Rules Subcommittee: Rules on SCOPA: input by SCOPA chairperson; Chapters 13-15 of National Assembly Rules; Programme

Rules of the National Assembly

15 May 2015
Chairperson: Mr M Mdakane (ANC)
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Meeting Summary

The Standing Committee on Public Accounts Chairperson presented proposals for the amendment of the Rules of the National Assembly governing the Standing Committee on Public Accounts. There were two major alterations: the inclusion of a sub-rule empowering the Standing Committee to hold provincial departments and entities directly accountable for funds which are transferred from national departments through legislation such as the Division of Revenue Act. Secondly, Rule 208 was revamped to enjoin the Standing Committee to collaborate with other Committees within Parliament and other relevant bodies outside of Parliament.

Members raised concern about the impact the proposals would have on the separation of powers, given the different levels of government. Another concern was the urgent need for Portfolio Committees to be involved and collaborate with the Standing Committee on Public Accounts, to foster greater accountability for the expenditure of public funds and make parliamentary processes more efficient. In sum the principles of following the money where transferred from a national department and the need for the various parliamentary committees to work in collaboration rather than in silos was accepted by the Subcommittee.

Chapter 13: Legislative Process had been thoroughly reviewed by the previous Rules Subcommittee and Task Team in the Fourth Parliament. This meant that there was little which needed to be looked at in this Chapter which essentially translates technical constitutional provisions into working processes for the National Assembly. A few matters were highlighted for Members’ consideration, including that the complexity of Chapter 13 warrants the creation of a manual for new Members explaining the processes for the various types of Bills. It was also noted that the legislation dealing with the process for Money Bills has been stagnating, with the Act having never been implemented and sitting before the Standing Committee on Finance for review for a lengthy period already. Further, the means to hold Committees to the process prescribed by the Rules was clarified as being generally political in nature, being pursued through the Speaker or the House.

The review of Chapters 14 and 15 were equally quick, although the presentation of proposed changes to the petitions mechanism by a DA NCOP Member was still to come.

Regarding the programme of the Rules Subcommittee, it planned to meet the following week because it was important to conclude the present process to allow political parties the space for internal consultations on the Rules during June. The aim was to have the Subcommittee consider any further proposals in July, followed by consideration by the Rules Committee. The ultimate aim was to have the Rules before the House by the end of the third term in September. Presentations from the State Law Advisors on definitions and from the Powers and Privileges Committee were still to come. The impact of certain court decisions on the ability for the Subcommittee to process certain rules, particularly regarding Powers and Privileges was noted.

Meeting report

The Chairperson said the Rules of the National Assembly are meant to direct Parliament as a multi-party body. The Subcommittee is seized with forging an appropriate balance between democratic participation by Members, including their right to debate any issue in the House, and order in the House. He noted that the work of the Subcommittee would continue for many months to come, because it has been tasked to handle matters such as the Joint Rules of Parliament, the rules governing the oversight function and mechanisms, and the Budgetary Review and Recommendations Report. The best thing to do would be to plan its work out carefully and stick to the programme. The programme would be presented for acceptance in this meeting. Once the Joint Rules Committee had met, a programme for the Joint Rules would be designed. He noted that that work would take time to complete, perhaps even running into the following year. The work on the Joint Rules would also be difficult, particularly regarding coordination. However, what remained most important was for the process of drafting the rules to be as democratic as possible, so that no Member would have cause to object to the Rules due to having been excluded from the process

While the Subcommittee dealt with the section on Committees, it was decided that Committees chairpersons who have contributions to make should be allowed to do so. This was part of the effort to ensure the process was participatory and towards ensuring the rules are accepted by Members. This is why the Chairperson of the Standing Committee on Public Accounts has been invited today so the Subcommittee could take into account the issues he raised when deciding on recommendations for Chapter 12. This presentation should enrich the work which had already been done on Chapter 12. They need to ensure this is a democratic process. Hopefully, whenever the Subcommittee dealt with the legislative process rules, many Members and parliamentary staff dealing with legislation would attend and enrich the process. Otherwise, the process would be isolated from the experience gained over the past 20 years. He would be asking Members to avail themselves once the programme had been accepted, even if the Subcommittee needed to work two or three times a week. This was so as not to lose any momentum, because there is pressure to finish the process which was initiated in 2012, although the work only started in earnest in 2014. Once the work of the Subcommittee is finalised, political parties will have to consider their draft of the Rules. The intention is to have the National Assembly decide on the drafted Rules by the end of the third term.

Standing Committee on Public Accounts (SCOPA) Chairperson submission
Mr T Godi (APC) noted that in the presentation document, only the parts in bold were additions to the Rules. He had been grappling with whether to make a submission which makes a general statement about what needs to happen, or whether to make concrete proposals.

Mr Godi said the first thing which he wanted to deal with was the name of the Committee. Under the Rules the name is the Committee on Public Accounts, while in practice and general discourse the Committee is referred to as the Standing Committee on Public Accounts (SCOPA). How this disjuncture came about is unknown and if the name in the Rules was used, this could cause confusion in the public domain. There is no definition of the word “standing” in the Rules and therefore no indication of the legal implications of changing the name. Looking at Rule 121, he was unsure whether SCOPA was a portfolio committee or a Committee established otherwise. However, looking at 199 the Speaker of the National Assembly could determine a name for each Committee. He noted that the Standing Committee on Finance derived its name from legislation. If there are no legal barriers to the change, he would hope to see it effected for consistency.

Moving to substantive changes, Mr Godi said “or other public bodies” has been inserted into Rule 206 (1)(a)(i). Elsewhere, reference is made to executive organs of state and constitutional institutions; therefore adding other public bodies is a move towards consistency.

Moving to the proposed (v) of the same rule, Mr Godi said the proposal is for SCOPA to consider any reports reviewing expenditure of public funds by any executive organ of state, constitutional body or any other public body. The difference is that up until this point, reference was only made to reports of the Auditor General, yet there are reports tabled in Parliament from an inter-ministerial review or a forensic report done by a Department which still deal with public expenditure. The point is that whatever the source, reports dealing with public expenditure should be the responsibility of SCOPA.

Mr Godi said the proposed (vi) requires SCOPA to “hold accountable organs of state, constitutional bodies and other public bodies that receive transfer payments from national departments through the Division of Revenue Act for the expenditure of those transfers”. What has come from his experience as Chairperson of SCOPA, almost without exception, national government departments will transfer funds to provincial departments or municipalities. The problem is how these provincial departments account for these transfers, because in terms of the Division of Revenue Act (DORA) there must be a memorandum of agreement about how the money is accounted for and disbursed. “There are problems of accountability” with provinces and municipalities. National departments complain that these bodies do not account on time or in the manner agreed and they do not know what to do. He was suggesting that SCOPA should be able to interrogate the provincial department about those specific monies which have come from national departments. An example was the Comprehensive Agricultural Support Programme (CASP),that disburses about R2 billion a year, which the department could not account for at all to SCOPA in a recent meeting. He felt Parliament would not be doing its work properly if it allowed the money to be given to the provinces and then just leave it up to them. He remembered a former Director General had argued that their responsibility ended with allocating the funds to the provinces and not how it was accounted for. The proposed clause therefore allows Parliament to “follow the money”. He had asked the Auditor General (AG) to quantify how much money is being disbursed under DORA and the response was in the billions.

He noted that a technical change under Rule 206(1)(a) where ”must consider” has been removed as a general opening statement for the proceeding sub-rules (i) to (v) and included it in the sub-rules themselves since sub-rule (vi) does not enjoin SCOPA to consider something.

On Rule 206(2), Mr Godi said the rule that the Speaker must refer the reports in 206(2)(a)(i)-(iii) has been extended to include reports under (v). The practice has been that this is with the exception of intelligence agencies and this should be codified in the Rules, resulting in the addition after, “irrespective of whether they have been referred to another Committee”.

On Rule 208, Mr Godi said this rule had been reconsidered, but the spirit remains the same. The current formulation limits collaboration with Portfolio Committees and the change aims to broaden the clause. The proposed Rule reads: “In order to enhance oversight and foster collaboration amongst Committees of the Assembly and beyond [SCOPA] must: engage and involve other Committees of the Assembly in its work through invitations during considerations of reports referred to in Rule 206 (1)(a)”.

The use of “consideration” may mean when SCOPA is briefed by the AG or when there are hearings. The current practice is to invite Committees when there are hearings and this was all that was contained in the previous Rule 208. Two further aspects have been added and Rule 208(2) reads “find ways to share information and insights with other Assembly Committees, with the concurrence and assistance of the House Chairperson Committees or ITC”. The motivation for this is that in practice there are concerns that SCOPA’s work ends with SCOPA. This allows departments the opportunity to give SCOPA certain information and then give Portfolio Committees a different set of information. Therefore there is need for a mechanism to ensure SCOPA’s work flows into the work of the Committees. In his view it would be a good idea for meetings between SCOPA and relevant Committees at the end of each quarter to share information. Having this in the rules would help ensure this occurs, but the practicalities should not be prescribed. Lastly, 208(3) provides for collaboration with public accounts committees in the provincial and local government spheres. This speaks to the proposed Rule 206(1)(a)(vi), because when a provincial department is engaged on DORA funds, the relevant provincial public accounts committee should not be excluded. At present SCOPA is involved in the Association of Public Accounts Committees (APAC), but it is felt that SCOPA’s involvement with other public accounts committees should not depend on APAC’s existence. His personal view was that the National Assembly should be giving guidance to other public accounts committees, because although constitutionally these are distinct levels of government the political reality requires Parliament to take the initiative to enhance and assist the provincial bodies.         

Ms J Kilian (ANC) said the document was helpful and would fill lacunas in the Rules. She asked if there would be a problem with changing the amendment in Rule 206(1)(a)(iv) to read organ of state, rather than public body, because this is not defined in the Rules. While the Constitution states that the National Assembly is to retain oversight over “any organ of state” in section 55(2)(b)(ii). Secondly, she asked whether it would be acceptable to use Rule 206(1)(a)(vi) as an encapsulating phrase, with further sub-rules as it is a general responsibility of SCOPA. On 208(2), she noted that the Subcommittee is still trying to determine when reference is made to the Speaker, as opposed to the House Chairperson, because the rules may change in this regard. She asked if there could be a report from SCOPA to a Portfolio Committee, which the Portfolio Committee would have to report back on, because there is a gap and Parliament is operating in silos. Often the matters are of a complex nature and Portfolio Committee cannot fully grasp the implications and SCOPA could help target the problem areas, allowing the Portfolio Committee to take practical steps. This would help tie up the line of accountability.

Mr N Singh (IFP) pick up on the point made by Ms Kilian. With the BRRR, part of that process is meant to consider SCOPA’s report. The challenge is timing, because SCOPA has not been able to complete its assessment of all financial statements by the time the BRRRs come around. This is a challenge identified by SCOPA, so much so that Committees are taking the positive step of interrogating the audit reports themselves. He agreed the SCOPA Chapter should include “Standing” in its name but the definitions need to be looked at as presently there is no definition of “standing committee”, yet there are standing committees. The part of the Constitution read by Ms Kilian refers to both executive and other organs of state, yet executive organs has been removed from Rule 206. Perhaps, Rule 201 needs to be revisited so that the terminology can remain consistent throughout. On 206(1)(a)(vi), he agreed there was a major problem with institutions and provinces receiving funding from DORA but he urged that this be conducted with sensitivity to the separation of powers and the Constitution. He felt collaboration with public accounts committees was necessary, but whatever is stated in the Rules has financial implications and who would pay for things such as the provincial counterparts travelling to Parliament.

Mr Godi replied that ‘other public bodies’ was inserted for consistency with the other two instances where it was mentioned. He had thought of examples of public bodies which were not organs of state, such as South African Football Association. He saw it as a catch-all phrase, which is needed for anomalous circumstances. On DORA, he said the general work of SCOPA is captured; however there is a loophole with the need to hold provincial departments accountable for the money they receive. On the reference to House Chairpersons, he agreed that the use of the Speaker could be more appropriate. On collaboration and getting feedback from Portfolio Committees, the weakness he had observed is that there was no mechanism to ensure compliance with invitations to Committees. There were other issues, such as Members speaking on behalf of departments and trying to defend them, rather than exercising oversight. If there is a way in which the Rules could define the process more particularly, so ensure impactful oversight. On the BRRR and SCOPA reports he agreed with Mr Singh, but this is part of the weakness spoken to. The problem is how SCOPA reports are operationalised and nothing indicates that in terms of the law SCOPA is to engage under a certain framework. While SCOPA may not have seen the full reports of all departments, it will have received the general report of the AG detailing all the major concerns across departments. Therefore, while the engagement may not be comprehensive there could still be insights. On DORA and separation of powers, the Rule deals with accountability for the expenditure of the transfers from national departments specifically, not the entire budget. This is why when the AG Report on the Use of Consultants was presented, both the national and provincial departments were called. Now the plan is to extend this to municipalities. If the Municipal Finance Management Act is looked at, specifically sections 31 and 34, they speak to reports which municipalities are to provide to MECs, who compile reports for the National Minister, who in turn report to Parliament. If the report indicates that a municipality is in crisis, must Parliament leave the issue alone deeming it a municipal issue? Lastly, on the financial implications of collaboration, SCOPA membership of APAC currently costs R131 000 per annum. Therefore, the collaboration will not add any extra cost and will actually better justify the costs currently being carried. The National Assembly must lead and it needs to provide resources to do so.

Mr M Mashile (ANC) asked if there should not be specific legislation supporting this rule, particularly around the collaboration with municipalities and the funding of these activities.

Ms N Mazzone (DA) said one of the issues brought up in the DA study group is the tendency of Parliament to work in silos and the need to break down walls between Portfolio Committees. For example, when the AG presents audit reports to the Committee on Public Enterprises, some matters are “really shocking”. She would like to have SCOPA Members present in such meetings, because there are many matters in the reports which she is not trained to understand. If combinations like that can be made, then strides will be made in Parliament’s oversight role, because she felt that Parliament at times fails in its oversight not because of the absence of good intentions, but because it is impossible to be trained in every aspect of the parliamentary process. While SCOPA is one of the most important oversight mechanisms, the skill and functions are not fully utilised. The DA would like to see SCOPA more involved in Portfolio Committees, but this would require the secretariat to inform Members of relevant meetings. It is therefore all about communication, breaking down walls between Committees and working together in Committees. This would also reduce costs, because two birds would be killed with one stone by having one meeting briefing SCOPA and the relevant Portfolio Committee.

Mr M Booi (ANC) said he wanted to raise the broader issues around the submission. If Members do not take a firm view that corruption has grown in the country and find solutions, it will become irrelevant to society. Parties go out and demand votes, but no solutions are provided when Members are voted into the very institution aimed at being the vehicle of society’s views. This was his experience of SCOPA, for example with the high levels of corruption  with the Compensation Fund, yet there was not a system of accountability in place. The relevance of Parliament is to call anyone to account, but it is failing in its duty. Moving from this perspective, one can understand the importance of the interaction between SCOPA and other Committees in Parliament. The only institution able to deliver accountability is Parliament and it should not be the case that people abuse the public purse and no one is able to hold them accountable. He urged Members to apply their minds as to how SCOPA can be empowered and enable it to find solutions. The number of officials who have been referred to institutions like the Special Investigating Unit is higher than expected, yet nothing happens and no cases are brought to court. The very officials responsible for the abuses will come before Parliament to account and yet the institution remains unable to deal with such people. Therefore how is SCOPA to be turned around? There are rules which may have to be drastically changed in order to give SCOPA and Parliament more teeth. None of the rules speak to fighting corruption, in a manner which will keep Parliament relevant to society. Are there other ways to improve the functioning of SCOPA? There are the resources to conduct forensic investigations and produce reports, but the question is whether this leads to anything. He felt these issues needed to consider by the Subcommittee, beyond Mr Godi’s presentation. Parliament cannot hide behind the Constitution and not do anything. He hoped there would be further engagement on this matter.

Mr Perran Hahndiek, Secretary to the Rules Committee, asked if the completed SCOPA report is referred not only to the House but also to the relevant Portfolio Committee. This is something which could be included in the Rules.

Mr Godi said the inputs made are very useful. He noted that once the SCOPA report is completed, it goes to the House and then to the Minister, but there is no horizontal flow to other Committees. It could be useful to insert a provision such as this under Rule 208. On how to conduct the collaboration with other Committees, this is a question of how much detail should be prescribed by the Rules. On legislation to guide the work of SCOPA, he did not know whether a legislative framework or a House Resolution would be best. For example, the work done with APAC costs money, but there is no way for Parliament to gauge the output from expenditure of these funds. Perhaps legislation could deal with questions like this, but he held no hard and fast views on the matter.

Mr Kasper Hahndiek, Consultant to the Subcommittee and former Secretary to the National Assembly, said ‘standing’ simply means permanent and all the Committees, except ad hoc Committees, are standing committees. The Standing Committee on Finance and Standing Committee on Appropriations have had their names codified and he saw no problem with the proposed change. On the concerns about Parliament’s inability to follow up on identified problems, part of the solution lay not in the Rules, but in continuous oversight. Once SCOPA deals with a matter, it should not be processed only to end up on a shelf. The process of all Committees should be to continue to engage on matters, checking up on progress. He felt it part of SCOPA and the relevant Committee’s responsibility to continually engage with the identified problems until they have been overcome. SCOPA works from the reports of the previous year, identifying problems with how departments spend and this affects ongoing matters for the relevant Portfolio Committee. He was not sure how this would be worked into the Rules, but felt this should be considered. On APAC and broader engagement, he did not think engagement with this body or other countries should be incorporated into the rule, as these were dealt with under the Parliamentary Oversight Authority (POA). The POA gives formal approval for engagement with international bodies and it deals with the resultant expenditure.

Ms Marina Griebenow, Senior Procedural Officer: National Assembly Table Staff, stated that the reference to ‘standing’ comes from the previous Subcommittee deciding that for the sake of consistency ‘standing’ would be used for Committees established by statute. On the POA, she said it is the Joint Rules Committee which decides on engagement through the Parliamentary Group on International Relations which would table the reports on behalf of SCOPA.

Mr Perran Hahndiek said from what he hears there is agreement from the Subcommittee on everything, except for two issues which may be more complicated than they seem. The first is the issue of transfer payments, under Rule 206(1)(a)(vi) and the second is collaboration under Rule 208. He asked if it would not be better to state that SCOPA “can” follow up with provincial entities, because the workload may be too great if it to follow up on every provincial department or organ of state.

Ms Kilian said she did not think the workload would be too much of a problem, because the proposed Rule refers specifically to transfers and section 55(2)(b)(ii) states any organ of state and ultimately where there is a transfer from national government to an entity it must be accounted for in Parliament. Reading the intent of the Constitution, it seems permissible.

Mr Booi said workload should not be the deciding factor; it should be about the responsibilities of Parliament and deciding what its role should be. It should not be simple to disburse money through a budget vote, but when it comes to accounting for expenditure it becomes a workload. He felt the Subcommittee should be very concerned to see the Rules tightened to address the problems faced by society. Parliament should find a way to deal with its own resources, there should even be rules regarding participation at international bodies. When reports are not properly interrogated by Parliament, society does not fully benefit from the expenditure.

The Chairperson thanked Mr Godi for his submission to the Committee. Re-drafting the Rules is for the next 20 years and the Subcommittee should ensure that it makes rules which fit any context, aside from the current frustrations faced. The general rules for accountability should be considered, because there used to be Committees of ordinary Members presiding over issues affecting Members themselves, but now there are bodies like the POA. The Constitution gives Parliament the space to draft its own Rules to dictate its own internal workings to enable it to hold all organs of state accountable. The principle of accountability is good and the matter of determining the daily workings to express it is another matter. The meaning and intention of the Rules should be clear, for the future. All provincial departments get their funds through DORA and they do have their own structures of accountability, even in local government. These have to be coordinated to ensure that National Assembly does not play the role of a ‘big brother’, when the Constitution indicates that these levels of government are distinct, although interdependent. These considerations should also be brought into the equation and matters like this speak to the balance which needs to be struck by the Subcommittee in drafting the Rules - which he had raised at the beginning of the meeting. There are rules which are still relevant and should not be changed simply for the sake of changing them. There cannot be rules to cover all the minute aspects of Parliament’s work, rather they should embody principles. He said the ‘wordsmiths’ within the Subcommittee should look into the proposals. Members should look at the proposals and raise any new developments. Mr Perran Hahndiek had raised a valid point, because it would not be possible to have SCOPA follow every single transfer from a national department to an entity. However, whatever mechanism is decided upon, there should be thorough accountability.

Mr Godi said on the issue of following the money, it is not being suggested that SCOPA will have a special session looking at such transfers. Rather, when the AG audits a national department and makes a finding that the transfers have not been properly accounted for, then SCOPA should have the capability to step in. Further, on the collaboration with public accounts committees in the provinces, the emphasis was on sharing of oversight experiences, rather than on activities with APAC. The concern was how does SCOPA collaborate within the National Assembly, and secondly beyond the Assembly there are other spheres of government with similar institutions which could share their experiences.

The Chairperson said Mr Godi had presented his proposals clearly and these are concrete proposals, rather than general political statements.

Mr Kasper Hahndiek asked on sub-rule (iv) that allows SCOPA to consider any reports dealing with public expenditure, whether reference was intended to be to reports which are not formally tabled in Parliament or are they reports requested by SCOPA.

Mr Godi said he was more in favour of reference to reports which were tabled, because the powers of Committees generally “to require information” covered the other situation.

Ms Griebenow asked about the impact the proposals would have on National Council of Provinces (NCOP) processes under DORA, because as she understood it the National Assembly had a small role under DORA.

Mr Godi said this was a critical observation and it might be necessary to remove reference to DORA, because the central point was accountability for transfers to the provinces. He was unsure whether all of the transfers were done through DORA, or if some were done through a normal departmental administrative process. The essence was that SCOPA should have leverage regarding transfers out of national departments to provincial bodies.

The Chairperson said this can be looked at, but the principle of following the money transferred out of national departments was clear. Committees are allowed to call local government to account before them in any case. This could also help to assist Members conducting oversight visits and tighten up Parliament’s oversight function.

Chapter 13: Legislative Process
The Chairperson said the Task Team had worked on this Chapter and it had been reworked, but there may be gaps which the Members may wish to identify.

Mr Kasper Hahndiek said the rules contained in Chapter 13 are highly technical and generally are a translation of the requirements of the Constitution and do not need to be reviewed. It contains procedures such as the mediation process where there is disagreement between the two Houses on a Bill. There are some broader policy issues which the Subcommittee may want to deal with, including the insistence that all Bills get a first reading, so that all Members have an understanding of the contents of Bills before they go through the Committee’s process. In principle there should be a Second Reading in the House or a mini-plenary. Secondly, there is the need to review the rules on private members bills, which the Constitutional Court judgment has imposed on Parliament, These rules are generally verbatim what the Constitutional Court indicated. The third important matter to consider was the proposals on the processing of Bills by Committees, including that there should be more formalised stages of dealing with Bills. Specifically, there should be an approval of the desirability of the principle of the Bill, at an early stage. All of this is contained in the Draft of the Rules document in possession of the Members.

The Chairperson suggested going through these major issues in the Chapter and the Subcommittee may be able to conclude this section today.

Mr Kasper Hahndiek said the main changes have to do with making provision for private members bills. For example there is provision under Rule 230 for differentiation between Bills introduced by Members, the executive and Committees.

Ms Kilian said looking at the heading of Part 1, she would have preferred it to read: “Introduction of Bills”, because introduction is a general term. Looking at Rule 231 for example, the phrase ‘initiate and prepare’ was used interchangeably in reverse and this ought to be cleared up for the sake of consistency. She wondered whether the Subcommittee should not accept that what was done by the Rules Subcommittee of the Fourth Parliament, as done thoroughly. If any of the current Members have identified any weaknesses in one of the rules, they can suggest a manner of tightening up the rule. She would argue that it would be wasteful to go through the Chapter rule by rule.

The Chairperson said the Task Team has done thorough work, but Mr Hahndiek had identified some pressing policy issues.

Mr Kasper Hahndiek on the title of Part 1, noted that it was Part 3, starting with Rule 241, which dealt with the formal introduction of Bills and matters such as the First and Second Reading. The intention is that the title of Part 1 refers to the general introduction of the Chapter.

Ms Kilian said perhaps it would be better to title Part 1 legislative authority, because Part 1 is more than a general chapter introduction as it deals with legislative authority and from where that mandate is derived.

Ms Mazzone said she had sat on three different Portfolio Committees, one of them Justice which passes a lot of legislation. She remembered that when it dealt with the Child Justice Act, the Committee failed to conduct its public hearings in the prescribed manner. At the time there was very little that could be done as a punitive measure for the Committee not following procedure. Members get very frustrated when the Committee does not advertise properly or abide by the rules. She wanted to know whether this ought to be dealt with under Chapter 13 and there should the guidelines for what Members can do where the legislative process is not being properly followed.

Mr Kasper Hahndiek said this would belong in a detailed manual for Committees and there is a forum dealing with this. There are many practical things which can be done to improve the way Parliament engages with the public on Bills, for example. He had seen adverts containing just the long title of the Bill, which is in legalese jargon. To really catch the eye of the public and inform them what a particular Bill is about, an advertisement in plain language would be more effective. The explanatory memorandum which comes with a Bill is not much more helpful and a greater space for the use of plain language needs to be found to allow ordinary people to understand. This part of a strategy for good practice which needs to become part of a Committee’s work. He felt the onus was on the Members themselves to be certain of the contents of the Bill that they are voting for and it is the responsibility of the Committee staff to ensure the right version is presented for the vote. There have been instances in the past where Parliament has been taken to court over inadequate public involvement and the court instructed Parliament to re-do the public participation process. This is a form of available recourse, but ultimately it is a question of good practice which all involved needed to insist upon. When a Committee refuses to abide by the Rules, there is a gap as to how Members should deal with this. Perhaps this could be brought to the attention of the Speaker or the House, which would be a good way of alerting people politically. Largely, recourse would remain in the political avenues.

Mr Mashile referred to Rule 198, dealing with the Committee of Chairpersons and the Chair of Chairpersons responsible for Committees. If there was a complaint of the nature referred to by Ms Mazzone, this should be brought to that office. Perhaps in the Chapter on Committees, the rules could be shored up to deal with compliance with the Rules.

Ms Kilian suggested that the Committee under section 198 could more appropriately be called a Forum of Chairpersons.

Mr Kasper Hahndiek said the point has been made that that Committee is not multi-party. To the extent that they engage with matters affecting Committees, he was unsure how long opposition parties would be happy with such a process. Secondly, the National Assembly Rules Committee has been identified as the senior Committee. If there are serious problems with the way a Committee is operating, then this would be the appropriate body to resolve such a matter. Looking at the Committee of Chairpersons, the Rules state that its functions include any matter such as the scheduling or functioning of a Committee.

Ms Kilian said her concern was that the Committee of Chairpersons has been changed throughout the review process and over time. Therefore is it not time to decide that the functioning of an National Assembly Committee is not the function of the forum of Chairpersons. Rather, it mainly deals with scheduling of Committees.

Ms Griebenow said in practice the Committee of Chairpersons did address the functioning of Committees, in relation to how they relate to Committee Section, for example. In cases where there have been problems in Committees, the Member will generally write to the Speaker who will delegate the resolution to the House Chairperson. If there is a major problem, then the principle of the matter will go to the Rules Committee.   

Mr Mashile said the House Chairperson chairing the meeting of Chairpersons, is responsible for Committees and if there is a need to tighten up these responsibilities to prevent the potential for such problems, the Subcommittee should do so - without formalising that Committee in the Rules. Even if the Speaker is approached, they will still delegate the matter to the House Chairperson.

Mr Hanhdiek said the functions and powers of the Committee of Chairpersons are limited to making recommendations to the Rules Committee and Programming Committee.

Ms Kilian said given that the Committee of Chairpersons only makes recommendations, this is more of a reason not to have a Committee and rather simply have a Forum.

The Chairperson said the idea of a forum is a good idea, because Chairpersons will be able to share experiences and performance in Committees. It is a useful collaborative platform, but it is not a decision making body. Given that all Committees are multi-party, this suggestion should be accommodated, although the Rules Committee would eventually make a decision. It seems that the work on Chapter 13 is completed and the Subcommittee would be happy to present the draft.

Mr Kasper Hahndiek said the Rules now explain what a First and Second Reading is and their purposes. Looking at Rule 246, it explains what a First Reading is meant to do and this will be helpful.

The Chairperson said it will be a useful addition and it seems that the Subcommittee is agreed on the position presented.

Ms Kilian said Part 4 is covered by the Constitution, because the Constitution is explicit on how to deal with constitutional amendments.

Mr Kasper Hahndiek agreed.

The Chairperson said the Task Team had done thorough work on this section and there does not seem to be an issue.

Mr Kasper Hahndiek said he did not know whether the Committee Section had gone through Rules 249(3) and 249(5), which deal with the process for legislation in the Committees.

Ms Kilian said there are many new Members in Parliament and part of the problem is that how to deal with legislation is not always well understood. This requires a specific intervention from the Committee Section and it could not be contained in the Rules. The Rules comprehensively cover the process and any Member looking at the Rules should understand what is required.

Mr Kasper Hahndiek said he had gone through the section in preparation for this meeting and the complexity calls for the creation of a manual for Members to understand the nuances in the processes for different types of Bills. An information sheet, detailing what a Bill is and how they are to be processed, would be a good idea.

Mr Perran Hahndiek said the other matter is Money Bills and the Standing Committee on Finance is considering the procedure to amend Money Bills. Until the Act is reviewed by that committee, the Subcommittee is somewhat constrained from drafting rules on Money Bills, presenting a slight lacuna. He stood under correction, but he believed that the rules on Money Bills were out of date.

Ms Kilian said Money Bills were also dealt with in the Constitution.

Mr Kasper Hahndiek said the relevant Act had been on the statute book for several years, but could not be implemented because problems such as timeframes made this impossible. Until the Act has been finalised, the rules will not be able to be drafted. He felt it a matter of serious concern that the Act had been on the statute book for four years and Parliament has not been able to comply with it, which would be opening itself up to legal challenges.

The Chairperson said this is a complex area and Parliament does not have the time to deal with it and unless it is amended and corrected it may be taken to court. This will be raised with the leaders of the institution, to ensure the process moves forward.

Mr Perran Hahndiek said the Act has been referred to the Standing Committee on Finance for about a year, but there has been little progress and therefore he was glad the Chairperson was going to take the matter forward.

Mr Kasper Hahndiek referred to Rule 251(3)(e)(ii) which reads “in addition to the views representative of the majority of the Committee, express any views of a minority”. He felt ‘express’ connoted some measure of detail and he felt ‘convey’ would be more appropriate.

The Chairperson said the Subcommittee agrees.

Chapter 14: Process for Written Instruments Other Than Legislation
Mr Kasper Hahndiek said this was another important Chapter and the Fourth Parliament Subcommittee had developed this. It clarifies for all time the processes involved, which includes international agreements under Part 2. Regarding petitions, a process is underway to review petitions and how they are dealt with. Although the Constitution makes reference to Parliament receiving petitions, it should be careful to not become an administrative mechanism and must remain an oversight entity. As he understood it the petitions exercise was still ongoing in another forum.

Ms Mazzone said she had mentioned that a DA Member in the NCOP had drafted a private member’s bill on petitions and she had mentioned previously that this should rather be introduced to this committee. She asked for the leeway to distribute that document to Members, because she had not anticipated the Subcommittee reaching the present point.

The Chairperson said this should be accepted and perhaps the Member should come and brief the Subcommittee.

Chapter 15: Miscellaneous
Mr Kasper Hahndiek said under Rule 326, the documents which can be requested by a court include the records of the National Assembly and he felt it ought to be clarified what documents are meant. For the rest of the Chapter there are again no issues indeed.

The Chairperson said it seems as though the Subcommittee has dealt with Chapters 1 to 15 and while there may be further issues which crop up, many issues have been exhausted. For instance, Mr Mashile was still to present his proposed amendments on the Powers and Privileges Committee.

Ms Mazzone said a DA Member who sits on the Powers and Privileges Committee would also attend, because the Powers and Privileges Committee had already begun amending its rules. It would therefore be appropriate for her to come to the Subcommittee with the amendments she was going to present to that Committee.

Mr Booi said the State Law Advisors had also wanted to make a presentation.

The Chairperson said whoever could potentially add value should be allowed to come to the Subcommittee.

Mr Kasper Hahndiek said the Subcommittee could simply consider the proposal without calling in the State Law Advisors. He would like the Subcommittee to return to the issue of the composition of the Rules Committee and Programming Committee, because there had been a discussion. He had had some problems with the suggestions and he was awaiting input from the Parliamentary Law Advisors which he would present in the next meeting.

The Chairperson said he thought the point was that there would be a Programming Committee which aims to seek consensus and where this is not reached: the three offices cited: the Leader of Government Business, the Speaker and the Chief Whip would formulate the agenda and adopt the programme. The point is for the Programming Committee to be accessible to all parties. When the proposal was presented within the ANC it was accepted, although there was a concern about how the ANC would retain a majority of representatives in the meeting. This is why the weighted decision-making process was accepted and he asked for a legally acceptable method for capturing this to be found.

Mr Kasper Hahndiek asked if the weighted approach was to take the form of having one weighted vote per party or several individuals with the vote spread across them with percentages. The second option creates problems regarding the attendance of Members from smaller parties.

Ms Kilian said the intention was that in a body such as the Programming Committee it was important to balance open, comprehensive participation with proportionality. Clearly, there is a need to cater for situations where there is no consensus.

The Chairperson said the Subcommittee need not belabour the point, because it was decided that any party wishing to attend the Programming Committee may do so, but if there is no consensus the three office bearers make the decision. As Parliament is a multi-party entity, it makes sense for all parties to be part of designing the programme of Parliament. In his view, because the Programming Committee was not a decision-making body, the actual number of persons in attendance was not important. The point had already been made that the Chief Whip will arrange the business to the Programming Committee, following which the office bearers decide on the programme. This was the thinking of the Subcommittee at the time.

Mr Perran Hahndiek said if that is the approach then the ANC does not in fact need a majority presence, because there will never be a vote.

The Chairperson said Mr Hahndiek can look at the Rule in light of the thinking. The ANC often complains that these types of committees contain too many Members and therefore it would be better to leave it at the level of the whippery.  

Mr Kasper Hahndiek said there was no need for a quorum, given that the office bearers were to take decisions.

The Chairperson agreed and said this solution would solve many problems.

Programme of Subcommittee
Mr Perran Hahndiek asked for the programme to be discussed, because some parts remain relevant while others are less so. Further, there are matters in Chapters 1 to 9 which the EFF wished to revisit, there is the Powers and Privileges Committee and there is the submission of the State Law Advisors on the definitions.

The Chairpersons said representatives from the Powers and Privileges Committee and the State Law Advisors should be called to attend the next meeting on 22 May, as well as the DA members mentioned by Ms Mazzone.

Ms Mazzone said 22 May is a constituency day and the DA has planned activities, therefore she would not be able to attend nor would she be able to bring the requested Members.

The Chairperson said the Subcommittee is not married to Friday meetings and it can meet on whatever day, all that needs to be done is to request permission to meet. The matters need to be dealt with once and for all, because Mr Hahndiek still needed to fine tune the Rules for presentation to parties.

Ms Kilian proposed meeting on Thursday 21 May, despite there being a sitting of the House. Although the National Assembly table staff will be unable to attend.

Mr Perran said the problem with 21 May is that there are five Extended Public Committees (EPCs) sitting and he was sure Members would be required to attend.

The Chairperson suggested finding another day.

Mr Perran said because the Subcommittee has made good progress in the present meeting, it opens up some space on the programme. The distributed programme indicates that the Rules were to be adopted on 5 June and therefore there are two Fridays to deal with outstanding matters and still meet the proposed timeframe.

The Chairperson said his view was that the real delay will be consultations within political parties and the sooner that begins the better. He said the Subcommittee could meet in the same venue and if need be they could move to the sitting of the House if there are urgent matters. Mr Hahndiek should also be given enough time to relook at rules to ensure the drafting is thorough. He encouraged the National Assembly table staff to try their level best to attend. His main point was that the process of consultation within parties was going to take a long time and the sooner the space is allowed for that process the better. He felt there were no major issues outstanding and the Members should be allowed to present. The Subcommittee could even meet into the evening to accommodate the sitting of the House.

Mr Kasper Hahndiek said Mr Mashile was to present on Powers and Privileges and a number of court rulings directly affecting the extent of Parliament’s powers and privileges. The court rulings cannot be ignored and there is a need for Parliament to assess the impact of such judgements on the functioning of Parliament. It may be that Parliament would have to reassess whether some provisions in the Constitution or other laws be redrafted to ensure that Parliament has the necessary protection to enable it to function.

The Chairperson said the team which wants to make a presentation should be allowed to do so, because the Rules cannot be changed with a decision of court pending. Therefore, space must be made for that. If there are areas which are unconstitutional then these should be removed. He knew there were proposals on strengthening the process rules, with the aid of experts.

Mr Booi said Mr Hahndiek should draft the document which collates the decisions of the court and their effect on the Rules.

Mr Kasper Hahndiek said the Powers and Privileges Committee deals with matters such as this and if they were to consider alterations to the Rules, perhaps they should consider meeting with the Constitutional Review Committee because they are the experts. Quality legal opinions should also be sought on the impact of the judgements on the functioning of Parliament and democracy.

The Chairperson said Mr Hahndiek could highlight broader matters in point form to be presented to the Powers and Privileges team.

Mr Booi asked if a date has been set for the political parties to return to the Subcommittee following internal consultations on the Rules.

Mr Kasper Hahndiek said this could be formalised by a resolution of the Rules Committee.

The Chairperson said what should be avoided are parallel processes. The draft Rules should be submitted to parties and then the Subcommittee can begin working on the Joint Rules of Parliament. By the end of June parties should be in a position to return to the Subcommittee to deliberate any new issues. The EFF could use the opportunity to review Chapters 1 to 9. July should be allowed for the Subcommittee to deal with any substantial matters which have arisen and take the document to the Rules Committee.

Ms Kilian wanted to make sure what record keeping is done by the Subcommittee, because it allows space for matters to be raised but Members continue to return to issues already dealt with. The Subcommittee must make sure that there is reasonable time and parties should not be allowed to come at the end of the process and say they were not given time. The correspondence which goes out to the parties must state that they are to bring substantive input and they should make written submissions within deadlines.

Mr Booi said it should be noted that one man parties exist in Parliament and by the end of June parties should have raised their issues, so that the Subcommittee can know whether a particular party needs support or if it is raising substantial issues.

The Chairperson said the draft will be sent to every Member of Parliament and a copy given to the parties.

Mr Kasper Hahndiek asked if there would be further discussions on the matters raised by Mr Godi.

Mr Perran Hahndiek said one view is to get a legal opinion on transfers to provincial entities.

The Chairperson said this opinion should be sought and when the Subcommittee meets the following week other issues would be dealt with.

Meeting adjourned.

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