During the first hour of discussions, Members’ attention was drawn to a Memorandum on the Proposed Amendment to Rule 109(3) and Rule 115(2) dealing with what to do when the relevant minister was not present in the National Assembly to answer the oral questions placed on the programme of that sitting. The proposals dealt with how these questions could be included into the programme of a future session. Members from all parties were vocal in their annoyance of the disorganisation that the absence of a minister caused the House. Absent ministers created the impression that some of the executive were too arrogant to account to Parliament. There was general agreement that there should be a monitoring mechanism in place to ensure compliance.
Turning to Chapter 12, there was lengthy discussion over what the ANC described as the new animal: ‘the whippery’. These were whips who had developed to become Committee Whips. This was not a function outlined by or referred to in the Rules. However, their function was resourced by Parliament. The DA said the party whips within a committee should not have dominion over other political parties in the committee.
Permanent and alternate Committee Members were highlighted in discussions. The EFF was steadfast in its opinion that the number of alternate numbers should not be limited to two. It was irrational especially when viewed in the light of co-opting of Members in corridors in order to achieve a committee quorum to vote. The DA cautioned against making any hard and fast rules regarding alternates.
Under Rule 129 the EFF proposed that for each ten parliamentary committees one should be allocated to be chaired by a Member from the opposition. The EFF argued that this was in the spirit of a multi-party democracy. The ANC would still retain its majority vote but it would make the Committee process more inclusive. The DA supported the proposal. A precedent had already been set in the past. The ANC said it was a political matter.
The IFP also made a proposal about Rule 132, suggesting that a committee meeting could be called if proposed by at least a third of the Members of the Committee. The EFF supported the proposal while the ANC requested that the proposal be drafted and motivated in writing first. This was agreed to.
On the matter of quorum in Rule 133, it was agreed that in order to hold a meeting there needed to be at least a third of the Members present. If a decision was to be taken and voted on, then there had to be a 50% plus one quorum.
The Sub-Committee will meet again on 17 April.
Proposed Amendment to Rule 109(3) and Rule 115(2) of Chapter 10: Questions
The Sub-Committee referred to the previous day’s discussions on Rule 109 (Questions to Ministers) and Rule 115 (Questions standing over). Members were presented with a Memorandum for consideration drawn up by Parliament Procedural Adviser Mr Michael Plaatjies (see document). The amendment of Rule 109 dealt with questions posed to Ministers in the House when the scenario arose that a Minister was not present. Rule 115(2) proposed that subject to a direction by the Speaker under Rule 109(3), a question that stood over in terms of Sub rule (1) or Rule 114(2) must be (a) placed on the question paper for reply on the next question day on which the person to whom it was addressed was scheduled to reply to questions; and (b) published in the order they were called the previous question day at the end of the Question Paper but may be prioritised in terms of Rule 108(7) in accordance with Rule 109(3)(a) and (b). The proposals intended to prioritise the questions and ensure that they were dealt with in an additional 30 minutes added to the session. At the end of the 30 minutes, questions that were not reached in terms of Rule 109(3), would be replied to in accordance with Rule 114(1) and (2).
Mr M Booi (ANC) said disorganisation in the House was an embarrassment. To the broad public, it smacked of Ministers appearing to be too arrogant to be present to answer questions in the House. The proposal provided that the Speaker had to be at the centre of what is proposed.
Ms J Kilian (ANC) said she did not see it as an administrative problem. Unless the programme was to a large extent cast in stone, it just had to be accepted that the responsibility lay with whoever was in charge of the Programming Committee to decide on what was reasonable. Monitoring was also going to capture the repeat offenders who failed to respond to questions in the House. Her party felt quite settled that the problem had been captured.
Independent adviser to the Sub-committee, Mr Kasper Hahndiek, said the programme could not just be adjusted at short notice as it involved a whole group of Ministers. In relation to monitoring, the system still had to be developed. To try and guess at this stage what system would be in place, was a problem.
Mr Mdakane said a monitoring mechanism might assist Ministers to be present to answer questions in the House - they were not doing Parliament a favour by being there.
Mr Booi said the emphasis should be on the Programming Committee to organise itself. Time was lost due to the absence of a Minister.
Mr Hahndiek said perhaps there could be a ruling that Ministers who simply went AWOL without an excuse, could be called to a separate question session.
Mr Booi asked if it meant that parties were going to be allowed to make a decision as to what was going to happen to a Minister.
Committee Secretary, Mr Perran Hahndiek, said perhaps Members should be allowed to voice their discontent about the absence of a Minister through declarations to the House.
Mr Mdakane joked that Ministers would be slaughtered in the House if they were called to task to account for playing truant.
Ms Kilian said the situation could not develop into making Parliament a bun fight. She suggested that there could be a debate on accountability.
Mr Mdakane said it should be considered as an option. Ministers did have a responsibility to be present to account to Parliament. If a Minister played truant there should be something that Parliament is able to do.
Mr Kasper Hahndiek said perhaps a monitoring mechanism could be approached to make a decision.
Mr J Steenhuisen (DA) said if there was going to be a rule then there had to be a role for the Leader of Government Business to play.
Chapter 12: Committee System
Mr Mdakane directed Members to discussions on Chapter 12 of the National Assembly Rules (see document). Discussions today would be on the broader issues in the Chapter.
He said there was no crisis with Part 1 of the Chapter. It related to the list of committees, sub-committees and the application of rules to committees and sub-committees in terms of legislation.
Ms Kilian said the task team of the sub-committee had just revised the list of committees. Certain sections in Chapter 12 dealt with that as well and Members should remember the previous discussions. They would have to discuss the general approach of committees and differentiate the different types of committees. There appeared to be a misunderstanding by some committees about their functions.
Mr Hahndiek said further differentiation would be possible. Some committees like the Rules Committee had an extensive mandate. Should definitions include those for the Chief Whips Forum, for example. Rules and Portfolio Committees had an extensive mandate. There was a general rule in Rule 125 Composition. If there was going to be an informal structure, then it would not be supported by Parliament.
Mr Booi raised a general point. There was the presence of an animal called the whippery in the committees. Who was this animal? How far was it accommodated by Parliament? Out of which fiscus were whips paid from?
Mr Hahndiek said he was aware that the ANC had assigned party whips to each of the committees. There were no rules. Payment was made by Parliament, not by the political party.
Mr M Ndlozi (EFF) said he disagreed there needed to be a discussion around the whippery. Some parties like Agang did not have whippery and he was not concerned. Members could not discuss and question why there were committee whips.
Mr Mdakane said the point was that sometimes whips were expected to co-ordinate matters in committees.
Mr Ndlozi said it was a misplaced conversation.
Mr Steenhuisen said the whippery was political in its nature but that did not mean Mr Booi did not raise a good point. The DA also had its own internal monitoring mechanisms but whips of political parties should not be given dominion over other political parties in committees.
Mr Booi said the discussion could be closed but it was an issue that the ANC would raise again. It was a problem; how did the parliamentary budget process work? House Chairpersons were lingering around and had too much power. Clarity regarding the roles of whips was needed.
Mr Ndlozi asked if he could at that point raise Part 7 of Chapter 12 which related to the Powers and Privileges Committee. The EFF was not convinced there should be a Powers and Privileges Committee whose composition was subject to the system of composition of the Rules in Part 2. A committee that executed such a function as discipline needed expertise. A committee that dealt with contempt was composed and governed by the composition rules. The EFF opposed this.
Mr Mdakane said it would be more appropriate to discuss the matter when the committee reached Part 7.
Parliament's Committee Section Manager, Mr Sikhumbuzo Tshabalala, addressed Members and said committee whips had become an institution in Parliament. Experience had shown that they had a role to play. Administratively the committee secretary notified Members of meetings and recorded their absence or apology. It was difficult for parliamentary officials to ‘call out’ Members about their absence.
Mr Steenhuisen said it was something that had to be grappled with but he did not think it had to be done then. He understand that committee whips drive the agenda but it was not correct to empower committee whips to the exclusion of other members of a committee. The situation could not arise where a committee whip, which was not recognised in the Rules, was given sweeping powers.
Ms S Kalyan (DA) said she did not think there was any such thing as a committee whip; it was a party whip.
Ms Kilian asked how an entire section could function outside the Rules of Parliament.
Mr Ndlozi said he did not understand and asked for explanation.
[The Committee discussion went off topic and spoke about the roles of the three House Chairpersons.]
Mr Mdakane said the whip was recommended by the political party and then appointed by the Speaker to do the work of Parliament and of the party. It seemed that something had developed without meaning to - that these were becoming committee whips when in terms of the Rules they were not catered for.
Mr Ndlozi said there had to be jurisprudence. Committees were accountable to the House and chairpersons were accountable to the committee. It should not be hard. He was scared that Members were creating confusion that he did not see. If a person was elected then they were accountable. Then there could be a conversation about administrative support and bureaucratic management. Who had elected Mr Frolick as a House Chairperson?
Members were amused when Mr Ndlozi asked why Speaker Baleka Mbete had not been excused. She was old. Nelson Mandela was old and he was excused.
Ms Kalyan said the conversation highlighted the conflict perhaps between the presiding officer’s authority and the model.
Mr Mdakane said in Chapters 1 to 9 of the Rules, Members had re-emphasised that Parliament, the House, was the only body that represented everybody. The committee was a Chamber but in smaller form. Should whips become accountable by default? There was a discussion needed.
Mr Hahndiek said on a point of clarity that the Rules had been changed in the past to allow for three House Chairpersons.
Mr Ndlozi asked what the Sub-committee was resolving to do about the House taking a decision that contradicted the Rules.
Mr Mdakane said Members were explaining the accountability structure. Everyone accounted to the National Assembly. The three chairpersons had been assigned responsibilities. House chairpersons were no longer just an assigned function. If one chairperson was assigned in terms of the Rules then they should all be. If chairpersons were appointed then the Speaker had to inform Members.
Following that discussion, Mr Mdakane said Members could move on to Rule 126, however Mr Hahndiek drew Members' attention to the note in Rule 125 which had been flagged.
It read: [Note on members' attendance of committees - flagged: It was noted that members of smaller parties should be full members of one or more committees. However, such members often do not attend committees to which they have been appointed as full members due to constraints on those parties. This contributed to quorum problems. The view is held that full membership of a committee imposes duties on those members. A member's primary responsibility as an MP is his/her parliamentary work. This issue requires further consideration.]
Mr Hahndiek said he agreed that there could be no free riders. The point was that all Members were paid by Parliament and therefore they should all be accountable to Parliament.
Adv Anthony Mitchell, IFP Chief of Staff: Research and Media, noted that the party had been grappling with the issue.
Ms Kilian said it was true that one should always seek to improve but practically, in the case of smaller parties, it was never going to happen.
Ms Kalyan raised the convention of co-opting Members from corridors when it came to a Committee lacking a quorum to vote. This was however, covered in a later rule, so she would debate that matter when the Sub-committee reached that stage.
Mr Steenhuisen cautioned Members against making hard and fast rules such as 'no alternate Members'. There were not enough spaces to accommodate all of the MPs.
Mr Hahndiek said full membership was not really an issue. All Members were allowed to participate in any Committee, the limitation was only that they could not vote. All Members did get an opportunity to vote in the National Assembly however.
Mr Ndlozi said he was getting frustrated. What was he doing in the Committee then as he was not a permanent Member? Parliament work was not utilitarian. The philosophy should not be “we pay you, so we must make work for you”. Parties should sort out discipline issues, this was not the role of committees.
Rule 126 Appointment procedures
Mr Mdakane said it appeared as if there were no problems with that rule.
Members did not disagree.
Rule 127 Alternates
Mr Steenhuisen said he was not sure if there was anything that needed to be addressed in that rule.
Members had previously inserted a note about this rule:
"Note: It was suggested that in practice whenever possible two alternates should be appointed for every full member to ensure good attendance at meetings. If a full member is unable to attend a meeting, it is that member's responsibility to arrange for an alternate to be there."
Ms Kalyan said alternates were not present in every committee. In ad hoc committees Members had to be there from start to finish and Intelligence Committee meetings were closed.
Mr Ndlozi said as long as Members were attending the House, they could not be forced to attend committees. It was a concoction.
Mr Hahndiek said the Constitution stated that Parliament could make its own arrangements. There was nothing to prohibit alternates in an Ad Hoc Committee.
Mr Ndlozi said the business of Parliament was to manage democracy not records. If there was to be a limit on two alternates per party per committee then what was the point of alternates. Members were being asked to create a rule about bureaucratic issues not democracy.
Mr Mdakane said if the rule limited alternates to two then Rule 134. Co-option when members and alternates not available should be deleted.
Mr Ndlozi said if Rule 134 was deleted then there was even more reason for there not to be a limit on alternates. It was not rationale. Parties had to submit who their alternates were on time but there should not be a limit on the number of alternates.
Rule 128. Term of office.
Members did not make any input on this rule.
Rule 129. Chairpersons.
Mr Ndlozi said there had been a practice in the past whereby a committee was chaired by a Member from an opposition party. Oppositional parties chairing did not mean the majority vote would be affected. The EFF proposed that for every 10 committees, one should be chaired by an opposition party member.
Ms Kalyan said the DA would like to support that a member of the opposition should chair a committee. There was a convention that the Standing Committee on Public Accounts was chaired by a member of the opposition. The Committee had also heard of examples of parliaments in other countries where this was the case. The matter should be flagged. Case studies could be sought and considered before taking a stance. It was not about the vote but about allowing members of the opposition to participate in multi-party democracy.
Ms Kilian joked that since the EFF was going to win the next election, Mr Ndlozi’s proposal was very generous. In addition, if the DA was enthusiastic then it should set the example for opposition chairpersons in the Western Cape Legislature.
She asked, through the Chairperson, if Mr Hahndiek could inform Members about the arrangement regarding the appointment of chairpersons.
Ms Kilian said she felt it was not an issue of the Rules but rather one of political management. Case studies of other countries could be looked at but ultimately it was not about the Rules.
Mr Booi said it was a political matter. Members could engage on it but not in the Rules as things [the political climate] did change. It was a debate the ANC Members did not want to engage with before consulting with their party through the proper channels. He added though, that it was not something that was being ignored. It was a matter that the ANC was pondering.
Mr Hahndiek said the issue was a political one, as was that of the vice chairpersons. The Rules did not provide for it.
Ms Kalyan said in Mozambique there were chairpersons and vice chairpersons. Mr Booi’s comments were appreciated - there had been a precedent set in South Africa. One of the examples she cited was that of Celia-Sandra Botha. Power sharing was a good thing. [PMG note: Ms Botha, a DA Member, was appointed as a House Chairperson in 2007].
Mr Ndlozi said it was more than a question of power. It was a question of management of democracy. Inclusivity was about the management of a multiparty democracy. Could the case studies not just be given to the committee secretary as an inclusion of what other countries were doing.
Mr Mdakane said the Committee would take the proposals put forward and return to the discussion at another time. It was a political management issue.
Mr Frank Jenkins, Senior Parliamentary Legal Adviser, said the wording would need to be looked at in line with the Constitution.
Committee Secretary Mr Hahndiek said there could be confusion. How would it be decided which opposition party was afforded the opportunity to chair a committee.
Mr Ndlozi said the EFF was not suggesting that there be a vote as to which committee would be chaired by an opposition member. It would be on an allocation basis. Members nominated to fill the position would still be subject to a vote by Committee Members. He said the party did not mind if Mr Kasper Hahndiek prepared the wording of the EFF’s proposal.
To this, Mr Booi commented that political parties must handle those matters and boldly present their proposal.
Members then considered the note attached to Rule 129:
"Note: The question was posed what recourse members have if a chairperson does not operate within the Rules. It was emphasised that the chairperson of a committee in terms of Sub rule (2) is obliged to ensure compliance with the Rules and must also act in accordance with directions decided upon by the committee as a whole. In other respects a distinction must be drawn between procedural matters and issues of political management arising in a committee. In the event of there being any uncertainty about procedural aspects, the officials should assist. The Speaker should not be required to intervene other than in exceptional circumstances."
Mr Hahndiek said there should be a mechanism to raise concerns about the actions or behaviour of a chairperson.
Ms Kilian said in the past this had led to Members or individuals being targeted for raising concerns.
Mr Mdakane said the Committee would come back to the issue.
Rule 132. Meetings
The Rule read:
[(1) Committees meet whenever necessary and as determined in accordance with these Rules and the decisions, directives and guidelines of the Programme Committee.
(2) A meeting of a committee may be called in terms of Sub rule (1) —
(a) by the chairperson of the committee; or
(b) by resolution of the Assembly.]
Adv Mitchell said the IFP proposed an additional Sub rule. It proposed that a third option be inserted into Sub rule (2). This was that a meeting could be called by at least one third of its Members as well.
Mr Mdakane said he thought the proposal could be taken on board.
Mr Ndlozi said it was a good proposal. It was actually very standard. Even one third of the House could convene a meeting.
Ms Kilian said Members should be mindful that a meeting was still called by the Chairperson with a request by a third of the Members. It was not simply a matter of a meeting being called by a third of the Members.
Committee Secretary Mr Hahndiek said the proposal could be dangerous as a third could be calling a meeting all the time.
Adv Mitchell said the wording “on good cause shown” could be added so that it was not abused.
Mr Booi said the Committee was running in circles. He appealed for all proposals to be made with the reasoning behind them and the motivation for them.
Mr Mdakane asked that the proposal be drafted and given to the other Members for consideration.
Rule 133. Quorum
Mr Mdakane said the rule was a big issue as Parliament needed to function as a credible institution.
The rule read:
[(1) A majority of the members of a committee constitutes a quorum, subject to Sub rule (2).
(2) A committee may proceed with business irrespective of the number of members present, but may decide a question only if a quorum is present.
(3) When a committee has to decide a question and a quorum is not present, the member presiding may either suspend business until a quorum is present, or adjourn the meeting.
[Option: It was strongly held that there should be a quorum at the start of a committee meeting for it to be properly constituted. This could be added as a sub rule.]
Mr Tshabalala proposed that two concepts be separated. This was the proposal that a third of a Committee’s membership could call for a meeting. Secondly a quorum of 50% plus one was needed in order for a vote to be passed.
Mr Mdakane said it made sense.
Mr Booi said part of re-writing the Rules was to make it clear that Members of Parliament had to do the work. It weakened Parliament when Members did not pitch up. The rule had to be strong. It had to be 50% plus one in order to be confident that the Members would be present.
Committee Secretary Mr Hahndiek asked if it was more a question of political will to ensure attendance. If it was 50% plus one in the Rules, would that ensure attendance.
Mr Mdakane said the point raised by the task team had created a question of credibility. There was a fear that the Committee could collapse if it required 50% plus one but perhaps that fear was good to ensure attendance.
The ANC also questioned the interpretation of “member presiding” in 133(3).
[(3) When a committee has to decide a question and a quorum is not present, the member presiding may either suspend business until a quorum is present, or adjourn the meeting.]
Ms Kilian said Committees did not have the authority to make a binding resolution, not even the Rules Committee. Only the House could do that.
Mr Mdakane said the lawyers would have to look at that.
Rule 134. Co-option when Members and alternates not available
Ms Kalyan voiced concern. She had seen it happen in the past where a Bill was deliberated on for many weeks and when the time came for the Committee Members to vote, there had not been a quorum. As there was a deadline for the Bill to be passed by the Committee, Members who were not part of the Committee were co-opted to vote. It was unethical because people that they did not have a full understanding of the Bill, were voting on it.
Mr Mdakane said he thought the rule was going to be deleted.
Ms Kilian said she did not have a problem with that.
Senior Parliamentary Legal Adviser, Mr Frank Jenkins, referred the Committee back to the issue of the quorum. He was of the view that the Rules needed to inform the process.
Mr Mdakane said he felt Members agreed that for decision making, there had to be a quorum of 50% plus one but Committee meetings could get under way if one third of the Members was present.
Mr Mdakane said the Committee would meet again on 17 April and a team from the administration should attend. The Rules needed to last for 30 years so they could not be made to cater only to current problems.
The meeting was adjourned.
- Discussion of Chapters 10-15 of the National Assembly Rules 4
- Discussion of Chapters 10-15 of the National Assembly Rules 1
- Discussion of Chapters 10-15 of the National Assembly Rules 2
- Discussion of Chapters 10-15 of the National Assembly Rules 5
- Discussion of Chapters 10-15 of the National Assembly Rules 3
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