Eighth Draft of Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill: consideration

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Meeting Summary

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Meeting report


3 September 2002

Mr P Hendrickse (ANC)

Documents handed out:
Powers, Privileges and Immunities of Parliament and Provincial Legislature Bill (eighth draft)
Options prepared by Law Advisors (Appendix 1)
Provision for Compliance with the Reporting Requirements of the PFMA (Appendix 2)

The Committee discussed further proposed amendments to the Powers, Privileges and Immunities of Parliament and Provincial Legislature Bill. In particular, concerning operating procedures of the disciplinary committees and privileges accorded to witnesses. While it was said that the privileges afforded to witnesses were too wide, courts generally demand very good reasons why this right should be limited. Furthermore, other legal issues will arise with respect to evidence obtained from the disciplinary proceedings that will not be admissible in court. The Committee would receive further advice on this matter. The Committee will next consider the ninth draft of the Bill.

The Chair reminded the Committee that at the previous meeting the Committee requested legal advisors to prepare options on how to deal with certain matters in the Bill. In particular the operating procedures of the disciplinary committees and whether they should be included in the Bill and secondly the privileges accorded to witnesses, which are too wide. He then handed over to Advocate Meyer to take the Committee through the options he compiled.

Clause 6
Advocate Meyer spoke first on Clause 6(3)(a): Procedure in Disciplinary Hearings and the Members agreed that option 2 is the best as it allows the Rules Committee to determine the procedure.

Clause 7
The Chair then moved on to Clause 7: Punishable Offences by Members. The Chair asked whether punishable offences in the Bill should be extended to conduct beyond contempt, such as sexual harassment. Secondly, if they should form part of the Bill, how should they be catered for?

Mr Mahlangu (ANC) suggested that these matters should only be included if the Ethics Committee does not deal with them.

Mr Landers (ANC) replied that the Ethics Committee does deal with them in terms of the Ethics Code but it would be better to deal with them under the Act because the rules of the Code can be easily suspended whereas the Act's provisions are not easily changed.

The Chair asked whether the Code provides sanctions.

Mr Landers explained that the Joint Rules provide sanctions.

The Chair suggested that the Joint Rules should include a list of offences punishable by Parliament.

Advocate Meyer warned that the list would have to be exhaustive which is impossible to achieve.

Dr Palmer added that if there are penalties for certain behaviour, then a list would warn Members of what behaviour is punishable.

Adv Schmidt (DP) argued that such a list would allow Members to engage in misconduct that is not listed and escape punishment.

It was agreed that neither option would be included in the Bill and Clause 7 will remain untouched.

Advocate Meyer suggested that the heading for Chapter 3 should be changed to "Disciplinary Action Against Members for Offences" rather than "Disciplinary Action Against Members for Contempt of the Legislature". This is because the former is the more encompassing term. It was agreed that the Chapter will be entitled "Disciplinary Action Against 'Members for Punishable Offences".

Mr Landers commented that this would include conduct that constitutes punishable conduct in terms of the Joint Rules of Parliament.

The Chair questioned whether an offence such as theft or sexual harassment falls into the category of abuse of one's privileges as a Member of Parliament.

Adv Schmidt responded that the main issue is bringing Parliament into disrepute and that is the link between general offences and abuse of privileges as a Member of Parliament.

The Chair concluded that the term 'contempt' should be retained in Clause 7(c). Advocate Meyer's resolution was that Clause 7(d) should be inserted and read "an act which constitutes a punishable offence" and to insert the words "punishable offence into Clause 6(4). This was agreed to by all Members.

Clause 16
The Chair moved on to discuss Clause16: Summonsing Powers of Joint Committees. The Chair stated that at present the Committees have no power to issue a summons.

Adv Meyer recommended the second option, in terms of which the Joint Committee gets its authority to summons from the Bill.

The Chair confirmed that the Members agreed to this provision. He further noted that when a Member is called as a witness she or he is subject to the same rules as an outsider.

Clause 18
The Chair then proceeded to deal with Clause 18: Privileges of Witnesses. He expressed his concern that the witnesses have too much privilege, which includes the privilege against self-incrimination which he wanted revoked. Other protections are preferable such as Clause 18(2), which provides that evidence used in proceedings in Parliament may not be utilised in court.

Advocate Meyer explained that witnesses have the same privilege as in a court of law. He cited case authority, which indicates that the courts demand very good reasons why this right should be limited. He further noted that other legal issues will arise with respect to evidence obtained from the disciplinary proceedings that will not be admissible in court.

Mr Mahlangu suggested that the issue should be pondered properly and further legal advice should be sought.

The Chair concluded that the ninth draft will retain all three options and the matter should be discussed further at the next meeting. Thereafter he would ask the Speaker for permission to seek legal opinion on the matter.

Clause 22
Clause 22: Broadcasting of Proceedings, required no changes.

The meeting was adjourned.

Appendix 1:
Matters referred to at the meeting of the Ad Hoc Committee on

Powers and Privileges on 30 July 2002


The view was expressed that the reference to the Promotion of Administrative Justice Act, 2000, should be omitted, since that Act applies only to officials.


1. Reword clause 6(3) as follows to spell out aspects of a fair procedure:

(3) Before a House may take any disciplinary action against a member for contempt, the standing committee must-

(a) enquire into the matter in accordance with a fair procedure that includes-

(i) adequate notice to the member concerned of the nature and purpose of the enquiry;

(ii) informing the member of all relevant allegations or complaints against the member; and

(iii) affording the member reasonable opportunity to make representations; and

(b) table a report on its findings and/or recommendations in the House.

2. Simply state the committee must follow a procedure that is "reasonable and procedurally fair" (the words of section 33 (1) of the Constitution), and leave it to the relevant House or committee to determine the procedure.


Some members felt that the "offences" for which a member can be punished by a Legislature should include matters such as contravention of the Code of Conduct, sexual harassment and cheating with travel vouchers, etc.


1. In a separate clause list the other conduct or actions of members that can be punished by a Legislature.

2. Define those actions in a generic term such as "misconduct" or "an offence against the Legislature".

[Note: Any of these options would require several consequential amendments to the draft Bill.]


The Committee noted that neither the constitutional provisions referred to in clause 16(1) [sections 56(a) and 69(a)] nor any other provision of the Constitution cover the summonsing of persons to appear before a joint committee. However the Joint Rules do make provision for joint committees to summons persons.


1. In subclause (1), omit the words "in terms of section 56(a) or 69(a) of the Constitution", and refer in a footnote to the fact that the Joint Rules authorise joint committees to summons people.

2. Insert the following subdause [following the wording of sections 56(a) and 69(a) of the Constitution] before the existing subclause (1), and renumber the subclauses:

(1) A joint committee may-

(a) summons any person to appear before it to give evidence on oath or affirmation, or to produce documents; and

(b) require any person or institution to report to it.


The view was expressed that the protection granted to witnesses is too broad, and that witnesses before Parliament or a parliamentary committee should not necessarily have (all) the privileges of witnesses before the courts.


1. Omit subclause (1) of clause 18, which would mean that a witness would not be able to claim any of the privileges enjoyed by persons giving evidence in a court. Given that the Bill provides that it will be a criminal offence not to answer all questions "fully and satisfactorily" the constitutionality of such a provision is doubtful.

2. Make provision in subclause (1) that the (other) privileges of witnesses before courts are applicable (eg legal professional privilege), but not the privilege against self-incrimination. For this option to pass constitutional muster it will have to be established that the limitation of the infringement of the rule against self- -incrimination, and therefore the right of an accused person to a fair trial in terms of section 25(3) of the Constitution, is justified under section 36 of the Constitution. If this option is accepted, clause 18(1) could be worded as follows, based on the wording of section 8 of the National Prosecuting Authority Act, 1998:

(1) The law regarding privilege as applicable to a witness summonsed to give evidence or to produce a document before the High Court of South Africa applies in relation to the examination of a person in terms of section 14 except that such a person is not entitled to refuse to answer any question or to produce any document on the ground that it would tend to expose him or her to a criminal charge.

3. As in option 2, but add certain requirements, as follows [based on the wording of section 31 of the Promotion of National Unity and Reconciliation Act, 1995]:

(1) Subject to this section, the law relating to privilege as applicable to a witness summonsed to give evidence or to produce a document before the High Court applies in relation to the examination of a person in terms of section 17

(2) A person who has been summonsed to appear before Parliament or a committee to give evidence or to produce a document is compelled to answer any question put to him or her, and to produce any document, in connection with the subject matter of the enquiry despite the fact that the answer or the document may incriminate him or her

(3) Before a person may be required to answer a question or produce a document which may incriminate that person-

(a) the Speaker or the Chairperson or the chairperson of the committee, as the case requires, must consult with the National Director of Public Prosecutions, or the Director of Public Prosecutions who has jurisdiction; and

(b) the House or the committee, as the case requires, must satisfy itself that to require the information concerned from that person is reasonable and justifiable in an open and democratic society.

[Note: The issue of statutory provisions that oblige persons to give self-incriminating evidence has been the subject of several judgments of the Constitutional Court and other courts. See, eg, Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO 1996 (1) SA 984 (CC); Parbhoo and Others v Getz NO and Another 1997 (4) SA 1095 (CC); Park-Ross v Director: Office for Serious Economic Offences 1995 (2) SA 148 (CPD); National Director of Public Prosecutions v Rebuzzi 2002 (1) SACR 128 (SCA). Consequently, it is recommended that the Committee obtain a legal opinion on the constitutionality of the provisions proposed above.]


Following a query as to whether the provisions of the Draft Bill give effect to Parliament's Broadcast Policy, the NA Table has confirmed that it does.


The question has been raised whether the draft Bill should deal with the enforcement of provisions of the Public Finance Management Act that require the submission of reports to Parliament. This issue is addressed in a separate document attached hereto.

Appendix 2:

1. The Ad Hoc Committee on Powers and Privileges of Parliament has requested advice as to whether the draft Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill should provide for the enforcement of the reporting requirements of the Public Finance Management Act, 1999 (PFMA).

2. From the brief discussion in the Committee I got the impression that there is a misconception that Parliament has not made any provision in this regard. In fact the PFMA contains definite provisions aimed at ensuring that reports are submitted to Parliament as prescribed. The PFMA even provides for a parliamentary procedure (tabling of reasons) in the event of non-compliance.

3. Firstly, there is section 40, which deals with the reporting responsibilities of the accounting officers of departments, trading entities and constitutional institutions. In terms of section 40(1 )(f) the accounting officer is responsible for the submission of all reports to Parliament as may be required by the PFMA, ie including the Treasury Regulations (see the definition of "this Act" in section 1).

3.1 Section 81(1) provides that an accounting officer who wilfully or negligently fails to comply with a requirement of section 40 commits an act of misconduct. Section 84 makes provision relating to disciplinary proceedings against such an accounting officer, while section 65(1)(b) requires the findings at such proceedings to be tabled in the National Assembly.

3.2 Furthermore, section 86(1) provides that an accounting officer who wilfully or in a grossly negligent way fails to comply with a provision of section 40 is guilty of a criminal offence and liable on conviction to a fine, or to imprisonment for a period not exceeding five years.

4. Secondly, there is section 65, in terms of which the annual reports and financial statements of a national department and a national public entity must be tabled in the National Assembly within a prescribed period by the relevant executive authority, ie the Cabinet member who is accountable to Parliament for that department or public entity.

4.1 If such annual report and financial statements are not tabled in the Assembly within six months after the end of the financial year, the executive authority must table a written explanation in Parliament setting out the reasons why they were not tabled (section 65(2)). Section 8(5)(a) has a similar provision with respect to the tabling of the annual consolidated financial statements by the Minister of Finance.

5. Should reports not be tabled as required by the PFMA it is open to Parliament to take steps to ensure that the above measures are put into practice, for example by asking the Cabinet member concerned for an explanation in terms of section 65(2) or by recommending criminal or disciplinary steps against the accounting officer.

6. In so far as the view might be held that the PFMA does not go far enough to ensure compliance with its reporting requirements, I would recommend that that Act should rather be amended to provide for more stringent measures, instead of including further (conflicting) provisions in another piece of legislation. It makes the statute book messy and inaccessible.

7. If there is a need for a mechanism for Parliament to deal with cases where reports are not tabled (in time), I would suggest that it should be done by or in terms of the rules or internal procedures. A simple procedure would be, for example, to report in the ATO when a report is not received in time, and then to require the Minister concerned, in addition to the written explanation in terms of the PFMA, to explain the position to the House. To exert more (political) pressure, the Minister and/or the accounting officer could be asked/summonsed to appear before the relevant committee for examination. As pointed out by Members at the Committee1s meeting of 30 July 2002, there are also other political steps possible under the Constitution.

8. If the Bill is to make provision for further measures to compel the responsible persons (ie the Cabinet Member and accounting officer concerned) to comply with the reporting requirements of the PEMA, the question arises what sanctions should be provided for. It would not fit into the agreed scheme of the Bill to make provision for Parliament itself to take disciplinary or other punitive steps against non-members. In any event, the PFMA already makes provision for sanctions against accounting officers (see paragraphs 4 and 5 above). With respect to Cabinet members it could perhaps be considered to provide that they commit contempt of Parliament (or a criminal offence) if their departments' reports are not submitted in time, but such a provision would not seem to be advisable in the circumstances.

9. I cannot think of anything else that could or should be included in the Bill that is not or could not be sufficiently dealt with by or under existing legislation or the rules and internal procedures of Parliament.

10. In conclusion I should point out that besides the PFMA there are many other statutes that require a variety of reports to be tabled in or submitted to Parliament or parliamentary committees. I doubt very much whether it would be possible to formulate a single, uniform, effective and enforceable provision, consistent with all those statutes, to ensure that all those reports are tabled or submitted as required.


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