The Ad Hoc Committee convened to adopt the minutes of previous meetings on 9 and 10 October, and to consider the revised Committee Report, in light of the referral of the Report back to the Committee, with a reminder that the Rules of Parliament required that the minority views be recorded. The Chairperson noted the presence of the Minister of State Security. He then reported on the status of Dr M Oriani-Ambrosini as the IFP representative on the Committee. The membership of a Committee was confirmed by the members’ names being published in the ATC, which was done on 2 October, with Mr J van der Merwe stated as the IFP representative. However, on 8 October Mr van der Merwe informed the relevant Parliamentary officials that he was to be replaced by Dr Oriani-Ambrosini, who then attended the Committee on 9 and 10 October and told the Committee that he had been informed that his appointment was in order, although it was not confirmed in writing. The replacement, although noted on 8 October, was only in fact ATCed on 14 October. The Committee Chairperson had permitted Dr Oriani-Ambrosini to participate in the meeting, in good faith, and in recognition of the fact that any MP may participate in any Committee, although MPs may only propose motions and vote in Committees where they held membership. Dr Oriani-Ambrosini had proposed motions, but had found no seconders.
The Chairperson asked that Members should adopt the minutes first, to remind themselves of exactly what was said in the meetings. In both sets of minutes, Members proposed and accepted several amendments correcting grammar, style or syntax. On page 2 of the minutes of 9 October, the statement “were not happy” was clarified as “Ms Smuts and Mr Swart disagreed with the process”. There was a specific reference to the names of the two Constitutional Court judgments referred to. After a short debate, it was agreed that wording would be amended, on page 3, to “… the ACDP and DA were in agreement that clause 42 and 45 should be amended, as they were the ones who brought it to the attention of the President, but did not agree with Dr Ambrosini that the whole Bill could be reconsidered… They raised the view that previous Presidents’ referrals under section 79 were specific and clear on the reservations.” It was also clarified that they had requested a written legal opinion on the process that the Committee ought t follow and objected to the process adopted by the Committee. A specific reference was included to the ACDP’s statement that it would be abstaining from voting on 10 October, since its representative was not present. It was noted that names of Members should be reflected exactly as they were on the Parliamentary records, not as published in the ATC. Members suggested some changes in the wording of the DA abstention in respect of the minutes of 10 October, and Members briefly debated whether the changes were in effect changing what happened in the meeting, or were merely clarifying Members’ sentiments. An ANC Member sought clarity on why DA and COPE had rejected the spelling errors being corrected, and the DA and COPE abstention was more clearly explained. Members adopted both sets of Minutes, with the technical changes as well as these amendments.
The Chairperson then asked Members, bearing in mind the adopted Minutes, to consider the Committee’s redrafted Report. This now reflected the minority view of the DA, as read out by its representative at the meeting of 10 October. The ACDP said it had its own minority report, but, to save time, and with the consensus of the DA, would simply like to add “and the ACDP” to the reference to the DA’s objections. The DA requested whether these sentiments could perhaps be amplified, as they were given off-the-cuff in that meeting, but other Members thought that this would amount to a departure from what was recorded in the minutes, and the DA and ACDP conceded the point and were happy with the revised Report wording of their position. The Chairperson asked whether the views of COPE and the IFP should also be included, as taken from the minutes, since no representative was present from either party. Members suggested, variously, that there was only one minority report, which should be settled by those present only, that COPE had not motivated its objection, and there was nothing requiring the Committee to solicit any input. The Chairperson said that he was merely trying to avoid opportunities for ‘grand-standing’ in the House. Members agreed that since the IFP was not formally represented, its views need not be included. The Minister of State security suggested that perhaps the views of the Parliamentary Legal Advisers be sought. Members agreed, and would meet on the following day to hear those views and adopt the Report, as well as the minutes of this meeting on 29 October.
Protection of State Information Bill: general observations by Chairperson
The Chairperson said that he was not sure of the position in the House and it might be necessary to adjourn when the Bill rang for the House, to attend to whatever was needed there. He welcomed Mr Siyabonga Cwele, the Minister of State Security, who had been a key observer in the process.
He said that one matter left unresolved in the last meeting was the question of the status of Dr M Oriani-Ambrosini (IFP) as a member of the Committee, although he had been entitled to take part in the discussions of the Committee at the last two meetings. not whether he may participate in the meeting. The Chairperson had accepted, in good faith, that he was indeed a member of the original Committee. Membership of a Committee was promulgated on the ATC, and only if noted there would a person be regarded as a member of a Committee. On 2 October the ATC promulgated the membership, and the opposition Members were named as Ms M Smuts and Mr D Maynier for the DA, Mr D Kganare for COPE, Mr J van der Merwe for the IFP and Mr S Swart for the ACDP.
On 8 October Mr van der Merwe had notified Mr Tshabalala of the Committee Section, by e-mail, that he should be replaced with Dr Oriani-Ambrosini. The first meeting was on 9 October, followed by another on 10 October. Both meetings were attended by Dr Oriani-Ambrosini. He had noted, in answer to queries about his nomination, that he had communicated with those responsible for the promulgations and he was assured that he was a Member, although there was nothing in writing. That was taken in good faith, and the Chairperson had no reason to doubt that position. However, the change in membership was promulgated officially only on 14 October in the ATC.
He noted that since the Committee had concluded its work on 10 October, it appeared that, from a strict legal compliance viewpoint, Dr Oriani-Ambrosini had not been a Member of the Committee. That did not mean that he was precluded from participating. All MPs who were not members of a particular committee were still allowed to participate in that committee, but not to vote, and not to propose any motions. He had in fact proposed motions, but since they were not seconded, nothing actually turned on that. The Chairperson had received an e-mail from Parliament, recording that Dr Oriani-Ambrosini’s name was published on 14 October.
The Chairperson pointed out that it was not possible to rephrase any of the minutes, because they reflected what had actually taken place. However, the minutes of today’s meeting would outline this explanation that he had just given. He said that it would be good if promulgations took place immediately, but regrettably that was not what happened in practice.
The Committee would today be asked to approve the minutes of the meetings of 9 and 10 October, which he would turn to in a while.
The other matter was the revised Committee Report. The revised Report was almost the same as the previous one, except that it now set out a paragraph with the statement that Ms Smuts had asked, on 10 October, should be included, word for word, as the position of the DA. If the Committee agreed on the new Report in this meeting, he would propose a short adjournment to get the final version in writing and perhaps on the following day, the Committee could adopt that report. He also asked that the Parliamentary staff should look carefully at whether there were other matters to be dealt with, such as correction of any typographical errors.
Mr S Swart (ACDP) noted the revised Report referring to the DA’s view, and said that this view was similar to what the ACDP had argued, and which was contained in the minutes. He had a minority report also from the ACDP. However, rather than incorporating that also in the Report, he suggested that the phrase “DA and the ACDP” should be used, instead of referring to the DA alone.
Ms M Smuts (DA) was happy to include that. However, she asked if the minority parties, now having been given more time, could perhaps amend the report, and read out a longer version that she had prepared, which explained that the DA (and she added the ACDP) had abstained from voting because the President’s reservations were not specific. She outlined that the Constitutional Court, in two matters, said that the President should itemize his reservations. The DA and ACDP believed that a poor precedent had been set in respect of these powers, in this Bill, and disagreed with the Committee’s majority view, believing that further clarity was needed.
Mr Burgess said that his problem with this longer statement was that it had not been raised in quite those terms in the previous meeting.
Ms Smuts said that she had in fact made reference to this and had cited Judge Cameron’s statements.
The Chairperson asked other Members to comment on whether the concerns or views needed to be reflected in such detail.
Mr M Sonto (ANC) said that there was a difference between the current formulation and what was reflected in the Minutes. The revised Report had captured the essence of what had been said, and he believed that was what was needed, not a detailed statement. He would be happy to see what whatever was in the minutes repeated in the revised Report. He agreed with the suggestion of adding “and the ACDP” to the previous statement of the DA’s views.
The Chairperson said that if Ms Smuts wanted to amplify the legal position, she should perhaps say something along the lines that there were certain statements guiding the viewpoint. He did not want to spend too much time on this. The ANC was not objecting to the amendment but it was really a question of getting the wording right.
Ms Smuts said that this was “not a big deal”. In the meeting of 10 October, the principle of a minority report was not accepted. She was prepared to accede to the current revised Report, with the addition of the ACDP.
Mr Swart agreed that this was in order, and thanked the Chairperson for the concession.
The Chairperson asked if anyone present had a mandate to give the views of COPE and the IFP, and asked what Members suggested in relation to these parties’ positions.
Ms Smuts questioned what the Committee had done with the letter that Dr Oriani-Ambrosini had sent to the Speaker, which contained some factual errors. The Speaker had referred it back to the Committee. He had referred to the National Assembly Rules, but this was a Joint Committee.
The Chairperson clarified that this was an ad hoc, not a Joint Committee.
Ms Smuts corrected herself, and said that it was established under the Joint Rules.
The Chairperson told Ms Smuts that before she had arrived in the meeting, he had clarified the status of Dr Oriani-Ambrosini, that he was not actually a member until 14 October.
He noted again that COPE and the IFP were not represented here today.
Mr A Maziya (ANC) was not sure whether it was correct to record the views of these parties, when their representatives did not attend.
The Chairperson agreed, but reminded Members that COPE had bee present as part of the Committee on 10 October. He asked if the Committee should record that COPE had objected to the procedure and to the adoption of the Report.
Members agreed that this should be recorded, as COPE was validly represented at that time.
The Chairperson said that then the position of COPE, as stated in the meeting of 10 October, would be recorded.
Mr M Sonto (ANC) stated that the COPE representative had actually said nothing, except to reject the Report.
Mr J Maake (ANC) noted that the DA and the ACDP had abstained from voting. COPE had rejected.
The Chairperson reiterated that Dr Oriani-Ambrosini’s “vote” could not be recorded as he was not a Member at the time. He suggested that Members go through the Minutes at this point to remind themselves exactly what did happen.
Mr Sonto remembered that all parties had abstained, except for the IFP, who had objected.
The Chairperson said the objection related to the adoption of the Report.
Minutes of 9 October
The Chairperson said that there was a format, devised by Parliament, that minutes were to follow. That was why the minutes were drafted in this way. He took Members through, page by page.
Mr Swart said that the line preceding the second paragraph on page 2 recorded that Ms Smuts and Mr Swart “were not happy”. He thought that “disagreed with the process” was a better wording. Other Members had no objection to that change.
Mr Maake asked if both were actually disagreeing.
Ms Smuts clarified that she would abide by Mr Swart’s suggestion.
Prof L Ndabandaba (ANC) quipped that one could not be happy when disagreeing, but would not make any proposals on that point.
Ms Smuts turned to the statement of the Chief State Law Adviser’s remarks, and thought that the statement that clause 45 should be “re-arranged” to accommodate the offence should be changed to read “amended to create the offence”. Other Members agreed.
She said the next paragraph was admirable as it reflected what she had said.
Mr Swart referred to the previous paragraph and corrected the reference to “two examples”, which should refer to “two reported Constitutional Court judgments”. He said that preferably they should be set out in full, for later reference, or referred to as ”the Liquor Bill and Mpumalanga Petition Bill matters”. The reference to Judge Pius Langa should be deleted.
Members agreed to this change.
Mr Swart also asked, for page 3, in paragraph 3, that the reference be to “clauses” (plural) and “amended” (not changed).
Members had a short debate on the wording of what the ACDP and DA ha agreed to, or disagreed to, and Ms Smuts proposed that the following wording be used: “… the ACDP and DA were in agreement that clause 42 and 45 should be amended, as they were the ones who brought it to the attention of the President, but did not agree with Dr Ambrosini that the whole Bill could be reconsidered”. In the next sentence, she proposed: “They raised the view that previous Presidents’ referrals under section 79 were specific and clear on the reservations.” The sentence should end there, with a full stop after “reservations” and the words “and even gave more details” should be deleted. She explained that previous Presidents had argued each detail as the Bills had been referred back.
Mr Maake referred to paragraph 3, last sentence, and noted that “Presidents” should be “President’s”.
Ms Smuts suggested that the last line of that paragraph be amended to “The DA and ACDP had requested a written legal opinion on the process that the Committee ought to follow, and recorded their objection thereto.” They had not requested the opinion specifically on the clause mentioned.
The Chairperson said that the objection was something separate. Perhaps this should say “and objected to the process adopted by the Committee”.
Ms Smuts agreed that this would be more correct.
Mr Swart noted that he had, on behalf of the ACDP, given a number of indications that he would abstain on the vote during the meeting on 9 October, because he had not been present on 10 October. He asked that the sentence “The ACDP representative gave notice of his intention to abstain on the vote” be added specifically, as he was not present on the following day to record this himself.
Ms S Shope-Sithole (ANC) asked that her full name of “Shope-Sithole” be reflected on this page.
Mr Maake asked that every reference to Ms Shope-Sithole’s name must be changed consistently throughout.
The Chairperson said that her name was captured, in the report from the Parliamentary officials on the membership, as “Sithole”.
Mr A Maziya (ANC) said that this was not correct; Members’ names must be recorded exactly as in the Parliamentary records.
The Chairperson asked that the Whip of the Committee must rectify that, and confirmed that it would be changed throughout in the minutes.
Members proposed, seconded and adopted the Minutes, as amended.
Minutes of 10 October
The Chairperson noted that Ms Shope-Sithole’s name would be corrected throughout this Minute also.
He went through the minutes, page by page, calling for comments from Members.
Prof L Ndabandaba (ANC) referred to the subheading of “Finalisation” on page 2, and corrected the grammar on page 2, paragraph 2, second sentence. The phrase “spelt wrong” should read “wrongly spelt”. Other Members were in agreement.
Mr Swart said that on page 2, in the second last paragraph, the phrase “above the President’s instructions” should be corrected to “over and above the President’s…” and that the word “instructions” should be replaced by “referral”.
Mr Maake was not sure that the sentence following that was clear. He asked what was meant by the DA abstaining “in the process”.
Ms Smuts agreed that “in the process” should be removed. After that, the sentence should continue “and insisted on seeking clarity” (rather than “insisted on clarity”) and wanted to add “on specific reservations, by the President”.
Mr Maziya accepted this process but wondered if there was any back-up recording for assistance in compiling the Minutes. He was worried that this process was actually re-writing what happened in the meeting.
The Chairperson said that he had kept very extensive notes, and there were also recordings. The staff, however, could not include everything. He said that the problems being outlined had to do with the grammar, not the substance.
Mr Maziya disagreed on that, and felt that this was actually a substantial re-write.
The Chairperson agreed that there were amendments but this did not amount to a rewriting, but that was what happened when dealing with minutes. Members were entitled to raise issues where they felt that they were not correctly captured. No staff member was entirely responsible for the minutes – it was up to the Members of the Committee to decide whether the minutes had captured correctly what they had said.
Mr Maake agreed that the minutes had to capture the essence, and he felt that they did that. He noted that he was not participating in discussions on the grammar of English, as it was his fourth language.
Mr Swart said that a prime example of the need to correct was that the sentence referring to COPE did not make sense in its present form. The words “and did” had to be inserted to read “and did not restrict the Committee to considering them only”. That was merely a grammatical improvement. This was not a direct quotation of what COPE had said.
The Chairperson added that the word “and” should be removed from the first line of page 3, and the next sentence should start “This was…”.
Mr Swart said that the word “Member of the IFP” should be referred to, rather than “the IFP”, as it was not suggested that the IFP, as a party, was not regularised.
The Chairperson proposed some changes to the following sentence, to read “The Hon Ambrosini proposed inserting a comma instead of a full stop at the end of clause 20… but there was no seconder to the proposal”.
Ms Shope-Sithole agreed with that formulation.
The Chairperson noted that the reference to “seconded” should be “was seconded”.
The Chairperson asked whether the statement “the DA and COPE rejected the amendments” was correct.
Members had no objections to that.
Mr Maake asked why the DA and COPE had rejected the amendments, which were surely the spelling errors corrections.
Ms Smuts said that in fact they had. She had made the point that such corrections were not properly dealt with through the referral process. She had felt that commas and full stops should not be amended in this way, and therefore had objected to the proposal that they should be corrected here.
The Chairperson said he had explained that this had nothing to do with the President; it was a separate issue. This was actually a rejection of the amendment to the typographical errors. Perhaps the Committee should add in “rejected the aforesaid amendments” to make this clear.
Ms Smuts suggested that the next paragraph could be more elegantly worded, and suggested the use of the following: “The DA moved that their view that clarity should be sought from the President by the Committee should be recorded, as well as its abstention from the process, and was seconded by COPE.”
Members confirmed that this was acceptable.
The Chairperson said, and Members agreed, that then the entire last sentence could be deleted.
The Minutes were proposed, seconded and adopted, with the amendments.
Minister of State Security comment
The Chairperson asked if the Minister wanted to address the Committee.
Mr Cwele said that in principle he agreed that any corrections should not change the content of the meeting, which was why it was necessary for those recording the minutes to be precise. He said the process was correct. He was pleased to see that the membership status of Dr Oriani-Ambrosini had been corrected. He also agreed with the correction here of technical and typographical errors.
Draft revised Report of the Committee
The Chairperson reiterated his earlier question whether the views of the other opposition parties should be recorded in this revised Report.
The Minister said that although he was not a Member of the Committee, he was a Member of Parliament. He believed that the Rules of Parliament were quite clear on this point, and there should be one, not many, minority reports – and the question was then what that minority report should say. He thought that perhaps what the parties had said should be included in the minutes in detail rather than incorporated into the minority Report, because those parties were not present at this meeting.
The Chairperson said that this came to a question of who was to record the view of the minority parties. He wondered what would happen if the majority of the Committee disagreed with the fact that a particular view was not captured. He believed that it was “the Committee” rather than individuals, who must settle the minority report, and that should not contain sub-reports. Notwithstanding the fact that the Rules did say that the minority view should be incorporated in the Committee Report, the Members had, at the last meeting, not wanted that to be done. He was trying to avoid any further controversy. It was unfortunate that the other parties’ representatives were not present. He suggested that perhaps the Committee should ask COPE specifically whether its view must be incorporated.
Mr M Nchabaleng (ANC) said that the views had been stated in the previous meetings, but COPE had not motivated its objection, and he did not believe that the Committee had to solicit input from every party.
Mr Maake agreed that everything was reflected in the Minutes just approved. All that the Committee was doing was incorporating the views given on those days, not adding anything new. Because no Member had been representing the IFP in the proper way on 9 and 10 October, it was not necessary to reflect an IFP view. If this was to be opened up, he was worried that new views not actually expressed at those meetings might be inferred.
Mr Maziya said that all Members of the ad hoc Committee had received notices of the meeting. If they were not present, they must abide by the decision of the meeting.
The Chairperson read out the wording of the Rule which made reference to: “in addition t the majority report, express any views of a minority in the Committee”. At the previous meeting, had this Report been adopted then, COPE would have been entitled to incorporate its view.
Mr Maziya said it was necessary to understand what “a minority view” was. In practice, minorities would caucus, and formulate a more-or-less common position to reach a “combined” majority view. He did not think that every single individual position must be recorded.
Ms Smuts was not sure that he was entirely right. Minority parties had their own views.
The Chairperson said that the issue regarding the other two political parties was neither here nor there but reiterated that he was trying to avoid opportunities for grandstanding in the House. He thought that merely recording the objection to the process and the fact of abstention from the adoption of the report was sufficient, and said that both the IFP and COPE had done this, whether or not the IFP Member was an “official” member of the Committee at that time.
Mr Maake agreed, but said that he did not believe this was actually a true reflection, as there were e-mails and a letter saying that the IFP was actually not represented as a party. There was an MP from the IFP present, but he was not, at that stage, a Member of the Committee. One way around this might be to refer to “some other Members of Parliament””
Mr Nchabaleng thought this was not possible.
The Minister said that this revised Committee Report was not the same as the previous Report. He fully agreed that it was up to the Committee to agree on the Report, and that should not be confused with the membership question. As he understood it, Dr Oriani-Ambrosini had been allowed to participate provisionally, but the meeting today had given clarity, and confirmed that on those days, he was not officially a Member of the Committee. This was really a process issue. He suggested that perhaps the Committee should consider asking the Parliamentary Law Advisers to comment on this technical point.
The Chairperson said he understood Mr Maake’s point, but that might not avoid any difficulty of “outbursts” in the House. He said that perhaps it should be reflected that there had been an amendment of the status of the IFP member. One option was to refer to COPE only. The other was to indicate the IFP viewpoint as well. He agreed with the suggestion to approach the Parliamentary Law Advisers.
Prof Ndabandaba also indicated his agreement on that point.
The Chairperson summarised that the revised Report would now be amended. The ACDP position, already accepted, would be included. Another paragraph would summarise the position of the IFP and COPE in the meeting who had objected to the process and abstained from the adoption of the Report.
He reiterated his earlier point that the State Law Advisers and the Parliamentary staff would be asked to look into punctuation and consistency issues. He was not quite sure how the errors had crept in, unless it was through a “find and replace” automatic function. He had tried to check as much of the Bill as possible when it was passed, but proof-reading was a very exacting task. He was shocked to see the errors in the numbering, as the Committee had definitely corrected that.
He proposed that the Committee adjourn now and meet again on the following day to hear from the Parliamentary Law Advisers and adopt the revised Report. He asked the staff also to prepare the Minutes of this meeting, and circulate them so that they too could be adopted on the following day.
The meeting was adjourned.
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