A list of the Members nominated from the National Assembly (NA) and National Council of Provinces (NCOP) was presented, and the Chairperson asked that those Members who were attending meetings regularly should be substituted for others who did not attend, because continuity was particularly important. It was unclear what exactly the mandate was for the Subcommittee, but it was clear that it must, in the meantime, consider the draft rules on the Oversight Mechanism established under the Financial Management of Parliament Amendment Act and at some stage deal with legacy issues, including Reports on the mandate of Joint Standing Committee on Defence, on the mandate, functions and powers of Constitutional Review Committee, and on the Interim Joint Committee on Scrutiny of Delegated Legislation.
Draft rules on the Oversight Mechanism established under the original Financial Management of Parliament Act were presented. Initially, that Act had excluded the executive authority - the Speaker of the NA and Chairperson of the NCOP - being involved. However, a later amendment to section 4 provided for a discretion; the executive authority could be part of the Oversight Mechanism provided that there was no conflict of interest. This was later explained in more detail by the Parliamentary Legal Advisors. The draft Rules already prepared would be suitable, with amendments incorporating the provisions around the conflict. suitable, provided they were amended to incorporate the provision around that conflict. The draft rule firmly established a Joint Standing Committee to deal with financial management of Parliament under section 4 of the Act. It specified that the composition would be the number of members from the NA and NCOP as determined by the Joint Rules Committee, and would be co-chaired with one Chairperson from each House. The powers and functions were described and it would have the general powers given to other joint committees under Joint Rule 32. The minimum sitting and quorum requirements were also described. Members thought it important to keep the formulation and language in line with other Joint Rules and joint committee procedures. questions. She also asked how this would be dealt with, and if there were examples of other international practice.
Members raised the need for the new joint committee to run in an united manner, which meant that there should not be strict distinctions, once it was set up, around majority decisions from each House, the need to provide for the eventuality of one of the executive authority being unable to attend, and it was suggested that Joint Rule 115 could apply. It was stressed that this would be a senior committee. For that reason, it was suggested that its meetings could not begin without one third of Members present, with the decisions to be taken by 50% plus one. Members cautioned against over-large committees, and suggested that it was probably not necessary to have nine members from the NCOP, and the necessity for alternates was debated. Members debated the appropriateness of splitting decisions between each House and said it was possible to include a caveat that if necessary, the Joint Rules Committee could be called upon to make the decision. Differing views were expressed on whether reference to the general powers of Joint Committees under Joint Rule 32 would lead to the Oversight Mechanism having powers which were too broad and extended beyond the financial matters of Parliament. It was finally decided that the draft Rule would be used as a basis, but further options would be presented to the next meeting, together with a programme to allow Members to request leave of absence from party caucuses to finalise the work of the Subcommittee.
The Chairperson said the present meeting was an introductory meeting to set the scene for what the Subcommittee would be undertaking over the following six months. He encouraged Members and the support staff to ensure that they were well prepared for future meetings, and reiterated that any party wanting to make input to the Subcommittee would be allowed to do so, and urged Members to make themselves available for future meetings of the Subcommittee. As the Subcommittee was a multi-party Subcommittee, spanning both Houses of Parliament, all input would be welcomed and the Subcommittee would be open-minded in its approach. He noted that lessons from the past could be used to guide this comprehensive review of the Joint Rules of Parliament, and, whilst recognising that Members were busy, hoped the work would be completed speedily.
Ms Z Naidoo, Joint Secretary to the Subcommittee, read out the names of the Members as follows:
From the National Assembly (NA): Ms C September (ANC), Mr B Mashile (ANC), Ms N Mazzone (DA), Mr G Gardee (EFF), Mr N Kwankwa (UDM), Dr C Mulder (FF+) and Mr N Singh (IFP).
Mr M Mbebe, Joint Secretary to the Subcommittee, read out the names of Members from the National Council of Provinces: Mr M Rayi (ANC, Eastern Cape), Mr A Nyambi (ANC, Mpumalanga), Ms E van Lingen (DA, Eastern Cape) and Mr M Khawula (IFP, Gauteng).
The Chairperson said he was under the impression that Mr Gardee was no longer a Member of Parliament and asked if Mr N Booi (ANC) and Ms J Kilian (ANC) were listed as part of the Subcommittee.
Ms Naidoo said she had received the list from Mr Perran Hahndiek, Secretary to the Subcommittee on the Rules of the National Assembly, and he had indicated that Mr Booi and Ms Kilian regularly attended and that she should inform the Chairperson.
The Chairperson said that some of the names on the list of Members from the National Assembly should be replaced with Members who would regularly attend the Subcommittee, and that any Members who intended to participate regularly should be properly nominated to avoid any procedural irregularities in the future. He was unsure whether Mr Khawula could properly stand in for Mr Singh, because a Member of the NCOP could not represent a Member of the National Assembly.
Mr Khawula agreed and asked for clarity on his presence in the meeting.
Mr Mbebe said Mr Khawula was a nominated Member from the NCOP, forming part of the team.
The Chairperson noted that he was thus not representing Mr Singh, but politically it was fine for Mr Khawula to represent the IFP.
Discussion on draft agenda and mandate of Subcommittee
Ms Naidoo said the draft agenda started with the oversight mechanism, because this must be prioritised, following the promulgation of the Financial Management of Parliament Amendment Act. The Chairpersons should have received correspondence from the presiding officers to this effect. The Subcommittee should also discuss the way forward on certain legacy issues, including the Report on the mandate of Joint Standing Committee on Defence [Annexure 1]; Report on mandate, functions and powers of Constitutional Review Committee [Annexure 2]; and the Interim Joint Committee on Scrutiny of Delegated Legislation [Annexure 3 and 4].
Ms J Kilian (ANC) noted that some of these reports dated back to 2012, and asked about the context, since some of these made reference to the Interim Constitution. She wanted to know what the Subcommittee would be doing and whether it would only be considering these reports or whether this was the beginning of a comprehensive review process on the Joint Rules of Parliament (Joint Rules).
The Chairperson said that, as far as he was aware, the Subcommittee was going to undertake a comprehensive review of the Joint Rules.
Ms Marina Griebenow, Senior Procedural Officer, National Assembly Table Staff, said the reports from the Joint Standing Committee on Defence and the Portfolio Committee on Defence were referred to the Subcommittee by the Joint Rules Committee. This was a report adopted by the National Assembly in the Fourth Parliament, but it had been decided that it should come to the Joint Rules Committee, because the Standing Committee was a Joint Committee. The issue here was the overlap in the mandates of the two Defence Committees, which had been an ongoing debate for years. Adjustments have already been made to the Joint Standing Committee on Defence, at the beginning of the Fifth Parliament, to make it smaller and more functional. The committee proposed by the Defence Review was rejected by the National Assembly, so it would be important to look again at these two committees to eliminate the overlaps.
The other report was one by the Constitutional Review Committee, which was adopted by the Fourth Parliament, and came to this Subcommittee as a legacy issue through the Joint Rules Committee. The Constitutional Review Committee was making proposals on certain matters, including dealing with legislation, and this Subcommittee was being requested to look at the legacy issues in order to advise the Joint Rules Committee.
The Chairperson said he wanted to get to the brief for the Subcommittee, because it would be easy if the mandate was simply to consider these matters. If, however, the brief of the Subcommittee was to review the Joint Rules, then it would be a very different matter. He pointed out that a clear brief had been given to the Subcommittee on the Review of the National Assembly Rules, namely to do a detailed review of the Rules of the National Assembly. If this Subcommittee, on the other hand, only had to deal with the matters referred to it as mentioned by Ms Griebenow, then its work would be relatively easy, as it would be required to deal with a public participation model and the issues around joint Committees. The sixth edition of the Joint Rules was produced in 2011, although this was not built on pre-1994 rules. He reiterated that it must be clear what the Subcommittee must do.
Mr Booi asked who set the mandate of the Subcommittee. In the case of the Subcommittee on the Review of the Rules of the National Assembly, the National Assembly gave the brief. This Committee would probably be authorised by a Joint Sitting of the Houses of Parliament.
Dr H Mateme (ANC, Limpopo) said she had seen a letter from the presiding authority of Parliament and her understanding was that this Subcommittee was being tasked with the marathon task of reviewing the Joint Rules.
Mr Mbebe said the letter received spoke to the oversight mechanism, and in the Joint Rules Committee meeting of 2014 the mandate given to this Subcommittee was to deal with the legacy issues.
Ms Griebenow said that the items on the agenda so far reflected matters formally referred to the Subcommittee by the Joint Rules Committee. She was not aware that the Subcommittee had been instructed to conduct a review at this point. When the review of the Rules of the National Assembly began, the idea was that once the NCOP Rules review was completed, there would be consequential changes to the Joint Rules.
Members adopted the agenda.
The Chairperson concluded that the Subcommittee therefore had two major areas of work to conduct at this point: the first being the draft rules for the establishment of the oversight mechanism and the second being the legacy issues. Building on the experience from the review of the Rules of the National Assembly, he suggested that those who drafted the reports should appear in the Subcommittee. It was easier to understand the content and context of a report when it was explained by the drafters, who could explain the logic behind the report which might not be immediately apparent.
Draft Rules on the Oversight Mechanism
Ms Griebenow noted that the original Financial Management of Parliament Act (the Act) required an oversight mechanism to be established, to which the Annual Report and financial issues of Parliament would be referred. Initially the Act had excluded the executive authority, which would be the Speaker of the National Assembly (the Speaker) and the Chairperson of the NCOP (the Chairperson). Rules were then drafted to establish a Joint Standing Committee on the Financial Management of Parliament. This was presented to the presiding officers, but a political decision was taken not the present this to the Joint Rules Committee, pending another review of the Act. Subsequently, it was amended, and the new wording of section 4 now provided for discretion as to whether the executive authority could be part of the oversight mechanism or not. The only strict determination was that “no Member of Parliament may attend a deliberation on a matter in which that Member has a material interest”. If there were to be political agreement that a Joint Committee on the Financial Management of Parliament could be established, then the rules already drafted would suffice, since they were broad, excluded detail contained in the Act, and merely would need to specify the exclusion since incorporated, based on conflict of interest.
Ms Griebenow then took the Subcommittee through the rules previously drafted. She reiterated that these firstly established a Joint Standing Committee to deal with financial management of Parliament under section 4 of the Act. Secondly, they set out the composition of the Committee, which would consists of the number of Members from the National Assembly and from the NCOP as determined by the Joint Rules Committee, which would allow for different determinations proportionate to the composition of any particular Parliament. The new proviso relating to material interests in a matter would be placed here. The Joint Standing Committee would have co-chairpersons, one from each House. The powers and functions of this committee would include: maintaining oversight over the financial management of Parliament, and performing the functions and exercising the powers specified in the Act. The NA and NCOP may assign any other function to the Committee within its area of competence. It would have the general powers given to Joint Committees under Joint Rule 32. The Joint Standing Committee may sit with any number of Members, but a quorum would be required for decision which would be the majority of Members from both Houses. A decision would be made when agreement was reached by a majority of Members from each of the the NA and NCOP components. The most important point was that under the functions and powers there was a rule saying that this committee would be empowered to do whatever was stipulated in the Act, as well as having a broad stipulation that the Houses could assign extra functions.
Mr Booi said he thought that the word "Parliament" was used when both Houses were referred to together. He suggested that the language used under the proposed rules dealing with functions and powers did not reflect this convention or definition. In particular, whenever dealing with the National Assembly Rules, Members tried to emphasise whether the rules were applicable to the NA only.
Ms Griebenow said the rule was drafted in a similar style of other rules dealing with Joint Committees, but the wording could be changed if the Subcommittee wanted.
Ms Kilian said she would support the current formulation, and cautioned that the constitutional mandates of the two Houses must be kept in mind. The Subcommittee must also be wary of simply adopting international practices in relation to parliamentary operations, because there was a distinct difference between bicameral parliaments with one House of representatives and another house of appointees, and other types of parliaments. She would argue that it was more important for the draft rule to be consistent with the other Joint Committee provisions.
Ms Kilian asked why it was decided that the presiding officers of the two Houses would not be part of the oversight mechanism. She wanted to have a better understanding of why there was a delay and why the Act was amended, and particularly whether there were any accountability or constitutional questions. She also asked how this would be dealt with, and if there were examples of other international practice.
Adv Frank Jenkins, Senior Parliamentary Legal Advisor, said the motivation to exclude the presiding officers firstly has to do with governance principles and a potential conflict of interest. There were certain functions given to the executive authority of the Speaker and Chairperson acting jointly. These included giving instructions for the implementation of the Act under section 66, and giving directives with financial implications, which might result in unauthorised expenditure, for example if there was an exceptional event. When the executive authority performed these functions it would be accountable to Parliament, but there was also a requirement that the executive authority must also refer these actions to the oversight mechanism. If this happened, then clearly the executive authority could not be part of the oversight mechanism. The real reason for the amendment to the Act was to bring provincial legislatures under the financial regulatory framework of the Act, in line with the judgment of the Constitutional Court which held that provincial legislatures did not have the legislative competency to pass their own financial management legislation. The resolution of the House also referred to these governance issues. The Standing Committee on Finance had reviewed the Act, and had concluded that the Deputy Speaker and Deputy Chairperson were also excluded from being part of the oversight mechanism. The reason for this was, however, unclear, because they were not part of the executive authority. These presiding officers could only act on instruction, but there was a blanket exclusion. The debate was whether there should be a blanket exclusion or whether it should be framed as an exclusion when it mattered and there was a conflict of interest. This then explained the proviso in the Act that the Joint Rules must stipulate that no Member may be part of that meeting of the oversight mechanism where s/he had a direct material interest in the matter under discussion.
The reason the executive authority was included under "Member" was that the oversight mechanism not only conducted oversight over financial management after the fact, through annual and quarterly reports, but it also considered the planning and budgeting of Parliament. Section 17 of the Act required the drafts of the strategic plans, annual performance plans and the budget to be tabled in the House and referred to the oversight mechanism, in order for that oversight mechanism to give input into the planning phase of Parliament's financial year, and its medium term expenditure framework. Given the responsibility of the oversight mechanism relating to this planning and the executive authority’s accountability for the planning, it was important for the Standing Committee on Finance to make the amendment to provide that the executive authority should not being part of the particular meetings.
Mr Mashile said he had participated in the discussions on the amendment of the Act. He clearly recalled being convinced that the executive authority could not refer planning documents to itself for approval. Under normal circumstances, the oversight mechanism should be able to call the executive authority to explain the planning documents. Aside from these concerns, the composition of the oversight mechanism was to be drawn from both houses. However, he did not think that once the oversight mechanism was set up, it should continue acting along the lines of the two separate Houses. Once established, the Members should rather function as a unified unit. He had a problem with the portions dealing with decision making, because they appeared to sustain the division of the membership into the two Houses at an operational level. Again, he urged that the oversight mechanism, once established, should then act as a homogenous unit and all Members of that mechanism should have all the same rights and duties.
Dr Mateme said the principle that the Committee should work as a homogenous whole was good, but she was unsure whether this should be written into the Joint Rules. Given human nature, she pointed out that if Members did not want a process to move forward, they could simply absent themselves. This had to be recognised and dealt with. Secondly, she felt a system needed to be in place to ensure that Parliament could function. She asked what would happen if one of the presiding officers was ill, because the Deputy was incapable of acting as the executive authority, and so the rule needed to be framed in a way to allow work to carry on even if an executive authority was unable to perform the work.
Mr M Rayi (ANC, Eastern Cape) commented on Mr Mashile's point. In reality, the Committee was constituted by both Houses and there was a danger that one House may continue to decide matters despite the single Committee. He agreed with Ms Kilian that there should be consistency between the rules governing the oversight mechanism and other joint committees.
Ms Kilian noted that Rule 115 stipulated that a Joint Committee would make a decision based on the agreement of separate majorities from both Houses. Therefore, there was already recognition, in the Joint Rules, of the importance of either House. Dr Mateme's point was important, and where Members of either House were absent they would have to defend the decision. She suggested that this rule therefore required a majority of the Members present for the meeting, to form a quorum, which would create enough buy-in.
Mr Booi said he was open minded on that, but stressed that Parliament should be constituted in line with the Constitution. After 21 years, Members should reflect on what was expected. The challenges that arose in practice around how decisions were made and how Members engaged should be used to guide the process. The establishment of joint committees should not be a matter of contention. There was perhaps a challenge with how the oversight mechanism was constituted, and what its mandate was. Members should not work spontaneously, and Joint Committees should be constituted in line with the Constitution. His experience with the Joint Standing Committee on Defence had been that the National Assembly did take the leading role. If the roles were not clarified for the new Joint Oversight Committee, there was a danger that it could move in this direction also. In relation to the current matter, he suggested that there was a partnership, but the NCOP also derived its mandate from the provinces, so their relationship with the Oversight Mechanism also had to be considered carefully.
Dr Mateme agreed that any engagement should be guided by the Constitution, but this needed to be limited by a timeframe.
Mr A Nyambi (ANC, Mpumalanga) wanted to emphasise that there should be consistent use of language. In relation to the points about the quorum and decisions raised by Mr Mashile, the Rules stated that a Joint Standing Committee may proceed with business, regardless of how many Members were present, but may only take decisions if a quorum was present. His concern was that even if there were only two Members of the NCOP present,a meeting could continue. In relation to the oversight mechanism working as a unit, the rule stated that a majority of Members from each House should decide, but he felt the rule should be reworked to avoid any misinterpretations. The expectation was to have a Joint Committee working in a manner reflective of the make-up of any Parliament, as set out in the Constitution. Consistent language would help to avoid the situation where different Members may interpret the rules in their own way, which could lead to unintended consequences.
Dr Mateme noted that the legal advisors should phrase the rules in such a way as to avoid misinterpretation. She asked when this drafting process should be completed.
The Chairperson said that there would need to be clarity, firstly, on what was to be amended, and secondly on the political viewpoint. The legal team would then draft the rules based on the political will. The National Assembly had taken the view that its most senior committee was the Rules Committee, and he thought that the most senior committee for Parliament was thus the Joint Rules Committee. Therefore, the oversight mechanism would also be a senior body, because it held the executive authority to account. The National Assembly Rules contained an option that no meeting was to start unless there was a quorum present. A joint committee meeting should not be able to start with Members from only one House being present. However in practice, meetings did start before a quorum of Members were present, to avoid delays if some Members were late, and there was nothing wrong with those present discussing a matter and later presenting their conclusions to a meeting with a quorum. However, a distinction must be drawn between normal portfolio committees and those set up by specific legislation - he felt that the latter should have a minimum stipulation for numbers of Members present before the meeting could start. He suggested that the minimum required would be one third of Members to begin the meeting, and 50% plus one to make a decision.
One issue raised in the Subcommittee on the Rules of the National Assembly was that some Committees were too large and became unwieldy, which was when the quorum requirements could become a problem. He suggested that this needed to be reconsidered, to ensure efficiency of committees. He argued that the Oversight Mechanism should be taken very seriously. It was not simply a normal Committee, should be treated as a senior committee, and should not be able to start its meeting without a third of its Members present, with 50% plus one to be the minimum decision-making number. He did not know how large the Committee would be, but Members should keep in mind that this was a very important Committee. He reminded Members that they should be using their practical experience of Parliament, since 1994, to guide the formulation of the Rules. It had been found that large Committees did not work. The reason why the National Assembly Rules required a quorum for a meeting to start was that Members did at times serve in several Committees, and might not be able to attend all committees. However, the Oversight Mechanism would be different, because of its seniority, and it would meet only when necessary, so there were sound reasons for setting it up in a different way.
Ms Griebenow asked whether the stipulation that the Joint Rules Committee should decide on the composition of the Oversight Mechanism would be retained, and whether the quorum requirement for a meeting to begin would simply be a third of all Members. Decisions could be based on Joint Rule 103, which dealt with the decision making powers of the Constitutional Review Committee, and which stated that a decision would be made by a majority of Members. She asked if this should be placed in the draft, as it would do away with having Members identified as being from either House. Lastly, she asked if alternates should be provided for in this Committee.
The Chairperson expressed the view that because senior Committees did not meet every day, probably once per quarter at most, they would not struggle to get the nominated Members together. This was not really a Committee which would oversee the daily business of Parliament, but would deal with the planning documents of Parliament. He added that it was possible to include a caveat that if necessary, the Joint Rules Committee could be called upon to make the decision.
Ms Kilian thought that Ms Griebenow had said it should be left to the Joint Rules Committee to determine the composition of the Oversight Mechanism, at the beginning of each Parliament. She wondered if the Rules themselves should specify the same size for this Committee as for the Constitutional Review Committee. Using Joint Rule 103 as a guideline, the Constitutional Review Committee was comprised of 23 Members, and a decision would have to be taken by at least 12. When the National Assembly Rules had been discussed, a similar discussion on alternates took place, and it was decided that alternates should be formally announced in the ATC. She heard the Chairperson's point that the seniority of the Oversight Mechanism meant that it should not have alternates, but thought it would be wise to not make provision for them, even if by saying that the Joint Rules Committee could determine the number of alternates, rather than not having them at all.
Mr Booi was concerned about the reference to Joint Rule 32, since it dealt with the general powers of a Joint Committee. Using this rule would give the Oversight Mechanism too broad a set of powers, including determining the size of the committee, and giving it powers beyond budgetary issues.
Mr Mashile agreed with the position of the Chairperson on alternates, particularly bearing in mind the need for continuity in the membership of the Oversight Mechanism, to avoid losing the essence of the debate, especially when it would meet so rarely. Members who missed a single meeting would miss matters of great importance and not be able to participate fully in the next meeting. However, Ms Kilian's viewpoint also made practical sense. Perhaps, through the rules on establishment of committees, it would be possible to provide for two alternates from the NCOP and NA, who could attend the meetings regularly, but who would not be able to vote - which would of course not help if permanent Members were not present to vote. Alternates in normal committees could attend only in the absence of a nominated Member but not participate.
Dr Mateme said that the spirit of seniority was fine, provided that processes were not manipulated.
Mr Mashile believed that the number of Members for the Oversight Committee might be dictated by the NCOP, because the provinces would have to be represented. For joint committees, it was argued that NCOP participation could not be less than nine, which was why certain joint committees were comprised of 23 Members.
Ms Griebenow said the NA component was usually decided once the NCOP component was set. Unless the rules relating to a specific joint committee provided otherwise, the general rules on Joint Committees would apply - and these already provided for alternates so a specific rule on alternates was not strictly necessary. In relation to decision making, it would be necessary to specify whether the intention was to remove the voting as a component of either House. She needed clarity on the Oversight Mechanism, asking whether the Subcommittee was seeking to prescribe guidelines for the Joint Rules Committee, or whether (as with the Joint Committee on Ethics) it would be made up of a stipulated number. Since the composition of Parliament changed with each term, it would be easier for the Joint Rules Committee to take its own decision based on that specific Parliament's party representation.
Ms Naidoo added that the same general application was found with Rule 32, so it would have to be specifically excluded. The wording was generally taken straight out of the Constitution.
Mr Mbebe said it had been realised, in the Fourth Parliament, that a nine-member representation from the NCOP made joint committees too large. For the Joint Standing Committee on Defence it was decided that the NCOP would be represented by four provinces.
Adv Ben Nonyane, Parliament, said that Joint Rule 19 also made provision for the case where the Joint Rules Committee had not set out the number of NCOP Members, in which case it would mirror the composition of other joint committees.
Future Committee meetings
The Chairperson asked Members to apply for leave of absences from the party caucuses, to make sure that the Subcommittee had sufficient time to conduct its work.
He summarised his understanding that the Subcommittee would accept the support staff's proposals on the Oversight Mechanism, apart from those areas highlighted that would be worked on further and presented to the next meeting. It was agreed that the NCOP could not be represented by too many Members, because large committees were problematic. it was agreed that it would not be problematic to allow the general rule to be applicable. With those amendments, the Committee had now virtually completed the rules on the Oversight Mechanism.
The Chairperson asked Ms Griebenow to design a programme for future meetings of the Subcommittee . None of the parties would object to excusing Members to allow them to work in the Subcommittee, for Parliamentary work, but some time would be needed to work on the legacy issues. He added that the Subcommittee had also been tasked with designing one rule around the State of the Nation Address and another for joint sittings. The rule had been prepared, but there had been no joint meeting in which to approve it,so it must be incorporated into the new programme. That programme should be presented in the next meeting. Members would have applied for leave of absence from caucuses if they had been aware that they would be asked to deal with substantive issues today.
Ms Naidoo noted that the next meeting was set for Friday 19 June. Friday 26 June was allocated for committees and joint committees.
Mr Rayi noted that the programme should be convenient for both Houses. The NCOP had a sitting on Friday 19 June.
The Chairperson reiterated that the support staff would work out the dates and present a draft programme to the next meeting.
The meeting was adjourned.
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