, however, was not to her mind acceptable, as the ANC Whip ended up whipping the other Members.

The Chairperson said that in a practical sense the Whips were Whips of Committees, and not ANC Whips.

Ms Seaton said on a point of order, that every party could appoint Whips for Committees. They should not be chairing Committees.

Mr Ellis said the reality was that the ANC had 55 to 60 Whips, and did not know what to do with them anymore. The ANC took its own decision, which had nothing to do with Parliament, that these Whips should sit on Committees, but they had no jurisdiction to “whip” for other parties.

Ms Kilian said this was an ANC system, and suspected that this was why the Chairperson was ignoring it. She wanted to know who, in the absence of the Chairperson, should decide on the Acting Chairperson. 

The Chairperson said the Rules said that “the Members” should decide on who should chair but in a practical sense, the majority in the Committee would usually nominate the Whip.

Ms Seaton asked if that Whip was a Member of the Committee. If this was so she did not have a problem. However, if the particular Whip did not form part of the Committee s/he should not be allowed to act as Chairperson.

The Chairperson agreed on that.

Rule 131: First meeting
Ms Kalyan wanted to know what would be done, if all the names of members were not submitted in terms of Rule 131(1), noting that this rule required the Secretary of the Committee to call a meeting of a committee within five working days after the names of the members of the committee had been announced.

Ms Seaton said it would be clear that the names would be announced at a later stage.

Mr Hahndiek said it was agreed that if enough Members were announced in the ATC to form a quorum, the Committee would meet. If not, it would not meet.

The Chairperson was happy with this.

Rule 133: Quorums
Ms Seaton had a problem with co-opting non-members of a committee to form a quorum, as they did not understand or know what was going on in the Committee, and were simply voting in line with the party. She felt the Committee should rather adjourn in such a case. She felt this Rule should be thought through further. 

The Chairperson felt no meeting should be held until there was a quorum, otherwise the committee was merely wasting time discussing matters.

Mr Malale disagreed; he thought a Committee could meet without a quorum, for the purposes of receiving information, and he had no problem with this.

The Chairperson noted there were many organisations in the world who began their meetings before there was a quorum. He still felt the Rule needed to be changed, especially when delegations flew in, as holding the meeting would be a waste of time. It also showed that Members were not taking Parliament seriously by not being present, and this was not correct.

A Member felt they should be mindful of Committees getting their business done.

The Chairperson stressed that if Members were taking committees seriously as the nerve centre of Parliament, they would be present. Committees were vitally important. Respect for being present, in order to form a quorum, should be instilled. 

Mr Smith commented that whilst this was all very well in principle, it was not practical, and the Rules had to be practical. If there was a Rule, committees would simply co-opt other Members for forming a quorum.

Rule 134: Co-option when members and alternates not available
Mr Smith had a problem with this Rule, which read: “If a member of a committee and that member’s alternate are both absent from a meeting of the committee, the chairperson may co-opt any other Assembly member to act as a member of the committee until that committee member or the alternate member is no longer absent”. He wanted the wording changed to read “any other Assembly member from the same party”. 

The Chairperson said the Rules should be consistent.

Ms Kilian endorsed what the Chairperson was saying, in that there really was no excuse for Members not to be present at Committee meetings.

Mr Ellis emphasised the point of discipline, and said everything in this discussion dealt with the discipline of Members. He agreed that Rules would not work only if they were allowed to not work. He fully endorsed the suggestions of the Chairperson on this matter.

Mr Hahndiek said it was quite possible to put in wording to say that the Committee could not proceed with its work until there was a quorum. 

Ms Seaton felt this did not deal with the real problem, which was bringing in people who had nothing to do with that Committee, particularly where other delegations were present. She was opposed to bringing in people who were not members of a Committee, feeling that it was not appropriate. 

The Chairperson said this would be looked into.

Ms Kilian suggested that perhaps some changes to be made to Rule 133 (2) “A committee may proceed with business irrespective of the number of members present, but may decide a question only if a quorum is present”. She suggested this be rephrased.

The Chairperson said this should be put as an option. His own preference was to state that seven Members should form a quorum, and a meeting could not start unless there was a quorum.

Ms Seaton was worried about having this put into the Rules, as it would give more reason to co-opt other Members to form a quorum. She felt it was possible to use words such as “wherever possible” when dealing with a quorum.

Mr Perren Hahndiek said an option would be drafted.

The Chairperson reiterated his view that no meetings should start without a quorum. In the ANC, no meetings ever started unless there was a quorum – and the ANC’s requirements for a quorum were not that large. There had to be a quorum, and it was embarrassing for the committees because they were open to the public. He foresaw that there would be debate on this

In relation to cooption, the Chairperson said that there was a bigger issue here. There should be alternates when a member was not present. It was the responsibility of the main Member to call the alternate when s/he could not attend a meeting.

Ms Seaton would support the quorum issue, if the wording relating to cooption of “any other Assembly member” was removed. She believed that only the particular Member or his/her alternate should attend.

Ms Kilian said if the Member was not there, the alternate should be there, which actually meant there was no need for Rule 134.

Mr Hahndiek suggested against omitting Rule 134. There may be times when decisions needed to be taken.

Ms Kilian said she would reluctantly agree to coopting Members from another party. She agreed with the Chairperson that the time had come for Parliament to be taken seriously. A good friend of hers, from the majority party, in the Gauteng legislature had resigned because she could no longer stand the calling and cancelling of meetings at a whim, and had suggested that Parliament was moving from bad to worse because no structure was holding fast, in the attempt to be open and accommodating.

Ms Seaton thought it was contradictory that Members could attend and participate in any committee, but not vote, but then could be coopted precisely to vote when there was no quorum. 

Mr Mansoor felt there was a need to consider the appointment of alternates. He said that alternates should be appointed in the ATC, per Member. 

Ms Kalyan agreed that co-opting people when they knew nothing of the committee made a mockery of committee work. She noted that in the previous week, a Southern African Development Committee (SADC) workshop was arranged, with delegates being flown in from Namibia. 50 MPs had indicated they would attend. When she arrived, three Members of the opposition were present, and two from the ANC, and the meeting could not start until more people were found. A two-day meeting turned into a two hour meeting, and this was a disgrace. She felt it boiled down to discipline and a lack of commitment. She asked if it was not possible for the Rules Committee to convince the Speaker that co-option of people was undesirable. She felt that officials at the top needed to buy in to the decisions and points taken here.  

Ms Seaton agreed there was a serious lack of discipline, but she did not see how changing the co-option practices would change the kind of situation raised by Ms Kalyan. She suggested there should perhaps be two alternates for every Committee Member. This would mean there were more alternatives to call upon if there was a problem. This was certainly preferable to the practice of bringing in MPs “from the cold”, which was a disaster.  

Ms Kilian said these kinds of suggestions were taking the Task Team forward well. She had been under the impression that primary members and alternates were nominated formally for every committee, and published in the ATC. On some committee attendance sheets, the alternates would be indicated, and she felt this was how it should be done,  for greater transparency. Furthermore, she suggested that a pool of alternates should be drawn up, to avoid the need for co-option, and these alternates should be more or less kept up to date with the committee’s business.

The Chairperson said that there was no harm in this, and it should be considered.

Ms Kilian then referred back to Rule 127, which dealt with alternates. She proposed that a provision be made that parties should nominate a minimum of two alternates. She felt unless this was captured here, it could be lost all together.  

Ms Seaton said the problem was with the majority party. The point was that there was a quorum when the majority party decided so. However, it should maybe be specifically stated that parties nominate a maximum of two alternatives. 

Mr Ellis said the rules could not just be written for the present situation but needed to apply to the future too.

Mr Perren Hahndiek said the current rules did not restrict parties.

Ms Seaton added that alternates would have to read the documentation and ensure that they were au fait with their committee’s process.

Mr Hahndiek said the alternates should be encouraged to attend, even if the full Member was present.

The Chairperson said this was the case in some committees.

Ms Kilian wondered if there was not also a need to state that proper notice must be given, as this sometimes did not happen. Certainly she knew that some of the documentation was not given to Members on time and they then rejected it as they were not aware of the issues. She asked if there was anything that determined exactly how committees functioned, so that Members were aware of where they should be, and at what time. Currently some meetings were being changed at the very last minute and Members were running around to different venues.

Ms Seaton understood there was some responsibility on Members to get the agenda and documentation needed for a meeting ahead of time.

Rule 135: Interruption, suspension or adjournment
Ms Seaton had a problem with this Rule, which read “The member presiding at a meeting of a committee may interrupt or suspend the proceedings or adjourn the meeting, and may change the date for the resumption of business”. She asked why suspensions or interruptions should took place, and questioned whether, if a Chairperson decided that s/he wanted the day off, the meeting could be  suspended.

Mr Hahndiek said perhaps it was impossible to codify all the reasons for suspensions. However, Chairpersons could be held responsible if there was no proper reason for suspending meetings. He felt it was maybe necessary to introduce something in the Rules to put a timeframe in place for the cancellation of meetings.   

The Chairperson said it was possible to look into doing this.

Ms Greibenow suggested that it should perhaps also be included that in the case of exceptions for not meeting timeframes, permission be sought from the House Chairperson. This would involve Parliament endorsing the decision, for good reason. 

Mr Mansoor raised a point about the drafting style.  

Ms Kilian was particularly concerned about the resumption of business, saying that sometimes Members were not always aware that things had been changed. 

Rule 136: Charges against Members
Mr Hahndiek explained this Rule meant that Committees needed to report information relating to charges against Members to the Speaker, who would then take the necessary steps to take the matter further. A case in point was what came out in the Standing Committee on Public Accounts (SCOPA), at the time of the Arms Deal, and the information relating to Mr Yengeni’s car at the time.

Mr Mansoor said there was not a good understanding of the application of this Rule, so perhaps the wording needed to be changed.

Mr Perren Hahndiek did not like the word “charges” as it had a particular legal connotation. He suggested that “allegation” was a better word.

Ms Seaton asked how the Chairperson would deal with the situation if the committee member remained present. This could be used as a ruse get someone out of a meeting.

A legal advisor said the word “charge” was used in relation to substantiated motions.

Mr Perren Hahndiek said a “charge” was a specific legal formulation. The report to the Speaker on a “charge” was not a legal formulation, and he agreed that the word was not appropriate in this context.

Ms Kilian was also concerned that allegations could be used as a way to get rid of Members. Hollow allegations could be made against the opposition before any substantial information had been tabled.

Mr Ellis felt there was some over sensitivity about this issue. Nowhere did the Rules say the member must leave.

A Member said the fundamental question was if the allegation had a direct bearing on the committee, and if so. whether the meeting should proceed or suspend. He also added that a person was innocent until proven guilty.

Mr Hahndiek explained that the business of the committee could proceed but the problem was with vested interests and how the Chairperson dealt with this. He recalled there was something in the Code of Members which required that any vested interests must be declared, and the Member must excuse himself or herself. His advice was that the Chairperson should directly ask the Member whether s/he had a vested interest in the matter, granted that the Member could say yes or no. If the answer was no, the Member could participate but the matter could still be investigated.

Mr Ellis said this was correct and there were two separate issues.

Ms Kilian heard this point, but would prefer if there was clarification as to what should be done.

Ms Seaton was referring specifically to vested interests. She did not think it should just be left up to the Member. The Chairperson was in a difficult situation.  

Ms Kalyan had a problem with this, because it was merely an allegation and people were innocent until proven guilty. The discretion was left up to the Chairperson to make the call, but to base the discussion on an allegation was absolutely wrong. She felt the Rule should be left as was.

A Member read from Article 12 of the Code of Conduct on the Joint Rules.

Ms Seaton felt this should be brought into the Rules of the NA, so Members knew clearly what they were not allowed to do.

Ms Kilian suggested that the Code of Conduct should form an annexure to the Rules so that when the Code was adjusted, it was not necessary to rewrite the Rules. 

The Chairperson said that the issues would be summarised.

A law advisor was concerned the rule was being interpreted very narrowly at the exclusion of any other misconduct. 

The Chairperson suggested the Members make their proposals. He asked that the Committee move on.

Rule 137: Reporting
Mr Hahndiek explained this was a very good Rule but it was not being followed.

Mr Mansoor said the Rule had many subsections. He had a problem with (4) “A committee may not submit a minority report, except where provided for in these Rules”. He said this came through later in the rules of the legislative process. Essentially, it meant that the majority party could decide on which minority views were stated in a report, and the dilemma was whether it should be dealt with here or under the legislative process.

Ms Kalyan wanted to deal with the issue both here and later. She asked why a minority report could not be included in a committee report. She felt this section of the Rule should be deleted, or changed to allow for a minority report to be included in a committee report.

Ms Kilian wanted to go even further, and expressed the view that this Rule, in its current formulation, was actually unconstitutional. She also suggested it be deleted, or changed to allow for minority views be included, even as an annexure to a Committee report. 

Mr Perren Hahndiek wanted to distinguish between a report on its own and a view of a party. He said minority views could be represented in a report in a way in which the majority wanted them to read. However, the real question was whether this was correct.

Ms Seaton said it came back to the accurate minutes of the proceeding to reflect the exact wordings. The point was that the report being tabled should reflect the feelings of the minority.

Mr Ellis said there was a need to be consistent.   

Ms Seaton said the only way she could ensure that her opinion was made known in committee reports was to say she wished to have her vote recorded. However she felt this was not the way it should go.

Mr Hahndiek noted that the House adopted the report in its entirety, and not each and every recommendation.  

Mr Perren Hahndiek found it interesting that some parliaments did accept minority reports written by majority parties. Politics was about opinion, so the way they were captured was very important.

Ms Kilian said careful thought needed to be given to this issue, especially when nominations of individuals were made. She asked where else objections could be made, to distance an individual from the decision, in the records.

The Chairperson said this would be done in the House.  

Rule 138: General Powers
Mr Hahndiek pointed out that a Committee may receive a petition. He thought it may be an anomaly that a committee could not confer with other committees. 

A Law Adviser added that Joint Rule 147 allowed for any committee to confer with the NCOP committees, so perhaps that could be written in just to cover the anomaly.

Mr Hahndiek said the only concern was that this could only be written into the NA Rules subject to the NCOP’s agreement, and that there was a need to put in then a similar Rule from their side.

Mr Perren Hahndiek questioned if it was applicable, reminding Members that a committee could establish its own rules.

Ms Kilian also had a problem with this. She felt it could be said that the Committee may determine its own programme, but felt it was not right to permit a Committee to adopt its own “rules”. Every committee must be subject to the Rules of the NA.  

Mr Hahndiek said procedure could not just be thought of as “rules”, but also encompassed the order of proceedings, or the Committee’s business arrangements, how it engaged in its business, and so on.

The Chairperson said there was a need to tighten up the wording.

Mr F Maserumule (ANC) highlighted what the Constitution said in this matter.

Ms Kalyan wanted Rule 138(b) and (d) neatened up, to follow each other.

Ms Kilian queried the history of this specific provision. 

Mr Hahndiek responded that it was one long quotation from the actual oath taken. A heading should be created.

Mr Mansoor said this came from Parliamentary legislation. The broader question was what happened with other people and were they aware of their rights if they offered themselves and were not summoned.

The Chairperson was worried about the possibility of lying. 

Mr Hahndiek said the rule should be understood within the context of powers and privileges. It was intended for particular and formal hearings, not the usual oversight work, and cited the example of calling in a Director-General.

The Chairperson felt there should be a balance between people being called and those voluntarily coming and offering information – akin to whistle-blowers.

Mr Hahndiek felt the advice of the Legal Services was needed, on how to protect people who were not summoned but volunteered information, and whether an oath should be taken in this regard.   

The Chairperson said the matter would be referred to the legal team.

Ms Kilian suggested the wording on this section had to be fixed. She felt it was a very serious transgression to mislead Parliament, and asked where in the Rules the power of a committee was captured – such as taking steps against an official who had misled a Committee. She felt that, without this power, Parliament was toothless. It was to do with rules of accountability.

Mr Hahndiek responded that misleading would be considered contempt of Parliament, in terms of the Powers and Privileges of Parliament Act. If a committee knew it was being misled by any person it would be competent for that committee to lay a change of contempt of Parliament, and if the person was not a Member of Parliament, the legal process would follow. 

Mr Perren Hahndiek asked if this was a criminal charge, to be referred to the National Prosecuting Authority (NPA).

Mr Hahndiek indicated that it was.

Mr Maserumule added that the committee also had the option of bringing the information before the House.

Mr Hahndiek said conferral was a problem, when committees were instructed to confer with another committee but the second committee was not available. A further problem was whether a written response by a committee was considered conferral. 

Mr Maserumule suggested that conferral be extended further than just committees getting together, to also expressing a view in writing, as was the practice. He felt that this should be codified.

Part 3: Rules applicable to subcommittees generally
Mr Hahndiek pointed out that Rules140 through to 149, on the subcommittees, were very detailed, to ensure that subcommittees functioned within strict structures.

Rule 143: Term of Office
Mr Hahndiek highlighted that Rule 143(1) said “The members of a subcommittee established by a provision of these Rules and any alternates for those members are appointed until the Assembly’s term expires or the Assembly is dissolved, whichever occurs first”. Rule 143(3) said “A member of a subcommittee ceases to be a member and an alternate for a member ceases to be an alternate if a whip of the party to which that member or alternate belongs gives notice to the Speaker, in writing, that the member or alternate is to be replaced or withdrawn”.

He was confused on this, and thought that the parent Committee should inform the Speaker, and it  did not make sense to go through the Whip.

Ms Seaton understood that if the Whip wanted to change a Member s/he would have to give notice to the Chairperson of the parent committee.

Ms Kalyan asked if it actually worked like this.

Mr Hahndiek said the practice was that if a member was to be replaced, the Whip informed the Chairperson of the subcommittee. 

Ms Kalyan asked what had been decided with this Rule.

The Chairperson answered that the parent Committee should be informed under Rule 143(3).

Ms Kilian was not completely convinced. Usually all communication was directed through the Speaker by the party Whips. She felt the Speaker should remain as the original person with whom communication must take place, with the committee being copied with the information.

Ms Seaton supported this, as the only way anything would be announced in the ATC was if it went through the Speaker. She added that when she served in the Whip, the Chairperson might have been informed verbally, but a letter would have been written to the Speaker to ensure that the correct documentation was reflected in the ATC.

The Chairperson disagreed.

Mr Hahndiek said this was raised because it dealt with a committee applying its powers to appoint a subcommittee. The whole appointment process went through the parent committee identifying which of its members would serve on the subcommittee. In this case, the appointing agency was the parent committee and so it was an internal working issue for the parent committee.

A Law Adviser rule flagged Rule 140(a), saying he was not sure what it meant and asked if someone could explain this to him.  

Mr Maserumule said he would explain it to him afterwards, as it was similar to the extensive discussion on parent committees.  

Rule 145: Acting chairpersons
Mr Hahndiek noted the wording for Rule 145(1) “If the chairperson of a subcommittee is absent or unable to perform the functions of chairperson, the subcommittee may elect another of its members as acting chairperson”. Again, he noted that the wording should be changed from “may” to “must”.

Ms Kalyan asked if the Task Team would consider appointing a Chairperson and Deputy Chairperson, or if they were happy to have an acting position only.

Mr Hahndiek noted that the main concern was expectations of remuneration and that the Deputy would be expected to replace the Chairperson, but may not be available. These kinds of problems could be why the “acting” position was preferred.

Ms Seaton felt the wording of Rule 145 (2) “An acting chairperson performs the functions and may exercise the powers of the chairperson” should also be changed, to use “must” instead of “may”.

Rule 146: Meetings
Ms Kilian pointed out that there was no mention anywhere of what would be a reasonable time for notice. She asked if this as similar to other Parliamentary rules.

Mr Mansoor could not answer that, and said that “reasonable”  was relative.  

A Member highlighted that the Manual said members should be given notice of the meeting and relevant documentation at least 48 hours before the meeting.

The Task Team was very surprised at this.

Ms Kilian thought it would be fair to put into the Rules.  

Mr Perren Hahndiek said the problem was that if there was an urgent meeting then the Rule would have to be suspended, otherwise the legitimacy of the meeting could be challenged.

Ms Kilian said this was only as far as portfolio committees were concerned. She said the problem was poor planning and it could be written in that the Rule could be overcome in exceptional circumstances. She was concerned that the chopping and changing of meetings was becoming a practice which should not be allowed.

Ms Kalyan felt poor administration should not be written into the Rules. Furthermore, the programme of Parliament changed so quickly, and by being too prescriptive the Rules would be doing more harm than good. In the main, there were schedules and she would hate to see administration problems becoming part of the Rules.

Ms Kilian said that she was not suggesting that the Rules be created to overcome administrative problems, but the rules were actually making provision for proper administration. This would also give more meaning to the Manual.

Ms Seaton questioned if the Manual was given to all Members or just the Chairperson. She felt it should be given to all Members.

Mr Perren Hahndiek said the issues of quorum would affect subcommittees too.

The Chairperson said subcommittees could meet whenever and were not affected by quorum.

Rule 148: Decisions
Ms Seaton questioned if the wording of Rule 148(2), which read:  “If consensus cannot be reached all views in the subcommittee on the question must be reported to the parent committee” made provision for minority views.

Rule 149: General Powers
Mr Hahndiek thought it important to emphasise that the subcommittee did not automatically have the same powers as a parent committee unless specifically instructed so. The powers assigned to the subcommittees were in terms of the general powers in terms of Rule 138 - Powers of the main committees.

Mr Perren Hahndiek asked of this meant a subcommittee could not hold public hearings unless by House resolution.

Mr Hahndiek responded that the Rule said nothing about having the same powers when portfolio committees created a subcommittee.

Ms Kilian said subcommittees were handled by consensus.

The Chairperson said not everyone could just go around assuming powers, unless given the right to exercise those powers.

Mr Hahndiek suggested that wording be drafted for Rule 139, to state that in setting up a subcommittee, the parent committee could decide what powers to give them.

A Member highlighted that a parent committee could delegate any of its powers to the subcommittee.

Closing comments
The Chairperson said the Committee would be meeting in the next week, on Thursday and Friday. Members could make proposals on these Rules, but he wanted to avoid too broad statements, and instead be able to have specific discussions on some of the proposals. He said there was still a lot of work which needed to be done. Members agreed that amendments were being done to allow the Rules to stand the test of time. The Rules were not be meant to control, but to facilitate the work of Parliament in a serious manner.

The meeting was adjourned.


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