Review of the Rules of National Assembly Chapter 10-11

Meeting report

Consideration of the Report of the Subcommittee on the Preliminary Review of Chapters 10-15 of the Rules of the National Assembly
The Chairperson said the Subcommittee on Rules (the Subcommittee) had dealt with Chapters 1 to 9 of the Rules of the National Assembly (the Rules). All political parties had been invited, because as the Subcommittee was not a decision making body as many parties as possible must be heard. He noted that experts and the administrative staff would be invited to present on aspects of the Rules, to ensure that as many voices within Parliament were consulted on the formulation of the Rules, so that this review of the rules could be accepted by Parliament generally and that they stand the test of time. Having completed Chapters 1 to 9, the National Assembly Rules Committee (the Rules Committee) decided that it would be best if the Subcommittee went through the entire Rules, before presenting a composite proposal to the Rules Committee for its consideration

He summarised that this process was started in 2012 and took off in earnest in 2013/14, therefore sufficient time would be given to finalise the process this part over the following two weeks. While the chapters of the Rules on committees were contentious, the chapters on the legislative process had stood basically intact since 1996. He felt first and second readings should be done away with, and replaced with an introduction of the Bill. The development of the practice of first and second readings, it was essentially meaningless. He hoped the ANC would present a position on this and that as many other parties as possible would also contribute.

He further noted that the Rules must be accepted by all Members, so that even where a Member was ejected from the House s/he must understand that it was not personal and was simply done in terms of the Rules. He said the Rules were not being designed to regulate politics, rather to regulate  political engagement. A process for finalising the Rules must be decided upon, to give certainty to the Rules Committee. He suggested that Chapters 10 to 15 could be dealt with in the next two weeks. Chapter 11 was the easiest. Chapter 10 had some contentious points, and Chapter 12, dealing with Committees was complex and he asked Members to apply their minds in particular to those. The legislative process under Chapter 13 was also very detailed. He felt that a team should deal with the review of the procedure for Money Bills. There were other outstanding issues, which would hopefully be dealt with by other structures. By May, if possible, the proposals should be submitted to parties for consultation for the entire month, having been accepted by the Rules Committee, aiming for adoption by the National Assembly in June. As the parties conducted their consultations and workshops the staff of Parliament would be available to assist all. If new matters arose from the consultative process, then perhaps two meetings of the Subcommittee may be required before again presenting it to the Rules Committee, still aiming for adoption by the end of June. The key consideration was all parties having a say on the Rules, while ensuring that a process was adopted to expedite this process which was started in 2012.

Mr B Mashile (ANC) wanted the above message to be sent to the political parties to ensure their participation, particularly as the process would be punctuated by the budget process, which had the risk of side-tracking the Rules process. Only a high level agreement would ensure that, when meetings, were convened there were sufficient Members present.

Mr M Ndlozi (EFF) said he had listened to the background which the Chairperson had given to the review process thus far. He noted and accepted that this process must be accelerated. However, it was the first time that he had attended the Subcommittee, and the last time Members had collectively engaged on the Rules was in the Rules Committee, where several issues had been referred from that forum to the Subcommittee. Therefore, if the discussion was limited to Chapters 10 to 15, then the three issues where there had been fundamental differences would be disregarded. He therefore asked the Chairperson’s indulgence to deal with those issues, which the Rules Committee had indicated would be ironed out in the Subcommittee. 

Ms N Michael (DA) was pleased that the Committee was proceeding in the manner stated by the Chairperson. She was also glad that a decisive step had been taken, noting that the review process had been going on for several years, with the decision on Chapters 1 to 9 being final and voted on by the Rules Task Team. Furthermore, the inclusivity of the process had been positive, with all parties invited. However, at the last meeting she had been the only representative from an opposition party. An immense amount of work had been done in the last meeting and many issues had been cleared up. It was up to political parties to take responsibility and ensure that they had representation when such meetings were called. It was worrying that presently only two political parties were being represented by MPs, given the number of parties represented in the House. This however, was not the Subcommittee's fault and it could not be held hostage by parties which chose not to represent themselves at the meetings convened.

The Chairperson said Ms Michael had a point, but if Members had outstanding issues which they wanted to raise they would be afforded the space.

Mr Ndlozi did not want the impression to be created that the EFF was not committed to the process. When it had enquired about the scheduling of meetings and how this was communicated, it was told that this would be done via SMS. The reason why the EFF had not been present was that it was that it had not been able to find the venue, and he would have thought that the Secretariat had communicated that the EFF had expressed interest in attending. Their absence was therefore not because the EFF was not committed to the process, and he reiterated strongly that he did not want this impression to be conveyed. The EFF would be present for all the meetings scheduled. He also repeated that the EFF was concerned that the issues which the Rules Committee had referred to the Subcommittee were not discussed, then there would be no further opportunity.

The Chairperson said his view was that the planned Chapters should be dealt with and that there would be time to raise any outstanding issues.

Mr M Booi (ANC) said both of the Members were speaking to the spirit of what the Chairperson had indicated about the need for inclusivity in the process. By the time the proposals were presented to the Rules Committee there should be some form of consensus on the broader issues. When the process was finalised the Subcommittee should be confident that every Member had an opportunity to voice their concerns. The Rules Committee had decided that the details should be ironed out in the Subcommittee and if differences remained after that, then they would be definitively decided in the Rules Committee. He emphasised that the spirit of inclusivity included ensuring that every party and Member was mandated to sit in the Committee participate as much as possible, this was why Members had put aside their constituency periods. The issues should be debated thoroughly and as much agreement as possible sought.

Chapter 10: Questions

The Chairperson said he had seen the ANC submission and asked for Mr Kasper Hahndiek, Consultant to the Subcommittee (and former Secretary to the National Assembly) to give the Subcommittee a background to the issues in Chapter 10. Then the party’s proposals would be heard and the discussion would ensue.

Mr Hahndiek  said this was one of the key chapters for parliamentary functioning and holding the executive to account by way of questions to the executive. Previous experiences raised concern about the way questions were dealt with. These included not having enough time to put questions to a particular Minister during the course of a year, and on question days there was not enough time to put questions to a particular Minister. The length of time that replies to questions could stand over was also a problem. He believed these concerns had been addressed in the new draft of the Rules. 

Mr Hahndiek then ran through the proposed changes. Members may now submit questions on any working day, including constituency periods. A question for oral reply would now be limited to two subdivisions, rather than five, with the idea being that these were to be focused political questions, rather than questions of a statistical nature. He thought this would also allow Ministers more time to prepare replies. Next, the notice period was proposed to be reduced from six to three working days, making the reply more actual.  The question times were proposed to be increased from 2 to 3 hours. There was also a new procedure for urgent questions. Importantly a new rule in 107B had been inserted, which proposed that the Speaker of the National Assembly (the Speaker) must, in consultation with the Rules Committee, set up a task team to monitor replies to questions, both oral and written. This was to put in place a system to ensure effective monitoring.

In relation to questions to the Presidency, the current position was that the Deputy President took questions every second week and the time for the questions to the Deputy President would form part of the two hours dedicated to questions to Ministers. The proposal was that now this would be once a month, with a separate question time for the Deputy President. The Deputy President, in terms of the Constitution, plays a supporting role to the President and therefore the questions to the Deputy President should also include any matters of national or international importance. The specific guidelines as to what questions were appropriate to the Presidency must be determined by the Rules Committee. These were currently in place and were used by the Speaker's Office. He felt these were broadly reasonable, such as that questions to line function Ministers should not be put to the Presidency in the first instance. Questions to the Deputy President were once a month, excluding the months where the President appeared, which would remain at once per quarter. The questions to the Deputy President were increased from four to six, with the time set aside being three hours. There was also a proposal to reduce the notice period for questions to the President to five working days. There should also be no limitation on the time for replies from the President or Deputy President.

The Chairperson asked for Members' comments on each specific rule.

Mr Mashile asked whether there were proposals from other parties, having heard that the proposal from the ANC had been distributed.

The Chairperson said the other parties would put forward their proposals as the each rule was dealt with, as would the ANC proposals.

Rule 107: Notice and Placing of Questions

Rule 107(3)

Ms Michael said it was a good move to have the Member’s digital signature attached to the electronic copy of notice. Things like this become more important with the move into the technological era.

Mr Ndlozi wanted to check whether the rule required both an electronic signature and for the notice to have originated from the Members email address, or either of the requirements.

The Chairperson said the purpose was to ensure proper identification where a Member put forward a question, because a question could embarrass a Member where a question was sent on the MP's behalf without their consent.

Mr Booi said the question must go to the Speaker, rather than the Secretary of Parliament since the Secretary was a functionary of the Office of the Speaker and the Speaker must remain the centre.

Mr Michael Plaatjies, Chief Editor: National Assembly Questions, said questions could now be submitted on any working day, and in practice, this would meant that the cut off day for written questions was Tuesday. Furthermore he pointed out how it would affect questions for oral reply which were scheduled by the Programming Committee, determining the notice period and the deadline for submission.

Ms J Kilian (ANC) said what was previously contemplated was that questions could be submitted even during recess, and it had not been intended that the practice would change. The aim was to expand submissions to any period. The cut of date for the inclusion in the Question Paper would remain. So would the specific programme for the specific ministerial clusters.

Ms S Kalyan (DA) understood the concern of Mr Plaatjies about the deadlines and asked whether ere was something like a question bank, which would allow the question to be preserved to be dealt with when the relevant cluster was scheduled to reply, and then prioritised in the order received.

Mr Plaatjies replied that normally Members may submit three questions for written reply each week. What happened in practice, if a Member's question was split, because it contained two separate ideas, was that there would then be four questions, with the fourth being "banked", in order to be inserted in the Question Paper the following week. The problem was submitting questions for oral reply, where there had not been an oral reply date scheduled, because it was established practice that these questions were submitted on sitting days. If a question for oral reply was submitted long before the cluster was due to reply, the question may be lost. Members might wish to request that a system to track the questions was put in place, which could be done.

The Chairperson said once a principle was agreed upon, then the staff would have to create a mechanism to accommodate the principle.

Mr Ndlozi said there was a substantial difference between the wording of the new draft and the original rule. He wanted to know why the words “unless in a particular case the Speaker directs otherwise” was included.

Ms Michaels suggested that it would be useful to have a computer program which would track the questions, per Member, to see which questions were banked. She said the DA at times submitted an extraordinarily high number of questions and they were at times not answered. Perhaps the programme could be accessible to the political parties’ heads of research.

Mr Mashile said questions were often asked when the issue was in the public arena, but a question may be banked and lose relevance. Where a question did not get put on to the Question Paper, then the mechanism should ensure these were replied to in writing, within a timeframe, to retain relevance. The true concern would be where a question was asked and banked, but might be resolved before it was placed in the Question Paper, yet it was still placed in the Question Paper in the future.

Mr Booi said it was a good idea to have wording included in the Rules to deal with how questions were banked and the details of this should be worked through. Mr Plaatjies had indicated the practice in the Questions Office, however the principle should be agreed that questions were to be banked, taking into account the input of Members thus far. He agreed that the relevance of the question was important and urged that the Member who posed the question should be the one to decide whether the question was still relevant.

Mr Ndlozi said he had thought there was a provision for urgent questions and quipped that perhaps Mr Mashile’s argument should be ‘banked’ until the Committee dealt with that provision. He felt the issue of banking questions should be dealt with under the provision which dealt with the urgency of questions. He again asked for an explanation on what the drafters had in mind with the sentence “unless in a particular case the Speaker directs otherwise”. He felt the phrasing too open ended and this could cause problems.

Mr Plaatjies said the insertion of the sentence was perhaps based on allowing the Speaker to direct that certain public holidays or recess periods may not constitute working days.

Mr Hahndiek said the idea was to allow flexibility, with the Speaker being able to extend the 12pm cut off time. However if the question was totally against the Rules the Speaker would not be able to allow it. On the banking issue, he wanted clarity on the proposed process. Before a day was set for a particular Minister to answer questions, Members could submit questions and therefore these would be banked by the Questions Office. Once the day was set, the questions would be taken out of the bank and were placed on the Question Paper. If, at that point, the question had gone stale, then the Member or party was responsible for withdrawing the question. He therefore questioned whether there was any need to have anything included in the Rules about banking, given the procedure he had just outlined.

Mr Plaatjies said this need not be included in the Rules, and could be dealt with in practice. On the relevance of questions, and something potentially being dealt with as an urgent question, he said if a Member submitted a question and it was banked, then a procedure to make the question urgent was available. On the computer programme suggested by Ms Michaels, he said that presently the Questions Office had a good working relationship with research staff and political parties which worked well, but which could be further streamlined to cater for the results of the present process. 

Ms Kilian, following up on the computer programme, suggested that perhaps the answers could also be captured and made accessible to the Members. This would allow the Members to pose follow up questions. If there was this form of interface Parliament would be much more interactive. She therefore wanted to know if this was possible, and knew that some African parliaments had implemented similar systems. She felt having a real-time interaction with questions and answers would be beneficial. At present Members had to trawl through many emails to find replies and if there were some form of order it would be better.

Mr Ndlozi said flexibility could be catered for in that way and suggested rather that the clause should end after “24 hours”. Phrased this way it opened up the potential not only for flexibility, but also for an abuse. It would be more appropriate to deal with flexibility under the provisions dealing with urgency, with Members being allowed to motivate. If the Speaker was able to determine whether it was acceptable to submit a question outside the time periods, then the rule was limited.

Mr Booi said there should not be a problem with that aspect of the rule, because of the general agreement that the Speaker should be the central authority on questions, rather than the Secretary of the National Assembly.

Mr Mashile said his concern would not be addressed through the urgency provisions, because there may be several urgent questions, resulting in the question still not making it on to the Question Paper. Therefore, it was still possible for stale questions to be asked where they had been banked. 

Mr Hahndiek said his understanding was that once the full number of questions allowed per Member or per Minister had been asked, then the remaining questions automatically became questions for written reply.

Mr Plaatjies said every Member had two questions per question day to a particular Minister and every Minister took a maximum of ten questions. On a Wednesday, after the Question Paper appeared, parties had a chance to prioritise their questions. In this prioritisation process, under rule 108(8), when the maximum number of questions per Minister was reached, the remaining questions would go for written reply. Banking occurred where a Member had submitted the maximum number of questions and one was split, or where a question was previously banked and the Member again submitted two questions.

Mr Ndlozi said if this was the explanation then he was unsure why the use of the bank was being discussed, and this should not be integrated into the Rules.

The Chairperson said the bank was an administrative measure, rather than a rules issue. On the Rules, the point raised by Mr Ndlozi that the rule should end at “24 hours” was agreed to by Mr Booi and he suggested that therefore this should be done.

Mr Mashile said one of the difficulties was that questions were to be allowed to be submitted at any time. The current system only allowed this to be done in anticipation of the particular cluster being called for replies. Therefore, questions may need to be banked awaiting the presence of the relevant cluster. He asked what would happen where a Member had several banked questions and the time for them to be responded to arrived? He thought that the banking system had to cater for which questions would go for oral reply and how Members decided on the questions to go for written reply. This was an administrative matter, which did not need to be dealt with in the Rules, but still needed to be entertained by the Subcommittee to ensure proper management.

Mr Plaatjies said the problem arose from the Rules, rather than the banking system. Rule 107(3) came from the pre-1994 regime and it had not been interrogated fully.

Mr Hahndiek said a system could be worked out, allowing for a Member to submit a question on any day, regardless of the relevant Minister having been scheduled to reply. Members who submitted questions long in advance should be able to electronically view that question, how many questions had already been asked of the particular Minister and whether a date had been set for their replies. The relevant parties could then prioritise the questions themselves. It would therefore be up to the Members to ensure that they did not submit questions willy-nilly.

Mr Plaatjies said it would make more sense for the Members to submit their questions when they knew a relevant date had been scheduled, but the bank option could be created although this would perhaps lead it to losing its relevance. A question banking system was in place already, and it could be fine-tuned to cater for the proposal.

Mr Booi said Mr Plaatjies was muddying the waters, because the authority to determine the relevance of a question would lie with the party, the Member or the Speaker, and not with the Questions Office. The value of Members' questions must be respected and the questions preserved.

Mr Ndlozi said that in a reading of sub-rule (2) with (3), the problem was solved, because where a question was put the Member must indicate the day on which it would be put to the Minister.

The Chairperson said this was an administrative question, more than a Rules question. Furthermore, the suggestion of an electronic system would make it easier to track questions. The good relationship between the Questions Office and the party researchers  would aid in ensuring the system worked.

Rule 107(4)

Ms Kilian said if subrule (6) was looked at with sub-rule(4), there was reference to “the practice”. There were existing guidelines on matters such as questions in the National Assembly Guide to Procedure (Guide to Procedure). The question was whether provision should be made for reference to the guidelines, as adopted by the Rules Committee. She felt this should be considered during the course of discussion of Rule 107. If the practice was looked at, then certain things such as names were excluded from questions and this had been the practice for years. Therefore, perhaps it was time for the guidelines to be adopted by the Rules Committee, so that it was not felt that officials were adjusting questions arbitrarily.

Mr Ndlozi said as he was not aware of the guidelines, he also had a problem with sub-rule (6) where practice was undefined. In his view the Rules should serve to empower Member’s capacity to hold the executive accountable, as far as possible. Therefore, he would not agree, without being aware of the contents of the guidelines.

The Chairperson explained that  the guidelines did not exist and must be worked out by the Rules Committee. Ms Kilian was proposing that use of such guidelines be provided for in the rules, rather than that existing guidelines be applied.

Mr Ndlozi wanted to know whether this meant that the as-yet-unknown guidelines would be provided for in the Rules.

The Chairperson replied that the guidelines would be created by the Rules Committee and if the Subcommittee was tasked with debating the guidelines, proposals may be made. The key principle was that holding the executive to account should be enabled as far as possible.

Mr Ndlozi proposed making a note, rather than amending the Rules, because if the Rules were completed and in force and there were no guidelines, then a problem would be created.

Mr Mashile said the guidelines proposed should be catered for in the Rules, particularly as if they were merely noted, then a further amendment to the rules would be required to accommodate the guidelines. Therefore, a provision should be put in, requiring the production of such guidelines so that when they were developed this was done with reference to a particular rule. Similar to what had been debated relating to the dress code, the detail of the requirements should be contained in an attached document. It had been agreed that there should be guidelines, and therefore an empowering provision was required, to obviate the need for further amendments to the Rules.

Mr Ndlozi said he was still not convinced that there was a need for the Rules to be supplemented with guidelines, particularly as it seemed that the guidelines would apply equally to Rules in the regulatory hierarchy. Perhaps the Subcommittee had already had this discussion, but he had not been party to it. He wondered what the authority was, if a Rule applied subject to a guideline?

Mr Hahndiek said the idea of guidelines was that they should include the kinds of levels of detail that would, if inserted in the Rules themselves, be cumbersome, similar to how regulations were made under legislation. It would be easier to change these guidelines in response to changing conditions if it was approved of by the Rules Committee, rather than requiring an amendment to the Rules by House approval. He suggested that changing the wording to “subject to any guidelines which may be approved by the Rules Committee” would be better, because then guidelines would not necessarily have be created in advance. 

Mr Plaatjies said the Gauteng Provincial Legislature had very successfully integrated its guidelines into that provincial House's rules.

Mr Perran Hahndiek, Committee Secretary, said part of the challenge of what Mr Ndlozi was raising was that the Subcommittee had been grappling with incorporating past practice into the Rules. If the Rules were passed without any guidelines, then when implementing the Rules, the Questions Office would have no guidance or practice to rely upon, as it had been done for 20 years if not longer. Therefore, some form of convention was needed. The current practices needed to be looked at, to see what could be incorporated into the Rules, and the previous task team had done that to some extent.

Mr Ndlozi said he was more comfortable with that approach, and the Rules should be made as workable as possible without too many supplementary documents. In terms of this rule, he was unsure what a guideline would actually add, seeing as the provision was so clear referring to other rules. He urged that Mr Perran Hahndiek’s proposal be considered and that the Subcommittee should looks into incorporating as much of the past practice as possible into the Rules.

The Chairperson said even if the approach of the Gauteng Provincial Legislature, as raised by Mr Plaatjies was adopted, the established practice must be simplified as much as possible. The staff of Parliament would require guidelines regarding questions and other matters. Therefore, guidelines would have to be decided upon by the Rules Committee, partially to make sure staff were assisted and partially because guidelines existed presently. Mr Ndlozi’s point could be catered for by accepting that guidelines were necessary, but as far as possible the Rules should be implementable and clear.

Ms Kilian said that the phraseology suggested by Mr Hahndiek of "guidelines as may be approved by the Rules Committee" would cover the concern of Mr Ndlozi. The earlier Chapters did indicate the hierarchy of the Rules and guidelines were there to give information to Members.

Mr Ndlozi said if there was a rule in an earlier chapter providing for guidelines, then it was unnecessary to repeat the need for guidelines for specific rules and certainly this rule does not need a guideline, as it was clear.

The Chairperson confirmed that there were guidelines on matters already and what needed to be done was for them to be assessed and adopted by the Rules Committee. The point was that, where applicable, the guidelines should be incorporated into the Rules, but not all the guidelines could be accommodated in the Rules and therefore there was still a need for them. The critical guidelines could be included and where this was not possible, they remained in the guidelines.

Rule 107(6)

Mr Ndlozi wanted a sense of what the purpose of this rule was and whether, considering the rest of the amendments, it was still necessary?

Mr Hahndiek said the Speaker was to approve questions, and where a question offended against the Rules, contained unparliamentary language, or was directed at the wrong Minister, it would be disallowed. There were several practical things which the Questions Office had to consider. It was accepted that some Members may not know the finer details and the Questions Office was there to assist, even with the drafting of the question itself. By tightening up the questions, the Questions Office could assist Members in getting the answer they sought. There were also several aspects which may make a question unacceptable, and this Rule enabled there to be a vetting process. 

Ms Michaels said a fail-safe principle was that questions should not be changed to change the political essence of the question and should only deal with grammatical or structural concerns. The safety net was in the note, where it was emphasised that the extent of correction should be matters of grammar and language corrections, but should not extend to political substance or nuance. In her party's experience the Questions Office did not change the question, but would rather refer the question back to the party which would then alter it, as a party. 

Mr Ndlozi said if there was a practice in place in line with the note, then the Rule should be improved to reflect the position of the note. He said he did not have to indicate to Members that there was a “deep existential distrust on our part” and therefore if the Speaker was brought in too much it would be a problem. If the aim was to avoid grammatical errors, then this should be reflected in the guidelines or rule itself. However, the current wording of the Rule read: “If a notice offends against practice or these Rules the Speaker may either amend or return it to the member who submitted it”. He agreed that unparliamentary language should not be allowed in general, and if that was what was meant, then it should be said. However he felt the rule did not state this at present.

Mr Mashile said the rule was accommodative and the Speaker had the authority in the administration of the National Assembly. The administrative staff were working on behalf of the Speaker and they would be accountable. Where amendments removing names were done then it was part of an administrative process on behalf of the Speaker. There would never have been an intent to change the political essence of the question.  This was aimed at helping Members to ensure their questions were in order and maximise the response received.  He therefore did not see the problem with the Rule.

The Chairperson said Members should try and persuade each other in reaching understanding. Mr Ndlozi was not present when these matters were raised and he felt that exchanges should be aimed at Members persuading other parties, and taking back to their own, the final position of the Subcommittee.

Mr Booi said it had been emphasised that the rules were not being reviewed because of any political party and the process had been under way for some time. The purpose was to build a better future for Parliament. Therefore, it was not helpful to use the EFF’s present subjective view of the Speaker, and where "the Speaker" was mentioned it was referring to the broader "Office of the Speaker". He urged that all Members bear in mind that they were trying to fix rules that would enhance the running and image of Parliament. In the fifth term of Parliament it had been alleged that the ANC cannot run Parliament. However, it should be clear that where the Speaker was referred to it was not to the current Speaker. The Speaker might change, but  the point was that the Rules would have to last.

Ms Kilian said she had anticipated that there might be some discomfort with the mention of “practice” in sub-rule (6), and that she had raised the proposed amendment to a reference to the guidelines. She appreciated the position of Mr Ndlozi, because she had herself first come into Parliament as an opposition Member and did not understand why certain things operated the way they did. In the previous Subcommittee it had been argued that it was unfair that new Members received so little information and that everything should be contained in the Rules; informing Members of certain conventions. What could be done was that the concerns should be noted, and looked at in light of the proposal, to have a transparent process towards adopting guidelines. She agreed with the point that the Rules did not intend to specify the current Speaker, but it was the Office of the Speaker which had this responsibility, executed by the Questions Office, which worked from the Guidelines for procedure.

The Chairperson said note (2) of the Draft Rules clarified the issue, because it suggested changing "practice" to "guidelines". This was supported by the ANC proposal.

Mr Ndlozi said he had listened to the explanations but the explanations of what the rule should achieve were still not clear. If the rule was supposed to deal with the offensive language or grammar of a question, then this was what it should say. He was less concerned about practice versus guideline, than with the result of offending against the practice or guidelines. He would ask for the rule to be amended. He proposed changing "offence" to "contravene" - particularly as offensive and unparliamentary language was dealt with in the guidelines. Secondly, he questioned what the Speaker was doing under the Rule, if not approving of questions.  He submitted that this was an incorrect position, because Members had the right to ask questions. If the purpose was to exclude grammatically incorrect or questions containing offensive language then there was still no need for the Speaker, as the rule could simply bar such questions. On the other hand, if the purpose was to have the Speaker approve the questions, then he felt there was a fundamental difference in approach which should be thoroughly debated.

Mr Hahndiek said the intent had always been that the Speaker would disallow questions on technical grounds. If the Speaker were to attempt to amend a question because it was embarrassing, then the Member would have strong grounds to bring the matter to the House and express serious concern about improper action on behalf of the Speaker.

Mr Ndlozi said the language of "approval" should not be used, because Members had a right to ask questions.

ANC Proposal on Rule 107

Ms Kilian said there was an ANC proposal that questions to any Minister must be restricted to their national line function responsibilities. The ANC argued that this should now be included as a definite rule, although this had been the common understanding to date. Furthermore, perhaps sub-rules (6) and (7) should consequently be swapped around.

Ms Michael said, in light of experience in the House, that this should apply in reverse also and restrict Ministers to answering questions within their line functions. Where the Minister and Deputy Minister were absent and the answering Minister was provided with a written response, then it may be acceptable for that Minister to answer. However, for the Minister or Deputy Minister to try to avoid embarrassment by not being present and having another Minister answer on their behalf was unacceptable.

Mr Ndlozi said the practice. as he had seen it, was that some Ministers would reply to Members’ statements on a wide variety of issues. Perhaps this was because they did not had a problem with defending the agenda of Cabinet, or because they had particular knowledge from their clusters. However, it seemed to him that this was a substantially different concern to questions being put by Members.  He wanted to know what the proposal of the ANC proposed in terms of the content of the new sub-rule. He also wanted to know what the restriction to questions dealing with the Minister’s national line function entailed. Did it mean that where a matter fell within the line function, but was handled at a municipal level, the Minister would not be accountable for that? There may be too much restriction on the scope of the questions, by saying the “national line function”, as questions and answers could bring about creative solutions to the problems facing the country. He was concerned that this wording could allow Ministers to shed responsibility because the matter was dealt with at a lower level, and it would take away the opportunity for Ministers to express themselves on how matters should be dealt with below national level.

Ms Kilian said the proposal only captured what was stated on page 195 of the Guide to Procedure, which was the scope of questions to Ministers. Ministers were assigned specific responsibilities by proclamation under the Constitution. Insofar as ministerial accountability for municipalities was concerned, she pointed out that under Chapter 3 of the Constitution the Minister would have certain responsibilities over local government, but this was limited. Therefore, the proposal made it clear that it was only the specific national line functions assigned to the Minister that could be questioned. Page 195 could also be helpful in drafting guidelines, because it included several practical exclusions.

Mr Mashile said Ministers were clustered and at times Ministers responded on the basis of knowledge gained through the cluster. When a Member writes a question to a specific Minister, it should primarily  be directed at the line function of the Minister. However, if the particular Minister was absent then another Minister in the cluster, or who had direct knowledge of that portfolio, should be allowed to respond. This did not remove the right of the Member to pose a further question to the direct Minister.

Mr Booi said it must be clear that each Minister was responsible for his or her line function and must answer to it. If the question of clusters was to be opened, then a proper debate must be had. The Constitution provided for specified responsibilities to a particular Minister and the Rules must follow the Constitution. Replies from clusters had arisen as a practice, and the clusters had a more managerial function, but there would still be someone who was responsible for that function and that specific person must answer.

Mr Ndlozi said if the proposal was about the elevation of page 195 of the Guide to Procedure then the correct language should be used, of “officially responsible”, rather than “line function”. This had more weight and was less limiting than line function.

Ms Kalyan said she had no problem with the recommendation, but there were mechanisms in place to screen whether the question was appropriate on the side of the administration. Using line function was too restrictive, because for example responsibility under the Child Justice Act did not only lie primarily with the Minister of Justice and Constitutional Development, as there was also a Department of Social Development component. This proposal was therefore too prescriptive and it would not be giving the Members and administration enough credit to properly direct the questions. It really came down to what should be in the Guidelines and the Rules, and the Subcommittee should guard against being too prescriptive in the Rules.

The Chairperson said "official responsibility" was broader and this could be included in the rules.

ANC Proposal on Rule 107A

Ms Kilian said the Subcommittee had proposed a new rule, elevating rule 316(2), with specific reference to outstanding replies to questions, and this would give a 20 day period after the end of an annual session before they lapsed. The ANC proposal was that the lapsing should be the same as under rule 316.

The Chairperson clarified that the ANC proposal simply removed the 20 day period.

Mr Hahndiek said this meant in practice that the last time that questions could be received for written reply would be several days before the last sitting of the National Assembly. 

Mr Plaatjies said currently there was no provision for a cut off for questions being received, because questions would usually be taken right until the last session of the National Assembly. A question paper would be published in the last week of the annual session, but these must still be replied to, therefore there was a practical problem. If the questions lapsed after the last sitting, then Ministers would not have had an opportunity to reply and this would be recorded as the Ministers having not replied. Therefore, the Subcommittee’s proposal of 20 working days was more practical.

Mr Mashile said the administration should create a system which catered for the ANC proposal. If a notice was going to be issued that the last day for receiving questions would be x date, whatever that might be receive replies, then it should be done. This would then be a purely administrative matter and the staff should be able to deal with it.

Ms Kalyan disagreed that it was an administrative matter, because any MP was was entitled to submit questions for written reply up until the last sitting day. Oral questions would be determined by the programme and cannot be changed. She felt that Mr Plaatjies' suggestion was practical, and that it would be a good safety mechanism to retain the 20 day leeway, allowing the Ministers to complete their work.

Mr Ndlozi said he felt the provision as proposed by the Subcommittee worked well, and the 20 day period should be retained.

The Chairperson said if the ANC Members were happy with the proposal of the Subcommittee, then the Subcommittee could move forward.

Mr Mashile said if all questions were included, according to the Question Paper, and this was also inclusive of questions for oral reply, then he wanted to know how would it work.

Mr Hahndiek said his understanding was that questions for oral reply which had not been responded to, on the last sitting day, became questions for written response.

Mr Plaatjies agreed that where an oral question had not been replied to by the last sitting day, then written responses must be provided before the question lapsed. Under rule 114(1) and (2), there was a determination that where questions for oral reply had not been answered within the allotted time, they must then be answered in writing. If the question were to lapse, the Member would have the option of resubmitting it in the new session.

The Chairperson said it must be remembered that the executive did not dissolve until a new executive took over. Sufficient time needed to be given to Ministers to answer the questions, and therefore 20 days was useful.

Ms Kilian said rule 316(2) dealt with questions around the lapsing of annual business at the end of term, and asked whether a similar extension should also be made there, precisely because Cabinet does not dissolve, and the questions needed to be answered.

Mr Hahndiek said rule 107A was specifically about the close of an annual session, while rule 316(2) dealt with the end of a five year term.  Rule 316(2) dealt with all business and there would be a vacuum for receiving replies if this was not specifically dealt with.

ANC Submission on Rule 107B

Ms Kilian said that the monitoring of the replies in the past had been done by whips and Members themselves, and at times documents were submitted to the Rules Committee. The ANC proposal was that if monitoring was taking place, the information should be shared with the Leader of Government Business (LGB), because that was the link.

Mr Mashile asked what the phrase “in consultation with the Rules Committee” meant and whether it was not supposed to be “after consultation with”.

Mr Booi said it was "in consultation with", because the Rules Committee was above the Speaker and therefore they would have to work together in making the decision.

Ms Kilian clarified the ANC's position, saying that the proposal was that the present rule 107B should become 107B(1) and a new sub-rule (2) was inserted making reference to the LGB being given information on any steps taken against a member of the executive, under rules 114 to 117. If the question of clusters was to be opened then a proper debate must be had.

Rule 108: Form and Arrangement of Questions

Rule 108(2)

Mr Hahndiek said there were not many changes to be considered under rule 108, until sub-rule (10), where a provision for taking charge of a question on behalf of an absent Member had been rephrased.

Mr Ndlozi disagreed, and said he wanted to speak to sub-rule (2) and register the EFF’s disagreement with the reduction of the subdivisions of the answers, from five to two. Five was an adequate number and in practice Ministers were doing well. The subdivisions did not mean more questions, rather they elaborated on the question, which may reduce the scope of the answer. The note to the amendment sought to bring clarity to the question and therefore it would be better served by a question with five subdivisions. As long as it was truly an elaborative subdivision, then the precision and clarity of the question was enhanced, allowing the Minister to focus. Keeping the question in broad terms may result in the Minister not replying properly to the question.

Mr Mashile said the more subdivisions there were, the broader the question would become, and therefore the more time would be required to answer the question. To deal with several subdivisions would require brief answers, to stay within the time limits.  A more problematic issue was the follow up questions, because there may be a problem if the scope for follow up questions was so limited that Ministers could anticipate on the spot questions and prepare processed answers.

Ms Kilian said that in a previous session a breakdown was given of how many questions the National Assembly was dealing with, as opposed to other assemblies. It was questioned why there were so many questions being processed, but not enough being gone through, and it was possible that the cause could be too many subdivisions with Ministers answering at length. The Subcommittee had been of the view that the questions should be shortened and sharpened, to ensure more people had a bite at the cherry, and more questions were processed. This was geared to having a more vibrant debate and more interesting responses in the National Assembly.

Ms Michael agreed with the proposed amendment and the clarity on the types of time extensions that were being mooted, because questions were not answered according to a Ministry, but according to a cluster. For robust engagement, the extension time for questions was important and therefore she did not understand why, on question days, Parliament started at 3pm instead of 2pm. While she understood that Ministers had Cabinet meetings on those days, surely it should not be a problem, if a Minister was in the cluster under inspection, for that Minister to be excused from the Cabinet meeting. This would give even more bites at the cherry, especially if the proposal of two subdivisions was retained.

Mr Ndlozi said the proposal did not resolve the problem, because if time was the problem then time should be extended. The proposed rules extended question time from two to three hours, and there was also a provision which allowed the Speaker to extend the response time past three minutes. The question of time management must be separated from the question of how qualitatively a question could be put. Limiting the question to two subdivisions did not resolve the quantity of the response, and five divisions could improve the quality of the question, leading to it being answered more speedily. He would urge that the Rules should not restrict Members or the discourse in the House.

Ms Michael agreed that substance and quality were more important than the quantity. However, Members were at times frustrated by simple one-word answers and it was important to ensure that the Ministers were obliged to give quality answers.

Mr Hahndiek said his understanding was that the questions should be more political, than statistical or factual, which would allow the Minister to readily reply. The problem was that too many questions remained unanswered for too long, because there was too much work needed in compiling the answer. Therefore, the aim was to make the questions punchier and encourage a flowing political debate.

The Chairperson said a question for information should be for written response. The idea with oral questions was to facilitate short and precise political engagement. Where a question had many subdivisions the Minister spent time answering the specifics, and this may lose the political essence of the answer sought.

Mr Ndlozi argued that the objective was not lost with five subdivisions. As long as it was understood that a subdivision was part of the original question and subdivisions were aimed at guiding the Minister to a specific answer five subdivisions should be fine. He also did not agree that information was not political - for example the Minister of Higher Education and Training was asked, during the budget vote, how many students were planned to be in university. The questions were submitted beforehand, and therefore the Minister should be prepared. It was important to answer this question to allow for the discourse in the House and for public information and accountability. Accountability should not be limited to "why", because the "how" and "what" were also important. Limiting the subdivisions to two could lead to the position where questions were answered too broadly.

Ms Kalyan said a five part question tended to become diluted, politically, and if the aim was to have more questions answered, then limiting the subdivisions would be useful. If there were three follow ups then the Minister would be able to get through more questions. A five part question was giving the Minister too much space to manoeuvre, whereas a short, sharp question would not only hold the Minister to account, but also allow each Minister to get through more questions.

Mr Ndlozi asked whether he was correct in understanding the rule as not dealing with subdivisions in oral follow ups, rather it was about subdivisions in the original question for oral reply. This question would be submitted in writing and the follow up would relate to the reply received.

The Chairperson responded that he was correct.

Mr Mashile said if the time was available for Ministers to reply to endless subdivisions then more qualitative information would be provided, but this would necessarily consume more time. If the question was sharp and focused, with only two subdivisions, then the Minister could spend a minute or two on each aspect. As more subdivisions would spilt the time further, the quality and clarity of the answer may suffer.  He felt he had made the point, but repeated that the more subdivisions there were, the wider the scope of the answer had to be. When follow up questions came then they fell within this wider scope and therefore the quality of response to those on-the-spot questions would similarly suffer. It was in the interests of Members to receive properly prepared  and fully processed answers. rather than receiving a partly prepared question, which may require further follow ups which were unavailable.

The Chairperson said he felt the point had been made to Mr Ndlozi that the number of subdivisions affected the time for responses. The time for oral follow up questions was also important, as this time was the really interesting part of questions, because whereas the initial response was written and prepared, the unprepared answers from sharp, focused political questions would spark a vibrant oral engagement in the House. As the initial response was written, and the Minister would generally read it out, having five subdivisions would lengthen this process too. This would cost the Members the follow up political engagement and result in more of a written response, which was already available to Members through the procedure for written questions. This would not disadvantage any Members, as the consideration was robust oral engagement in the interest of executive accountability.

Mr Ndlozi said the problem would be resolved through time allocation. Limiting the language would not do this. The rule should be that, regardless of the nature of the question, the Minister had the same amount of time to answer. The issue of time constraints was dealt with through the later proposals. Members should be allowed to phrase their questions in the manner they wished, and should not, as far as possible, be restricted in doing so.

 

Mr Booi said the understanding was that as the questions were directed towards a cluster, there was a possibility of having various components of the cluster engaged by the various subdivisions. It was about what Members wanted the Minister to explain to society, as the public must also learn something, and this was aided by concise questions. If the time was geared more towards Members engaging with Ministers, then society would lose out on answers and understanding. Otherwise, opposition Members would miss the chance to have the Ministers be held truly publicly accountable. Parliament’s main role was to find answers for society, and society does not benefit from engagements solely between the Member and the Minister. The principle was to make the oral reply sessions more broadly accessible.

Mr Ndlozi said the explanations provided by the Members were all based on considerations of time. He therefore proposed stating that the subdivisions must be related and not diverge from the initial question. Whatever the number of subdivisions, the Minister’s reply time would be restricted to three minutes. The person who posed the question must be mindful of the time limit on the Minister’s reply, and it could assist the preciseness of the question to have five subdivisions.

Ms Kilian said that in essence an oral question was not for information; it was an opportunity for political interaction, because the Member would already have the answer. The purpose was to press the Minister and compel him to give answers that would spark debate. The Guide on Procedure presently stipulated five subdivisions, but there was a restriction that not more than two of these could contain figures. The Minister was given only three minutes, and had to cover all the requested information. If the Minister did not manage this, then the Member could argue that the Minister had not answered a subdivision. The purpose of an oral session must be agreed upon. It was supposed to be a quick engagement between the Members and the executive. This had been identified as an existing problem, demonstrated by the sub-optimal media coverage, which was the result of the lackadaisical nature of the interaction. The supplementary questions by other parties were then supposed to elucidate on the issues raised in the reply.

The Chairperson said there was general agreement and the meeting should proceed.

Rule108(3)

Mr Ndlozi said this again was an “anti-academic demonisation of statistics, that it falls outside the realm of what could be political”. He urged that all questions with statistical requirements were non-political. The statistical limitations in both the old and new rules was "anti-questions". Part of accountability had to do with teasing out whether the Ministers fully understood what they were dealing with. At times, questions were aimed at exposing the fact that Ministers were not truly taking their jobs seriously, and demonstrating whether they were doing so was regarded as political. Statistical information should not be relegated to the realm of chiefs of staff and the like. He proposed that the new Rules should not be too prescriptive, particularly as the questions were being thoroughly processed by the Speaker’s functionaries.

Mr Hahndiek said the concern was that the replies were statistical and it would be difficult for Ministers to read out columns of figures. There were times when Ministers would ask to table their figures, rather than read them out, which excluded follow up questions. His opinion was that the concern related more to the reply than the question.

Mr Mashile said there was not a suggestion that statistics were not political. The concern was that the notice period for oral questions may be restrictive, and statistical information may need to be collected from different centres around the country. Therefore, demanding an oral response within the timeframe was difficult. There should be a reasonable time for the reply to be compiled, which begged for some sort of consideration. The question was not whether statistics were political, but rather the consideration should be that collecting data from departmental structures and processing it would take time, at the national level, before it could be submitted to the Ministry. 

Mr Perran Hahndiek said the problem came in with the question of degree, because the way the rule was phrased excluded all forms of statistics, even if this could be a simple single figure answer. He suggested qualifying the matter, by saying "of a highly or technical statistical nature". Barring all statistics was too simplistic a response.

Mr Booi said a compromise was needed. He disagreed with Mr Mashile that the main concern was time for preparation, as the Ministry must prepare as far as possible. He felt the compromise could be found in having an intervention by the Speaker where a Member raised new statistical demands which would leave the Minister unprepared. If the question was something which the Members had laid within the notice period, then it would not be a problem for the Ministry to acquire the information. He was concerned about finding a balance in the House. He agreed with Mr Ndlozi that the intervention by the Speaker had to be guided by a broader frame, instead of barring all statistical questions. The Speaker needed to be mindful where Members were asking for statistical information beyond what the Minister had prepared. He also agreed with Mr Perran Hahndiek’s suggestion that the intervention be allowed where the question was of a highly statistical nature. It should not be assumed that the Minister would not be able to acquire the information, as this would be a dereliction of duty.

Mr Plaatjies said the Questions Office had allowed statistical question, as guided by the Guide on Procedure, which indicated, on page 199, that only two statistics may be requested in a question. A statistical question would be one where more than two figures were asked for, which was where the limit was placed. It was a concern in several Parliaments that the reading out of statistics was not always followed, leading to follow up questions being misdirected. This was why statistical replies should be avoided, as they were more suited to being the subject of questions for written reply. 

Mr Mashile said his understanding was that this sub-rule was applicable to the drafting of the question paper, rather than to follow up questions. Where a response required a table of statistics, then the problem of the time for compiling data did arise. Therefore, he would like to know when the sub-rule applied.

The Chairperson said Mr Mashile’s understanding was correct.

Mr Ndlozi said he also understood it the same way and would be reconciled if the rule were to have a reference to "highly statistical". It was dangerous for Ministers to be allowed to give a statistical answer, because there was no rule saying they must give political replies and particularly when there was a rule restricting Members, who ought to be protected by the Rules. He understood that Ministers going on “statistical rampages” should be avoided, but at the same time overly restricting this was improper where statistics could help arm the Members in holding the Ministers accountable.

The Chairperson said it was agreed and it would be left up to the drafters to craft a provision that encompassed all these points.

Note on Rule 108(6)

Mr Hahndiek said an option was flagged, for a provision to be included allowing Members to be able to put questions without notice. The suggestion was for the Rules Committee to consider in the course of time. It would operate in the same manner as Members' statements and there would be no follow up questions. Further, he said that this would add to a vibrant Parliament.

Ms Kilian said the rules should be processed, and the issue could be raised in the future.

Ms Kalyan agreed, because there was no precedent and it needed to be thought through.

Mr Plaatjies said rule 107(1) had always been in the Rules. It provided for the Speaker to consent to notice not being given. In his experience, two questions had been asked in this manner, although they were published the day before the reply. In 1994, former President Nelson Mandela was subjected to questions without notice. However, it had not been used since then.

Mr Ndlozi said he was glad the historic perspective had been raised, because this was not new. The proposal was, however, progressive and could deal with other concerns around other sub-rules. Questions without notice provided for a more vibrant engagement and very authentic conversations. He would propose that a specific rule be created, because it was the most innovative and progressive proposal. Perhaps the rule could stipulate that there would be two sessions where questions without notice were asked. He proposed drafting the provision himself, because it would not be a lot of work. 

Mr Booi agreed with the justification in the note that it would create a more vibrant Parliament and that the practice of lengthy notice periods was inherited in 1994. He added that Members should be in a position to ask difficult questions, and this may allow for constituency based questions to be asked. It connected Parliament to what was happening on the ground, and Ministers ought to be encouraged know what was going on in society and their Departments. He would ask that the rule be crafted properly, to allow everyone to benefit.  He encouraged that it should indeed be developed, because the Rules were being reviewed based on past experience and to better enable Parliament to look into the problems affecting society.            

Ms Michael added, while the Committee was on the topic of spontaneous questioning, that in other parliaments there were back-bencher snap debates, often following question and answer session. This entailed a back-bencher standing up and saying to the Speaker of the House that for the rest of the session, a specific topic should be discussed. This could also be an option to introduce after question and answer sessions, and could be that on a rotational basis, the party selecting the topic would know what it was. This would help bring true democracy into Parliament.

The Chairperson said the subcommittee had proposed that such an opportunity should be provided, twice a year, particularly as there were now mini-plenaries to debate a variety of issues. This should also be balanced with the new programme, focusing more on constituencies. He said Mr Ndlozi and Mr Hahndiek should have a look at drafting such a provision. It was necessary to avoid a situation where Ministers could behave as if they did not have to account to Parliament, because they were capable of accounting.

Mr Hahndiek said there were two underlying principles. Firstly, if a question about a constituency was asked, the Minister cannot be expected to know the answer off-hand. The questions would therefore have to be of a broad political nature, relating to the responsibilities of the Minister. Secondly, the benefit was that Ministers would be encouraged to have a greater interest in the issues affecting their Department, to find out what should be expected.

Mr Booi said that all MPs were active politicians and they should know what was going on in society. Ministers should not be patronised, and their ability to answer the questions must be trusted. If a particular Minister was unable to answer, then any Minister who was able to answer should do so. Parliament must achieve its oversight by keeping Ministers strictly to account, and accommodate societies' questions. This approach was very valuable.

The Chairperson said it was understood that the proposal built on an existing provision, and the team should work on a provision to be presented the following day.

Mr Ndlozi said the only people who were able to engage Ministers on this level at present were journalists, and therefore all that was being done was to make it an integrated part of the practice within the official space of Parliament.

Clause 108(9)

Mr Ndlozi asked for an explanation on the reason for the proposed change from the Chief Whips Forum (CWF) to the Rules Committee.

Mr Plaatjies said the reason was that the CWF was not a decision making body and therefore it was agreed that this matter should be referred to the Rules Committee which had the capacity to decide.

The Chairperson agreed that the CWF was for consultation, and if the Rules Committee could be persuaded on the points, then it would adopt the proposed order in which Members of various parties were to put forward questions. The decision would not be able to be made without consultation with the Chief Whips, but he stressed again that the CWF was not a decision making body.

Mr Booi said the deletion was also appropriate because the Rules Committee was more suited to official decisions like the order of questions, while the CWF was a forum for political discussion.

Mr Ndlozi disagreed and said that a determination of the sequence for asking questions was more appropriate for a political forum such as the CWF, because if the decision lay with the Rules Committee then there would be imposition, rather than consensus. He felt the wisdom of the rule was that interruption of the sequence should be a political decision, in a forum where parties did not vote.

Mr Hahndiek said all sequencing issues were dealt with by the Rules Committee, and it could redo this exercise from time to time. The sequencing of questions to the President was also done by the Rules Committee. The sequencing was dependent on a formula which in turn used the relative party sizes. 

The Chairperson said it should be accepted that the change in the rule was based on the principle that the CWF was not a decision making body. Chief Whips sat on the Rules Committee regardless, and therefore there would still be an opportunity to reach consensus in the CWF.  In addition, there was the potential for the CWF to be reworked, because there had been complaints that it had become an unwieldy body with too many people present, and there was a need for political leadership to meet each other on an informal scale to iron out issues. 

Rule 108(10)

Mr Booi asked what this rule meant for one-member parties, because whilst it may be easy for the ANC to have enough MP representatives to assist absent Members, this was not so for smaller parties. One-member parties should not be disadvantaged merely because they could not have a representative in the House on the day. As there was nothing in the Rules that indicated that one party was allowed to represent another, he asked for clarity on the implications.

Mr Hahndiek said as the rule stood it did not stipulate that only another Member of the same party could represent an absent Member. If the absent Member were to engage a Member of a different party to represent him or her, this would not be against the Rules.

Ms Kalyan said smaller parties were clustered and they had a whip. If a Member was absent then the whip would delegate the matter to another Member.

Mr Mashile said Mr Booi’s question remained - what would happen where a Member under whose name a question had been asked was absent, and had not mandated a representative? The procedure in the National Council of Provinces (NCOP) was that where a Member was absent the Minister was not mandated to answer the question, and the question therefore would stand over. He asked if a similar procedure would be applied in such a case in the NA?

Mr Ndlozi agreed that the rule being non-partisan answered Mr Booi’s concern and agreed that Mr Mashile’s point raised a good question. In principle, once something appeared on the Question Paper it was owned by the House collectively, similar to motions. The rule said it should be "timeously" dealt with, but this could be minutes before the session . He thought the spirit of the rule indicated that where a Member had not nominated a representative, s/he would simply lose their right to pose the first follow up question. He worried whether the Rule ought to be clarified in this way, because he was concerned that in the future it may be misinterpreted to mean that if the Member was absent then the question was not answered.

Mr Plaatjies said Mr Ndlozi’s proposal was sound, because in the past, if a Member was absent then the practice was for the Minister not to answer the question. However, later the practice changed to have the Minister's answer and other Members would then take the follow up questions.

The Chairperson said the rule had been there, and regardless of whether the Member was present the question must still be answered. The Minister was, after all, accountable to the House as a whole and other Members should not be deprived of their right to make follow up questions simply because the Member asking the question was absent.

Rule 109: Questions to Ministers

Rule 109(1)

Mr Ndlozi said he was not comfortable with the ‘lynching’ of the CWF, because here the grouping of clusters could be done in consultation with the CWF. He accepted the change from three clusters of portfolios, because he assumed the Rules had originally contemplated a more spendthrift government which limited the extent of the Cabinet.  He felt that the rule could state that this be done "in consultation with" the CWF, rather than completely doing away with it. The interrogation of clusters should not be between the Rules Committee and the LGB. He thought the rule gave scope for Parliament to re-imagine how the various portfolios ought to be clustered for accountability purposes. He felt this decision should be with the CWF, because this was more appropriate, and would even allow enough flexibility to re-cluster portfolios, unless his understanding of the rule was flawed, because he felt the rule did not necessarily evoke the decided clustering of Cabinet and should be interpreted as allowing Parliament to determine its own cluster structure for accountability.

Mr Booi said the CWF was important, because this was the only forum where the Members reached out to each other politically in times of crisis. When there was a political clash, then it was the body where a solution was found. Therefore, transferring an administrative concern away from the CWF should not be an issue, because it should not become a parliamentary administrator. To pit the CWF against the Speaker on decisions around scheduling would not be wise, and the CWF should be allowed to make political decisions. He did, however, agree with Mr Ndlozi’s view on clusters.

Mr Plaatjies said it would do no harm to say "after consultation with" the CWF and the LGB, because this would give them the opportunity to play that role.

The Chairperson said that generally the Chief Whips of parties sat on the Rules Committee and therefore it would be "after consultation with" themselves.  He felt the CWF was a political management structure and it should have the time to deal with such issues. However, he felt no harm would be done by stating "after consultation with the CWF".

Mr Mashile cautioned that bringing in the requirement of after consultation was introducing a lag in the process, because the CWF would have to meet and decide before the Rules Committee could act. He agreed that it would effectively be consultation with themselves, which did not make sense.

The Chairperson replied that the point was that, structurally, there was a CWF, which was established in terms of parliamentary processes. It would do no harm to consult it, but this was limited to this specific area.

Mr Ndlozi said that, as he read it, the purpose of the rule was not to have Cabinet dictate the cluster structure to Parliament, but rather to allow it to do this itself. It would therefore be acceptable to remove consultation with the Leader of Government Business, and it would be fine if the Rules Committee, comprising of Chief Whips, made the decision.

The Chairperson agreed and said consultation can happen informally regardless of what was in the Rules.

Mr Booi also agreed, because this consolidated Parliamentary independence, which was in line with the Constitution.

ANC Proposal on Rule 109(2A)

Ms Kilian said the proposal entailed a Minister authorising his or her deputy or another Cabinet member to reply to a question which had been directed at the individual Minister. Sub-rule (3) indicated that another Minister may act where the Minister at whom the question was directed was absent. However, the proposal would allow the Minister being questioned to defer regardless of their presence in the House. She wanted to discuss how this would be inserted. At times, Deputy Ministers were delegated certain functions within a ministry and, being more practically involved in certain aspects, a Minister may feel the Deputy was better suited to answer a particular question. This situation differed from where the Minister was absent.

Mr Hahndiek said the issue was whether Ministers had the prerogative to delegate the answering of a question to their deputies or whether it would be obligatory for the Minister to answer the question if s/he was present.

Mr Booi agreed that Deputy Ministers were increasingly being given certain responsibilities and the Constitution allowed for this. Therefore, if they had been given responsibilities, then it was in the public interest that they answer questions.

Ms Michael said her concern about the Deputy Ministers was that they were not Members of Cabinet and therefore did not sit in on Cabinet meetings. Too often, questions were half answered, because the Deputy Ministers had not sat in on the Cabinet meeting. It was said in jest that then it would even be possible that a Director-General could be called to answer as this official might know more. While she understood that there may be reasons for Ministers to be absent, the fact was that Deputy Ministers were not Cabinet Members and therefore Cabinet was not being properly held to account by their replies.

Mr Ndlozi agreed, and the point was how the system was to function. If the Minister was available, that person must be held to the duty to account. It had been said that the meetings were supposed to be political engagements and Deputy Ministers did not sit in the forum where the executive political discussions happened. He proposed that this proposal was not included. If the Minister was absent then the Deputy Minister could speak, but if the Minister was present, then that person must speak. Parliament was a senior structure and should be understood as such.  The Minister of Justice and Constitutional Development often walked out of the House, to allow his Deputy Minister to speak. This was not correct and it gave a bad political image of both Parliament and Cabinet.

Mr Mashile said Members were becoming petty about issues, because in the first instance they were Deputy Ministers, so they were allowed to perform certain functions on behalf of the Ministers and they were not questioned on that point. If the Minister had not had a full briefing about something, and was confident that the Deputy was better placed to answer the question, he saw nothing wrong with allowing the Deputy Minister to give the House a quality response. The focus should be getting quality responses, rather than a reported response. He felt it petty to reduce Deputy Ministers to non-entities, because they had been appointed to assist in the execution of executive functions under the Constitution.

Mr Booi said it was important for Members to inform themselves, because the Subcommittee was working off of assumptions. The ANC felt the Deputy Ministers should be kept accountable. Anyone who received money from the fiscus should be held to account. The information about what the Deputy Ministers do was not known to Parliament. He would therefore suggest that, in principle, it should be allowed that Deputy Ministers account, but Parliament must receive information on exactly what functions they performed. While it was correct that Deputy Ministers did not sit in on Cabinet meetings, Members could not know that this information was not communicated by the Minister. The Constitution mandated Deputy Ministers in a similar fashion to the Deputy President, who was held accountable on several functions, and therefore the principle should extend to them also. He agreed that the decision to delegate should not be spontaneous, and this should be communicated to the House and the Member responsible for the question.

The Chairperson trying to close the debate, said the responsibility of Ministers was not being taken away, but the delegation should be allowed.

Mr Ndlozi said there was agreement that where a Minister was absent, the Deputy Minister would be allowed to reply. What was at issue was whether delegation should occur whilst the Minister was present, particularly as the questions were submitted in advance, which would give the Minister the opportunity to inform him or herself about the relevant issues. At all times, Parliament must hold political principals to account, and the Minister must make the effort to know. If the Minister was in the House that Minister must stand up and speak, Members did not want to hear anyone else speak. Perhaps such a provision could be built into the rule allowing questions without notice, but where there had been sufficient notice, he strongly believed that Ministers of Cabinet must reply.

The Chairperson said it should then be agreed that where a Minister was absent s/he should be allowed to delegate to other Ministers or the Deputy Minister. A long discussion had been held previously about Deputy Ministers answering questions, and there had been potential problems, such as the Deputy Minister always being authorised to respond.

Mr Hahndiek said that where another Minister was asked to respond on behalf of the Minister, there had been problems with supplementary questions. This put the presiding officer on the spot and generally that officer would rule that the question would stand over. He was not sure if this should be dealt with in the Rules. 

Mr Mashile said in the National Council of Provinces, the practice was that where a different Minister was tasked with answering, then follow-up questions were not allowed. 

Ms Kilian said the constitutional mandate of the National Assembly was different from that of the National Council of Provinces, and there was more emphasis on holding the executive accountable in the National Assembly. She would urge that where another Minister was tasked with answering the question, follow up questions must be allowed. She felt that the Rules should not allow for a situation where the constitutional mandate of Parliament was eroded.

Mr Booi said it was straightforward that what was contained in the Constitution was maintained. The responsible Minister must prepare the answering delegate and the Speaker must be informed of the delegation. The delegate should be prepared to give concise answers, including to follow up questions, in the House, because this was also giving answers to the public. It would be embarrassing for Ministers to be unable answer questions. It must be clear that the National Assembly was where all people should be able to expect answers. In redrafting the Rules of Parliament the aim should be to ensure the esteem of the institution was preserved, and it was necessary that Ministers were kept accountable.

The Chairperson said it was agreed that Ministers should be allowed to delegate when they were absent, and the person to whom they delegated must be able to deal with any follow up questions.

Mr Ndlozi said it should be specified that the Minister must delegate to a person who was competent to answer and deal with the follow up questions, where the question was on the Question Paper. The problem was where there was no competent person, for example where both the Minister and Deputy Minister could not be in the House and there was no other competent Minister. This had happened in the past and the principle should be that the Ministers must not waste Parliament’s time. The spirit of the rule was that the onus was on the Minister to ensure that the question, once placed on the Question Paper, was competently dealt with. With the time constraints spoken of earlier, it could not be allowed that a question placed on the Question Paper could simply fell away, meaning that another question that could have been prioritised was now lost.

Ms Kalyan said that the Minister to whom the delegation was made must be in the same cluster, because there were study groups, and White Papers were discussed within the clusters.

The Chairperson said it had been agreed that in the Minister’s absence, s/he may delegate the duty to answer. He was, however, concerned that limiting it to the same cluster may be problematic, because there may be other Ministers who were better informed about the topic. Furthermore, it was agreed that if the Minister was present then the question would not be answered by the Deputy Minister.

Mr Ndlozi said more thought should be given to the situation where no competent alternative could be found. He did not intend that this must be resolved now, but suggested that the question must be flagged. There had been times where both the Deputy and Minister had been absent and no competent replacement could be found, leading to the question standing over.

Mr Hahndiek said this was dealt with in sub-rule (3) which said that, where the Minister and the Deputy were absent, then at the request of the Member who posed the question, that question would be placed on the following Question Paper, to be dealt with first. This was an attempt to deal with that concern.

Mr Mashile said it was not possible for Ministers always to be present, nor should it be assumed that another Minister was competent, particularly with portfolios such as defence or intelligence, where taking follow up question was difficult. Therefore, he felt the above explanation was adequate.

The Chairperson said when the Minister was not there, s/he must delegate and the point being emphasised was that once this responsibility was given, the person to whom responsibility was delegated must also be prepared to answer follow up questions. Where no competent person could be found, then the question would, at the Member’s request, stand over to appear on the next Question Paper.

Mr Ndlozi said his concern was with the prioritisation, because where the question stood over it would take up a space also on the following Question Paper. Therefore, he argued for a mechanism which would see the next prioritised question from the same party being dealt with on that day.

The Chairperson said he thought it had been agreed that if the question was not answered, then it fell to the next question time and it would be prioritised there. The question would not be answered on the scheduled day, but rather the next time.

Mr Booi said it was being agreed that the quality of the answer must be protected. If the Minister was going to be absent, then the Minister must communicate this to the Leader of Government who would then refer it to the Speaker, who, in turn, would convey this to the Member and the party. Question sessions were not only for the benefit of Members, but also for the public who must be confident in the capacity of the people who sit in the House. In resolving the issue, the principle should be that people who had responsibilities in terms of the Constitution must be present in the House and answer questions fully.

The Chairperson said it was accepted, and the ANC proposal would then fall away.

Rule 110: Questions to Deputy President

Ms Kilian said the proposal captured under rule 110 was an approach adopted by the Subcommittee and there was a second note which contained a second option. Having gone through the Constitution again, she was rethinking the approach to questions to the Deputy President. Under sub-rule (1), the questions to the Deputy President were scheduled for a question day by the Programming Committee once a month (instead of twice a month, but with longer periods dedicated). Accountability and responsibilities were looked at under section 92 of the Constitution, which said that the Deputy President and Ministers were responsible for the powers and functions of the executive assigned to them by the President. The proposed sub-rule (1A) captured an important general principle, in limiting the questions to the Deputy President to matters of national and international importance. She was aware that specific functions were assigned by the President, under the Constitution. She wondered, therefore, if it was correct to have a general phrase limiting questions to matters of national or international importance. She was asking this question to spark debate, and to clarify whether the Subcommittee sees these questions being posed to the Presidency, or the Deputy President. Looking at the composition of the Cabinet, the President selected the Deputy President and assigned functions to that individual. The thinking had been that the Deputy President ought to be held accountable for the Presidency, but if the Constitution differentiated between the roles, she wondered if that question should be refined.

The Chairperson said he would like the Subcommittee go through each sub-rule and then the discussion of the general principle would follow. While the Constitution was important, and whilst those two roles did have specific functions assigned to them, the position was similar to that of Deputy Ministers accounting on behalf of the Ministers. The view was that the President answered as Head of State and the Deputy President answered questions of national and international importance, along with any other assigned functions. The problem was that there were also Ministers running these line functions, but it had been agreed that what would not be done would be to pose questions to the Presidency.

Rule 110(1)

Ms Michael was glad that the Deputy President had his own question time, because she did not feel that this person, as the LGB, should have questions alongside other line function Ministers. If issues of national interest were raised, then it was necessary to look at what the LGB had been placed in charge of. She was concerned about the exclusion of any month in which the President answered questions. If the aim was to make Parliament more robust and exceptionally accountable, then perhaps the length of question time for both the President and Deputy President be looked at. Perhaps the question times for the President and Deputy President should be combined into one session, to ensure that there was more regular accountability. This could even occur on a monthly basis, although it was probably not practical, because then Parliament would be fully aware of the situation with both the Head of State and the LGB.

Mr Ndlozi said rule 110(1) had now become problematic, because the scheduling of the question sessions must now be done in consultation with the LGB, who was the Deputy President. The permission of the Deputy President should not be required before the President and Deputy President be called to answer questions in Parliament. This was contrary to the Constitutional obligation for the Deputy President to ask questions. He strongly proposed removing the requirement of consultation. Regardless of the rule, the scheduling was still subject to processes and the Programming Committee and Rules Committee should be trusted to schedule the sessions. 

Mr Mashile said the Deputy President was indeed, at present, the LGB, but this was not necessarily perpetual. He had seen the situation where a Cabinet member had been the LGB. The rule should not be crafted for a particular situation, and should be able to last.

Ms Kilian said these  concerns were covered by the ANC’s proposal to make the scheduling be done in terms of rule 24A, which was essentially a reference to the Programming Committee which deals with matters in a specific way. She felt the wording of the ANC proposal was less clumsy than the other proposed wording. The other concern was that if one full question session was arranged for the Deputy President, instead of two separate sessions, whilst there might not necessarily be more time,  it would be a more exclusive session and it released more time for Minister’s questions. The only other matter was that it must be ensured that this would not clash with scheduling in the National Council of Provinces, but this point did not need to be part of the Rules.

The Chairperson said that here, the ANC proposal was assisting the Subcommittee, because this left the scheduling up to the Programming Committee. The time for questions had been increased and Ministers had been excluded from this session, which covered Mr Ndlozi’s point. Once a month, the Deputy President would come for three hours to answer six questions, instead of four.

Ms Michael asked for clarity, asking whether it was indeed the case that the Deputy President would come once a month, for three hours, answering six questions. The rule stated that the Deputy President shall not answer questions in a month where the President answers questions. Therefore, she would suggest that this be reduced to "the week where the President answered questions, and care should be taken to ensure they do not clash. Her concern was the possibility of losing the Deputy President’s question session.

Mr Ndlozi said he agreed with the ANC proposal, because it did away with the need for consultation with the LGB. It was a constitutional obligation that the President, Deputy President and Ministers come to answer questions in Parliament. He felt that the question session should be monthly, but agreed with Ms Michael that the limitation regarding the President's question sessions should be reduced to not having both sessions in the same week.

The Chairperson said this should be looked at. The original view was that the Deputy President should not be requested to answer questions where the President was scheduled to answer in the same month. There was now a proposal to change this so that the questions would not be posed in the same week.

Mr Plaatjies asked for clarity on the Minister’s rotating on a weekly basis, so as not to answer questions on days that the President answered questions. The problem had been that Ministers should still answer questions in the week that the President was scheduled for replies, but the rule had been misapplied in the past. 

The Chairperson agreed and his understanding was that the Programming Committee would deal with this matter and there was no problem with Ministers answering questions in the same week as the President, but not on the same day. This was different from having the President and Deputy President answer questions in the same week.

Mr Hahndiek clarified that the rule would be amended to show that questions would be held once per month during session time. It struck him that on several weeks there would be more than one question session. The implication of this was that Members would be tied up for three hours on each of these days, which indicated the need for more mini-plenaries.

The Chairperson asked whether the ANC proposals were therefore accepted - which would be that the consultation with the LGB was removed; that questions to the Deputy President should include any questions to the LGB as long as the Deputy President was assigned that function; and the timing.

Ms Kilian said the Deputy President having to answer questions in their capacity as LGB, for as long as they were assigned that function, may not be very practical, particularly as questions usually related to political matters.

The Chairperson said the first proposal was that questions must be scheduled by the Programming Committee. Secondly, the Deputy President should not have to answer questions in the National Assembly and National Council of Provinces at the same time. Thirdly, questions to the Deputy President included those relating to their function as the LGB.

Ms Kalyan  said that where the questions were answered in the capacity as LGB, they were managerial matters. If there was a suggestion of tying the questions into matters of national and international importance, then this needed to include the specific functional areas assigned to the Deputy President by the President. She added that this would involve excluding LGB matters if they were of an administrative nature.  

Mr Ndlozi said the first point was accepted with the alteration of "week" for "month", allowing the President and Deputy President to answer questions in the same month. The second point dealt with not scheduling a question session if the President was to answer questions in the National Assembly, or the Deputy President in the National Council of Provinces, in the same week. This was captured.

The Chairperson said, on sub-rule (1A), that the wording would refer to limitations to questions of national and international interest, including any function which was assigned to the Deputy President.

Mr Ndlozi said it was redundant to include a reference to any function which was assigned to the role. Everything was ordinarily the President’s responsibility, and the Constitution allowed for delegating these functions. However, he believed the wording was sufficient. The position of the Deputy President was such that it must be assumed that this functionary would inherently deal with matters of national and international importance.

Ms Kalyan questioned that if this was the case, why then was the qualification regarding the Ministers agreed to?

Mr Ndlozi said that in relation to Ministers, it was said that questions must relate to matters for which they were officially responsible. The limitation in sub-rule (1A) was adequate and any further qualification would be redundant.

Mr Hahndiek said that if the Rule were to refer to specific functions assigned to the Deputy President, then it must be ensured that the President immediately informed Parliament, because at times the President would temporarily assign functions. Therefore, unless Parliament was informed on an on-going basis, it would be difficult to implement the rule.

Ms Kilian said that if the Committee was going to take its lead from the Constitution, then this must be consistently done. If the Constitution stated, in section 92, that the Deputy President and Ministers were responsible for the powers and functions of the executive assigned to them by the President, then anything to do with questions must also be in line with their assigned responsibilities, to avoid the situation where the Deputy President was called to account for a matter which was not his or her responsibility. 

The Chairperson said the Members had taken the issues as far as possible, and the meeting would resume the following day.

The meeting was adjourned.