Progress Report on Review of Parliament Rules: report back by sub-committee

Rules of the National Assembly

04 February 2015
Chairperson: Hon Speaker B Mbete (ANC)
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Meeting Summary

The chairperson of the subcommittee that had been considering the revised Rules of the National Assembly (the Rules) gave a progress report of the Rules review, informing the full Committee of areas of disagreement and areas where new and substantive changes were being proposed. He outlined the proposals for several rules. At the outset, EFF Members indicated that they believed this meeting was premature since not all the Rules had been discussed, and they also raised objections later, saying that the summary did not properly reflect the areas of contention in the subcommittee. Rule 3(3) proposed that the Rules of Parliament could only be suspended when a special majority so decided, and 50+1 was suggested, but the opposition said it would feel more comfortable with 60% and that definitions were also needed. It was important for a member moving for suspensions of rules to explain the reason. It was referred back to the subcommittee. Rule 9A suggested that there should be separate rules on the State of the Nation Address and opening of Parliament, to clarify the distinction between the two, and members had no problem with this. Rule 17A dealt with the authority of the Speaker, noting that the Constitution already prescribed that the Speaker was responsible for holding Members to adherence of the Rules, and particularly for leaving the Chamber when ordered to do so. The EFF raised an objection to the process, believing that the Speaker's power to order a Member to leave was unduly harsh and amounted to a sentence being imposed before proper consideration of the offence. Another Member said that consideration might need to be given to an independent Speaker. Rule 18A dealt with the removal of the Speaker, with the new (a) inserting new criteria for removal, but Members expressed doubt whether a simple majority was sufficient, and also queried whether consideration might not need to be given to having an independent Speaker. Rules 17 and 18 were referred back to the subcommittee. Rule 19 was referred back to the subcommittee for clarity on declarations of interest and privilege. Rule 21A dealt with appointment of whips, would empower the Speaker to have a say on their appointment and dismissal and make recommendations to the leader of the party. It was noted that the smaller parties would also, through new considerations, be given the chance to be represented by one whip, with a suggestion that the whip rotate, but the opposition parties thought this unduly complex. Rules 21AC to G placed new provisions on Members' attendance and sanctions, and it was noted that attendance had been a problematic area since 1994. Rule 24A proposed the arrangement of business of the House, and it was stated that this attempted to be inclusive without undermining the majority party, the chief whip arranging the business of the House after consultation with the Leader of Government Business. The point was strongly made that the Programme Committee must not steam-roller opposition parties and opposition parties must not stall government business. Rule 29 proposed the sequence of proceedings, with the main agenda to be prioritised and then followed with motions with and without notice. However, the opposition parties indicated that motions were extremely important to opposition parties and the rule was referred back for further debate. Rules 31 to 38 dealt with mini-plenaries, to allow for more debate on matters such as reports from Chapter 9 and 10 institutions, but Members were not decided on whether a minimum number was needed and, if so, what that should be.

Rule 40 on public access proposed how Members and the public should be searched, and it was noted that some Members, including Ministers, had refused to be searched. Whilst all Members recognised the need for security, they also expressed disquiet that they were being unduly hampered in entering the workplace, and suggested that further searches once inside the Parliamentary precinct were unnecessary. This led to further discussion about the procedure to be followed and security arrangements for the SONA. Substantial discussion ensued about Rule 45, which sought to prescribe a dress code for Members (and one Member noted that it should also perhaps extend to the public). The dress code was said to be linked to ensuring decorum. Some Members were opposed to specifics, others indicated that it should be left to MPs to decide what dress code befitted their status as elected public representatives, but all were agreed that revealing, inappropriately fancy or offensive clothing must be avoided. It was decided that more discussion was needed in the subcommittee. Rule 50A sought to regulate grossly disorderly conduct, but after a fairly long debate as to what would constitute this, and how it differed from Rule 57, it was decided that a clearer distinction should be drawn between grave and gross misconduct, and that it should not be used to stifle debate in the Chamber. The EFF was asked to submit recommendations. Rule 53A went on to deal with the removal of a Member from the Chamber, and the EFF repeated its objections that this amounted to a sanction and sentence in combination, and it was possible that the Speaker may have been misguided or incorrect in that order. Members heard the strong suggestion that unless there was threat to physical safety, police must not be called into the Chamber, but one Member asked whether emotional threats were the same. Comparisons were drawn to other parliaments, and the rule was referred back to the sub-committee. Rule 59A dealt with switching off of microphones by the Speaker and whether this should be allowed, and the point was made that sometimes the Parliamentary staff seemed to do this, so that certain portions would not appear on Hansard, which could hinder any subsequent debates on what was said. Rule 61 also sparked some debate, over whether titles such as "honourable", "comrade", "commissar" or simply "Mr or Ms" were appropriate. The general consensus was that retaining "honourable" was in line with other parliaments. Rule 63A was also referred back to the subcommittee after concerns that it might hinder freedom of speech and stop certain matters being raised. Rule 69 was briefly mentioned, but more time spent on Rule 70 and its subrules, and although some parties felt it was too onerous, others pointed out that MPs must know their Rules book sufficiently to be able to cite the Rule under which points of order were being raised. Rule 76 dealt with secret ballots and the point was made that although the President was elected by secret ballot, there was nothing set out for his/her removal. Discussions would continue on following rules.


Meeting report

Review of the National Assembly Rules by Chairperson of the sub-committee

The Speaker of Parliament, as Chairperson of the Rules Committee, noted that the Committee would receive a report from the sub-committee which had been dealing with the preliminary review of the National Assembly Rules (the Rules).

Mr M Mdakane (ANC), Chairperson of the Sub-committee, noted that Parliament represents the aspirations of the South African population as a whole, and stressed that it is a multiparty and very important body that seeks consensus. South Africans were known around the world for their substantive negotiations and attempts to reach consensus. South Africa inherited previous rules from the apartheid parliaments. Chapters 10 to Chapter 15 were subjected to review, after the 1996 Constitution came into force, but Chapters 1 to 9 were not revised and thus still stood as they were inherited from a non democratic Parliament. The review of the Rules was a tedious and long process. Sometimes consultation delayed the process, but all parties were consulted. The review was being done to make sure the legislature would discharge its mandate effectively and efficiently. There were a number of drivers to review the Rules, including the need to determine how the Assembly gave expression to its work. The revised Rules had to ensure that this would be a people’s parliament. It was a very exciting exercise, with former members of Parliament being invited to participate, along with other organisations outside Parliament with an interest in its work, who had made a lot of submissions. A lot of research was done in Africa, Asia, Europe and the Americas. Whatever was learned from other parliament was put into the context that South Africa was a constitutional democracy. The Rules were not intended to manage politics, for Parliament has other methods to regulate those deployed in politics. The Rules should also not be drafted for the current term, but should stand the test of time.

Smaller parties had joined in the process, but were unable to attend all meetings. It had been, to that extent a passive participatory process. If the Rules Committee identified anything needing further attention, it could send this back to the sub-committee for further discussion. All Members from the previous Parliament had received a source document and were asked to submit their comments to their chief whips. However, very few submitted as they thought that the sub-committee was sufficient to review the Rules. Many parties convened workshops and presented their joint views to the subcommittee but not all parties were able to present their views.

There were 313 headings and more than 1 000 rules. The review of the Rules took into consideration the relevance of the Rules, and meaning and purpose of each intended rule. There was consensus on many of the rules, and there were also areas where there was no agreement.

Mr F Shivambu (EFF) objected, at this point, to the full Rules Committee receiving the report of the sub-committee. He argued that the Committee had only looked on the Rules from Chapters 1 to 9, and reminded the Committee that the EFF was still to make a presentation on the suggestion of removal of Members from the Chamber. He cautioned that this meeting should not "steamroller" the process.

Mr M Booi (ANC) said that the views raised by Mr Shivambu were reflected in the subcommittee report. He did not understand the use of the word "steamroller". He advised that it would be better for the EFF to just state where it disagreed, rather than trying to provide a general conclusion.

Ms T Didiza (ANC) said Mr Shivambu could not object to the Committee receiving a progress report, for that was on the agenda of the day

Mr M Ndlozi (EFF) said the Committee could not be able to receive a progress report as the Rules review was a comprehensive work-in-progress, and any report received now must be considered incomplete. However, he agreed that it was important for the Committee to hear the report but not take a decision until a compressive report was finalised.

Mr J Steenhuisen (DA) said it was imperative to receive a progress report, as it was an important step to allow Members to then engage in party caucuses. The Rules and their application had been a source of conflict in the House. Those agreed upon would be implemented, provided that the Rules Committee also agreed.

The Speaker asked the Mr Mdakane to give an indication of the timeline for completing the rules so that they could be implemented after processing by the House. The process of reviewing the Rules must move as fast as possible

Mr Mdakane said he was going to present a progress report setting out the discussions that took place in the sub-committee. Parties could then caucus and consider these rules. By end of April, the entire Rule book should be completed. He noted that some political parties had entered Parliament after the review of the Rules had started (in the last Parliament) but a workshop had been held for induction of all new parties that entered after May 2014.

The Speaker noted that the sub=committee was now giving a progress report

Mr N Singh (IFP) said that the sub=committee should be given an opportunity to present the progress on the Rules review. There were grey areas that need to be flagged, which were open to different interpretations. They were, however, important so that parliament continued to functions effectively. He cited that they included rules around declarations and motions without notice

Substantive proposed changes
Mr Mdakane summarised the most important substantive changes that were being proposed.

Rule 3
Mr Mdakane said Rule 3(3) proposed that the Rules of Parliament could never be suspended other than in the case where there was a special majority. The Rules must not be amended or suspended ad hoc. Just as a majority was needed to pass a bill, an 50+1 majority must agree that Rules be suspended. It was important for a Member moving for suspensions of a Rule to explain the reason, which must be more than poor planning. Rules regulated the engagement of politics in the Chamber, but the Rules Committee must consider whether any of the Rules were delaying parliamentary work.

Ms N Michael (DA) said that this Rule meant that the ruling party could effectively suspend the rules "willy nilly" as it held a 50+1 in itself.

Ms J Kilian (ANC) said that just as the majority of the Members must be present when a bill was passed, the sub-committee wanted to do the same with the Rules. Any new Rule proposed, or any move for amendment, suspension and adoption must have that majority

Mr M Walters (DA) said 50+1 meant the majority party could suspend the Rules, and indicated that he would feel more comfortable with a 60% prescription. .He asked that the sub-committee must re-look at this proposed change

Ms Kilian said any rule could be suspended by Parliament. Even the Western Cape legislature rules said that only "a majority" was needed to suspend a rule.

Mr C Mulder (FF+) said Members must not refer to provincial legislatures. It was important to first define Rule 3(1), and clarify what was meant by "business" and "proceedings" of the House.

The Speaker referred the rule back to the subcommittee for consideration.

Rule 9
Mr Mdakane said the proposed Rule 9(a) now sought to separate rules on the State of the Nation Address (SONA) and opening of Parliament. SONA would be the Presidential address each year, while the opening of Parliament would be the first address of the President after elections.  

The Speaker said the reference to SONA and opening of Parliament was inaccurate, because Parliament had been opened already, yet SONA was scheduled for the following week

Mr Ndlozi said this had been inaccurate, and the confusion this caused would help to decide if in the following year the opening of Parliament needed to happen in a different way. The new provision said Parliament opened after general elections, and everything that followed would be treated as SONA.

Members agreed to this Rule.

Rule 17
Mr Mdakane said  Rule 17A, dealing with the authority of the Speaker, was taken from the Constitution must be written in the Rule book. The Speaker was responsible for strict adherence to the Rules in Parliament and when the Speaker ordered a Member to leave the Chamber, that Member must not waste any time in doing so.

Mr Shivambu said the EFF objected to the fact that the Speaker was being given authority to suspend a Member before a process to suspend. Even a hardened criminal would first be tried before the conviction was given. He suggested that it would be unconstitutional for the Speaker to merely suspend a Member from the Chamber. The Rule was too harsh, and must be removed

Ms Michael said everything followed a set procedure. If a Member was aggrieved, s/he could follow up. The task team came with a provision to follow what would happen when a Member was aggrieved, looking on procedural fairness, and in terms of this the presiding officers, Speaker and Deputy Speaker would be hold accountable to Parliament.

Mr B Radebe (ANC) said a Member must state whether he was part of the task team, and asked that nobody try to re-open the debates already held, in the full Rules Committee.

Mr Shivambu explained his concern that the summary did not capture areas of disagreement in the subcommittee.

The Rule was referred back for further discussion by the subcommittee.

Rule 18
Mr Mdakane said the proposed Rule18B, on the removal of Speaker, inserted a new criteria for removal of speaker, not on political grounds, but for failure to discharge his/her responsibility. The Rule needed to be amended as it was open to abuse.

Mr Steenhuisen said the limitations the subcommittee proposals may fall short of the Constitution. The proposals were not sufficient to have the provisions struck down.

Mr Radebe said the new rule being inserted was not going far enough. It should not merely refer to a simple "majority".

Mr Singh said the Committee must not just be prescriptive on the grounds, but also look to the process of removing the Speaker. The Constitution said that a resolution of the House was enough, yet the Speaker was elected through a secret ballot.

Mr Ndlozi understood this was a constitutional question that needed a different platform. The wider discussion would be around having an independent Speaker.

The Speaker said that the Committee would need to consider a detailed submission because this had constitutional implications.

Mr Kasper Hahndiek, Retired Secretary of Parliament and advisor to the Committee, said the National Assembly had the authority to appoint and "un-appoint" the Speaker for reasons of censure, political removal, misconduct or specific charges.

Ms Didiza said the subcommittee must look into whether there was consistency with the Constitution.

Rule 19
Mr Mdakane said the new Rule 19A proposed that when a Member sat in a meeting and realised that there was a possible conflict of interest, s/he must declare the interests and let the presiding officer decides.

Mr Ndlozi asked the difference between private and personal interests.

Ms Michael said interests declared were either public or private. She cited the example that a boyfriend of a Member might be being interviewed for a Parliamentary position. The Member should, in this case, notify the Chairperson and let the decision come from there.

Mr Hahndiek pointed out that Rule 12, relating to the ethics of Members, noted that "interests" could include private, public, finance and business interests.

Mr Singh said  that if a Member who was a lawyer sitting in a Committee put forward amendments to legislation that would directly benefit his firm, that would also be classed as "interests".

Ms S Kalyan (DA) said the use of the words "direct benefits" was important in that Rule .

Mr Ndlozi said a Member must declare both direct and indirect interests.

The matter was referred back to the sub-committee.

Rule 19B: privilege
Mr Mdakane said that Rule 19B also referred to questions of privilege. There was a proposal that would ensure no abuse of privilege, covering the situation where a Member discussed something in private and it ended up being discussed in public.

Mr Hahndiek said this must be in line with an act that constituted contempt in terms of the Powers and Privileges of Parliament Act. He cited an example that a Member might be threatened that if he voted a certain way, his family might be endangered.

Mr Singh cited another hypothetical example and asked if privilege would apply if he informed another MP that he had defrauded the Department of Home Affairs of R15 million and if it happened to go public.

The Committee decided that the Rule must be referred back to the sub-committee for further consideration.

Rule 21A
Mr Mdakane said Rule 21A, on appointment of whips, sought to empower the Speaker to have a say on the appointment and dismissal of whips, and make recommendations to the leader of the party. R21A (3) puts a proposal that where there were smaller parties who did not qualify to have a whip, such smaller parties should be grouped together in order to have a whip to represent all in meetings, and also covered rotation of the whips. There must be consultation with other smaller parties.

Mr Hahndiek said the Speaker was responsible for party funds and must have a say in appointing.

Ms C Dudley (ACDP) said rotation would be disruptive, in terms of administration. The smaller parties must decide among themselves who should attend to represent them.

Mr N Khubisa (NFP) agreed that the proposal for rotation was moving into dangerous territory. The current system was working for the smaller parties and he proposed that it must be left as it was.

Mr Mulder said as long as there was a proportional system, there would be smaller parties. The Speaker must just appoint and remove whips, on the advice of the parties.

Mr Shivambu said he thought Mr Mdakane was proposing that the Speaker would have the power to remove a whip on her own. Members were voted into Parliament and he thought that voting and not appointments processes should continue to apply. The functions could be determined by the parties.

Mr Ndlozi; said that he feared that if this was made into a rule it could be abused and suggested that it be removed.

Rule 21C (A) to (G)
Mr Mdakane noted that these Rules made provision for Members' attendance and sanctions.

Mr Shivambu asked to be allowed to make a submission. This Rule had been discussed prior to the 2014 elections and therefore his party had not made input. Political parties must, in his view, handle the attendance and absence of their Members. There were very senior members of the ruling party in the struggle for emancipation that did not attend Parliament regularly.

The Speaker said that for the last twenty years the issue of attendance had been of concern in Parliament.

Rule 24
Mr Mdakane noted that Rule R24A proposed the arrangement of business of the House, the principle of inclusivity without undermining the majority party, the Chief Whip arranging the business of the House after consultation with the Leader of Government Business. The Programme Committee must not steam- roller opposition parties, and opposition parties must not stall government business.

Rule 29
Mr Mdakane noted that Rule 29 proposed the sequence of proceedings, with the main agenda being prioritised. This would be followed with motions with notice, without notice and members of the executive explaining some of the issues.

Mr Mulder said the proposed amendment should achieve a better balance between the ruling party and opposition. Opposition parties would not get an opportunity as it was presently framed, and he could not support it.

Mr Steenhuisen said it was not his job to deal with government work. The primary duty of Members was to represent peoples' business. He believed that this would present a problem to the executive in managing their diaries and fulfilling the role of executive accountability. Ministers would not sit for the entire sitting. The proposed amendment is anti-filibustering. He pointed out that if the Rules of Parliament attempted to constrain opposition, opposition parties would use other means outside the Rules.

Ms Kilian explained that the proposal was intended to allow for matters to flow in the Chamber. There were always specific dates set for statements. Cabinet Ministers were compelled to stay in the Chamber for longer under this rule. Motions could be submitted orally or in writing to the Speaker.

Ms Kalyan said the main agenda was given priority by a resolution in the House. This rule was taking away the space for opposition, by putting the agenda as the first item, when it was well known that motions were the main avenue for opposition parties to express their views.

Mr Waters said the subcommittee needed to look further into this rule. He believed the current sequence should remain. Nothing could encourage members of the executive to stay until the end of the meeting. The raising of motions was for all Members, and must start to operate effectively as it showed that Members were serious about the people they represented. There was no need to be anti-filibustering, as it was done twice in twenty years

It was decided that this rule be sent back to the subcommittee for further deliberations.

Rules 31 to 38
Mr Mdakane said Rules 31-38 proposed to give Members time to engage in extended public meetings (mini plenaries), as currently there was no sufficient time for oversight reports. All parties agreed on this and so it was only the finer details of management that needed to be sorted out.

Mr Singh said the definition of "mini plenaries" must be included.

Mr Steenhuisen said this was the most innovative suggestion from the subcommittee, as it prioritised peoples' business and would allow for sufficient time to discuss reports from the Auditor-General and Public Service Commission, for example. However, how the speaking time was allocated needed to be tightened.

Mr Radebe agreed that the opening up of debating forums was innovative. The current Speaker’s list of allocating time for parties must be maintained.

Mr Ndlozi suggested that the mini-plenary must have a minimum of 50 people.

Ms Dudley said the people who came would reflect in the quality of those debates.

Mr Shivambu said that prescribing a number of people to constitute a mini plenary must be ring fenced as a principle; it would not be sufficient for four people to gather and say they were having a mini plenary.

Ms M Boroto (ANC) said there should be discussions in mini plenaries, but not a decision.

Mr Waters said topics would restrict Members, and the topics should be something relevant to Members.

Mr Ndlozi said all parliament work was important. There was no need to adopt a laissez-faire attitude, and plenaries must be multi-representative.

Mr V Smith (ANC) said he did not agree that there was a need to prescribe a minimum number of people attending.

Rule 40
Mr Mdakane said Rule 40, on public access, proposed how Members and the public should be searched. There had been a problem of some Members, including Ministers, refusing to be searched as they came into the Chamber. Only the President, who was not a Member, should not be searched.

Mr Steenhuisen said it this was a peoples' parliament that should be easy to access. However, given what was happening around the world, security was very important. As a Member, he resented being treated like a criminal in a place of work. If this was a security measure, it must be consistently applied. He understood why it must be implemented, but stressed that no Member should feel strained at the place of work.

Ms D Dlakude (ANC) said searching was important for all Members' safety, and pointed out that people were subject to searches at airports, and even at the Westminster parliament.

Ms Dudley said no-one should be inconvenienced, but security was important and should be taken extremely seriously.

Ms Carter agreed with the need for security, but had a problem of selective security. Members should be disciplined when they refused to be subject to security.

Ms Kilian said there was no need to have a set of rules that applied at SONA. Searching was a common practice for all parliaments, which must be applied consistently on all days.

Mr Ndlozi said it was inhumane. As far as SONA was concerned, he suggested that it should be not be "over securitized", with roads closed for this was just a show of power, not a need for extra security. The President could not be protected only at SONA - and he pointed out that virtually anything - such as heels, hairpins or pens could be used as weapons. Even if someone was not carrying a gun, it would be possible to hurt another with fists. However, he agreed that Parliament was "home" to Members and they should not be treated with suspicion. He believed that there was no basis for searching.

Mr Radebe said security measures must apply. South Africa was participating in a lot of international forums which could make it a target. If the South African National Defence Force was called upon to fight Boko Haram and ISIS, it would have security implications. It will be a sad day if a Member was killed or Parliament was bombed.

Mr Waters said that there was a distinction. When Members went to an airport, they were visitors. When they went to Parliament, it was their workplace. Members should not be subjected to security checks at the workplace. Once they were in the precincts of Parliament, it did not make sense to be subjected to further security checks moving from Marks Building to the Old Assembly Chamber. The rules for thorough searching remained mainly for public visitors.

Rule 45
Mr Mdakane said Rule 45 on Conduct of Members included decorum and dress code, on which the debate had started two years ago. One area of conduct of Members was decorum, which meant ensuring that the conduct of a Member in the Chamber was entirely appropriate, when a point of order was raised, when a ruling was made and when ordered to leave. In the latter case, a Member asked to leave should not gesture and tell the Speaker "go to hell". Decorum was important for the proper running of Parliament. All parties agreed that there should be minimum dress code standards in Parliament and that Members should not enter Parliament wearing casual takkies, jeans and shorts.

Ms Dudley said this was meddling with the dress code, and suggested that the voters should judge their representative, not Members.

Mr Ndlozi said freedom of expression was axiomatic so Parliament must embrace freedom of expression also in terms of dress. He detested bowing to the Speaker, noting that in terms of the Bible and the Ten Commandments he believed that he should not bow to anyone except God in heaven. He suggested that there should not be a rule prescribing the bow. He also asked what was meant by the ban on bringing in dangerous objects " except cultural objects approved by the Speaker".

Mr Steenhuisen said it was important that Members did not dress in a way that could offend other Members. However, he felt that there were far more important issues for Members to look at than dress. Since the start of Parliament, there had not been a provision for dress code. He quipped that, as a recently married man, he was being told at home that he should not wear certain clothing and did not feel that he should be told this in Parliament too.

Mr Shivambu said there was need to rid Parliament of Westminster meanings, practices and conventions. Showing of respect could be expressed by means other than bowing. As a matter of principle, he would never bow down to anything under the sun or  the sea. Members elected by the electorate knew how to come dressed as their electorate wanted, to Parliament.

Ms Carter said there was a need for Members to avoid revealing clothing, and simply wear something that showed respect for others, including formal office wear, but no party regalia, or traditional attire.

Ms Maxon said the references to bowing down must be removed. Members were not here to worship anyone. She stressed that obviously Members must not come to Parliament naked.

Mr Singh said the question of bowing and clothing depended on a person’s value system. Whether he went to a mosque, synagogue of Parliament he, as a Hindu, would not have a problem in bowing down. The decorum of the House must be preserved. His party had a strict dress code that Members should dress formally.

Mr Waters believed that it would be useful for the sub-committee to suggest a uniform.

Ms D Dlakude (ANC) agreed that there was clearly a distinction in dressing for a party and for Parliament. She pointed out that even a hardened criminal dressed appropriately for court. Members were at Parliament to make laws and Members should not, for instance, be allowed to wear tops that displayed the stomach, but be presentable. A formal jacket was good. A person should not wear clothing more appropriate to a night club, for the Member was at Parliament to respect it and to work. She pointed out that bowing in Parliament was not worshipping, but merely a sign of respect to the presiding officer, and to bow did not take anything from a Member.

Ms Didiza said Members could choose either take an oath or affirmation. She felt that bowing was showing more respect towards the House than the presiding officer personally, but it might be possible to prescribe either bowing or some other form of showing respect.

It was decided that the issue should be finalised in the subcommittee.

Rule 50
Mr Mdakane said Rule 50A sought to regulate grossly disorderly conduct, which could arise. Members agreed that nobody should deliberately disrupt the House.

Mr Ndlozi asked the purpose for this rule, and how it differed from Rule 57.

Mr Xaso replied that Rule 51 described what happened when Members engaged in a grossly disorderly manner with others. Rule 57 referred to disorderly conduct in the House.

Ms Killian added that this Rule was intended to cover the situation that the whole assembly was reaching a point of disorder and the Speaker was unable to control the Chamber.

Ms Maxon asked if the rule was intended to suppress debate in the Chamber.

Mr Shivambu said the rule moved from the premise that Members engaged in disorderly conduct. It should exclude presiding officers not recognising Members rising on a point of order.

Ms Didiza said the subcommittee may look into the proposal around presiding officers.

Mr Steenhuisen said that even a soccer field or class room had rules. The rule was clear on the parameters of disorderly conduct. Freedom of speech and expression was guaranteed under the Constitution. He thought the rule must be extended also to include members of the public.

Mr Ndlozi said more rules meant more restrictions. This rule was always subject to the interpretation of the Speaker. Sometimes, it could happen that the presiding officer went off on a wide tangent and needed to be stopped. He said that this would be wrong, but questioned what would be "grave" - he did not believe that interrupting the Speaker was behaving in a gravely disorderly manner.

Mr Singh said the difference between "grave" and "grossly disorderly" conduct was that on the former, the MP would be "dead in the water" straight away.Even on a soccer field, the referee knew where to give a red or yellow card and when to award a penalty. The Speaker should be given that discretion.

Mr Ndlozi said Mr Steenhuisen was naïve. The sections pointed to were about the protection of presiding officers, and they did not apply to grave disorder. Disrupting the Speaker was not, in his view, grossly disorderly conduct.

Ms Didiza said the new proposed rule gave certainty in interpretation of what was a transgression in a particular issue. "Grossly" and "gravely" disorderly must be defined. The rule should not be read as a limitation.

Mr Ndlozi agreed with the reference to threats of physical violence.

Ms Kilian suggested the EFF should submit recommendations. However, it was important also to bear in mind the rules at the EFF elective conferences, some of which were strict to be implemented at Parliament.

Mr Shivambu said that Ms Kilian had never been to the ANC elective congress, had come through a different process and was not qualified to talk about the EFF elective conference.

It was decided that the rule must be reconsidered by the subcommittee

Rule 53A
Mr Mdakane said Rule 53A related to removal of a Member from the Chamber, and said that when the Speaker ordered a Member to leave the chamber, s/he must do so. The Serjeant-At-Arms must order the Member to leave, and if not, the protection services would become involved, in terms of section 11 of the Powers and Privileges of Parliament Act.

Mr Shivambu said that the Speaker ordering the Member to leave the Chamber was a sanction and sentence combined, and asked what would happen where the Speaker was incorrect to do so, in which case leaving the Chamber would be tantamount to complying with an invalid instruction. In the military, it was wrong to obey a wrong instruction. Instead of sanctions being meted out immediately, a different approach must be proposed. Unless if a Member was physically disorderly in Parliament, security must not be called into the Chamber. Even the police had been taught to arrest people in an orderly fashion.

Mr Steenhuisen said the definition proposed for "protection service" included security services performing a policing function in the precincts of Parliament, in terms of the Powers and Privileges of Parliament Act. There was a genuine reason why Parliament had a different security to state security. It was important to look at Chapter 11 of the Constitution, allowing the police into the Chamber to deal with anyone engaging in unconstitutional behavior. The police reported to a political executive, while Parliament's protection services reported to the Speaker.

Mr Ndlozi said that he felt that, in line with fairness of procedure, there was no need to put the cart before the horse. It was known that it would never be Members of the ruling party who would be removed from the Chamber, and he disagreed that any Member should be subject to removal for anything s/he said - such as that the President was a thief. He did, however, support the removal of a Member who was physically threatening someone but suggested that other Members should be in a position to remove that person. Democracy was a pedagogical exercise. In Steve Biko’s letter to the police, he told them to engage in the fight against him, because he would be forced to respond.

Mr Booi said Members must not only argue from the assumption that they were victims. The Speaker protected the Constitution and Bill of Rights. Every Member had a political responsibility. The question was similar to the debate at what point a police officer was entitled to shoot a criminal, and the Constitutional Court had not been able to come to one conclusion on that. He suggested that it was necessary to consider both physical violence and hurting a Member's feelings. One of the submissions from the EFF had suggested that somebody similar to a bouncer must be considered, but bouncers did not have the same constitutional right or responsibilities as the police.

Ms September said the sticking points were who must remove, whether there should be suspension, if so, how and how much. The Constitution spoke of the authority of Parliament.

Mr Ndlozi said this proposal was similar to reinstating the kind of punishment outlawed in schools. Physical removal should never be considered, except if the person was displaying physical violence. Emotional violence suggested the need for therapeutic services in Parliament. All the rules were reactionary. Even if a Member was hardened in attitude, it must be considered that Members did what they did in the best interests of Parliament.

Ms Kilian said the submission by the EFF on the position in the European Parliament, India and Canada showed that Members were liable to be removed from those parliaments. The EFF committed a grave error by quoting other parliaments which put sanctions in place. The presiding function was responsible for the adherence to the Rules of the Assembly and Members disturbing it must be ordered to leave.  

Ms Michael said something that was important was being turned around in circles. Parliament was a national key point, so to have police coming in, in circumstances threatening a coup, was correct. The last time they had entered Parliament was when Verwoed was murdered. She agreed that in principle, SAPS or any other armed forces could not be seen removing a  Member. It would be useful to capacitate parliamentary protection services for conflict resolution.

Mr Shivambu said the subcommittee members appeared to be suffering from selective memory. Case studies showed that police were not allowed in other parliaments and Ms Kilian was incorrect. His point was that the Speaker must not make an arbitrary removal of a Member from Parliament. He agreed with parliamentary protection services rather than police coming to remove Members where necessary but stressed that the other point was that there should not be arbitrary decisions by presiding officers

Mr Smith said the Chamber could not be put to ransom by a person. The point must be made clear that the Chamber would not accept or buy into any situation where an MP's conduct affected the other 399 Members in the Chamber.

Mr Ndlozi said case studies of other parliaments revealed that there was no removal by police, nor sanctions without due process, and set out the different conditions under which a Member could be suspended, and summarised that these were fair procedure and justice. The major question was under what conditions the Speaker could remove or sanction.

Mr Shivambu said the process of the review of the National Assembly Rules was a dynamic process, and suggested that more engagement was needed to come up with the best result.

The rule was referred back to the sub-committee.

Rule 59A: switching off microphones
Mr Mdakane said Rule 59A proposed that Members who were disturbing the proceedings must have their microphones switched off. The problem raised by the subcommittee was who would be responsible for doing that. Some suggested the Speaker, others suggested a consultative process.

Mr Steenhuisen said this Rule was already covered under grossly disorderly conduct. Parliament would restricts freedom of speech by switching off of live feed. Switching off would merely encourage people to speak more loudly, and he suggested that this rule should be struck out.

Mr Shivambu said the rules must not be drawn to match the current technology. The Westminster parliament used advanced technology, with microphones overhead and this rule may have to be upgraded if Parliament adopted that technology. .

Ms Didiza said there was need for protection of microphones, for other Members to manage order, so that it did not become a matter of dispute.

Mr Xaso said that Rule 59 said that the presiding officer must be heard without interruption In the NCOP, if the presiding officer’s microphone was on, all the others were disabled, but the same was not the case with the NA Chamber.

Ms Kilian said the rule could be removed and the House would not be informed when the presiding officer disabled the microphone

Mr Ndlozi said there must not be a rule like that. He too asked that the rules should not relate directly to the technology currently as they were intended for future generations.

Ms Kalyan said this was a new rule. Members enjoyed using the microphones, and switching them off them was like denying a treat to a child. If the microphones were switched off, and the matter was one that had to be referred to a disciplinary committee, the Member would not have been recorded in Hansard once the microphones were off. She suggested that more dignified ways could be found by the Speaker and suggested that the rule be deleted

Mr Mulder said the the concept of microphones hanging from the roof was not  new technology. he pointed out that sometimes parliamentary officials selectively switched off microphones, leaving parts out of the Hansard sections.

Mr Waters said the rules were intended as a direction to presiding officers, so some may be open to freedom of speech, and others very sensitive. On a few occasions, feed from Parliament was cut off to curtail people's access to information.

The Speaker said the feed issue was raised under the points of action.

Rule 61
Mr Mdakane said Rule 61 dealt with using the reference "honourable" for  Members, and the title "Madam Speaker", and with not calling Members by any description or name that impugned their dignity, even when Members were perhaps close in friendship. Other parties took other views. There was another discussion around whether calling each other "comrade" impugned the decorum of the House.

Mr Shivambu said the current rules did not have a provision which compelled Members to call each other "Honourable". It must be a convention. In his view, a Member should be free to refer to another by any of the titles such as "Madam Speaker, honourable, comrade, commissar, Commander in Chief, Mr, Mrs". The only rule should be that a Member must not be called by his/her first name.

Mr Singh said he felt it was wrong to call another "comrade" or "commissar", and that was undermining the House.

Mr Steenhuisen said some things were best left to convention. There were rules against calling Members by first or other names.

Ms Dudley said calling each other  Member XYZ" might be sufficient, and adding "comrade" or "honourable" should be at the pleasure of the individual Member.

Mr Ndlozi said this discussion was about egos. The practice of using "honourable"  came from the British Westminster, and implied ties of nobility to the King. "Member" was the basic title. He agreed that the references to "honourable" must be removed. Being a Member of Parliament was not an achievement worthy of the epithet "honourable" although perhaps getting a PhD, professorship or a medal might be.

Mr Mulder corrected him, saying that the use of "honourable" was not linked to British nobility because there were separate titles of "Lord". He believed that using "honourable" put the South African Parliament on the same footing as others. Other additions such as "comrade" could be added.

Rule 63A
Mr Mdakane said rule R63A on substantive motions made sure that Members would not impute improper motives to any Members not present.

Mr Steenhuisen said freedom of speech was subject to the Constitution. While there was a general acceptance of the distinction between correct  and unparliamentary language, it must be remembered that Members operated in a political environment. Inserting such a rule would, in his view, be shutting a door for robust debate to expose wrongdoing. This would, for instance, mean that no Member may be able to refer to the Nkandla report for the remainder of the term.

Ms Kilian said the issue was that one Member not make wild accusations against other Members, ministers or the President. The Constitutional Court had ruled that public office bearers must be protected.

Mr Steenhuisen said that if the rule limited discussion on the "Secrecy Bill" and Nkandla by suggesting that it was an attack on others, then it was wrong.

Mr Waters said this rule must go back to the subcommittee. The provision sought to bar Members, for the remainder of the term, on raising questions such as Nkandla. This was direct muzzling of freedom of speech.

It was agreed that the matter must go back to the subcommittee for further engagement.

Rule 69
Mr Mdakane said Rule 69 was prescribing that Members who felt offended by some accusations or malicious misquoting must be able to raise that with the Speaker.

Ms Dudley said rather than being ordered to explain, a Member must be order to withdraw the statement.

Rule 70
Mr Mdakane said that Rule 70, on points of order, would have twelve sub rules.

Mr Ndlozi said the current rule was sufficient. Sub rule (3) missed the order. He himself had had the deep misfortune of not being recognised by the Speaker. He suggested that these twelve sub points were intended to stifle debate in the National Assembly. The subcommittee was, in his view, being disorderly by including this proposal.

Mr Shivambu said it was unnecessary for people to always refer to rules when raising a point of order. It was unnecessary to memorise the whole Rules book.

Ms Boroto said Mr Shivambu usually questioned on what rule a decision was being based, when in the Chamber, so felt that it was correct to have a rule that said a Member raising a point of order must cite the rule on which that point of order was based.

Mr Steenhuisen said there was no need to know the Rules book verbatim, but principles of subject matter in sub rule (3).

Ms Killian said when Members differed on political content, they tended to jump up. She said that if a person played soccer, he must know the rules. Those playing politics must know the Rules of the National Assembly.

Mr Ndlozi said a presiding officer must hear a point of order.

Rule 76B
Mr Mdakane said Rule 76B spoke about the election of the President and others elected by the secret ballot.

Mr Shivambu said the principle of a secret ballot was sacrosanct in any parliamentary democracy. Open votes could be coupled to threats and vote buying. Secret votes on a vote of no confidence must be done, when requested by 15% of the Members of the House.

Mr Waters said sections 89, 102 and 57 of the Constitution noted no specific exclusion of a secret ballot in matters set out in those provisions. Members must not be held to party discipline. If a person was elected by secret ballot, then their removal must also be by secret ballot.

Mr Singh said the drafters of the Constitution left grey areas, for although it was specified that the President would be elected by secret ballot it did not specify whether he could be removed by secret ballot. There had to be a constitutional amendment.

Mr Waters said there was a better reason to have a secret ballot than not to have it; with an open vote Members could not vote according to their conscience.

Mr Steenhuisen said the proposed rule must provide mechanisms even for any coalition governments in future.

Mr Ndlozi wanted the Committee to consider that ministers should not vote "no" because they served at the pleasure of the President. They should not vote in any cases where there might be conflict of interests.

The discussion will continue on Declarations of Vote, Rule 81 and on Rules 89, 96, 96 a, 97, 98 and 103.

The remainder of the report will be added later.

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