The Chairperson summarised the procedure and noted the Speaker's request that the process for the new Rules should be completed by end August 2015. This meant that May would be set aside for discussion in the parties, with submissions then to be referred back to the Subcommittee, and thence to the Rules Committee. He emphasised that this Subcommittee was intended to be as representative as possible and that Whips and officials were welcome to attend to make input.
The IFP submitted a proposal for Rule 132 which was intended to enable minority parties to request the Chairperson of a Portfolio Committee to hold a meeting to discuss a particular matter. The proposal was premised on section 57(2)(b) of the Constitution, which could be interpreted as requiring all the business of Parliament to be conducted in a manner conducive for the participation of minority parties. The proposal would include a further subrule in Rule 132, which allowed for one third of the Members of a Committee to write to the Chairperson of a Committee requesting a meeting with a particular agenda. After some initial concern the Subcommittee endorsed the submission as being in line with the Constitution, democratic principles and doing no harm to the scheduling of Committee meetings.
The EFF submitted a proposal regarding Rule 129, which dictates how the election of Chairpersons of Committees was conducted. The proposal listed two options: one entailed the Rules Committee determining the specific Committees which were to be chaired by opposition parties, guided by proportional representation. The second option would have the Rules Committee determine the Committees to be chaired by opposition Members at a ratio of 1 to 10. The proposal was intended for caucus purposes and had not been circulated in its final form, so the Committee did not make a decision on it but requested that Members consider it outside of the meeting.
Members then proceeded to consider the rules contained in Chapter 12 of the Rules of the National Assembly which regulate Committees.
Rule 149: General Powers provided that subcommittees would only have powers listed under Rule 138, where the National Assembly Rules or a resolution of the House granted them. A concern was raised about whether subcommittees did require essentially full powers of Committees to carry out certain assignments, such as engaging with the public. It was clarified that the reasoning behind limiting the powers of subcommittees was to avoid a proliferation of subcommittees taking up the work of committees, and to limit their tasks. It was clarified that a committee splitting on oversight visits to handle different matters simultaneously did not technically amount to a subcommittee.
Rule 151 was worded to cover "Persons appearing before Committees" & was discussed with Rule 138A: Witnesses Privilege. Members debated whether people who made statements before committees were protected, or could be held liable, and this was particularly so for officials in the public service who had, at times, been intentionally misleading Committees. It was clarified that once the oath under Rule 138A was administered to a witness, that person was protected from civil legal liability for the statements. However, a deliberate misleading would amount to contempt of Parliament, punishable by imprisonment for up to two years or a fine. It was suggested that a warning about the offence be worked into the oath. Members debated whether officials should be distinguished from invited witnesses, and thought that this may be a political question which it was inappropriate to include in the Rules.
Rule 156 dealt with removal of persons from Parliament, and the EFF registered its disagreement with the ethos of this rule, arguing that as the Constitution protected peaceful demonstration Parliament ought to be more receptive to non-violent protest for political reasons, even within the precincts of Parliament. Other Members were not in agreement, and felt the rule was a justifiable limitation on the right to gather, particularly as relaxing it could lead to abuse, to suppress particular views or Members. It was also argued that this would be an unwarranted contravention of the rule of law, because protest ought to be conducted in an organised manner.
Rule 163 permits the Speaker of the National Assembly to convene a more limited Rules Committee, during a period of recess, where circumstances required a decision to be made. Members felt the rule was not in accord with the principle of broad inclusivity of all parties, and since the quorum requirements for the Rules Committee had been reduced, along with the numbers, felt it was possible for the usual Rules Committee to be convened by the Speaker at any time. The rule was deemed unnecessary.
Part 8 dealt with the Committee of Chairpersons and the discussion centred around the logic of having only one structure for a function assigned to a House Chairperson being formalised in the Rules, whether a change would stagnate functions, the value of having three House Chairpersons and how they account for the discharge of their function, as they were Members who were selected to perform certain functions for the Speaker. The matter was flagged for further consideration, particularly whether the House Chairperson for Committees and other House Chairpersons would be retained in their present form.
Chairperson's introductory remarks on process
The Chairperson noted that the Subcommittee would be starting discussions from Chapter 12, and hoped to conclude it in this session, stressing that it would be looking to change rules only where they would be substantially improved by the change. There had been a commitment that by the end of August 2015 the new National Assembly Rules (the Rules) should be adopted by the House. Therefore, the entire month of May would be dedicated to intra-party consultations and workshops, with the Committee staff assisting if necessary, working around the budget vote debates. The revised Rules would be presented to the National Assembly Rules Committee (the Rules Committee) and if there were new developments from the intra-party consultations then the Subcommittee may have to meet again. Anything decided upon in this Subcommittee would be presented as a unanimous supported decision to the Rules Committee, to avoid reopening discussions in the Subcommittee.
The Chairperson emphasised that the Subcommittee needed to produce a summary of areas of critical change which would help the political leadership of parties to engage properly. He noted that since it was vitally important that everyone understood the Rules, all political parties, even those with only one MP, were invited, and it was important also for the whippery to come to the meetings, because possible lack of understanding of the Rules would not help in the Chamber.
Mr M Ndlozi (EFF) asked for a report from the Chairperson on whether there was communication with presiding officers about being part of this process. There was unanimity on the importance of their insight on the present matters.
Mr M Booi (ANC) asked for the Committee staff to put together an official programme to be put to parties so that organised engagement would follow. Parties would be able to make informed input on the process of the review. He agreed that a report should be given about the invitations to presiding officers, and what their response had been.
The Chairperson confirmed that a programme would be designed, particularly as it was a bit ambitious to suggest the House pass the Rules by the end of June. Mr Kasper Hahndiek, Consultant to the Subcommittee and former Secretary to the National Assembly, had to have enough time to draft the Rules properly. Furthermore, workshops would be needed in May, but in June the Subcommittee might need to deal with any radical developments presented by the political parties. The Speaker of the National Assembly (the Speaker) had indicated that the Rules should be passed by the end of the third term, in August.
Mr Hahndiek asked for clarity whether May would be set aside for parties to consult and the results reported to the Rules Committee after that.
Mr Booi said he thought parties would report to the Subcommittee, particularly since in the last meeting of the Rules Committee several matters of contention were referred back to the Subcommittee. He thought political parties should rather be required to present areas of dispute to the Subcommittee, for it to iron out the differences before it reported to the Rules Committee.
Ms J Kilian (ANC) said National Assembly (NA) plenaries would run from 4 August to 23 December and the Subcommittee should aim for the NA to consider the Rules by the end of August.
Mr N Singh (IFP) said the Subcommittee should not be overly ambitious, although he understood the need to complete the review process. It would be self-defeating to put deadlines in place which could not be met, and he pointed out that May would be congested, with EPCs planned, and Committees would meet for only a few weeks in June.
The Chairperson said political parties should be encouraged to meet over weekends, as the ANC would be doing. He reiterated that the Speaker had said that the Rules should be passed by end August, and this would complete the review that had started already in 2012. All parties should try to agree and allow the process to move speedily towards finalisation.
Mr Singh said in light of the occurrences in the House the previous day there may be a need to revisit the rules on questions, and what they actually meant - whether the Rules dealt with the question as set on the Order Paper, or related to supplementary questions.
The Chairperson agreed and said that perhaps provision should be made to have the President make a statement without ensuing debate. That point would be further considered.
IFP Submission on Rule 132
Mr Singh said rule 132 at present provided for two ways to call a Committee meeting, either by the Chairperson or resolution of the NA. Section 57(2)(b) of the Constitution provided for the participation of minority parties in the Assembly and its Committees in a manner consistent with democracy. At present, the way meetings were called did not give minority parties the space to request from the Chairperson that a meeting be held to discuss a particular matter. The IFP wanted to propose, therefore, that where one third of the Members of a Committee wrote to the Chairperson of a Committee, the Committee must then agree to or decline the request.
Mr B Mashile (ANC) said his issue was that the proposal indicated that four Members would be required, yet the quorum for a meeting was six Members. The Subcommittee had indicated that it would like committee meetings only to start when there was a quorum. He asked how this would gel with the proposal.
Mr Perran Hahndiek, Secretary to the Subcommittee, said the quorum for a meeting to start was one-third of Members. This raised the question whether this included or excluded the Chairperson and, if the Chairperson was absent, the four Members could elect an acting Chairperson.
The Chairperson said this was correct and as the Rules stand the Chairperson and another Member could start a meeting. When a decision was to be taken, the quorum was 50% plus one which translated to six Members. If Members wanted to elect a temporary Chairperson then they would required 50% plus one, because this was a decision making matter. He understood the IFP proposal to mean Members could petition the Chairperson to convene a meeting with a particular agenda item. This would indicate the Chairperson would still chair the meeting and the final position taken on the matter would be decided by the required quorum of Members. He felt there would be no harm done by the proposal.
Ms Kilian said that, from a practical stance, the notice for other Members needed to be formalised. She questioned whether, for example, the four Members would approach the Speaker of the National Assembly, who would inform the Secretariat, who would inform the other Members. It could be that a meeting was scheduled for a time of which some Members were unaware. Therefore, proper notice must be formalised into the rule.
The Chairperson said he understood the process to be that four full Members of the Committee could petition the Chairperson to call a meeting. If the Chairperson refused, then the matter could be escalated to a House Chairperson, and failing that Members would approach the Speaker. In any case it would be an imprudent Chairperson who refused to convene a meeting called for under the proposal.
Mr Booi asked whether the proposal was based on non-functionality of the Committee or had to do with the purpose for holding the meeting. If the cause was non-functionality, then it was necessary to clarify what the House Chairperson or Speaker was empowered to do in the situation. If it was about the purpose, then this too should be clarified. What Mr Perran Hahndiek raised about the role of the Chairperson was important, because if the issue was non-functionality then the presence of the Chairperson was irrelevant. He supported the principle of one third of the Members calling the meeting.
Mr Mashile said he wanted to bring in the process through which Committees schedule meetings. There were quarterly programmes of meetings, prepared in advance and approved by the House Chairperson. Picking up on Ms Kilian’s point, due to MPs also being full members of different Committees, it may be difficult to schedule a meeting for a day where the Committee would not normally sit.
Mr Singh said due cognisance must be taken of programming and of meeting procedure. The problem was that, at the moment, meetings were scheduled largely by the Committee Section, in consultation with the Chairperson of Committees and relevant Chairpersons. Minority parties were not asked for their input on the scheduling or agenda for meetings. The minority parties wanted to be able to request a meeting on a particular issue, on a date to be scheduled. The purpose was to give minority parties an opportunity to participate properly in Committees as sanctioned by the Constitution. This could potentially be either because of non-functionality or because they wish to discuss a particular matter.
Ms Kilian asked whether it would suffice to say “by the Speaker, on petition of at least one third of the Members”.
The Chairperson said the Speaker should not be engaged, because the four relevant committee members should have the right to request a meeting from the Chairperson. The Chairperson would then look at the programme of Parliament and decide when, in a Committee week, to schedule the meeting. The proposed theme must be placed onto the agenda of the Committee, and therefore it was inappropriate to involve the Speaker because it involved matters to be dealt with by the Committee. Where a Chairperson refused, the next appropriate step was to involve the House Chairperson responsible for the Chairperson, and the last step would be to approach the Speaker.
Mr Hahndiek cautioned against giving the House Chairperson responsibilities, because this had not been done anywhere else in the Rules. House Chairpersons were given authority by the Speaker. It this was done, the House Chairperson would have an authority of their own.
Mr Mashile said the suggestion that minority parties do not know about meetings was surely incorrect, because a programme for the whole quarter was distributed to all Members. If the proposal was based on a single Committee not following this procedure, it may not be appropriate to amend the Rules to deal with it.
The Chairperson said meetings of Committees were convened by Chairpersons, and where Members requested that a meeting be convened to discuss a particular matter this should be possible, particularly as this was in line with section 57 of the Constitution. If a Committee was not working at all, this was another matter. He asked for Mr Hahndiek to capture the proposal, and reiterated the Committee's overall view that it would do no harm to have the provision in the Rules.
EFF Submission on Rule 129
Mr Ndlozi said his submission related to caucus consultation. The proposal was for some Committee meetings to be chaired by opposition Members. If it was decided that the Committee of Chairpersons would remain, then it would be the only Committee which was composed only of Members of the ruling party, and therefore contrary to rule 125, unless a provision was made to allow opposition Members to chair some meetings of Committees. The first option dealt with this situation. He read it out, as follows: “Taking the total number of Parliamentary Committees, in terms of rule 121, with the exception of Ad hoc Committees and Chief Whips Forum, the Rules Committee will determine the number of Committees to be chaired by Members of opposition parties, in a manner consistent with democracy”.
The principle was tied in to proportional representation and at present, if there were 40 Committees then the ANC would be able to chair 60% of them, with the rest chaired by the opposition.
The second option spoke to the situation where there was no Committee of Chairpersons. It read: “Upon determining the total number of parliament Committees, with the exception of Ad Hoc Committees and the Chief Whips Forum, using the ratio of 1 to 10 the Rules Committee would determine which Committees must elect Members of the opposition in accordance with the principles of multi-party democracy”.
He summarised that this meant that if the Committee of Chairpersons was kept, then the first option must be introduced. The Constitution, section 57(2)(b), indicated that no business of Parliament or government should proceed without the views of the opposition being heard.
The Chairperson said the submission was captured and would be taken to the various parties' study groups.
Discussions on procedure
Ms S Kalyan (DA) asked whether the Subcommittee would be returning to the rules on questions, to deal with the protracted question session of the previous day.
The Chairperson said the Subcommittee should proceed with Chapter 12 and once this was completed it could return to these rules.
Mr Ndlozi asked for it to be recorded that the EFF had an interest in returning also to Chapter 5 and this should also be done when the Committee returned to Chapter 10.
Chapter 12: Committees
Part 2: Rules applicable to Committees generally
Rule 137(4): Reporting
Mr Hahndiek noted that the rule now provided that where there was no unanimity on a report of a Committee, the report must reflect minority views.
The Chairperson said the minority report would be captured in the main report and it would not be that a separate report was produced.
Rule 138: General Powers
The Chairperson said there were no issues, aside from reorganisation of the rule and editing sub-rule (e).
Mr Perran Hahndiek asked why “determine its own procedure” was replaced with “determine its own working arrangements”.
Mr Kasper Hahndiek said this better captured the situation, because what exactly was covered by "procedure" was unclear.
The Chairperson said all Committees must operate under the Rules, but they may determine how to work within the Rules. For example, they may choose to sit on Fridays.
Rule 138A: Privilege of Witnesses
Mr Kasper Hahndiek said the reference to "the Member" presiding was changed to "the Chairperson" for consistency, and reference was made to section 16 of the Powers and Privileges of Parliament Act (PPP Act) as the source of the affirmation to be made by the witness.
Part 3: Rules applicable to Subcommittees generally
Rule 145A: Interruption, suspension or adjournment
The Chairperson said this was a new rule and asked Mr Hahndiek to indicate the motivation.
Mr Kasper Hahndiek said this was a practical authority which Committee Chairpersons have, which should be extended to Subcommittee Chairpersons.
Ms Kalyan asked why the rule did not stipulate the conditions upon which such suspension could occur. Rule 145A (b) had the qualification of “provided sufficient notice was given”. She asked why no similar qualification applied to the suspension or interruption.
Mr Hahndiek replied that this was to cater for any circumstances which may arise. Chairpersons needed to have the ability to adjourn or suspend meetings on their own. If the Chairperson exceeded his powers then the Committee or Subcommittee would have to subsequently address this with the relevant House Chairperson.
Mr Singh asked whether this should not be with the concurrence of the majority of the Members, because the provision at present left it solely at the discretion of the Chairperson.
Mr Mashile said it would be onerous to list the circumstances in which a meeting may be adjourned or suspended, because there were too many possibilities. The Committee also had the power to take decisions generally, and the Chairperson would speak to the Members about the circumstances in pursuit of making that decision. It might happen that a meeting failed to reach a quorum and would not be able to decide to adjourn. Therefore, the general authority should be available, because it would not be possible for the Chairperson to arbitrarily adjourn a meeting.
The Chairperson said the rules should be drafted in a non-partisan way, with the ruling party putting itself in the shoes of the opposition and vice versa. Members who come afterwards should understand the logic of the rules.
Mr Ndlozi said this was an unnecessary rule. Chairpersons should not be accorded the status of the Speaker under the Rules. Chairpersons had worked well thus far, dealing with adjournments and interruptions. This rule was creating a problem, because it could allow for a situation where a Chairperson arbitrarily adjourns a meeting. He could accept it if the adjournment happened with the concurrence of the Members. The spirit of the Rules around Committees was that Chairpersons were to conduct the business together with the Members. There had been no proper justification for the rule, because whilst he understood why the Speaker required the power to adjourn sittings, Chairpersons would generally speak to the Members to make decisions on adjournments. He would like the rule to be removed totally.
Ms Kilian said it was an existing rule for Committees and therefore new powers were not being created. All that was being done was to extend the power to Chairpersons of Subcommittees. Secondly, Subcommittees had no original power and must report to the parent Committee, under rule 141. The rule could be removed, but the rule made good sense and there was no problem with rule 135.
Ms Kalyan said she had a concern about Chairpersons adjourning the meeting for the wrong reasons. Therefore, the wording was not tight enough as it should only be done in exceptional circumstances. She suggested that the rule should include wording such as "in unforeseen circumstances" or "in consultation", or similar wording which would appropriately limit the power.
Mr Hahndiek said it would be relevant to look at Rules 147 and 148. Rule 147 says there was no quorum requirement for Subcommittees, while Rule 148 stated that decisions were made by only consensus. Failing this all views must be reported to the parent Committee. This would seem to indicate that Mr Ndlozi’s view was correct.
The Chairperson said it was accepted that there was no harm in removing rule 145A.
Rule 146: Meetings
Mr Perran Hahndiek asked whether the principle captured in the IFP proposal on rule 132 would be extended to Subcommittees, including the Rules Subcommittee, and those dealing with people elected to boards.
The Chairperson said a distinction was drawn between committees which took decisions and subcommittees which recommended.
Mr Kasper Hahndiek said he had asked himself why there were separate rules for subcommittees and it was clear that this had to be managed at an institutional level, to avoid a proliferation of subcommittees. This made it necessary to be clear on how subcommittees functioned, which was generally limited.
Mr Ndlozi said he had recently participated in the election of a board and it seemed that the decisions did not go directly to the House, but were referred back to the committee; the subcommittee handled the groundwork of holding interviews, shortlisting candidates and making recommendations. The recommendations must be reached by consensus, meaning that a subcommittee could submit more names than required, because of a lack of consensus.
The Chairperson agreed and said subcommittees only made recommendations. However, the recommendations would be taken seriously as the Members were also members of the parent Committee.
Mr Kasper Hahndiek said Rule 140 indicated when a subcommittee could be appointed. Not all Committees have the authority to appoint subcommittees and if there was a inclination for Committees to create a proliferation of subcommittees, this would absorb resources. This led to the need for management and control of subcommittees.
Rule 149: General Powers
Mr Hahndiek noted that under this rule, subcommittees only had the powers listed in Rule 138, which were specifically given to the subcommittee.
Mr Perran Hahndiek asked whether it should not be the case that for a subcommittee, the parent Committee could grant powers. The general powers under Rule 138 were those listed in the Constitution and Rule 149 allowed the granting of powers by resolution of the National Assembly, which happened very rarely. The question was when a subcommittee would have powers listed in Rule138 - this would be hardly ever, and therefore it would not be able to do things like conduct public hearings. Therefore, he wondered if the parent committee should not be able to grant these powers.
Mr Kasper Hahndiek said Rule 149 was drafted intentionally, because it would not be for a committee to grant those powers to a subcommittee. The reason was that if such powers were granted, then subcommittee’s decision making powers and a range of other issues would need to be looked at, including quorum.
The Chairperson said that the intention was to avoid the situation where Chairpersons wanted to delegate all the work of the committee to subcommittees, in essence making them committees of the National Assembly. This was a political consideration at the time. Perhaps, 15 years down the line, different considerations may apply. This would avoid the situation where Committees delegated the duties such as holding public hearings or conducting oversight.
Mr Perran Hahndiek said committees were in fact making such delegations and often, when an oversight trip was conducted, committees would split up into subcommittees visiting different places and having public engagements. He questioned whether committees were in fact empowered to do this under the Rules.
Mr Hahndiek said the general powers under Rule 138 included a wide range of things, such as the ability to call persons to present evidence, design their own working arrangements and meet on any day. The question would be whether it was desirable for subcommittees to have such powers, given that they had no quorum requirements or decision-making capabilities.
The Chairperson said he felt subcommittees should only work as they were instructed to, by the parent committee, and that there were resource implications if subcommittees were empowered to run as full committees. Therefore, it would be best to leave the current situation intact. There were powers under Rule 138 which should not be extended to subcommittees, but these should be identified and the rule worked out.
Mr Kasper Hahndiek said the Rules as they stood were clear, and if a committee wanted to have a subcommittee make use of specific powers, then the committee could make a recommendation to the House that a resolution granting such powers be passed.
The Chairperson said this rarely was happening at present and that was an issue in practice.
Mr Mashile said from what he remembered from the Ethics Committee, where a subcommittee was constituted the parent committee would make all the relevant decisions, and have the subcommittee run the enquiries, reporting into to the parent committee. At the end of the day the subcommittee must worked for the committee, and the rules should be clear that subcommittees could not go off on their own tangent.
Adv Frank Jenkins, Senior Parliamentary Legal Advisor, said the power to summon did not devolve to a subcommittee under the Constitution, and similarly with the power to make a resolution.
The Chairperson said it was agreed that Rule 138 would be cleaned up, and only the powers required by subcommittees should be granted.
Mr Hahndiek asked whether this meant that Rule 149 would stay as it was, reading : “A subcommittee has the powers listed in Rule 138 only when assigned to it in terms of these Rules or by a resolution of the Assembly”.
The Chairperson replied that this was correct.
Ms Kalyan said that where a committee went on oversight visits and split up to go to different locations, that was technically not a subcommittee.
The Chairperson agreed and said in these instances there was no decision making involved, and the Rules should be cleaned up to reflect this.
Mr Kasper Hahndiek said it should be clear that where the Committees set up task teams to do certain things, the Committee would take responsibility for the costs.
Mr Perran Hahndiek said there might be a problem where a task team went out to conduct public hearings, therefore exercising the powers of the parent Committee by engaging the public. A subcommittee would not even have these powers, and yet a task team would be able to assume them.
Ms Kilian said this was not a power per se, but more of a delegation of the responsibility to conduct the hearings. The results would still have to be taken back to the Committee, for a decision to be made. The task team could draft a report, but the resolution following the report would still have to be taken by the parent Committee.
Part 4 Rules Applicable to both Committees and Subcommittees generally
Rule 151: Persons appearing before Committees
Mr Singh asked whether a person coming before a Committee and making a statement would be bound by that statement in another venue - for instance, in Court.
Mr Hahndiek said that to the best of his recollection witnesses did not have protection, unless it was specifically extended to the person, but did not have the privilege of Members. Therefore, they may be liable for mis-statements in court unless the Committee specifically extended the protection.
Mr Mashile said Rule 138A proposed a privilege for witnesses, which protected statements made under oath.
Ms Kilian said rule 138A read to the effect that a person would be protected in that evidence given under oath or affirmation, and that may not be used against the person in a Court, or place outside Parliament”. Therefore, witnesses had protection provided they give the oath before the Committee.
Adv Jenkins said the the Constitution did not provide for such a privilege, but the PPP Act indicated that witnesses were protected, whether summoned or appearing, provided the statements were under oath. The oath did not have to be formalistic and the Chairperson would just have to show the rule to the witness and ask them whether they considered themselves under oath. The oath had to be administered to activate the protection. If this was not done then there was a good argument for their being open to court proceedings.
Ms Kilian said this was an important matter and it should be remembered that part of Parliament’s oversight function was to call in government departments to account. She recalled one incident where a Director General had appeared before a Committee and was requested to confirm whether a particular performance contract had been signed. The Director General had deliberately misinformed the Committee. It was difficult to handle this, because Parliament could not discipline the officials, and that matter then had to be referred to the relevant Minister. If Parliament was to hold government departments to account, then she questioned how Parliament would also ensure that the truth was told in Committees.
Mr Hahndiek said if anyone deliberately lied to a Committee, then this was contempt of Parliament under the PPP Act. The Committee would then report the incident to the House, which would then refer it to the Powers and Privileges Committee. If it was a Member then the issue would be dealt with in the Powers and Privileges Committee, and if it was a member of the public then it may end up in court.
The Chairperson said Parliament was therefore empowered and where a person deliberately misled Parliament there should surely be ramifications.
Mr Hahndiek said officials should have a manual to indicate the implications of giving evidence before Parliament, and in particular the serious consequences of deliberately misinforming Parliament.
Adv Jenkins said the warning to a witness was meant to indicate that the witness was protected, unless they deliberately misled the Committee.
Mr Hahndiek asked whether an official appearing before a Committee, such as a Director General, would also benefit from the protection under the PPP Act.
Adv Jenkins said that the Act stated that this would happen only if a person was examined under section15, which was the section dealing with the oath. The section required the oath either to be administered or confirmed, meaning there was no need for a formalistic reading out of the oath.
Mr Singh said there had to be some general statement, made by the Chairperson in a meeting to everyone who was going to give evidence. It was often the case that while Directors General were the persons summoned, they would “pass the buck” to people in their teams and he wanted to know whether these people would also be protected. This was why he suggested a general statement.
Ms Kilian agreed this would have to be tightened up, because people had been found to be lying to Parliament. The handover of issues from the Public Accounts and the Portfolio Committees needed to be well mannered. She agreed with Mr Singh that the problem came with "passing the buck", because part of the process for Parliament holding the executive to account was to call in the departments. Often, officials would avoid answering, and it would later come to light that the Committee was not taken into their confidence, often deliberately. She would argue that rule 138A should make reference to section 55(2)(a) of the Constitution, specifically to give oversight over all organs of state, including public entities. This would help inform everyone what the Committee’s powers were, and what the witnesses responsibilities were.
Mr Mashile said he was unsure whether it should be the case that all department representatives should be held accountable. The Director General should be held accountable for whatever representations were made by the other members of the delegation, for if the person made a misrepresentation, this would be essentially on behalf of the Director General, so that they s/he should be more cautious about whom they allowed to make such representations. The focus should be on holding the accounting officer accountable for anything that their subordinates did on their behalf.
Mr Perran Hahndiek asked how often the oath was administered to persons appearing before Committees. Whether the person was summoned or invited, s/he would have responsibilities in appearing before Parliament. The oath should therefore be administered every time.
Mr Ndlozi agreed that the question had to do with entities and Ministers misleading Members in Committees, and therefore the Subcommittee was essentially seeking a mechanism to hold them to account. The aim was to have entities revere and respect Parliament, therefore entities should not come to Parliament thinking they were going to be protected by anyone. In respect of Directors General, perhaps Parliament should be clear that they were the accounting officers and they should be heard. He felt this principle should extend to Ministers, so that if they had been summoned then they must deal competently with the questions.
A Member of the Table staff confirmed that there was no manual at present. The staff could draft a general statement, to be made by the Chairperson at the beginning of the meeting, covering all present.
Ms N Michael (DA) said the instances of witnesses and departmental officials should be distinguished, because it would be a problem if officials had to take an oath to tell the truth to Parliament, when this was already expected of them. Part of the Members' job was to hold the officials to account where they had lied and call on the Minister to take action against them. There were structures in place to deal with governmental officials who lied to Parliament. Other witnesses may be held accountable in court. These other people should be warned that they needed to tell the truth and action may be taken if they do not. Where annual reports were being presented, the officials were automatically expected to tell the truth or face a disciplinary investigation.
Ms Kilian said unfortunately the situation was that there was a high turnover rate of officials in government departments. Therefore, there needed to be a formalised introduction at meetings, reminding officials that they were being summoned under Constitutional powers and must tell the truth. There was a need to ensure that officials understood the accountability powers and responsibilities. Due to the new trend of lack of accountability, something must be done, because the Constitution required it. It must be understood that ministers changed regularly and were the political head of departments, but the accounting officer (Director General) carried the full responsibilities of the Public Finance Management Act (PFMA). She felt the link between what the public service was doing and their responsibility to provide accurate information to Parliament needed to be tightened.
The Chairperson said the rule should not be written to cater for Members being reluctant to hold the executive to account, as accountability was part of the political work of Members. Drafting the rule in the way suggested could have unintended consequences. He felt the rules were sufficient for executive accountability. Working out the wording for a warning to the officials could help make them take their reporting function seriously. Other countries trained their bureaucrats on reporting in Committees. He did not think the stage had been reached where officials could be expected to always understand the ramifications of wilfully misleading Parliament. His problem was also that not everything should be included in the Rules, because this was the function of Members.
Mr Ndlozi said the Rule referred to "all persons" and therefore Ms Michael’s distinction did not have to apply. If it helped to encourage people to revere Parliament and be honest, then the oath should be administered.
Ms Michael said she agreed, but her problem was that officials could not be trusted to be honest in Parliament. She agreed with Ms Kalyan’s proposal that this should be put in the guidelines, so that officials were aware of the existence of the oath, and it did not have to be administered every time an official reported.
Adv Jenkins said the PPP Act specifies that the target was oral utterances and the protection was for the specific person making the statement, to allow them to speak more freely. The sanction for breaching the conditions of the oath was one year imprisonment or a fine. Whether under oath or not, if a person deliberately lied then the sanction was two years imprisonment. Therefore, the oath being administered gave the person protection, but in return they were not allowed to refuse to answer a question or leave without answering it. He emphasised that action could still be taken against someone who wilfully misled Parliament, regardless of the oath.
Mr Kasper Hahndiek said it was important to bear this in mind, and even where a briefing was given this was still a possibility. He wanted to clarify that under the PFMA the Directors General were accountable to the Ministers, rather than to Parliament. as it was an executive accountability. Often, Directors General would be requested to present information on behalf of the Minister to Parliament.
The Chairperson said the issue had been exhaustively discussed, and he would have thought that an oath would be administered to invited witnesses. If it was the executive, then this was really a political issue. He agreed with Mr Hahndiek that the accounting officer accounted to the executive, although it had become a trend that officials also accounted in Parliament.
Ms Kilian said since that there was already a section giving an oath to witnesses, that this should include a statement that it was an offence under the PPP Act to mislead Parliament. The links should be clear and would be assisted by an introductory warning or a manual for the administration.
Rule 156: Removal of Persons
Mr Perran Hahndiek asked who the Sarjeant-at-Arms used to remove persons under this rule following an instruction from the Chairperson, and whether it would be Parliamentary Protection Services or SAPS.
Ms Kilian said this issue had been debated already and an agreement reached that some form of capacity should be developed within Parliament to deal with.
Mr Kasper Hahndiek said references to Parliamentary Protection Services would be taken out of the Rules, but the PPP Act was clear about the circumstances in which the security services may be used. If a Member refused to leave the Chamber s/he would be automatically suspended from Parliament by the act of refusal and the Speaker could summon the SAPS to assist with removal. There had always been a manual, signed off between the SAPS and the presiding officers, which managed how SAPS operated within the precincts of Parliament, in detail. Therefore, if the SAPS were to be asked to remove a Member there would be a clear understanding of the manner of removal, the uniform worn and whether the SAPS would be armed.
Mr Perran Hahndiek said this was also about members of the public disrupting a meeting and it was not only about Members.
Mr Ndlozi said the Committee needed to consider how persons were deal with who wished to protest in front of Parliament. Further, some means must be found to distance Parliament from the SAPS, because of the separation of powers. The SAPS did not act under the instructions of Parliament at the end of the day, because their salaries were not paid by Parliament. This was why other Parliaments in the world had created dedicated protection services. Visitors must be dealt with here and Members elsewhere in the Rules.
Mr Singh said the issue of how Members of Parliament were treated required a broader and more in depth discussion. This rule, he agreed, dealt with people who were visitors to a Committee and were causing a disruption. He had heard that the Chairperson of the National Council of Provinces had reprimanded members of the public who were heckling speakers, and this was the type of situation considered. This also raised the point that when people were allowed into the precincts of Parliament they ought to be given a list of basic rules and made to sign their agreement to be bound by them, so that if the Rule was applied, they would be aware of why this was being done.
Ms Michael said she was under the impression that she had been mandated by the task team to draft a manual about how protection services would deal with Members in the House. She understood that Mr Ndlozi was not the EFF member in the Subcommittee at the time. Parliament would have its own protection services and would only be allowed to intervene where there was a direct threat to life. This was being drafted and would be circulated once it was finished. Visitors did receive a basic list of the rules, which was contained on their access ticket. She disagreed with Mr Ndlozi that protests should be executed within the precinct of Parliament. Parliament needed to be able to execute its duty and this was protected by the fact that members of the public were not allowed to participate in the business. No political rally should be allowed to happen within the precincts of Parliament, something that had happened the previous year, and was unprecedented. Parliament was sacrosanct and order was necessary to complete its duties.
Ms Kilian fully agreed, but said the political rally which was being spoken about could be contrasted with a picket protest which was might be held by the Premier of the Western Cape on the steps of Parliament. The point was that if it was not permitted under the PPP Act, then it should not be allowed. She believed, in regard to removal of persons, that the Rules should reflect Parliament’s regulatory framework, which was the PPP Act. This Act indicated that people may not take part in any disturbance within the precinct, and it referred to "any person", which was of general application. Members were therefore not beyond reproach and if Members acted badly they should be treated the same as any other person. She reiterated that she was not sure why this debate was re-opened, because this matter had been dealt with.
Mr Ndlozi directed the Subcommittee to section 17 of the Constitution, which indicated that everyone had the right to peaceful protest. Protest or demonstrations, by their nature, disrupted certain laws and therefore a doctrine of protest under democratic rule needed to be discussed. People had the right to be disruptive if they were protesting. The argument being put forward that people cannot protest within the precincts of Parliament could surely not be correct. He suggested that Members must be sensitive to the concept of civil disobedience, and certain rules and regulations should be suspended to listen to people’s concerns. Members must not be hostile to disruptions for political reasons, as long as it was peaceful. Section 17 protected this.
Ms Michael said the right to protest was protected in the Constitution, but this must be done in accordance with laws. and where disruptions happened this was done within the confines of law, with the permission of the relevant authorities. This was because of the country's strong belief in the rule of law. Section 36 of the Constitution limited the exercise of rights and a legitimate limitation would be that people were not allowed to protest inside the precincts of Parliament. If they were, this would cause anarchy and if Parliament was in anarchy the rest of the country would follow suit. She emphasised that all of this was based on the interesting concept of the rule of law.
Mr Booi said the relevance of what was being raised was the distortion of what Mr Floyd Shivambu (EFF) had alerted the House to on the previous day, where people were protesting outside Parliament, disrupting the debate. That was an unacceptable level of anarchy and disorder. He emphasised that spontaneity was dangerous, and this was what had occurred recently with the violence in Durban. This could not be allowed, and nor could allowing people to enter into the precinct of Parliament in order to protest. He encouraged Mr Ndlozi to read the Constitution against the rights which individuals had themselves, particularly representatives' right to govern. If there were no rules, then there was no anarchy.
Mr Ndlozi said other Members were making mere claims which were masquerading as strong arguments. He wanted to deal with the “bourgeois reading of the rule of law”, because a statement that it was necessary to abide by the rule of law could not be stated like that, and people could no longer be made to abide by unjust laws, as had happened under colonial and apartheid rule. He was not entertaining violent protest, but only peaceful disruption of the normal order, for political reasons, which was how he defined "protest". He spoke to the example of journalists, during the State of the Nation Address, chanting against signal jamming, who were not charged under the rule. The result was that the Speaker interrupted the address until the matter was dealt with. People of the country, particularly the poor, had only their voices by which to express themselves. He said it was unfair to compare what had happened in Durban with peaceful protest, because those people were not demonstrating, but had an intention to commit xenophobic violence. He was asking Members to anticipate events such as people in the gallery chanting against the passing of a particular law, and to question whether it would be more correct to have SAPS remove them or allow them to be heard. It cannot be said that peaceful disruption of the House by members of the public was illegal, because the Constitution allowed for this. The right of Members to govern must be balanced against people’s right to protest, and the right to govern cannot be enforced by any means necessary. People also had a right to be listened to and they would not be disrupting proceedings forever, simply until they were heard. His basic point was that removal of visitors and the public should be subject to demonstration, and the Subcommittee must develop guidelines around the instances of demonstrations.
Mr Singh said the IFP would not agree to this proposal, and the Subcommittee was here to take issues such as this to the parent Committee. He stressed that whatever happened in a Committee or in the House, participation was reserved for the Members. Participation by outside persons was done through a specific process and subject to invitation. If people wanted to submit a petition or proposal, then they were free do so, having followed the correct process. He questioned what might happen if, during discussions on certain issues, parties could literally “rent-a-crowd” to shout down particular Members. Would this be conducive to the work of Parliament? He concluded by saying this matter should be taken to the caucuses and Rules Committee, for a majority decision to dictate what would happen with Rule 156.
Mr Booi said Mr Ndlozi was reading section 17 of the Constitution in isolation, particularly from section 36. Mr Ndlozi must understand that everyone had rights, including Members' rights to participate in Parliament, and these must be contrasted with the right to protest. Situations had happened in the past where people had demonstrated inside Parliament. The Rule was necessary to introduce a proper balance between protest and disruption of the work of Parliament. He said the ANC would be objecting to this proposal.
The Chairperson said he felt Mr Ndlozi was almost venturing into a general debate of a broader issue.
Mr Kasper Hahndiek said the rules being discussed was specific to Committee meetings, although the discussion seems to have extended to the House. Rule 156 dealt with any person, who was present without permission and caused a disruption or nuisance. This covered all persons. Rules 154, 155 and 156 dealt, respectively, with removal of the public, removal of officials and removal of any person. He felt the rules were fair, in the context of the PPP Act.
Part 5: Rules Committee
Mr Kasper Hahndiek said this part dealt extensively with what the Rules Committee was and what it was meant to be. Effectively, the key issue was that the Parliamentary Oversight Authority (POA) was now there to deal with administrative matters, while the Rules Committee should deal with core business issues as the senior Committee in Parliament. The only addition was sub-rule (7) which provides that the Rules Committee would meet once a month.
The Chairperson said there were no major issues under this part and meeting once a month may be too demanding. This could be changed to once per quarter or six months, but this could be decided later. The major point was that it should meet regularly, to make decisions about the overall running of the core business of Parliament.
Ms Kalyan asked for this to be included under the notes.
The Chairperson said the establishment of the Rules Committee has been reduced, not requiring 50 Members any longer.
Mr Kasper Hahndiek recommended that, like the Programming Committee, the Rules Committee should be representative of all parties within the National Assembly. It dealt with central issues and parties ought not to be excluded because of their size. If they did not attend then that was a separate issue.
The Chairperson said this suggested the need for the majority to be built in. In the past, the ANC had difficulty finding enough Members to reflect the appropriate percentage of representation to sit in the Rules Committee. Even if the ANC had permanent Members and alternatives, the 62% majority would not be shifted around.
Mr Singh noted complaints from the smaller parties (which he represented as part of the group) that they did not get to participate in the Subcommittee. He felt all political parties in Parliament should be invited to contribute to the Subcommittee. He knew COPE was concerned about its absence when certain items were discussed, and representatives making submission on their behalf. Therefore, in future all parties should be invited and allowed to participate.
Ms Kalyan disagreed and said the work of the Subcommittee required it to be a reasonable size to get through all it was tasked to do. This Subcommittee was established in the Fourth Parliament and the expansion should have been done then. If the expansion was done now, then Members’ work would be retarded and regress into discussing closed matters, as was often the case with the EFF's attendance. The protection mechanism for parties not directly represented was that once the Subcommittee completed its work the draft Rules would be circulated to political parties.
The Chairperson said all parties had already been invited to the Subcommittee, and the reason they were absent was because of their own capacity constraints. The thinking was that it would be better for parties to have a discussion in the Subcommittee, rather than waste the Rules Committee’s time. No one would be able to say they were not allowed to participate and it would be acceptable if Members came only for discussions on a specific section of the Rules.
Rule 159: Composition
The Chairperson said this was where the ANC majority should be built in, so that the ruling party was not forced to over-extend itself.
Ms Kilian asked whether it had been agreed in principle that the composition, including total membership and the vote of three, would be left to the determination of the Rules Committee.
Mr Kasper Hahndiek said it would not be possible for the Rules Committee to decide on the composition of itself, and the initial decision would have to be taken by House resolution.
The Chairperson agreed and said it would be important that the majority was built in, to avoid having a unnecessary number of Members present.
Mr Booi said the Chairperson was trivialising the composition of the most important Committee in Parliament. How this Committee was structured was going to affect the running of Parliament.
The Chairperson responded that one of the problems isolated was that powers had been disseminated. The Rules Committee must now assume its role as the senior committee which takes decisions on the core business of Parliament. The Rules Committee should be composed in a way that no parties were marginalised. The important aspect would be to protect the majority, while ensuring broad participation.
Mr Booi said the ANC had the majority and it would be used. He agreed that parties should be represented in the Rules Committee, but when decisions were made the majority would not be compromised.
The Chairperson said the problem had been around the quorum, because it used to be that too many people were required before a decision could be made. The problem with quorum led to Members going out to co-opt others to make up a quorum. Therefore, the rule must balance democratic representation and the need to make decisions.
Mr Kasper Hahndiek said the Programme Committee was going to make use of weighted votes, with a single representative from each party. Some Members had said weighted votes seemed to be a dangerous option, particularly given the seniority of the Committee. A potential solution would be to ensure that the Members of the majority party were represented by a majority in the Committee.
The Chairperson reiterated that the requirement for 50 Members had now been done away with and the ANC representation now required was 13 Members. This was effective because it was very frustrating not to reach a quorum.
Mr Booi said he understood the frustrations, but the Rules should not be drafted because of frustrations, and ought to be guided by political reasoning. The Rules Committee was important and for the sake of democracy it was said that a number of representatives should be present. However, there were administrative challenges and the functionality should not compromise the parties’ votes which were an extension of the public’s votes. He encouraged allowing the redrafting of the composition to work out the functionality, without the parties’ representativity being compromised.
The Chairperson said the point was that it had been reworked already, with the number of Members now reduced through a House resolution. The number decided upon should be looked at to check if it contained representatives from all parties in Parliament.
Ms Kalyan asked for the current composition of the Rules Committee, to guide drafting of the composition.
The Chairperson asked that this be circulated to Members to allow the Subcommittee to proceed further on this point.
Rule 160: Chairperson
Ms Kalyan said in the absence of the Speaker, the Deputy Speaker would perform the functions. Given that House Chairpersons were now also given the responsibility to perform functions in the absence of the Speaker, she questioned if they should not also be included in the Rule.
Mr Singh agreed and proposed that it be worded as "or such person as designated by the Speaker".
The Chairperson said the Rules Committee was a senior Committee and therefore delegations should be restricted.
Ms Kalyan said House Chairpersons were senior officers.
The Chairperson said they only operated under delegation from the Speaker, but the proposal could be considered. As the Rules Committee did not meet very often, it would be better to restrict it to the Speaker and Deputy Speaker.
Mr Booi agreed. The focus was to ensure the seniority of the Rules Committee, so it must therefore be taken seriously, from the Speaker all the way down. The nature of the Committee meant the requisite numbers and type of people should be present and there would be an eagerness to attend, knowing that the Speaker would be there. Outsourcing of powers and decision making had been a problem in the Fourth Parliament, and now the powers were being re-collected.
Ms Kalyan said she would accept this, but her point was that powers had been outsourced in other parts of the Rules, and consistency should be maintained.
Mr Kasper Hahndiek said there was a difference, because the Speaker and Deputy Speaker were elected by secret ballot, unlike the House Chairpersons. These two officials, by virtue of their responsibilities and office, were the only Members who did not participate in parliamentary events, in distinction to the House Chairpersons. The only delegated function they exercised was presiding in the Chamber, and carrying out responsibilities assigned to them by the Speaker. Therefore, the Speaker and Deputy Speaker have a particular role to play regarding a senior Committee, like the Rules Committee.
Ms Kalyan said specific duties could be assigned by the Speaker to House Chairpersons, and asked if they would not be able to delegate this function as well.
Mr Hahndiek replied that this would not be possible where the Rules had not made provision for it. However, the Rules provided that where both the Speaker and Deputy Speaker were absent the House Chairperson, appointed by the Speaker, would perform the function of Speaker. Therefore, it was possible.
Mr Booi said the problem arose when the Speaker entered the House and did not know what had happened in the Rules Committee. Where that body made decisions, the Speaker must be present, so that the Speaker knew what was to happen in the future running of the business of Parliament.
Rule 161: Function and Powers
Mr Hahndiek said Rule 161(1)(d) showed the extent of responsibility of the Rules Committee at present and everything put in bold in the present Draft would be removed. The Rules Committee would then be confined to developing and adopting policy concerning the exclusive business of the Assembly, in respect of the proceedings, procedures, Rules, orders and practices around the business of the Assembly.
Rule 162: Implementation of Policy
Mr Kasper Hahndiek said this heading should be changed again, because the intention was that the policy would include administrative policy. However, the reference now was only to policy regarding core business, and this should be reflected.
Ms Kilian asked whether it would not be better to say “after consultation with the Rules Committee”, rather than “with the concurrence of the Rules Committee” in Rule 162 (2).
Mr Hahndiek replied that "after consultation" meant it must be listened to and then the decision could be made either way. The intention here was that whatever the Speaker proposed to do must be supported by the Rules Committee, particularly when appointing task teams.
Rule 163: Policy matters requiring decisions during recess
Mr Hahndiek explained that this rule dealt with the situation where a decision needed to be made during recess, when the Rules Committee could not meet. It was decided that a certain number of senior people needed to be available to take a decision that the Rules Committee would otherwise make. There was a check on this in subrule (3), which required that any decision must be published in the ATC within three days of the end of recess.
Mr Singh said the wording was a bit loose, because saying “may convene a meeting … of those who were available” allowed for a meeting of two people, with the check in subrule (3) only coming in after the fact and after the decision had already been made.
Mr Booi said the Subcommittee needed to be very clear about what it wanted to achieve with this Rule. The Speaker would be limited by the Constitution and improper action would cause public uproar or condemnation from Members. The Rule did not make democratic representation applicable and the Rules Committee could make far reaching decisions. He was not sure whether Members would be willing to forsake their democratic rights in this way. The people listed in the Rule were generally people of the ruling party, and he wondered if this was this a development which Members would accept.
Ms Kalyan asked whether the Rule had been used in the past, and whether an example could be given.
The Chairperson said the Rule has been in existence, but used minimally, without causing any harm. If the Subcommittee felt the rule should go, then this would be recommended.
Mr Kasper Hahndiek said the issue would be where there was contestant in Parliament, there was potential for this rule to be abused. While Members may be on recess these important persons listed should be available to ensure Parliament could still function. In an emergency or exception circumstances, there needed to be a mechanism to convene the Rules Committee.
The Chairperson asked why this could not simply be left up to the Rules Committee, and Rule 163 removed, because the Speaker could convene the Rules Committee at any time.
Mr Singh said perhaps sub-rule (2) could be looked at to strengthen not the quorum, but the composition, when the rule was applied.
The Chairperson said it seemed to be agreed that the rule should be removed, given that the Rules Committee could be convened at any time and in any situation.
Ms Kilian asked whether the decision was that Rule 163 would be retained and changed so that where matters need to be dealt with during recess the Rules Committee would be convened, or whether the present rule would be left intact?
Mr Hahndiek said this was what was intended, because it made it possible for a smaller meeting to be convened where it would be difficult to convene the entire Rules Committee.
Ms Kilian said the Rules Committee used to be extensive and questioned whether such emergency policy would really be required.
Ms Kalyan said this was why she had asked whether it has been used and under what circumstances, because this would help guide the Subcommittee’s thinking.
The Chairperson said he thought the rule was to be removed and the Rules Committee allowed to convene to deal with urgent issues, because it was able to convene at any time. It would be very rare that an instant policy change would happen. With the new developments, perhaps it was best that it be removed.
Mr Hahndiek said an example would be that late in December, something might happen giving rise to a call to reconvene Parliament, but the Speaker did not want to take it upon her or himself to make this decision, without proper consultation. The Speaker therefore would want to consult with the Rules Committee, but could not reach all the Members. This would provide a mechanism for the Speaker to consult a smaller Rules Committee in untoward circumstances.
Mr Booi said it should be more transparent and it stated that where there was an emergency a certain type of structure would be constituted. This should be clearly drafted in the Rules.
The Chairperson said the Rules Committee could not be allowed to create ad hoc Subcommittees, to ensure that everything remained with the Rules.
Mr Booi said a state of emergency could only be declared after Parliament had been called. If there was a crisis, then this rule could be applied to constitute a small body to make this very serious decision.
The Chairperson said it was agreed that the Rules Committee was the senior Committee and in times of emergency the Speaker could convene a meeting or even a Subcommittee. Further than that, the Subcommittee were agreed that instant policy changes were a concern.
Rule 164: Decisions
Mr Booi said he was uncomfortable with the qualifications here. All that was required would be to have a quorum present and a majority decision.
The Chairperson said the rule indicated that a decision was made by 50% plus one Member.
Rule 165: Subcommittees
Ms Kalyan asked whether all these subcommittee listed in bold were being deleted.
Mr Hahndiek said only the Subcommittee on Review of the Rules would remain.
Ms Kalyan said as far as she was aware the Subcommittee on Delegated Legislation was still functioning, although it may have lapsed in the last Parliament.
Adv Jenkins said he was unsure that the Subcommittee on Delegated Legislation had ever been established. An interim forum, called the Joint Subcommittee on the Scrutiny of Delegated Legislation was established.
Mr Kasper Hahndiek agreed and recalled a resolution of both Houses constituting such a structure.
Mr Singh asked whether the Subcommittee on the National Assembly Budget had ever existed or operated.
Mr Hahndiek replied that it had run at a point, and the idea was that Members would take a direct role in drafting and preparation of the budget. This was supposed to meet and make input to the Finance Office, but it was never able to complete its work. The Speaker at the time decided that she could no longer wait and drafted a budget for submission. As a result of the contestation between presiding officers and Members at the time, the POA was appointed to take control of the administration and budget of Parliament. This led to a new budgeting process, including consultative fora with Chairpersons and parties.
The Chairperson said it should be borne in mind that the Rules at the time were drafted to curtail the Speaker, because the Speaker was powerful and the drafters of the Rules were mindful of that. The review process should not again be concerned with individuals.
Mr Singh said this was" a necessary animal" and it must be made clear that the budget process was being dealt with by the POA. What the POA could do and not do should be clearly enunciated.
The Chairperson said all the internal arrangement issues, including budget, were being taken away from the Rules Committee, leaving it free to deal with policy issues and the core business of Parliament.
Mr Kasper Hahndiek said there was an Act which dealt with Parliament’s financial arrangements and administration of Parliament. The POA specifically had sub-bodies to perform this role.
Rule 172: Subcommittee on the Review of the National Assembly
Ms Kalyan raised a concern with whether eight Members was the appropriate number.
Mr Hahndiek said the numbers would be dictated by the composition of Parliament at the time.
The Chairperson said perhaps it should be left up to the Rules Committee to decide, because stipulating a particular number may require further amendments to the Rules in future.
Part 6: Programme Committee
Mr Hahndiek said the amendments to rules 187 to 190A were the rules adopted in August 2013, which was in response to the need for the Programme Committee to take decisions requiring a deadlock breaking mechanism. These were adopted by the House , but the task team felt that the composition and manner of decision making for the Committee should be reviewed. The task team proposed the weighted voting option, contained in the notes which follow Rule 190A. He later asked whether the second option should be retained for presentation to the Rules Committee. The second option would retain the position as adopted in 2013, with some more members added, to ensure presiding officers do not have to vote along party lines. At present the presiding officers and leader of government business were required to vote along party lines. The argument was that as they were there in their capacities as presiding officers, they should not be required to vote along party lines. This was opposed to the weighted voting which was contained in option one.
Ms Kilian said long debates have been held, which had established that the Programme Committee was essentially the business Committee of Parliament. Once a mandate was received as a ruling party or alliance, then the business before Parliament must be processed. One of two mechanisms have been proposed, with inclusivity of all parties being the target. On the other hand a situation where smaller parties could effectively curtail the decision of the elected majority should not be allowed. An inclusive balance could be achieved by opening the Programme Committee to all parties, but retaining the majority. This could be done through a weighted vote, which did not mean the Committee would have to be very large. She noted that decisions in the Programme Committee had been done through consensus for a long period and under the Rules, before the resolution, there was no way for a decision to be made if consensus was not reached. A weighted vote would mean that if a matter was brought to a vote the Members’ votes would carry the weight of their party’s representation in Parliament, the ANC votes carrying 62%, for example. The other alternative was option 2, which essentially would entail a 50% plus one decision making mechanism, which would skew the democratic representation. Weighted votes had been used in other places, such as Chapter 5.
The Chairperson said his understanding was that the ANC would have six Members in the Programme Committee, each of them carrying roughly10% of the total decision making powers. The concern was that one person could not hold the entire vote of a party, unless it was a one person party. The presiding officers would be removed from the party voting, but when the Committee cannot decide, these offices would decide. All parties should participate, because inclusivity was an important principle in a multi-party democracy.
Mr Ndlozi said he did not feel the Programme Committee should be treated differently to any other Committee and the democratic principle of proportionate representation must be maintained with all decisions which were made. This must be done, while ensuring that all parties were being consulted.
The Chairperson said the point was that very big Committees were unwieldy, but the principle remained that all parties must be represented in proportion to the votes they received. However, the majority vote should still take precedence, because it was a decision making body.
Mr Singh said the option to have as many "warm bodies" participate, with limited voting, was the best option.
Mr Kasper Hahndiek asked whether all Members were to be full Members of the Rules and Programme Committees - with the ruling party having six Members and the opposition having a set number per party. He said specifying this may be unwise, because this was dependent on the composition of Parliament and it may be inappropriate to stipulate numbers. Furthermore, how would nuances work - like which of the six proposed ANC Members would have 12% rather than 10%.
Mr Singh said he did not think it should be said that everyone from every party was a full Member of the Programme Committee, rather they should be a participatory Member.
Mr Hahndiek asked whether the smaller parties would not vote on decisions?
Mr Singh replied that they would vote, but it was a shared vote.
The Chairperson said the aim was to reduce the size of the Committees, but at the same time ensure that everyone may participate. He said he felt the preferred option was being taken and all that remained would be fine-tuning it.
Part 7: Powers and Privileges
The Chairperson said as the Chairperson of the Powers and Privileges Committee was not present and he had a recommendation to make perhaps the discussion of this part should be delayed.
Mr Booi said this should not be the approach, because there may be views which others wished to raise.
Mr Ndlozi said the EFF had a submission, but he would be happy to circulate it before he spoke to it.
Ms Kilian asked for the Chairperson to allow Members to receive the documents first.
The Chairperson said the presentation could be done now and the discussion held at a later date. He added that there was an Act dealing with the matter and it should not take very long to deal with.
Mr Ndlozi said he would be happy to present in the future, so that a composite discussion could be had, with Members having read the submission.
The Chairperson said this would be fine, and Mr Mashile would do the same.
Part 8: Committee of Chairpersons
Ms Kilian said the matter had been discussed and it was questioned whether the various Committees of the Chairpersons were going to be formalised in the Rules, and whether the Speaker, who delegates functions to the House Chairpersons, would be allowed to conduct the business outside of the Rules. Once a body was brought into the Rules and its functions formalised, a precedent was set. This could lead to questions about formalisation of the other House Chairpersons’ functions. Her basic point was whether any harm would be done by removing the present Rule?
Mr Ndlozi said there had not been enough common ground to justify doing away with the Committee of Chairpersons and he would be happy with it being retained, as long as its composition was consistent with the Rules. From his experience of the Committee at present, he could not see how it could continue to exist. The previous discussion had showed him that there were a lot of things which this Committee did regarding the running of Parliament. He asked for the ANC to repeat its submission here, in light of the concern that the legislated powers of the Speaker should not be taken away under the Rules.
Ms Kilian said she did not want to go into the submission. The Constitution provided that the Speaker and Deputy Speaker must be elected through a particular process, but it did allow for assistants to be appointed to aid the Speaker in his or her functions. Under the Rules, the House appointed the three House Chairpersons, but it did not prescribe their functions, because they were performing a support function to the Speaker who ultimately retained accountability. The responsibilities of the House Chairpersons were published in the ATC. Because of their accountability to the Speaker there did not need to be a formalisation of the structures they used in the Rules. The question was then why there was an exception made regarding House Chairperson responsible for Committees? This structure had been formalised in the Rules and it should be considered whether this was necessary, given that there were no Rules regarding the House Chairperson responsible for International Relations and there were no prescriptions on the quarterly consultative forums. She reiterated that these three people were there to support the Speaker. If one Chairperson’s structure was captured in the Rules, it followed that the others should be the same.
Ms Kalyan said the House Chairpersons’ areas of responsibility were committees, international relations and Members’ facilities. The Parliamentary Group on International Relations’ role was not properly defined, and it was currently dysfunctional and had been since its inception. Therefore, these broad areas allocated to the House Chairpersons should not be defined. She also questioned whether a House Chairperson was required to run Members’ facilities, or whether an ordinary Chairperson could do so?
Mr Booi said the biggest challenge was how the Speaker’s Office was constituted, and how functions were delegated. The House Chairperson on Committees had a large contingent of people beneath that office, but not much was defined in the Rules around how the responsibilities were to be delegated. What principle was being applied to bring them into the Speakers Office? The Rule indicated the function of such Chairpersons was to make recommendations to the Rules Committee or Programme Committee. Here, they had nothing to do with the Speaker’s Office, and he thus questioned what the relevance was of a House Chairperson if their function did not direct them to be part of that Office? A House Chairperson was designated by the Speaker to preside at meetings of the Committee of Chairpersons. There was no synergy between that Committee and its creation in the Speaker’s Office. He thought the main issue was not about individuals, but consistency in reviewing the House Chairpersons and the Speaker’s Office. His broader question was what the function of the House Chairpersons should be, because Parliament had not benefited from the House Chairperson for Committees coordinating Committees. The function of House Chairpersons, who were paid along the lines of Deputy Ministers, needed to be clarified. That was why the presiding officers were invited to the Subcommittee.
Mr Ndlozi said he wanted to understand the submission properly. There were essentially three things which it was arguing: firstly, the role of the Speaker’s Office; secondly, the role of whoever the Speaker delegated the function to in the House; and thirdly, the necessity for Chairpersons to have a forum. The reworking this rule should not be short-sighted. It was generally agreed that a forum for the interaction of Chairpersons was required. If the proposition was that the Chairperson who chaired this forum should not be an elected officer, he would argue that if the Committee of Chairpersons was presided over by the Speaker, there was a rational link between the two entities' functions. He agreed that meetings at this level should occur to expedite the business of Parliament and discuss administrative matters. He therefore asked if the point was whether this Chairperson should not be a delegation from the Speaker and the latter should rather do the task - meaning that the Speaker would chair three bodies, being the Programme Committee, Rules Committee and the Committee of Chairpersons. He wanted to hear a sound argument for the elimination of the Committee, rather than the position of House Chairperson for Committees.
The Chairperson said the task team took the view that a forum like the Committee of Chairpersons was required, with the Speaker delegating responsibilities as required.
Mr Singh said he was trying to understand whether the ANC was addressing the establishment of the Committee of Chairpersons, or the appointment of House Chairpersons. If the concern was that there were three House Chairpersons whose roles were not clearly defined, this was a different matter from the fact of existence of the Committee of Chairpersons. His sense was that the submission was not saying there was no need for House Chairpersons, and the Speaker should be able to delegate to three individuals. If so, then the issue of their responsibilities had to be discussed. Perhaps a Committee of Chairpersons was not necessary.
Mr Ndlozi asked for the ANC to clarify what the proposal spoke to, because the matters were related. The Rule spoke to a person called House Chairperson, who must chair the Committee of Chairpersons. This meant it was exempted from Rule 129, which indicates how a Chairperson was elected. Therefore, the question was whether Rule 197 must be consistent with Rule129, or if part 8 must be removed.
Ms Kilian clarified that the concern was that it was unclear how it came about that one structure and one House Chairperson performed functions contained in the Rules. The question was then whether it was necessary to include this single structure. If it was retained, then it was necessary to consider whether the other structures should also be formalised. She was not proposing deletion of part 8, nor the alteration of the election process.
Ms Kalyan said appointment of the House Chairpersons happened according to the model of the POA, which was a separate issue. She agreed with Ms Kilian that it should either be retained and the other structures formalised, or completely taken out. This Subcommittee should thus look at the POA model and see what the rationale was for appointing House Chairpersons. Their role obviously included assisting the Speaker with his or her functions in the Chamber, but it must be decided how it happened that these people, appointed to assist the Speaker, were given specific portfolios. Placing this in the Rules restricted the Speaker. It was also necessary to look at what would happen if the portfolios changed.
Mr Booi agreed and said his point was that the POA was not subjected to the Rules. Control over a major portion of Parliament’s budget was being given to this structure. He was not comfortable that structures could be created in a democratic environment which did not account, particularly as Parliament, in setting up these structures, was setting precedents for society to follow. Looking at Rule 197, he said that the Chairperson was to be the person who had this responsibility delegated by the Speaker, but an office could be created for a person to merely preside over meetings. He liked the sentiment expressed by the Chairperson that the review of the Rules should not be conducted to cater for short term problems. His question was how the POA structure became relevant to the Rules, because it was able to decide on several things, including what type of education was given to Committees. The Subcommittee must consider what the Rules were saying about these structures, and whether they should be left as they were, on the understanding that the power was based on a delegation by the Speaker. It was important to have Rules which benefitted the institution and it may be better that where an issue arose in relation to committees, the matter should go straight to the Speaker. It might be that the office of House Chairperson was not valuable.
The Chairperson said this point was taking up more time than appropriate, and should be flagged. He suggested that Members must apply their minds and come back to it in the next meeting. Mr Booi’s point was essentially that the Rules Committee was the senior Committee of Parliament and should have all other Committees account to it. The POA should also be accountable under the Rules. However, since the POA was a parliamentary structure it may be inappropriate to have it subjected to the Rules of the National Assembly. Perhaps it would be better to have it account to the Joint Rules Committee.
Mr Kasper Hahndiek said the Constitution foresaw each House separately controlling its own budget. Therefore, while the Joint Rules of Parliament could be an option to consider, it must be borne in mind that, constitutionally speaking, the NCOP, could have no say in how the NA manages its business.
The Chairperson said that since the POA was a joint body, perhaps it should account to the Chamber. He again suggested flagging the issue and returning to it once Members have thought it over.
Mr Ndlozi suggested the ANC should prepare a formal submission, because this was the second time the matter was being reconsidered, and it was being postponed again. The submission should cover the relationship between the POA, presiding officers and chairpersons.
The Chairperson said the first option was to retain the existing rule and if there was no other option, then the rule should stand. The second option would be what the task team proposed. The third option would be the Subcommittee’s proposal. This would give the Rules Committee the widest range of options - it could still disagree with the Subcommittee.
Part 9: Portfolio Committees
Rule 200: Composition
The Chairperson said it would not be useful to stipulate the numbers for composition, because this might potentially change in the next Parliament. The minimum number of Members would be six.
Rule 202: Decisions
The Chairperson said the note had been deleted, because it had been decided that one third of Members were required at the start of any meeting.
Parts 9A& 9B: Standing Committee on Finance &Standing Committee on Appropriations
Mr Kasper Hahndiek noted that these two committees were products of the Money Bills and Related Matters Act, which was currently being considered further. It was therefore proposed that these stand over.
The Chairperson said the Committee on Public Accounts would be discussed the following week, because Mr T Godi (PAC) had requested the opportunity to make a submission.
Part 11: Committee on Private Members’ Legislative Proposals
The Chairperson said this Committee had been removed, because of a court decision indicating that every Member of Parliament had the right to introduce legislation.
Mr Hahndiek said there was only the question of the Special Petitions, which was the issue of Parliament assisting with the public service’s pensions.
Ms Kalyan asked what was happening with the special petitions, and what was the appropriate Committee to be identified by the Rules Committee to deal with these.
Mr Hahndiek said the suggestion was that it would be the Standing Committee on Finance, because if a petition on a pension was approved the Minister of Finance had to introduce a finance bill in the House to give effect to the petition.
Ms Kalyan asked what happened with ordinary petitions.
Ms Kilian replied that these would go to the relevant Portfolio Committee.
Mr Hahndiek said the special petition was defined in the definition rule, as “petition requesting a pension or specific or personal relief which the State was not authorised under law to give”. This would then have to be dealt with as a Bill.
Ms Kalyan spoke to note 5, asking if the public participation model was still pending.
Ms Michael said as far as she knew it was still pending. A DA Member from the NCOP had drafted what would have been a Private Member's Bill, on the operation of petitions. As the legislative whip for the DA she had recommended that this be brought to the Subcommittee rather than introduced as a Private Members Bill. She asked for permission to circulate the document, because she felt the document was exquisitely drafted and could assist with rules around petitions.
The Chairperson accepted the proposal, because there was no harm in reading the document.
Part 12: Ad Hoc Committee
Mr Ndlozi asked whether this rule empowered the Speaker to create Ad Hoc Committees to deal with official reports and the like.
Mr Kasper Hahndiek clarified that the rule read that Ad Hoc Committees were usually created by the House, and only during adjournments of more than 40 days were they created by the Speaker, for ratification by the House.
Arrangement of House business and certain Committee meetings
Rule 223: Unusual meetings of committees and subcommittees.
Mr Hahndiek said this rule was about unusual meetings, specifically proposals to sit on non-working days or days when the House was sitting. In both instances the Chief Whip’s permission must be sought.
Rule 224: House Chairperson: Committees
The Chairperson said this matter has just been debated.
Mr Kasper Hahndiek said this rule was about a specific function in relation to the Committee of Chairpersons, which required the House Chairperson who has this function delegated by the Speaker to implement any policy, directive or guideline on the scheduling and coordination of meetings of all committees. This rule also gave specific responsibilities to a particular House Chairperson, and tied in with the earlier discussions.
Mr Ndlozi asked why House Chairpersons were not called "presiding officers" in line with the Rules and why this was not consistent with rule 14.
Mr Hahndiek said "presiding officers" was the collective noun for all presiding officers who were Members elected to preside in the House and carry out specific functions.
Mr Ndlozi said the title was then wrong, because the practice was that the Speaker of the National Assembly was referred to as "Speaker" and the others were referred to as "presiding officers" as this was their sole function. He was uncomfortable with House Chairpersons having the power to eject or censure Members. What was raised earlier was valid here also, for he questioned where such presiding officers would sit to be held accountable for the exercise of these powers held by the Speaker. He proposed that the Rules should maintain consistency in using "presiding officers", until there had been a justification for House Chairpersons to remain.
Mr Booi said the note on the Rule stated that the relevant House Chairperson should be held accountable to the Rules Committee for the exercise of functions under Rule 224. The note further proposed relocating that rule to a new position, under the rules dealing with the Committee of Chairpersons or meetings. This was a haphazard arrangement and perhaps the solution was to be up front, to say that the delegation was the cause for accountability.
Ms Kilian said she had a different view, because the policy was approved by the Rules Committee and the House Chairperson was merely exercising the delegated function of implementing the policy. Accountability would ultimately lie with the Rules Committee. She felt that in relation to Rule 14, these matters could be dealt with in written submissions. Her concern was that the rules have been checked for consistency with the Constitution and the Subcommittee should not be dragged back. The problem was that several Members of the EFF had been representing the EFF in the Subcommittee and it should not be a cause for delay in the Subcommittee.
The Chairperson said the issue was concluded and proposals must be written and submitted to the Subcommittee. If no new ideas were presented, then the rule would remain as it stands.
Mr Hahndiek clarified that the reference to implementing any policy did not relate to the Rules Committee, but rather to the Programme Committee.
The Chairperson agreed and felt this should be ironed out a broader political level.
Ms Kilian asked why and since when the Programme Committee dealt with policy, because this was the terrain of the Rules Committee.
Mr Hahndiek further clarified that reference to scheduling and coordination of meetings gave the Programme Committee a direct responsibility.
The Chairperson said the Subcommittee would meet again on 24 April. He reminded Members that the Joint Committee on the Joint Rules of Parliament would be meeting thereafter, so some Members would need to stay on.
Mr Ndlozi would make his proposal on the Powers and Privileges Committee. Mr Godi would also be given time to present, but would be requested to circulate the presentation beforehand. The ANC would make a proposal on the House Chairpersons issues, if it wished to introduce another option.
The Subcommittee would then embark on discussions on Chapter 13, which dealt with the legislative process, and the staff who were involved in this process should be invited. An invitation should also be extended to the small parties. A road map for the conclusion of the review process should be designed by the support staff.
Mr Ndlozi was also interested in returning to Chapter 5 and all other outstanding matters should be dealt with before proceeding to Chapter 13.
Mr Ndlozi added that presiding officers should also be invited to the meeting.
The Chairperson agreed and said if they were available they would attend.
He added that there was also the issue of the inbuilt majority in the Rules Committee. On the legislative process, the sentiment had been expressed that first and second readings should be replaced with the introduction of a Bill, to be referred to the Committees to follow the normal process.
Mr Hahndiek said the chapter on questions was almost complete, and he asked whether it should be circulated to the Members.
The Chairperson agreed that it should be circulated for Members to apply their minds and to allow them to raise any minor issues. He reiterated that when the final draft was presented to the Rules Committee, all Members of the Subcommittee should support what was presented, so that no Member should agree here and recant at the Rules Committee. The support staff should compile a list of critical areas of change or contention, because the Rules Committee would not have time to go through every single rule.
Mr Booi said the difficulty with the last Rules Committee meeting was that leaders of political parties were objecting to settled issues, and he would hope that the representatives would brief these people.
The meeting was adjourned.
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