The Office of the Chief State Law Advisor (OCSLA) had been asked to brief the Committee on the Rules, and to comment on certain proposals. They noted that sections 57 and 70 of the Constitution set out provisions for Parliament to determine and control its internal arrangements, proceedings and procedures. Parliament made rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement. OCSLA briefly discussed some of the recent cases involving a discussion of the powers of Parliament - including the case of Oriani-Ambrosini v Sisulu (2012), which ruled that the words "arrangements, proceeding and procedures" indicated the National Assembly’s power to make rules limited to the regulation of process and form, as opposed to content and substance. In Speaker v De Lille (1999), the court ruled that procedures may be scrutinised by the courts to determine whether they were in fact consistent with the Constitution and decisions of the NA subjected to scrutiny to determine whether they had complied with its own internal arrangements. The National Assembly could only suspend a member as a punishment for making an objectionable and unjustified speech, if such power had been conferred upon it by an Act of Parliament or by the Standing Rules of the National Assembly itself. In Executive Council Western Cape v Minister of Provincial Affairs the court ruled that the power to determine own internal arrangements and proceedings was a narrow one, not relating to the power to regulate the main structural components of the legislature. OCSLA suggested that the deputy speaker be included as a private member, that rule 6A must agree with rule 161 on the role of the Rules Committee, and various other suggestions made in the documents.
Members were interested in hearing more about the implications of the court judgments, which seemed to suggest that the judiciary was stepping into the legislature's arena. However OCSLA pointed out that the Parliament could only make law that was consistent with the Constitution, and thus any law or conduct of Parliament, as prescribed by the rules, must also be consistent with the Constitution ,and the Constitutional Court had the power to review any that were not. In many of the Constitutional Court judgments, the courts often passed the test of not interfering, but if they did come close to doing that, they would explain what Parliament itself would need to do. Furthermore, the ruling party would have to factor in a proper accommodation of the views of minority parties.
Members then proceeded to debate a number of other points, including the balance that the Bill of Rights sought to achieve, what the implications were of the Speaker telling a member to leave the Chamber, the member refusing, and the implications of the consequent disruption (including appealing before reaching a final ruling) on the rights of other members. Rule 52(2) had been removed, but members debated if it should have been retained and the suggestion was made that in exceptional circumstances the Speaker must have the powers to immediately suspend a member, before any hearing was conducted. The OCSLA suggested that the NA rules would have to define a point of order or point of privilege, and made the point that ordering a member out of the House must be a last resort. Members asked if the proposed rule by the Rules Committee would have to be approved by the National Assembly, and suggested that some mechanism must be found in order for all parties to express their views. A suggestion was made that "ruling" should also be inserted into proposed Rule 6E, but other Members did not agree, some suggesting that the word "ruling" applied to presiding officers of committees, extended public committees and that it might stifle members from speaking in the House, and discussed whether this would have the effect of creating new offences. It was suggested that the proposed rule 19A must also be clarified, to detail in which forums members should declare private interests. Proposals were also made by OCSLA on rule 59, recognising members to speak, which were generally approved by Members, with the comment that other areas needed to be tightened to recognise fully the authority of the Speaker, but this was probably something best addressed by the Chief Whips Forum. OCSLA confirmed that it had no problem with the changes proposed to rule 70. The Committee was briefed on the implications of the DA v Speaker of the National Assembly case and section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act of 2004, which had recently been decided was constitutionally flawed as it violated section 58 and 71 of the Constitution. Another longer briefing would be needed on that case. OCSLA was also asked to look at Chapters 9 to 15 of the Rules.
The Parliamentary Legal Advisors reported that on 15 May, the Chairperson of the Standing Committee on Public Accounts had suggested that rule 206(1)(vi) may need to be amended, since SCOPA wished to have the authority to question local government on spending. Members were not sure that this amendment would be needed. It was pointed out that the Constitution referred to Parliament ensuring that "executive organs of state in the national sphere" were accountable, and rule 206(1)(a) referred to statements submitted to Parliament, which would not normally include any statements of local government. Points were raised that laws must be read in context, such interrogations may well relate to national priorities, and any committee could summon any person to appear. It was suggested that the Parliamentary Legal Advisors discuss the matter further with SCOPA and investigate a better way to formulate the rule. Finally, it was noted that a subcommittee was still to report back on the dress code rules. to sign off copies that would be sent to the political parties. It was noted that parties would be submitting proposals to the sub Rules Committee, which would consider the proposals over two weeks in July. A report would be finalised and sent to the Rules Committee in August, and hopefully the Rules Committee would consider those rules in September.
Chairperson's opening remarks on process
The Chairperson clarified the process of the Rules amendments emphasised that the present reworking of the National Assembly Rules (the Rules) was being proposed not to cater for any particular individuals, but to promote the efficiency of the current and future Parliaments. Different party workshops were being held and their proposals would tighten up on areas not already dealt with by the Committee. He was confident that everyone in South Africa would agree that the final Rules must reflect the democratic nature of Parliament. He summarised that all parties would have to submit their proposals by the end of June, and the Committee would meet for two weeks in July to consider the input from parties. A report must be finalised and sent to the Rules Committee in August, and hopefully, by the end of September, the Rules would be adopted by the House.,
Office of the Chief State Law Advisor (OCSLA) on Rules of the National Assembly
Mr Theo Hercules, Principal State Law Adviser, OCSLA, said that sections 57 and 70 of the Constitution made provision for Parliament to determine and control its internal arrangements, proceedings and procedures. For this reason, Parliament makes rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.
He highlighted that in the case of Oriani-Ambrosini v Sisulu (the Speaker) in 2012, the court had ruled that the words "arrangements, proceeding and procedures" indicated the National Assembly’s power to make rules limited to the regulation of process and form, as opposed to content and substance. A genuine platform must be created to give practical expression to the aspirations of their constituencies. In the case of Speaker v De Lille in 1999, the court ruled that procedures may be scrutinised by the courts in order to determine whether they are in fact consistent with the Constitution. Decisions of the National Assembly may be scrutinised in order to determine whether the National Assembly (NA) had complied with its own internal arrangements. The National Assembly could only suspend a Member of Parliament from its proceedings as a punishment for making an objectionable and unjustified speech if such power had been conferred upon it by an Act of Parliament or by the Standing Rules of the National Assembly itself. In the case of Executive Council Western Cape v Minister of Provincial Affairs the court ruled that the power of the legislature to determine its own internal arrangements and proceedings was a narrow one, in that it does not relate to the power to regulate the main structural components of the legislature.
The legal advisers suggested that the Deputy Speaker be included as a "private member". It suggested that rule 6A must agree with rule 161, on the role of the Rules Committee. Some other suggestions were addressed in the following paragraphs (see attached presentation).
Mr M Booi (ANC) interjected at this point to ask about the intentions and implications of the court rulings. He got the impression that these were suggesting the judiciary interfering in the work of Parliament, which was against the spirit of the separation of powers.
Mr Kasper Hahndiek, Consultant to the Committee, asked if the Deputy Speaker of Parliament should participate in debates, since s/he was an ex officio Speaker.
Ms J Kilian (ANC) said the Deputy Speaker acted as a Speaker, in the absence of the Speaker, according to the Constitution. Parliament had been battling to implement some of the court rulings on the work of Parliament.
Mr Booi asked the relevance of the Rules Committee, if its decisions were always taken to court.
Ms Kilian asked how Parliament can balance member and party interests, as section 47 of the Constitution speaks of a Member representing a constituency, but the Constitution also spoke about proportional representation.
Mr Enver Daniels, Chief State Law Advisor, OCLSA, replied that section 2 of the Constitution states that any law inconsistent with the Constitution would be invalid, Therefore any law or conduct of Parliament, as prescribed by the Rules, must be consistent with the Constitution and the Bill of Rights. Section 81 bound the conduct of the legislature, executive and judiciary. In many of the Constitutional Court judgments, the courts often passed the test of not interfering, but if there was some interference, the court explained what would have to be done. Courts only dealt with information presented to them. It would therefore be advisable for the parties interested in a matter to give sufficient information to assist the courts in coming to their rulings.
He noted that the Constitutional Court has the power to review the Rules of Parliament if they are inconsistent with the Constitution. The Constitution sets out the principles of participatory democracy, which the majority party needed to factor in, to accommodate views of minority parties, especially in this Parliament where the ruling party had a majority of more than 60%.
The Chairperson asked what the courts meant when referring to the words " arrangements, proceeding and procedures" and how this indicated the National Assembly’s power to make rules limited to the regulation of process and form, as opposed to making rules on content and substance.
Mr Booi said the Grootboom case had been the source of tensions over many years. He asked about the relevance of the Provincial Legislature case on the work of the National Assembly. He asked for Mr Hercules' opinion on points of privilege, freedom of speech and court rulings on the point of privilege.
Mr Hercules replied that section 57(2) alerted Parliament to maintain accountability, participatory democracy, representative democracy, transparency and public involvement. This should be read together with section 71 of the Constitution.
Mr Mongameli Kweta, Senior State Law Advisor, Office of the Chief State Law Adviser, replied there were three branches of government - legislature, judiciary and the executive. There were many cases that went to the Constitutional Court. If certain provisions were declared inconsistent with the Constitution, the Constitutional Court would always provide guidance to Parliament on how it could amend the law to bring it in line. The judiciary would only be regarded as encroaching on the work of Parliament if it started making laws.
Mr Hanhdiek said the question was whether the rights of an individual trumped the rules of the institution. He asked how the Bill of Rights aligned with section 57 of the Constitution.
Mr Daniels responded that he did not regard the Bill of Rights as trumping institutional rules, but instead if balanced them.
The Chairperson asked what would happens if a Speaker were to tell a Member to leave the Chamber, and the Member refused, and also asked how any exchange between the Speaker and recalcitrant Member would affect the rights of other MPs who had an interest in the proceedings in the House being allowed to continue.
Ms Kilian asked how it was possible for Parliament to regulate only procedures and not content and substance. She asked if it was possible to approach the Constitutional Court to regulate on a motion for a Vote of No Confidence - because it had a minimum threshold, irrespective of how it might apply elsewhere.
Mr Booi followed up on the Chairperson's question by asking what happened to his right as a Member of Parliament, when the Speaker was engaging with any other Members.
Mr Daniels replied that section 57(2)(b) does not inhibit the participation of minority parties. In the Ambrosini case, the court ruling in terms of section 57(2)(b) does not provide for substance. He did not see how the Constitutional Court could be said to intrude on the powers of the legislature. The National Assembly laws and rules should align with the Constitution. OCSLA had a difficult task of analysing proposed amendments and bills, ensuring that they were aligned with the Constitution and other Constitutional Court judgments. The National Assembly rules did not define a point of order or point of privilege, and these must be defined in terms of the Constitution. It was difficult to define those two terms but they must be defined. The Speaker and presiding officers must conduct themselves in a manner fully in line with the Rules and Constitution. Ordering of a member out of the House must be used a last resort, and this must also be dealt in a manner consistent with democracy.
The Chairperson said the Deputy Speaker would be included as a private member.
Mr Hahndiek asked if any proposed rule by the Rules Committee must go to the National Assembly.
Mr Booi said any policy proposed by the Rules Committee must go to the Chamber. Failing to do this would deny other Members the opportunity to make an input into proposed policy.
Ms Kilian agreed with Mr Booi, adding also that the National Assembly has decision-making powers in terms of section 57 of the Constitution,
The Chairperson said any committee in this Parliament can propose a policy, but whatever it proposed must be taken to the National Assembly.
Mr Daniels noted that the Rules Committee has a lot of work to do on the Rules. Given that the Speaker and Deputy Speaker sat on the Rules Committee, some of the decisions taken by the Rules Committee would not be submitted to the National Assembly, because that would effectively amount to the Speaker (in one capacity) submitting a report to the Speaker (in another capacity).
Mr Booi said while that was true, the current structure favoured the ruling party. Everything decided by the Rules Committee must be taken to the National Assembly for the sake of democracy.
The Chairperson said the Rules Committee was the most senior committee in parliament and there was no harm with it proposing some policy proposals. Not every party sat in all portfolio committees, but on the Rules Committee, every party was represented. It could not be right that the most senior committee does not make policy.
Mr Booi asked how the law advisers interpreted the issue of pointing a finger at the Speaker, and how they interpreted the issue of neutrality of the Speaker.
Mr Hercules proposed the insertion of the word "ruling" in Rule 6E so that it would read: “ A member who wilfully fails or refuses to obey any rule, ruling, order of the House may be found guilty of contempt of parliament in terms of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004".
Mr Hanhdiek was not sure if the word "ruling" must be included, noting that it was presiding officers in committees who made "rulings".
Mr Booi said the inclusion of the word "ruling" could have huge implications as it also applies to extended committees. He thought that it would be difficult to implement and may lead to Members not being allowed to speak in the House.
Ms Kilian added that this word could create new offences.
Mr Daniels said that this was not so; section 13 of the Powers and Privileges Act listed the offences. Given some of the Constitutional Court judgments, some provisions of the Powers and Privileges Act must be revisited.
Mr Hahndiek agreed that the insertion of "ruling" would create new offences beyond the Powers and Privileges Act, because rulings by presiding officers were final. Section 13 (c) of the Powers and Privileges Act does not state which other actions may constitute contempt of parliament.
Mr Hercules asked that rule 19A should be clarified, to set out in which forums members should declare their private interests, seeing the proposed definition of committee included forums.
Mr Hahndiek replied that the definition of "committee" was probably incorrect. The House, committees and mini plenaries were considered forums, including the Chief Whips Forum and the Chairpersons’ forum.
It was noted that proposed changes to rule 52 (2) were not discussed as this was deleted by the Committee's last discussion
Ms Kilian said even though rule 52 (2) was deleted, other parliaments in Malawi, Kenya and Uganda had a practice of allowing a majority vote, before ordering a member to leave the chamber.
Mr Hahndiek said in other parliaments, the Speaker named the MP who must leave the Chamber and the member would not refuse to leave.
Mr Daniels said rule 52 (2) will have provided a member with an appeal process, if ordered to leave the Chamber. While he was not advocating reinstating this rule, he noted that cases would be taken to the High Court. Any legislation passed provided provisions for internal appeal process.
Adv Frank Jenkins, Senior Parliamentary Legal Advisor, said the existence of rule 52(2) will have allowed a member to state his or her views, in the internal review process of Parliament.
Mr Booi said the Rules Committee did not want to create rules subjectively. Rule 52 (2) seemed to view Parliament as overly desperate to discipline the House, and it was removed.
Ms Kilian said the problem with that provision was that, after making the rules for order in the House, the provision limiting the presiding officers' power to simply ordering a member to withdraw from the Chamber was viewed as being disorderly because it meant that the process moved through an appeal process before the final order to leave was given. Whether or not the member agreed to leave the Chamber, there must be mechanisms to deal with members. The House could not be held to ransom by one member who refused to vacate the Chamber. Whether a member agreed to leave or not, there must be a way to evict that member, otherwise there could be some individuals who would always disrupt the Chamber because they first needed to make an appeal before the Speaker made a final ruling.
Mr Hanhdiek said that it was possible to come up with a rule that said that if a member wilfully refused to leave the House when instructed to do so by the Speaker, s/he automatically suspended him/herself for five days. Refusing to leave the chamber also constituted contempt, in terms of the Powers and Privileges of Parliament Act. The Speaker or presiding officer must have some power and authority to take action if a member was disrupting the Chamber.
Mr Daniels replied that the presiding officer needed power to control the House. However, s/he could not suspend a member without going through a hearing. There was a need to balance the interest of a member and the interest of the Chamber, but suspending a member without a salary was too harsh.
Ms Kilian said if a member failed to withdraw unparliamentary remarks, he/she must leave the chamber for the duration of the day, or be removed by the Serjeant-at-Arms. If need be, the matter would be referred to the Powers and Privileges Committee. All members understood what their rights were and what also were their obligations.
Mr Hahndiek said a provision must be made that in exceptional circumstances, the Speaker must have the powers to immediately suspend a member, before any hearing was conducted.
The Chairperson said that if members came with placards, as the EFF had done, showing "Release the Marikana Report", this was not welcome, as it could become chaotic if every party were to bring placards. The Rules must distinguish between creating order and allowing democracy to flourish and there was a need to strike a balance. He did not anticipate any problems, as members respected something they had been involved in drafting. Without democracy, there was no order, and without order there was no democracy.
Mr Masibulele Xaso, Secretary to the NA, said the Committee must be briefed on the recent court ruling. Section 11 of the Powers and Privileges Act was referred to the Constitutional Court by the judge.
The Chairperson said members knew the rules and they just exploited them sometimes for political expediency. It was necessary always to strive for democracy in Parliament but at the same time there must be order, to ensure the decorum of the House. He reiterated that the Rules were meant for the future and not just the current Parliament.
Mr Hercules proposed changing the heading of rule 59 to read as "Recognition of members to speak." He proposed that rule 59(1) should read: "A member may speak only when recognised by the presiding officer during proceedings of the House" and that rule 59 (2) should commence: "Subject to sub rule (1), a member may draw the attention of the presiding officer...."
The Chairperson said the problem was that members, before being recognised by the Speaker, often started speaking, and there must be a way to assert the authority of the Speaker. Other members might stand up and refuse in terms to sit down, unless recognised by the Speaker to speak to a point of order or a question of privilege.
Mr Booi said the proposal was an improvement to the existing rule and should be accepted, but the complication was the recognition of the authority of the Speaker. The case of DA vs Speaker of Parliament sought to challenge the authority of the Speaker, who has the power to maintain order in the House.
The Chairperson said there were other areas that need to be tightened up so that the authority of the Speaker was recognised. This issue was more of political management, and he suggested that the Chief Whips Forum could solve that, as the Rules were not meant to regulate politics. Shouting was becoming a regular occurrence in the Chamber
The Chairperson said rule 70, dealing with points of order, had been revised and the OCSLA was asked to go through the proposed changes by the Committee during the lunch break. It was the duty of political parties to look at the drafts by the task team and propose any amendments if needed.
Later, the officials from OCSLA said that they agreed with the proposed amendments to rule 70 on points of order.
Mr Hercules said in the case of the DA vs Speaker of the National Assembly, the court dealt with the reference to "a person" in section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act of 2004 and held that section 11 was constitutionally flawed as it violated section 58 and 71 of the Constitution.
Ms Kilian said it was confusing that section 11 was considered flawed, yet section 4 of the same Act was not considered.
Mr Booi said that the Committee needed to be briefed on the stronger implication of the Constitutional Court judgment on the DA vs Speaker of National Assembly case.
Mr Hahndiek suggested that the OCSLA must also look at Chapters 9 to 15 of the Rules.
The Chairperson thanked officials from the OCSLA and said that they might be called back to the Committee if there was a need. He reiterated the time frames. He also noted that those members who knew the rules well tended to "play with the rules".
Proposal for Review of the Rules relating to Standing Committee on Public Accounts
Adv Jenkins reported that at the subcommittee meeting of 15 May, the Chairperson of the Standing Committee on Public Accounts (SCOPA) made a submission on the functioning of SCOPA, which included a number of new proposals. That committee requested a legal opinion around the amendment of rule 206 (1)(vi) on areas of particular importance to the committee - largely to do with the effect of the proposal on separation of powers, and the principles of cooperative governance.
The proposed amendments noted that SCOPA must hold accountable all organs of state, constitutional institutions and other public bodies that received transfer payments from national departments through the Division of Revenue Act (DORA), for their expenditure of those transfers. Section 55(2) of the Constitution stated that the National Assembly must provide for mechanisms to ensure that all executive organs of state in the national sphere of government were accountable to it. In respect of any other organ state, the proposed formulation by SCOPA of the subrule, that implied that SCOPA could also hold organs of state in provincial and local government spheres accountable was inconsistent with the Constitution, and unnecessary. When conducting oversight and accountability, the principles of cooperative governance and intergovernmental relations must be taken into consideration. That would include the separation of powers and the need for all spheres of government to exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government. (See attached document for more details)
Mr Hahndiek said the Constitution made reference to any organ of state, in the form of executive organs of state and other organs of state. He wondered, however, if SCOPA had the power to oversee what a local government was spending money on, in the case where a national department had transferred money to local government.
Adv Jenkins said Rule 206(1)(a) said that the Standing Committee on Public Accounts must consider the financial statements of all executive organs of state and constitutional institutions or other public bodies, when those statements are submitted to Parliament. However, statements submitted to Parliament would not include those of local government. This rule, together with section 55(2) of the Constitution, would have to be read in context. At the time when he was first studying law, a law that appeared to be clear could be read literally, but subsequently, Constitutional Court judgments had made it clear that laws must now be read in context. For this reason, "any organ of state" had to be read in the context of cooperative governance and Parliament must respect that.
Mr Booi asked if the Portfolio Committee on Cooperative Governance, chaired by Mr Mdakane, was allowed to do oversight in municipalities - he had thought that this committee had the power to call any local government entity to account for its spending.
Adv Jenkins said that if calling in local government was closely tied in with that Portfolio Committee fulfilling its mandate, there was nothing wrong with it summoning a municipality to appear before it. However the law that governed the accountability of municipalities was set out in the Municipal Systems Act.
Ms Kilian said that argument meant that a Committee could call anyone to appear before it, but the local authority was not accountable to the national Parliament.
Mr Hahndiek said Parliament may review a decision to stop the transfer of funds for no more than 120 days at a time, following the process established in terms of subsection (3) of Chapter 13 of the Constitution.
Adv Jenkins said he agreed with the provision in the Constitution, but provincial governments and local government could not submit their annual statements to Parliament. Parliament could ask National Treasury why it was not stopping the transfer of funds to provinces, despite the fact that they were not complying with Treasury regulations.
The Chairperson said it was a rule of general application that all portfolio committees had the right to call whomever they thought necessary, to appear before them.
Mr Hahndiek said there must a clarification on the acceptable constitutional way in which SCOPA could ask for figures from a local municipality.
The Chairperson said the Committee would apply its mind to the proposed rule. The Chairperson seemed to generally want the power for the Committee to go and do oversight over local authorities. He repeated that a committee already had powers to call a wide range of people in to appear before that committee.
Ms Kilian cited the example that a municipality may receive a conditional grant for water provision in a semi arid area. Surely the relevant portfolio committee of this Parliament could look for evidence to ensure that the money was being used for water infrastructure, because the provision of water in that community would be a national priority. In such a case, SCOPA surely had the power to call the municipality to account on the conditional grant.
The Chairperson said the Committee would find a better way to formulate that rule, so that function and money were closely aligned. If there were specific areas that the Chairperson of SCOPA needed to be clarified, he was sure that Adv Jenkins could assist.
The Chairperson noted that the dress code issue was still outstanding and that the team headed by Ms Kilian must put their proposals.
Mr Hahndiek said his understanding was the Rules Committee would draft the dress code.
The Chairperson said this was so, but Ms Kilian, Ms Kalyan, Ms Septemeber and Mr Singh were given the mandate by the sub rules Committee to draft and make recommendations on dress code.
He asked that Mr Hahndiek now prepare the amendments discussed in a final form. The sub-Committee would be meeting on 12 June 2015 to sign off copies that would be sent to the political parties.
The meeting was adjourned.
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