The Chairperson outlined the purpose and scope of the meeting, noting that this was a meeting of the sub-Committee to debate the revision of the National Assembly rules. It was stressed that this was not informed by the current political representation in the National Assembly, but the process was started long before the 2014 elections, since it had become clear that after twenty years of democracy, it was necessary to review the Rules to reflect the current political landscape. It was hoped that the review of the Rules was to be finalised by the end of February. This sub-Committee (also known as a task team) would present all proposals to the Rules Committee, which would carefully note points of agreement and disagreement, consider all proposals and make a final decision before presenting the agreed new rules to the National Assembly. The Chairperson also made the point that the Rules were to govern engagement in the House, and not the roles of political parties or regulation of politics, which was a task left to the political leaders. The Rules would govern engagement in Parliament on procedural matters, which would include holding the executive accountable, oversight, and overseeing the implementation of the programmes of Parliament.
Chapters 1 to 4 of the rules were reviewed. The ANC suggestions were incorporated into a discussion document, attached to this report. Members noted that Parliament derived a large part of its authority from conventions or practices evolving over time,similar to other parliaments across the world, but that it was worrying when these were breached. Other Members held the view that rigid adherence to old conventions was not useful and that conventions should be followed when agreed upon by all parties. It was suggested that the list of sources of authority be revised, and ordered by strength. A revision was suggested for the procedure governing the amendment of the Rules in the House.
The ANC also proposed suggestions for Chapter 3, to include the omission of the existing Rule 20, and insertion, after Rule 21B of a number of rules dealing with members' attendance of Parliament. The Chairperson pointed out that there was an existing Rule around loss of a seat as a result of failure to attend 15 meetings without an apology. There was some discussion about the responsibility for keeping attendance registers and the point was made that the Rules should specify that the register of the Speaker was the final authority, and that "a sitting of Parliament" should be more clearly defined, to include sittings outside the Parliamentary precincts, and workshops. This then led to a discussion on the role of party whips, their removal, at the request of the Speaker, and the need to look at the practices and principles again, with due consideration given to the parties with only one member. Members discussed whether it was correct to include separate references to the Leader of Government Business, in Rule 21, and also in Rule 24. The point was made that currently, programming decisions were made by the chief whips together with the Speaker, and that the ANC's suggestion sought to improve cohesion, and do away with the Chief Whips Forum and Programming Committee. However, the Chairperson cautioned that the revision of the Rules must not be coloured by current difficulties, and whatever decision was reached must accommodate all situations in the future. Other Members felt that the proposed removal of power from the Speaker, as Chair of the Programme Committee, was incorrect and Members concluded that the matter would be revisited at a future meeting.
National Assembly Rules - proposed revisions to Chapters 1 to 4
The Chairperson said the sub-committee was mandated to review the Rules of the National Assembly (the Rules). The process started in 2013 and had taken much longer than the anticipated six months. He wanted to emphasise that the Rules were being reviewed not because of the changes in political representation in the National Assembly, since this process was started long before the 2014 elections. After twenty years of democracy, it was necessary to review the Rules to reflect the political landscape of the country. The review of the Rules must be finalised by the end of February. He explained that the Task Team would present the final proposals to the Rules Committee, which would then consider all proposals, noting the points on which the parties agreed and differed, and the Rules Committee would then make a final decision, which would be presented to the National Assembly.
The Chairperson pointed out that the Rules were essentially governing engagement in the National Assembly, and were not about politics. In reviewing the rules, Members must look at the origin of each rule, its purpose and its relevance, twenty years down the line. It was not surprising that twenty years after the passing and implementation of the current National Assembly Rules, Members could find it necessary to amend and tighten the existing Rules and even to add new ones, adapting ideas learned from other parliaments throughout the world. The Rules must be reviewed in such a way that they would stand the test of time, not just capture the moment, and so the review process must at all times keep the future in mind.
The Chairperson reiterated that the Rules were not there to regulate politics; politics would be managed by political leadership. The Rules would govern engagement in Parliament on procedural matters. This would include holding the executive accountable, oversight, and overseeing the implementation of the programmes of Parliament. Before the 2014 elections, parties were requested to comment on the proposal of the task team, and this Committee had been granted the privilege of sitting before the State of the Nation Address.
The Chairperson suggested that the Committee proceed, chapter by chapter.
Ms J Kilian (ANC) said even though Parliament derived its authority partially from conventions or practices that had been established in the National Assembly, by agreement and usage, over a period of time, it was worrying that certain conventions established over time had been continuously been breached. In other Parliaments in the world, especially in the Commonwealth, conventions of Parliament did not change because new parties have entered. She suggested that the Powers Privileges and Immunities of Parliament Act be added to the list of sources of authority of the National Assembly.
Another Member said she was not interested so much in the word "convention", but she was of the opinion that the enforcement of conventions of Parliament needed to be done by consensus of the current parties, rather than simply following long-established practice.
Mr C Mulder (FF+) said it was important that the sources of authority be arranged according to the relative strength of each. In other parliaments around the world, conventions and practices stood out most strongly as the source of authority. It was impossible to put conventions and practices in the same category, because conventions were established rules.
Ms Kilian suggested an addition, in section 2 under "Sources of authority of the National Assembly", to read that “The Rules must be complied with and strictly adhered to by a member”
The Chairperson ruled that this may be unnecessary, given that Members would have taken an oath already.
Ms Kilian then suggested the addition of the following, in relation to the portion dealing with the suspension of the rules or supplementing rules:
"I A majority of the members of the House must be present before a decision may be taken to adopt or amend any Rule or to suspend any provision of these Rules
II The National Assembly may by resolution, subject to these Rules, make an order supplementing these Rules in accordance with section 57 of the Constitution;
(a) a standing order of the House remains in force until amended or repealed; and
(b) a sessional order of the House, identified as such by the House, remains in force -
(i) until the period of its validity, as specified in the order, has expired; or
(ii) until the end of the last sitting day of a term of the Assembly, or when the Assembly is dissolved."
A Member asked what was the difference between the Opening Address and State of the Nation Address (SONA).
The Chairperson replied that Opening Address was the first address of the new President after elections. Any subsequent addresses were referred to as SONAs.
An ANC Member put forward the following suggestions, on behalf of the ANC:
- Omission of the existing Rule 20, dealing with leave of absence.
- Insertion, after the proposed Rule 21B, of the wording that was taken from the Draft Rules, First Draft, January 2015, dealing with members' attendance at Parliament, reading as follows:
" Part 3: Members' attendance
21C (A) Definitions
In this Rule, unless the context otherwise indicates -
“attendance” means a member's presence at a sitting of the House, a meeting of a mini plenary session or any other committee or forum, or at any other official parliamentary activity;
“official parliamentary activities” means any business or activity of Parliament, including plenary sittings, committee meetings, study tours, workshops, parliamentary forums or any other parliamentary activity sanctioned by the Assembly, or its committees or presiding officers, as duly authorised; or
“sitting day” means a day on which the Assembly sits or a mini plenary session is held.
21C B. Members' attendance
(1) Subject to minimum standards as provided for in these Rules, members' attendance of official parliamentary activities is regulated by their political parties.
(2) A member's absence from Parliament during a parliamentary session, other than during a formal recess or resulting from the member's suspension in terms of these Rules and orders of the House, must be approved by the member's political party in Parliament.
(3) A member, or the party whip assigned responsibility for members' leave by the party, must inform
(a) the party's duty whip, or
(b) the chairperson of a relevant committee,
of the member's approved absence from a sitting of the House or a committee meeting, respectively.
(4) All political parties must -
(a) maintain proper leave records for their members in accordance with an attendance policy for members formally approved by Parliament, as provided for in Appendix A to these Rules; and
(b) annually, within 14 days after the last sitting day of an annual session, submit the attendance records of their members to the Speaker for publication in the ATC.
21C C Absence from sittings of the House
(1) The period for which leave may be granted to a member by the member's party, other than maternity leave and parental/adoption leave as provided for in the approved attendance policy, may not exceed 15 consecutive sitting days.
(2) Leave may be requested of the House by motion for a member's absence in excess of 15 consecutive sitting days, the leave to be requested not later than by the close of the fifteenth consecutive sitting day of the member's absence.
(3) The motion presented to the House must state the reasons for the request and the period for which continued leave of absence is sought.
(4) If the motion requesting leave of absence is rejected by the House, the reasons for such rejection must be put to the House by way of a formal amendment to the motion, and the motion as amended must be supplied to the member and the member's party in Parliament without delay.
21C (D) Sanctions for extended unauthorised absence from sittings of the House
(1) A member who absents himself or herself for 15 or more consecutive sitting days of the Assembly without authorisation as provided for in these Rules loses his or her membership of the National Assembly in accordance with Section 47(3)(b) of the Constitution.
(2) The Speaker must without delay inform a member and the member's party of the member's loss of his or her membership of the Assembly in terms of this Rule.
21C E . Absence from meetings of a committee
(1) A member may not without his or her party's approval be absent from more than two consecutive meetings of a committee to which the member has been appointed as a full member in terms of the Rules.
(2) A member's approved absence from a meeting of a committee referred to in subrule (1) must be recorded in the minutes of the meeting as formally adopted by the committee.
(3) The secretary to a committee must without delay send a copy of the formal minutes of each meeting of the committee to the responsible whip of each of the parties represented on the committee.
(4) The Secretary must every three months within an annual session submit a report to the Speaker on all members who have been absent from three or more consecutive meetings of a committee without approval as recorded in the committee's minutes.
21C F Sanctions for extended unauthorised absence from meetings of a committee
(1) A member who is absent from three or more consecutive meetings of a committee referred to in Rule 21CF(1) without his or her party's approval may be fined R1 000 for each day of absence.
(2) The Speaker must inform the member without delay of the imposition of a fine in terms of this Rule.
21C G. Appeal against application of sanctioned
(1) A member who feels aggrieved by the sanction imposed upon him or her in terms of Rules 21CE or 21CG may lodge a formal appeal with the Speaker within 14 days of being notified of the application of the sanction.
(2) If the Speaker is unable to resolve the appeal on reasonable grounds, the Speaker must refer the appeal to a committee to be determined by the Rules Committee.
(3) The committee must report its findings to the House.
(4) The Speaker must report any sanction imposed or appeal processed in terms of these Rules to the House."
The Chairperson said there was already an existing Rule that a failure to attend 15 meetings without an apology would lead to a member losing his/her seat. The attendance of MPs in the House was captured by the National Assembly Secretariat.
Mr Mulder said he welcomed this proposed rule governing attendance, but asked if this rule applied to all members of a committee, including alternate members
Mr B Mashile (ANC) said the attendance register of MPs who attended the National Assembly lay in the hands of the parties themselves, but the minute that MPs entered the House, the National Assembly needed also to have a record of those in attendance.
The Chairperson said this had now become an issue of responsibility of parties versus responsibility of the House, administratively, to deal with attendance of Members. He suggested the need to find a way to ensure that the record of the Speaker would be regarded as final, and a method for sanctioning MPs who had been absent from Parliament for a number of days. The whips were better placed to deal with the attendance of MPs.
Mr Mashile said the definition of "a sitting of Parliament" need to include any sitting funded by Parliament, whether it was held in George or Cape Town or Johannesburg.
The Chairperson said there was an existing Rule, but there was no harm in identifying the loophole in the policy. National Assembly Members must be encouraged to attend sittings. While oversight was important, the reality was that some MPs just disappeared. This Rule may tighten when Members went for a one day oversight visit but ended up making five days of the trip. However, this was not taking into consideration the role of whips, which it should. Workshops must be included as parliamentary sittings also.
Ms Kilian noted that the Speaker may request the leader of a political party to remove a party whip, if good cause existed.
Mr Mashile said the Speaker may request that, if he/she considered that the whip was not performing as expected, but he made the point that "good cause" perhaps needed to be defined.
Mr Mulder said the party determined what their whips should do, in line with Parliament's functions. However, the Speaker may only refer to the ordinary conduct of whips.
The Chairperson said the subcommittee could look at this point again, taking into consideration that there were certain parties represented only by one person. The parties could submit written proposals on removal of whips.
A Member asked why it was important to include a separate reference to "the Leader of Government Business" in Rule 21. The Rule stated that “the Speaker may, on the recommendation of the President and the Deputy President or the Leader of Government Business, designate two members as Parliamentary Counsellors to the President and the Deputy President, respectively”.
An ANC Member noted the questions of the ANC for Rule 24. Rule 24 read that the chief whip of the majority party must, subject to these Rules, and especially any rule providing that the Speaker must exclusively make a specific programming decision, arrange the business of the Assembly on the Order Paper, with the concurrence of the Speaker and the Leader of Government Business. In this regard, there was clarity needed on what "concurrence" meant, and a discussion on the relevance of the role of the Leader of Government Business.
Mr Mulder said that the role of the Leader of Government Business in the House was for the smooth functioning of Parliament, which needed concurrence of the whips, Speaker and Leader of Government Business.
Mr Mashile said the Rules must be written in such a way that they would be fully workable for the next years. Currently, the programming decisions were made by the chief whips together with the Speaker. The suggestion by the ANC sought to improve such cohesion. This would do away with the Chief Whips Forum, where a lot of fighting happened, as well as the Programme Committee.
The Chairperson reiterated that the review of the Rules must not be informed by the current situation or current difficulties. Instead, the Rules must be drafted to be relevant for the next twenty years or so, so that the programme of Parliament could be designed in such a way to accommodate all parties, currently and beyond this term.
Ms Kilian said the Rules must be drafted in such a way that they would pertain even if a coalition was to govern in future. The current rule was for chief whips. In other Commonwealth parliaments, the Speaker gave priority to the Leader of Government Business. The proposal sought to create a link between the Offices of the Chief Whip, the Speaker and Leader of Government Business, with the Programme Committee. Previously, Parliament had been forced to amend the composition of the Programme Committee, after a court case. The current proposal was trying to do away with a situation where the Programme Committee had a general discussion and took a final decision on a matter.
Another Member said that the proposed amendment sought to take away power from the Speaker, who chaired the Programme Committee, and gave that instead to the Chief Whips Forum, which was an informal gathering that tried to sell what it would have discussed to the Speaker. The amendment was, in his view, incorrect, in that it was moving the power from the Speaker to the Chief Whips.
The Chairperson said this matter will be re-examined on the following day.
Some further discussion, which was inaudible on the recording, ensued.