Powers & Privileges Committee, Motions of No Confidence: Deliberations on process and proposals; Outstanding issues from draft report on Chapters 1 to 15

Rules of the National Assembly

12 June 2015
Chairperson: Mr M Mdakane (ANC)
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Meeting Summary

The Chairperson reiterated the process of the Subcommittee and noted that this Committee was now at the stage where it was almost ready to present the draft of the revised Rules to all political parties, who must consider this during June and July, report back on any issues to be clarified so that the Subcommittee could debate them in August, and the final draft (with possible options on areas of disagreement) would be referred to the Rules Committee in September.

The Chairperson of the Powers and Privileges Committee addressed the Subcommittee, noting that there was currently a discussion on whether to have a single Powers and Privileges Committee for both Houses of Parliament, given that they decided similar issues, and drawing parallels with the Ethics Committee. Proposals presented for the rules governing this committee included options to leave the current position - that all meetings of the Committee would be closed, then providing for the Committee to decide whether a matter was in the public interest - or having all meetings open and then allowing the Committee to decide whether, because the matter related only to Members, a particular meeting should be closed. There was a proposal for a provision requiring Members and staff to take an oath of confidentiality, which was subject to a sanction by either the Speaker or the Secretary of Parliament. Another proposal was to allow service of the charge sheet on the most senior Whip of a party, where a Member was unavailable.  There were several proposals regarding initiators. including drawing a roster of possible initiators, and that where one was appointed, s/he must draft the charge sheet and cross examine witnesses to provide evidence. Lastly, it was proposed that Members should no longer be allowed to secure outside legal representation, and may only be assisted by a fellow Member of Parliament, who may be legally qualified. These were proposals only and nothing would be decided at this meeting.

Members raised concerns about involvement of Whips, suggesting that this would change the nature of the proceedings from concerns about individual Members to party issues. Several matters that were covered by the proposal were presently subject to litigation, and it was suggested that it was therefore premature to draft Rules which might be in conflict with the final judgment. Mr Kasper Hahndiek, Consultant to the Subcommittee and former Secretary to the National Assembly, indicated that there was discussion on the splitting of the disciplinary functions from the contempt of Parliament functions, and making the former the responsibility of a reinstated Disciplinary Committee which would function as a small body comprised of a small number of senior Members, which would advise the Speaker on what action to take regarding a Member’s conduct.

A Senior Parliamentary Legal Advisor then outlined the recent judgment and implications of the Constitutional Court on motions of no confidence. This judgment appeared to support a virtually unfettered right to raise a motion of no confidence and have that voted upon, in order to keep the executive accountable. It suggested that the urgency of the matter could only be limited by other important business of Parliament, or set events such as the State of the Nation Address. He suggested that in the main the business of ensuring that the House was not stultified would be a political management issue. Members were concerned that the unfettered nature of the right may allow a single Member to derail the business of Parliament by continually raising motions of no confidence which must be debated by the House. Some Members supported the drafting of a rule which required a threshold of support before such a motion was considered. Members tried to justify the limitation by comparison to section 89 of the Constitution, which dealt with removal of the President on objective grounds, and it was pointed out that this differed from section 102, which had no qualifications. It was generally accepted that Parliament had the right to arrange its own affairs, and the Constitution cannot be interpreted to allow the fundamental value of democratic representation to be undermined by the right of a single individual Member to hold the executive to account, particularly where this right was abused. A new Rule would be drafted that was in line with the judgment and which would operate as an internal limiting mechanism.

The Chairperson then went through each of the Chapters discussed already, asking Members to raise any matters on which there was still uncertainty or unhappiness. Areas where the Subcommittee felt that the debate was not properly reflected included casting the defiance of a ruling of the Speaker or Deputy Speaker as a matter of contempt, which expanded on the offences listed in the Powers and Privileges of Parliament Act. They noted that a guideline on the dress code was being compiled although some Members felt that it was still too prescriptive. Discussion was held on the speaking time of "at least three minutes", expressing concern that only three minutes would become the default. There was no stipulation about parties being able to swap time, although the point was also made that the proportionality of the House must be borne in mind. Substantial discussion was held on motions without notice. Given the potential for small parties to abuse their power to veto motions without notice, it was agreed that a threshold of support among a number of parties would be required for a motion without notice to be read in the House, and a new Rule would be drafted to this effect. The crux of this was trying to balance democratic participation against order. There was a concern about Deputy Ministers only being authorised to answer questions where the Minister was absent, because Deputy Ministers may be better placed to answer a particular question on a delegated function, and the delegation meant that the Minister would remain responsible for the content. It was decided that this rule may be adjusted.

Other issues discussed related to whether rulings as well as rules should be referred to in Rule 3, and whether a rule was needed on repeated disobedience.  Rule 13 was to reworded in plain English. Suggestions were made and accepted on Rule 17A to reflect that the Speaker's ruling on some matters would be final. After discussion on the wording of Rules 24 and 31, it was decided that "in concurrence with the leader of government business" would be retained, and Rule 31 would refer to "after due consideration of the views and wishes of the Programme Committee" but a note would be inserted to indicate that the Rules Committee would need to debate and decide on this. Rule 40 referred to an operational manual and it was suggested that this should be drafted by the Joint Rules Committee. In relation to Rule 45, video footage should be included, and there was discussion on whether the Speaker would be able to control Members when the House was not in sitting. In Rule 70, the words "as far as possible" would be removed as any Member raising a point of order must know under what rule it was being raised, and it was noted that in Malawi, the Speaker had the option to switch off individual microphones. It was noted that declarations, in Chapter 6, would remain with proportional allocations of time. It was noted that some changes had been made by the Chairperson of the Standing Committee on Public Accounts, to the rule relating to this committee. It was also noted that a guideline document was being prepared on Parliamentary Protection Services.

It was agreed that a further meeting would be convened to discuss only the proposals for the Powers and Privileges Committee, when a DA Member would be asked to present her position paper. After the current discussions had been incorporated, a new draft would be circulated to all political parties for them to discuss in caucus, and the Subcommittee would meet again in August to receive feedback.

Meeting report

Chairperson's opening remarks
The Chairperson said the aim of the present meeting was to “sign off” on the work of the Subcommittee, and once it was agreed that the draft captured all amendments and all matters raised by various parties, it would be circulated to all political parties and Members electronically. Political parties would then use June and July to air their views on the proposed amendments to the Rules of the National Assembly (the Rules). In August the Subcommittee would meet again to deliberate any amendments proposed. The aim was to present the final draft to the Rules Committee by September for finalisation.

He commented that what had been happening in the House was not that Rules were not in place, but that Members were showing defiance in refusing to follow the directives of the Speaker of the National Assembly (the Speaker). Whatever was done with the Rules, something needed to be done at a political level to address the problem of undermining the Speaker. Where Members refuse to vacate the podium or leave the Chamber, this created havoc. He believed the Subcommittee was correct in saying that the Rules were not there to manage politics, but it was the role of political management to manage the politics within the Chamber, because without this the Rules would not apply. The Subcommittee hoped that the presiding officers would be able to be stricter in applying the revised Rules. No individuals should be able to disrupt the House.

A view was taken in the Subcommittee that all political parties’ representatives were welcome to sit in, to allow all parties to have a better understanding of what inspired the amendments and to get buy in. The EFF had been part of the process for a time, and was aware of what the position was on the Rules, although its Members continued to defy the presiding officers, which was a bit of a problem.

Some issues were still outstanding. The State Law Advisors said they wanted to comment on mini plenaries, but did not come back to the Subcommittee. It was accepted that there would be no speaking list, and Members would work as in other Committees. Issues of timing were raised, but this had never been a problem in Committees. Hopefully the State Law Advisors would bring their view, simply to assist on the language of the Rule. On the dress code, it had been agreed that there would at least be a minimum standard. Further, Ms J Kilian (ANC), Ms N Mazzone (DA) and Mr N Singh (IFP) would meet to formulate a proposal. However, the basic position to be presented to parties had been established. Ms Mazzone would be allowed to make her presentation on petitions. The EFF raised the concern that the allocation of positions as Chairpersons of Committees should be proportional. The EFF had made the motivation for this and this would be something which political parties would have to discuss themselves. He was under the impression that the Money Bills Amendment Act was a joint issue.

Mr Kasper Hahndiek, Consultant to the Subcommittee, and former Secretary to the National Assembly, said there was a National Assembly perspective as well. It required the National Assembly to revisit how it deals with Money Bills itself, before the matter was referred to the National Council of Provinces.

The Chairperson asked if it had been referred to the Subcommittee.

Mr Perran Hahndiek, Committee Secretary, said the Bill was before the Standing Committee on Finance and had been for some time. The point was that the Subcommittee could not draft rules until the amendments in the Bill were passed.

A member of the Committee support staff clarified that the Bill was placed before the Standing Committee on Finance in the Fourth Parliament and revived in the Fifth Parliament. Nothing had been done by the Standing Committee in the present Parliament, and a decision was needed whether it would begin a new process or simply continue what was begun in the Fourth Parliament. This would either be conducted by the Rules Committee or the Standing Committee on Finance.

The Chairperson said either the Rules Committee or the presiding officers would have to make a decision on the matter.

Presentation by the Chairperson of Powers and Privileges Committee
Mr B Mashile (ANC, Chairperson of the Powers and Privileges Committee) spoke to another on-going process, which he had referred to previously. It might well be decided that it was appropriate for Parliament to have a single Powers and Privileges Committee. He had obtained legal opinions and these indicated that under the current wording of the Powers and Privileges of Parliament Act it would not be possible to have a single Committee, and this may have to be amended. He had asked for a draft amendment of that section and the rules dealing with the Powers and Privileges. This would be a separate matter from the current revision of the Rules, however.

Mr Mashile noted that three documents had been circulated: the legal opinion, Annexure A setting out the proposed amendments with tracked changes, and Annexure B, which was a cleaned up version of Annexure A.

He briefly described what amendments would need to be made, should this proposal be accepted. Many of the rules that he would refer to had already been amended in the overall review process that the Subcommittee had been dealing with.  Rule 165 should have (g) deleted. Rules 184 to 186, speaking to the Subcommittee on Powers and Privileges, had already been deleted in part under rule 165 which meant that these rules must also be deleted. Rule 193, which relates to the meetings of the Committee, was designed to provide for the Committee to meet behind closed doors, but Rule 193 (3)(b) does not clearly indicate who was to make the call whether the matter was in the public interest. He proposed inserting a new rule which clearly indicates that it was to be the Committee which made this decision. The legal advisors had worked from the premise that all Committee meetings of Parliament were open. They had therefore provided an option to creates a discretion to close the meeting, and for the Chairperson to re-open the meeting once matters affecting Members only had been dealt with. The only difference was that the two options come from different starting positions. The proposal by the legal advisers was to be contrasted with the current position, starting from the premise that all the meetings were closed, but with special provisions to open the meetings to the public.

Mr Mashile said rule 194 contained a technical correction, because the rule as it stands refers to the Code of Conduct, now referred to as "the Code of Ethical Conduct". Subrule (b) expanded the mandate of the Committee to indicate that the Committee could deal with matters as mandated by a resolution of the Assembly or any legislation - broadening the previous position where it merely dealt with assignments from the Speaker. Subrule (c) inserted a reference to Schedule (a), because the schedule currently in the rules was referred to as" the Schedule" but the review process had seen the insertion of further schedules. In relation to subrule (d) the proposal clarified that penalties may be imposed where a Member was found guilty of contempt, rather than referring to a single penalty. The proposal on subrule (e) clarified that the Committee should have a Secretary, but that this should be a senior member of staff in Parliament, who should have a legal qualification and at least one year of post-admission experience in litigation. It then outlined the duties of the Secretary. These included that s/he should be able to advise the Committee on the complexity and seriousness of matters which may be referred to it, and also advise the Committee on the implications of penalties which may be imposed. Furthermore, that person must be able to refer all legal questions from the Committee to legal advisors and ensure that the opinions were obtained.

The proposal for subrule (a) was based on the idea that when the Committee dealt with matters relating to Members, the meeting would be closed. Therefore, the Members and staff were to take an oath of confidentiality. It also provided for recourse if this confidentiality was broken by any person disclosing confidential issues, including the offending party being removed from the Committee and, if found guilty, then a permanent barring or referral to the relevant disciplinary body. Further, the Speaker may suspend a Member who had broken the confidentiality.

Mr Mashile said item 7 of the Schedule was proposed for certainty and set out that a Member, having been charged, must to indicate that from the point where a Member was charged that within 14 days then receive notice. The number of days now being specified also raised the question whether there needed to be a roll of initiators compiled, from whom an initiator could be speedily chosen within that period. Under sub item (c), there was a need to specify who was to sign the charge sheet. It was up for discussion, but he suggested that where there was no initiator appointed, the Chairperson of the Committee do so, after consulting the Parliamentary Legal Advisors, and where there was an initiator, that the Chairperson consult that person. The next sub item dealt with the meeting to discuss the charge sheet. The Committee could not discuss it in public, for that risked details being leaked to the media before the charge sheet was finalised and presented to the Member, so this sub item specified that the meeting would be closed.

Mr Mashile said item 8 of the Schedule indicated that the notice would be served to the individual Member if available, but if not, then to the most senior Whip of their party. If the notice was served on the Chief Whip then it should be accepted that it would be handed to the Member. This was preferable to using sheriffs of the court.

Item 11 proposed that any explanation which the charged Member gave, after having received the list of charges, should be done under oath, so that it could serve as evidence to be incorporated into the discussion.

Item 12 dealt with the issues around the initiator. The seriousness of the matter was used to determine whether an initiator was required or not. Furthermore, the initiator, if appointed, was to assist in the drafting of the charges and notice. The initiator was to be legally qualified and therefore it was often best for that person to draft the charge sheet, although in a less complex matter, the  Parliamentary Legal Advisors and the Chairperson would be able to handle the drafting of the charge sheet. The initiator was also to determine the witnesses to be called and call those witnesses, to avoid the Committee becoming involved in this process, as this might give rise to suspicion of bias, and because the initiator who drafted the charge sheet would be best placed to know where evidence needed to be led.

Item 13 clarified that the initiator, once appointed, must act on behalf of the Committee in putting the charges to the Member. The Chairperson would ask the Member to plead and if no plea was entered, a plea of not guilty would be recorded.

Item 14 clarified that the initiator would sum up the evidence in Heads of Argument and present this to the Committee. Sub item (3) noted that Members could only put questions of clarity on the evidence led, and Committee Members should leave it up to the initiator or charged Member to seek any new evidence from witnesses, to avoid a perception that Committee Members were leading evidence or being biased.

In Item 15, it was proposed that the phrase "may proceed" should be replaced with "must proceed", where the charged Member was absent, and the Committee was sure that the notice had been delivered to the most senior Whip of that Member’s party.

Item 16 dealt with the matter of a legal representative and indicated that the charged Member should be assisted by another Member. This was because the Committee was intended to be a peer review body, so it would be inappropriate for Members who could afford it to hire Senior Counsel which would take the nature of the proceedings to another level. A charged Member may be assisted by another Member who was legally qualified, but must be an MP.

Mr Mashile said item 17 used to provide that the Speaker may suspend a Member to provide for an inquiry, and also set out the option for suspension without remuneration. The proposed amendment was now that where the Speaker believes the matter to be serious (as opposed to the previous wording of "very serious")  this may be imposed, and the Speaker was also to refer the matter to the Committee for a further determination. If the Speaker recommended that the Member be suspended, then this would be a suspension with full pay until the inquiry was completed.

The Chairperson asked Members for general comment, pointing out that the issues would not be finalised now, but would be discussed by political parties prior to being processed by the Subcommittee in August.

Mr K Hahndiek  commented firstly on the proposal to have a single Committee. His understanding was that each House had exclusive control over its Members, so the NCOP could not exercise any control over NA Members, and vice versa. Where a finding was made by the Ethics Committee against a Member of the NA, this would come only to the National Assembly for approval. Therefore, there may be a constitutional problem in trying to form a single Committee.

Ms J Kilian (ANC) said she did not understand what the logic of combining the Committees would be, because it would waste the time of Members if they were called to sit in on a matter which they had no power to determine because they were representatives of a different House. She suggested that it was, rather, necessary to tighten up some of the practicalities of the Schedule and how it related to the Powers and Privileges of Parliament Act. This could be done immediately, but the process should be more consistent with the Act and practices in the NA.

Ms C September (ANC) said Mr Hahndiek’s contribution on the two different Houses was interesting, because each House dictated its own procedure. She asked to what extent the proposal had been compared to the position in other Committees carrying out similar functions - such as the Joint Committees, open and closed meetings, and the oath to be administered. She said that certainty was also needed on who must administer the oath. She suggested that an investigation be carried out of applicable existing rules in parallel rule books, such as the Joint Rules of Parliament. She also cautioned that changing one set of Rules might have knock-on effects on others. Furthermore, she questioned whether there had been comparisons done with other Ethics Committees. Drawing from her experience in the Magistrates Commission, she commented that magistrates were not covered by the Labour Relations Act, nor were they members of the Public Service. This led her to believe that the Magistrates Commission’s Ethics Committee could be used as a model and some lessons could be learned from it. She commented that it was not very clear what laws would need to be amended, and who was being targeted. She commented that because of the possibility of litigation, it was necessary to avoid ambiguity. Finally she questioned whether one-man parties been catered for under the provisions dealing with service of charge sheets.

Ms N Mazzone (DA) commented that Dr A Lotriet, who sits on the Powers and Privileges Committee had compiled a document on her experiences sitting on that Committee, which had apparently already been presented to the Powers and Privileges Committee, and she was requesting that it be presented to the Subcommittee also. Although Dr Lotriet was not able to be present today, she would be willing to attend, and the document was ready to be circulated. She urged that all documents relating to the Powers and Privileges Committee should be circulated to the study groups of the political parties.

Mr Anthony Mitchell (Chief of Staff, IFP), agreed with the proposal that all available information be placed before the Subcommittee, asked for Dr Lotriet's proposal, and thanked Mr Mashile for a comprehensive submission.

Mr N Kwankwa (UDM) agreed with other opposition parties that he would need time to apply his mind before he came to a decision on the presentation.

Mr Booi commented that a charge sheet was being drawn against an individual Member, not his/her party, and he questioned whether it was thus correct to present the charge  sheet to a party Whip; the onus was on the Committee to raise that charge directly with the Member. Giving the charges to a Whip raised the danger of this crossing over to becoming a party matter that the Whip must discharge, and furthermore the Member could be presented with an opportunity to hide behind party instructions. Once the Speaker had come to a determination and referred the matter to a particular committee, that committee was expected to carry out further processes to the letter, to ensure fairness was maintained.

He suggested that Ms Mazzone's proposal could be circulated in writing, rather than calling a Subcommittee meeting to deal with a single matter, because it was important that practical steps were taken to pass the Rules and prevent the collapse of the institution; there was a danger of people starting to operate under what were still proposals, so there was some urgency to passing them. The way in which the process had been run created sufficient opportunities for buy-in by all Members.

Mr Hahndiek said he believed there had been talk of separating the disciplinary processes from the contempt processes, in the Powers and Privileges Committee. There was a good reason for this proposed separation, because the penalties in the Powers and Privileges Act did not cover breaches relating to benefits, such as travel benefits. The Powers and Privileges of Parliament Act was not intended to create a formal criminal trial process, but rather an internal self-regulatory process for Members' actions in the House. He wondered whether the Powers and Privileges Committee had not moved too close to a formal criminal trial process.

Mr Hahndiek had served on the disciplinary committee investigating the Travelgate matters in the 1994 to 1999 Parliament. At that stage, there was a disciplinary committee consisting of the Speaker, a senior Whip from each party  and any other Members selected by the Speaker for the purposes of achieving representivity of gender, and meeting other concerns. This was a small Committee, did not have a majority of ANC Members, and was really an advisory committee to the Speaker, who was ultimately responsible for approving Members' expenditure and use of facilities. What happened was that the Member would be informed of the allegation, and would be allowed to be assisted by another MP. The disciplinary committee then heard the Member, in a frank exchange, in a small committee, which would then formulate a recommendation to the Speaker. The Speaker could then take further steps, such as instituting formal charges through the National Prosecuting Authority, or issuing corrective action, such as a reprimand in the House or repayment by the Member. There were several options available in this process, but it never took on the character of a criminal trial and as far as he was aware had never caused any procedural problems.

Mr Hahndiek commented that he did not think that the processes used in the Ethics Committee were anything like what was proposed for the Powers and Privileges Committee, not least because there was no provision to have initiators. The charges and penalties which the Ethics Committee dealt with, being breaches of the Code of Ethical Conduct, and contempt, could be the same as those of the Powers and Privileges Committee, but another additional penalty was available to the latter, being a possible suspension. Members of Parliament had commented that they were not employees, and should not be subject to the same processes that applied to other employees in a labour context. Parliament needed to consider if it did want to take the Powers and Privileges Committee to a point where it became parallel to a court. At the end of the day, the Powers and Privileges Committee and the House could decide to take a matter externally to the courts, if it was serious enough.

Mr Perran Hahndiek, Secretary to the Subcommittee, said that matters relating to Powers and Privileges were before the courts in the EFF matter, and there was an interim judgement, but he would like to find out when the final judgement would be handed down, as this would clearly affect what Parliament could do.

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, said the interim judgement was partly done in order to refer the entire matter to the Constitutional Court, but whether the Constitutional Court accepted it was another matter. Parliament was still busy filing papers. If the Constitutional Court accepted the case it would give the final pronouncement on the matter. The Constitutional Court might do as it had done in the Agang SA matter and refer back to the High Court to consider certain issues. However, the EFF had, in its papers, raised other issues which were purely constitutional, and here the Constitutional Court had exclusive jurisdiction. Issues relating to the Powers and Privileges of Parliament Act, whether the Act’s procedure was followed and whether the Act was appropriately drafted were all matters which the High Court was competent to hear and on which it would need to express a view. He thought that it was quite possible that the matter would not be completed within the next year or two, particularly if it was referred back to the High Court and maybe to the Supreme Court of Appeal. The Parliamentary Legal Advisors were preparing themselves for the decision on the interim judgement, but it would be irresponsible, at this point, to give an estimate of how long this might take.

The Chairperson said the Subcommittee should take a view, because the matter of the presentation was to be debated by political parties.

Mr Mashile said the proposals were drawn with a view to them being discussed by the Members and processed by parties. These proposals mostly dealt with corrections to the present rules that it was thought were necessary, in light of past experience when trying to implement the particular rules and the Schedule. There had been many previous inquiries when the Committee had had to rely on legal opinions, because of the lack of clarity in the Rules, and the proposals aimed to ensure that more certainty would allow the inquiries to flow without the need to constantly consult with legal experts.

Mr Mashile did not know whether the Subcommittee was going to discuss the matter of one joint Powers and Privileges Committee, because he was waiting for further documents. He felt it should be treated as separate from the present process, because any proposed amendment to the Rules may need to be preceded by an amendment to the Act. He said that the reason for the proposal to have a single committee was that the powers and privileges of Members, as provided for in the Constitution, were exactly the same for Members of the NA and NCOP. The Constitution extended the same powers and privileges to the executive when it appears in Committees. Furthermore, the Constitution and Act both anticipated a Joint Committee to deal with joint business of Parliament, and he would submit that powers and privileges were in fact joint business, because the same Act would be applied.   The Ethics Committee was a Joint Committee composed of Members of both Houses. and it dealt with matters relating to all Members of Parliament. The relevant Co-chairperson should introduce the resolution in that specific House, and administer the oath to the Member. The work was virtually in line with the Ethics Committee. For staff, he was unsure whether this would be handled by the Secretary of Parliament.

In relation to the comments on serving notice on the Whips, he said this was based on the recognition of Whips' responsibility to manage Members. The process was indeed not meant to be like a court process, so he saw nothing incorrect in accessing Members through their Whips. It was possible to follow the cumbersome process of involving the sheriff of the court, but if it was recognised that this was an internal process, and that Whips had a leadership role in the parties, then there was good reason to use the Whips. He did accept that an individual was being dealt with in his capacity as Member of Parliament, but s/he was also part of a political party.

He concluded that the Powers and Privileges Committee was established under the Powers and Privileges of Parliament Act. The Ethics Committee was tasked with applying the Code of Ethical Conduct, which included values and standards enabling that Committee to make a decision on a Member causing problems.

The Chairperson asked for the discussions to be closed at this point, since this was an introduction to the proposal only. Dr Lotriet would be invited to the next sitting.

Mr Mashile said he was engaged two days ago on the question of the court case, and he believed it would take a long time.

Ms Kilian said the Subcommittee should be clear that the Powers and Privileges Committee was intended to be a peer review body. It did not apply a code of conduct, but dealt with a Member’s conduct in the House.

The Chairperson asked how a Member from the NCOP could participate in a discussion about a NA Member's conduct during a debate, in defying the order of the presiding officer?

Ms Kilian said she had already expressed herself on the issue of a joint committee and she would have to be thoroughly convinced on the matter. The purpose of the amendments was to clear up procedural matters in the Powers and Privileges Committee, and the aim was not to create a quasi-judicial enquiry, as there were many such other bodies in other jurisdictions, which would need to be explained. The Powers and Privileges Committee was being presented as a draconian body which aimed to silence Members, but that was not correct. There was a common understanding of the Rules and a common understanding that certain conduct was not proper. She cautioned against dragging in politics, and was concerned at some of the views expressed in the meeting. She urged Members to "take off their Party hats". She felt strongly that something had to be put in place soon, without waiting for the Constitutional Court's pronouncement.

Mr Booi said this document had not been debated within the ANC, and that must still happen, where rigorous debate would undoubtedly take place. He suggested again that Ms Mazzone's proposal be circulated in writing, rather than raising it directly to the Subcommittee. More clarity was needed, particularly since the Constitutional Court decision would impact on the Rules. Mr Mashile’s suggestions could not be pushed through only to have the Constitutional Court treat them as if they did not exist. Parliament must always uphold the law. Where a law was unclear it was the Constitutional Court’s role to give guidance. He would be very concerned if Parliament were to ignore the Constitutional Court because of administrative problems. Even Adv Jenkins did not seem to be clear on what was happening. He questioned whether debate on the Powers and Privileges Committee should be started now, or rather wait until after the decision of the Constitutional Court be awaited. If Parliament ignored the Constitutional Court, it would be in violation of the Constitution and this would be a very bad precedent. then it would be in violation of the Constitution and a bad precedent would be set for society.

The Chairperson said the Powers and Privileges of Parliament Act was in force and must be implemented. Mr Mashile's proposal was trying to close the gaps within the legislation and deal with procedural matters. He urged Ms Mazzone to circulate Dr Lotriet’s proposals. He added that it might be necessary to call a meeting to deal with this matter specifically, while other processes around the Rules were still running their course, ,and a separate date would be found. Members should present it to their caucuses to finalise this matter, along with the broader issue of the Rules. 

The Chairperson referred to Mr Hahndiek's comment on separating disciplinary issues from contempt matters. If a Member simply refused to adhere to a ruling of the Speaker, he wondered if it was really necessary to go through the entire process of the Powers and Privileges Committee. Powers and Privileges processes were not really assisting the House in dealing with the problems it currently faced. He suggested that perhaps a proposal should be presented to reinstate the disciplinary committee, which would enable a small team to interrogate the behaviour of a Member within the Chamber, with their Whip present. This would be a better option than awaiting the decision of the Constitutional Court. He would support the reinstatement, because it allowed for simpler processes. Until an amendment was made, clarity should still be sought.

The Chairperson suggested that Ms September should be part of the team dealing with the Joint Rules, because some of the Joint Committees being spoken about were being dealt with in that process. Contempt was a bigger issue and warranted the more extensive process under the Powers and Privileges Committee. The experiences of other Parliament should also be considered, as they had the potential for learning things that could assist.

Motions of No Confidence
The Chairperson said the Constitutional Court had now made a decision on the matter and asked the Committee Secretary to speak to it.

Mr Perran Hahndiek said Adv Jenkins would be presenting on this matter, because he had some updates on the legal opinion, which looked into whether it was possible to limit the number of motions of no confidence in a year.

The Chairperson clarified that the possible limitation on motions of no confidence was suggested to ensure that motions of no confidence were not used continuously. The Court had allowed every Member to put forward a vote of no confidence, but the aim was to find an internal mechanism to limit the frequency of such motions. There must at least be a threshold, or other form of limitation.

Adv Jenkins said the Court had used an interesting phrase, and at one point stated that there “must be an ever present possibility of a motion of no confidence”. The reason for this was that a motion of no confidence was one of the fundamental tools for holding the executive accountable in legislatures in general, and in South Africa specifically. The Legal Advisors' interpretation of this was that it was not possible to put a limitation as to when a motion of no confidence could be raised. The Constitutional Court judgment effectively softened the approach of the Western Cape High Court, as it did not accept that it was always to be inherently urgent matter; although it must be a priority. The Constitutional Court held that “votes of no confidence must be scheduled for debate in the House and voted upon without unreasonable delay, given the programme of Parliament". This, by implication, would mean that where a legislative imperative was at play - such as passing the budget by a certain date under the Money Bills Act - that would be taken into account. Similarly, the Public Finance Management Act required certain things to be done by a certain time and other legislation may make similar provisions in the future. Clearly Parliament must comply with such legislative imperatives, but once such matters were concluded, the vote of no confidence must take place. He was also of the opinion that it could well be argued that if Parliament had an annual plan for events, such as the State of the Nation Address, which required planning and funding, then this could take precedence over a motion of no confidence. If a Member attempted to raise a motion of no confidence on a day where such an event was planned, Parliament would be in accordance with that judgement if it were to schedule the vote of no confidence after the debate on the State of the National Address.

In relation to the comment that it would be necessary to prevent motions of no confidence being debated every day, then it must firstly be considered whether this was an actual problem in the House. To his knowledge, this was the first time since 1994 where there had been two motions of no confidence within a year and there must be a political solution to this problem. When the motion of Agang SA was eventually placed before the House, Members were expressive on the issue of wasting of time and resources on the motion. This was potentially the best way of dealing with motions of no confidence which had no substance. Aside from this Parliament must operate within the parameters of the judgment.

Mr Perran Hahndiek wanted to draw attention to a document entitled NA Rules: Subcommittee Proposals on Chapters 1-9 (Draft 4). Currently, motions of no confidence were dealt with under Rule 102 A. He wanted to add that when these rules were drafted they were done with the idea that the bringing of a motion of no confidence could not be limited. However, whilst the draft said that motions of no confidence could not be denied a placement on the Order Paper, the amount of time dedicated to them could be limited. If motions of no confidence were scheduled for subsequent weeks then the option remained to limit the amount of time.

Mr Hahndiek said that in principle, if a Member or Party was intent on preventing the House from conducting its other (possibly urgent) business, the unfettered nature of the court judgment meant that a party could derail the work of Parliament by submitting a motion of no confidence every day. In the past six months it had been seen that parties could attempt to prevent the House from doing what it was constitutionally mandated to do. The unfettered nature of these, along with Private Member’s Bills which must be processed, meant that a party could load a lot of matters into the House and effectively impede its functioning. Previously, research had been conducted on this, which found that there was no other Parliament in the world where there was no threshold for motions of no confidence in order to protect its functioning. The unfettered nature now suggested seemed to impinge upon the responsibility of the National Assembly to conduct its work on behalf of all the people of the country and it could not be correct that one party, representing only a fraction of the people, could completely rail-road the business of the National Assembly. It was a fundamental constitutional issue that the National Assembly should be able to manage these types of tactics. Section 55 of the Constitution states that Parliament is to regulate its own process. He thought that it was possible to test the unfettered nature of the decision in the judgment, by introducing a rule which stated that if there had been a motion of no confidence in a given week, and there had been no major political issue since then, another motion of no confidence would not have to be entertained in the following week. He felt this was a fair manner in which to deal with the matter and appropriately balance the rights of individual Members and the House. As the judgement and legal opinion stated, motions of no confidence were a critical means by which the executive was held to account, but that did not mean that they should be used every day.

Mr Booi was critical of the Parliamentary Legal Advisors' stance that this was a political matter, because he felt that the Subcommittee ought to be presented with a solution. It was not a solution to simply state that the issue was political and Members should sort it out. There were two things which should not be denied: holding the executive accountable, and how the right could be limited. Motions of no confidence were not the sole problem of the country and while opposition parties may make holding the President accountable their sole priority, the problem would persist. A middle of the road solution must be found, so that at least motions of no confidence were not seen as a simple matter. While the legal opinion does not offer a solution, Mr Hahndiek’s suggestion should be placed into the arena for debate, in line with the position of the Subcommittee that all suggestions which may have value should be debated. The solution should not disregard what the Constitutional Court had said, but parties should agree on the framework which would guide the raising of motions of no confidence.

Ms September said she did not feel the Court judgment was the issue. If people had the means they would turn to the Court. Instead, it was more important to focus on why this matter could arise. Any motion of no confidence must be dealt with in the most serious and respectful manner, but the integrity of the institution could never be compromised for political gain. Previously the Programme Committee would look into the matter to schedule the debate. The legal advisors should interrogate whether it was appropriate to have these motions processed only at the level of the Programme Committee, or whether there was another suitable mechanism. This was not about blocking motions of no confidence, but why they were available and how they could be treated with the seriousness they deserved, and the decorum of Parliament restored.

The Chairperson asked that Mr Hahndiek should draft something, because it was a process issue more than anything else, now that the right had been decided as unfettered by the Constitutional Court. He agreed that there was a need to find a way of managing such motions to still allow Parliament to conduct its business. A rule should be drafted to be presented to parties, to prevent this being used as a filibustering tactic impeding the functioning of Parliament.

Mr Booi said perhaps the institution of a motion of no confidence should speak to the removal the President under section 89 of the Constitution, such as limiting it to a serious misconduct or an inability to perform the functions of the office. 

Adv Jenkins said that section 102 of the Constitution dealt with motions of no confidence, and repeated his view that this was a political process. Removal under section 102 would leave all the benefits enjoyed by a previous head of state intact. However, if the President was removed in terms of section 89, there were objective grounds on which the decision to remove could be tested in court. The Constitutional Court would eventually give meaning to "serious misconduct" or "inability to perform the functions of the office". This was a different process and a political process must be involved there as well, because this held for anything which goes through the House, although it was limited by objective factors. The decision to adopt or reject a motion of no confidence was inherently political, because he could not think how someone could challenge the decision of the House. There were no objective grounds to test the decision and in his opinion it was intended to provide a means to express a political view. He would therefore recommend keeping the two processes separate. Section 89 had very serious consequences, including not receiving any benefits of office and not being able to hold any public office. Removal under a vote of no confidence allowed the person to retains all those things and status as a former head of state. Because of the objectivity of section 89 it was a penalty, but under section 102 the retention of benefits was linked to the political nature.

The Chairperson repeated that a rule should be drafted, keeping in mind the judgement of the Court, trying to find an internal mechanism to ensure it was not abused.

Mr Hahndiek said he could draft a rule which required a threshold of support before the motion could proceed, but this would immediately be challenged as being out of line with the Court’s judgement and could be cast as disrespectful to the judiciary. He believed a solution had to be found by Parliament engaging with the ruling of the Court, and determining what the effect would be on how Parliament on functions and how motions of no confidence could be used to hamstring the business of Parliament. This would mean balancing section 102, which does not say that every Member had the right to introduce motions of no confidence at all times and that they must be dealt with immediately, with section 57, which states that the National Assembly makes rules and orders concerning its business with due regard to constitutional values. The National Assembly had a responsibility to ensure that it could function and address the business it was required to, under the Constitution. He said a way had to be found to re-engage on these issues. Ultimately, it may be that the Constitution may need to be amended to make it clear that while motions of no confidence need to be provided for and entertained, they could not be used as a filibustering tactic. It should be noted that even a one person party could raise a motion of no confidence every week, because the right was unfettered. The Constitution could not have intended that the National Assembly could be prevented from looking after the interests of South Africa by a single Member. He repeated that a Constitutional amendment might be necessary, but it should not remove the right to have motions of no confidence considered by the NA, but instead to balance this against the broader responsibility of the National Assembly to conduct the business of the country. He could not see how a rule could be drafted otherwise to limit the right when it had been ruled as unfettered by the judgment.

Mr Booi noted that section 102 (2) required the motion to be supported by a majority of the Members of the National Assembly to carry through. He asked whether the judgement related to this threshold at all, as it might be able to be brought into the Rules.

The Chairperson said a Member could propose a motion of no confidence at any time s/he wished to. It must be supported by a majority of Members to be adopted, and for the President to be removed. If  a Member did not want a specific Bill to be passed, for personal or religious reasons, s/he could raise a motion of no confidence to impede Parliament. Mr Hahndiek was indicating that a rule could not be drafted limiting that right, given the ruling of the Constitutional Court. Therefore, the matter may have to be handled politically by the Programme Committee. He thought that there was no point in continuing the discussion at this point; the Subcommittee was discussing something which it could do nothing about.

Ms September agreed but said perhaps the matter needed to be discussed at other levels as well. She understood what Mr Hahndiek meant about the unfettered nature of the right, but looking at the Constitution there were a lot of other rights which appeared to be unfettered, but the Constitution also contemplated the limitation of rights, for they must be balanced against particular interests which were relevant at the time. She did not feel the right could be completely unfettered. The Subcommittee therefore might not want to overexert itself now and perhaps should look beyond the Parliamentary Legal Advisors for further opinions.

Ms Kilian agreed that nothing should be drafted which could be construed as being against the decision of the Constitutional Court. However, the essence of the problem lay in the fact that it was compulsory for the Programme Committee to schedule a debate on a motion of no confidence. She heard what Ms September said, but the limitations on rights related more to the Bill of Rights. The problem was that the Court came up with specific wording. She would suggest that Parliament should approach the Constitutional Court to tell it that there was a practical problem, and that the provision needed to be reasonable, so it must at least provide for some or other threshold to avoid individuals making a mockery of Parliament. She felt the time had come to see if the Court would allow the imposition of a threshold such as one third. There should be a rule which speaks to the opportunity to raise a vote of no confidence, although she did not feel it required a constitutional amendment, because the Constitution dealt with the consequences of a vote of no confidence.

Adv Jenkins said the Court had made a statement in the judgement that there were no limitations on the right in section 102, and if this was to be changed then there would need to be a constitutional amendment. The court case needed to be viewed in context. The facts leading up to this litigation were that the Programme Committee could not schedule the vote of no confidence. That was why the Court made certain statements including that there was no limitation in section 102, and moved on to the purpose of a motion of no confidence, which was to keep the executive “on its toes” and therefore it must be regarded as an ever present possibility.  His point was that there was scope within which a rule could be drafted. The main issue was to get the rule right, and the Constitution would not allow permission or a majority vote. As Mr Hahndiek had suggested, other work of Parliament could be used to limit the time for the second debate on a subsequent motion of no confidence. He did not think that that would fall foul of the judgement, because it was within the proviso given by the court “given the programme of Parliament” keeping in mind that it was an important matter.

Mr Hahndiek said his problem was with the use of the word "unfettered" by the Court.  Section 102 referred to “if the National Assembly by a vote of a majority of its Members passes such a motion” and this suggested that there must be at least some measure of support for the motion,  for there to be a realistic chance of getting a majority vote in favour. He questioned whether it would be in conflict with the Constitution if the National Assembly were to regulate its affairs to prescribe that there must be a particular amount of support to allow for a motion of no confidence. If there was clearly no support aside from one or two Members, then it was also necessary to consider if the Constitution was being flouted if the vote was not scheduled as a priority.

Ms September said the suggestion by Mr Hahndiek was leading in the right direction and was something to consider. She also pointed out that there were practices, such as the House first having to agree to suspend a rule, and this could well be appropriate in the circumstances.

Mr Perran Hahndiek said he believed that the Constitutional Court could not be approached for an opinion, and that the only way to access it was through court proceedings.

Adv Jenkins said Mr Perran Hahndiek was completely correct. There had been an attempt by the previous Speaker to approach the Constitutional Court for an opinion, which was rejected.

Mr Hahndiek clarified that this had related to the rules regarding the mixed tagging of Bills which were still in the Rules, where the Constitutional Court refused to give an opinion in the abstract.

The Chairperson summarised that the ruling of the Constitutional Court had to be accommodated through the internal mechanisms of Parliament.

Final consideration of Rules: Points to be raised for reconsideration
The Chairperson asked that the Subcommittee should proceed to a final run through of the Rules, to determine if any matters needed to be reconsidered:

Chapter 1: Definitions

Ms Kilian asked, on Rule 5 (d) whether it had been agreed that this should refer only to a rule, order or resolution of the House and not to a ruling of the Speaker or presiding officer. What had been seen was serious contempt for the rulings of a presiding officer, and that was creating chaos. She believed that previously the reference to the Speaker had been included and she would like to know why this was removed, particularly as this was to be part of the presiding officer’s authority.

Mr Perran Hahndiek said this was one of the issues raised by the State Law Advisors, who encouraged including the word "ruling" under that rule. The concern at the time was that the Powers and Privileges of Parliament Act provided for certain actions which were considered contempt, and it might not be acceptable to create a new offence of contempt for defying a ruling, where it was not in the Act. He understood this Act allowed for the creation of new offences in the Rules and rulings would have to be one of these areas. The matter did raise some procedural question marks: how does a ruling get referred to the Powers and Privileges Committee? Would the Speaker make the referral? A ruling was a different kind of action to a resolution.

Mr Kasper Hahndiek said Mr Perran Hahndiek was correct. Rulings were made off the cuff by any presiding officer, not just the Speaker, and they were not tested against anything in writing on which to base the charge of contempt. Disobeying a ruling was defying the authority of the Chair and there were ways the presiding officer could deal with that immediately, under the officer's disciplinary powers. He was not sure whether it would be wise to include disobeying a ruling under contempt of Parliament. He had understood that what was agreed was that rulings should be excluded. If this was to be made a formal aspect of contempt, then a new rule would be needed to create the offence.

Ms Kilian said an event must be differentiated from a trend. An event was experienced in the past week, at the hands of a particular Member of COPE. Perhaps the House should decide if the matter should be referred to the Powers and Privileges Committee. If the House was being continually disrupted because rulings by the presiding officers were not being obeyed, then consideration would have to be given on how this could be worked in. If the matter must specifically be referred to the Powers and Privileges Committee, then separate provision may have to be made for it.

Mr Perran Hahndiek said if the issue related to conduct by a particular Member who was refusing to abide by rulings of the presiding officers, the House could, by resolution, refer any matter to the Powers and Privileges Committee for consideration and a possible finding of contempt. It would not necessarily have to be codified, but penalties for contempt could be imposed.

Adv Jenkins agreed that this would be the way to go. However, it was important to make sure that when a disciplinary matter was referred to the Powers and Privileges Committee, the first question must be whether a rule had been breached. If disobedience to a ruling was considered contempt, then he would suggest that repeated disobedience would be appropriate. A new rule would have to be designed.

The Chairperson said he thought a rule dealing with repeated disobedience could cover the point.

Ms Kilian suggested this ought to be brought in, perhaps under the heading of the general authority and responsibility, and if necessary a separate rule should be drafted.

The Chairperson agreed and said maybe it should be the case that precedent should be set only by the Speaker and Deputy Speaker, rather than any presiding officer, given the off-the-cuff nature of the rulings.

Chapter 2: General Authority of the Speaker
Ms Kilian said, on rule 13 (3), that it used very high faluting English: “express his or her sense of the honour conferred him or her”. The Member elected must simply, from his place, address the House. It was difficult to define a sense of honour.

The Chairperson said it had been agreed that the Rules would, as far as possible, be drafted in plain language.

Ms Kilian said that it was possible to use rule 17A to bring in the matter of a Speaker’s ruling being final and no further debate on it being allowed. That had been there initially but was replaced with the idea of the Speaker creating and maintaining order. This placed an obligation on the Speaker, but there was no consequence for those who disobeyed. She felt subrule (3)  should read: “the Speaker should maintain and preserve the order and should decide questions of order and practice”, because the responsibility to uphold the dignity and good name of the House was being imposed. The authority of the Speaker must be upheld in order to carry out the above. Subrule (4) recommends the strict observance of the rules and the last part referred to acting fairly. However, somehow the issue of the Speaker’s ruling on the matter being final and there being no further debate had fallen away, and this must be reinstated to curb the trend of Members starting conversations in the House.

The Chairperson agreed and said Ms Kilian’s point would be captured.

Chapter 4: Sittings of the Assembly
Ms Kilian referred to rule 24(1)(a) and said it had been agreed to word this “after consultation with the leader of government business”, instead of “in concurrence with the leader of government business”. As it must be remembered that the leader of government business conveys the business of government. At this stage this person was also the Deputy President and it should not be made compulsory to act in concurrence with that office. A presentation was received from the Office of the Deputy President, which also indicated that it felt that this was improper.

The Chairperson said he thought the Subcommittee had agreed to leave the reference to"concurrence" and perhaps it should be retained. A note could be inserted to indicate that the Subcommittee had a long discussion on the matter. The matter would be debated  and if Members felt strongly then it could be changed.

The Chairperson was unsure what was being said about the Programme Committee in Rule 24A. All parties would be allowed to attend the Programme Committee, which would work towards consensus. If a decision was not made then the Chief Whip, leader of government business and Speaker would make the decision.

Mr K Hahndiek said this was contained in Rule 188. The preferred option read: “decisions are taken in the Programme Committee by consensus… If consensus cannot be reached on a question before the Programme Committee, a decision may be taken at the meeting or subsequently by the Chief Whip with the concurrence of the Speaker and leader of government business in terms of rule 24 A”. This therefore this linked up with the process under rule 24 A.

Mr Perran Hahndiek suggested that the option referred to above should be the main rule, as the intention was to retain the status quo as far as possible.

The Chairperson agreed that it should be put in as the main rule.

Mr Kwankwa asked for clarity on the rule dealing with absence from Committee meetings. He felt the rule did not take into account the challenges of smaller parties with Committee clashes and the number of Committees which representatives of small parties had to attend. Where a Member of a small party was the alternate on four Committees, his attendance would be dependent on the party's strategy for the week.

Mr Perran Hahndiek said this was regarded as absence without an apology.

Ms Kilian noted that Rule 31(1) again referred to "with the concurrence of the Programme Committee”. It had earlier been decided that it would be better to use ‘after consultation’.

Mr Hahndiek said this should be changed to reflect the position in Rule 24A to state “after due consideration of the views and wishes of the Programme Committee”.

Ms Kilian spoke to Rule 40 (4), which states the House may approve an operational manual as recommended by the Parliamentary Oversight Authority (POA). She felt it should be the Joint Rules Committee rather than the POA who should draft this manual. The Rules Committee was to be made the senior Committee of Parliament, with the same applying to the Joint Rules Committee.

The Chairperson asked Mr Hahndiek to capture this.

Chapter 5: Order in Public Meetings and Rules of Debate

Ms Kilian said there was reference to dress in Rule 45(f) which referred to “ a manner befitting the dignity and decorum of the House as provided for in the guidelines, as approved by the Rules Committee, provided that no party symbols may be displayed”.  The guideline document was being drafted and a common understanding between parties was being sought. The point was that the dress code itself would not be stipulated in the Rules. 

The Chairperson agreed this was a good way of doing it as, sometimes there would be a special event which would warrant a lifting of the dress code, such as Africa Day, when Members wore specific T-shirts. The Rules Committee should have flexibility to allow this. He urged that the guideline document should finalised and circulated to political parties; it was critical.

Ms Mazzone said Ms Kilian had given her the draft guideline,  and she felt the present document was on track, but was far too prescriptive and should be simplified. For instance, banning boots was too broad, because there were very formal boots as opposed to gumboots. The same applied to women wearing sandals, which would be acceptable in summer. The 1960 Declaration of Parliament  stipulated that women had to wear a 2cm heel, but Parliament had moved far past that stage. The same would apply to “plunging necklines”, and the Subcommittee should be careful about how this was done. The presiding officer determining whether Members were dressed appropriately could lead to personal bias. Therefore she would suggest that the guideline be made less prescriptive.

The Chairperson said the Subcommittee had agreed that there would be a minimum standard in the  guideline.

Ms Kilian said she had distributed the document, to spark discussion. A common understanding was clearly required as a starting point. The aim of barring sandals was to ensure that no flip-flops were worn. The Subcommittee was caught between over- and under-stipulation, and she warned that if there were not stipulations, matters could be pushed to the limits.

The Chairperson said this issue should be left to the team of Members to complete. 

Ms Naidoo raised Rule 45 (g), which stated that photographs must not be taken during proceedings, and asked about video footage. Where there was a disruption in the House, and the official cameras were focused on the presiding officer, people might still record events on the floor. As far as she was aware people were not allowed to distribute video footage without the permission of the presiding officers, under the Powers and Privileges of Parliament Act. The policy dealing with broadcasting should be considered as well.

Ms Kilian agreed it should be included.

Ms September questioned whether this would continue in force while the House was suspended.

Ms Kilian said the rule referred to "inside the Chamber", which was not limited to during the session.

Ms September pointed out that in the past week, the presiding officer had suspended the House for three minutes, and it was usually during the time of suspension that such infractions occurred.

Mr Booi said this was directed at what Members did inside the House, and this was why Members were barred from using their phones or reading newspapers inside the Chamber.

Mr Hahndiek agreed this was intended to deal with matters during sittings. When the House was adjourned the Speaker would not have any control over how Members conducted themselves.

Ms Kilian said the aim was to stop inappropriate behaviour within the Chamber and therefore the limitation on “during proceedings” should be removed, to cover the way Members conduct themselves in the Chamber at any time.

Mr Hahndiek said he did not think that the Speaker had authority over Members when the House was not sitting, including in the Chamber. If Members wanted this, then such authority would have to be given to the Speaker.

The Chairperson noted that the points of order was an abused power in every session, every day.

Ms Kilian said she was under the impression that the option relating to Rule 47 (a) and (b) only  referred to (1). The item (2) could be removed, because the State of the Nation Address was not taking place in the Assembly and could be deleted.

Mr Hahndiek asked whether sub (1) of the option was to be made the main rule.

The Chairperson asked that the rules dealing with points of order should be dealt with.

Mr Kwankwa said the minimum speaking time should be increased from three to five minutes. He had been lobbying the other leaders of opposition parties and the DA, and even the ANC, had agreed on that in the Chief Whips’ Forum, although this was still to go through its caucus process. The other party which agreed at the time was the DA. The matter could not go further than the Chief Whips Forum because the EFF then also proposed that it be given additional minutes, which the DA did not agree with at the time.

Ms Kilian said the rule made provision for that, because although the general speaking time “may not be less than three minutes” the Subcommittee had previously said that political debates were of such a nature that there could be a common understanding when the subject was important that there should be additional time. There was no need to change the rule.

Mr Perran Hahndiek was unsure whether this was captured in the Rules, but at some point there was a discussion about swapping time between parties, where, through the Whips, parties could grant a portion of their time to another political party, if it had a particular interest.

The Chairperson said the space should be opened up in the Rules for the Whips to make such decisions, because this was a political management issue. Politically, parties should be able to negotiate the swapping of time if they had a vested interest. Parliament should not be so rule driven that there was no space for political manoeuvring. The House could function better if the whippery was able to sit down and discuss some matters.

Ms September agreed and said there used to be a lot of such negotiating in previous Parliaments. However, the proportionality of Parliament should not be tampered with, because this would require consequential change.

Mr Kwankwa welcomed the contributions, but said that the problem with "not less than 3 minutes" was that then this became the default position. The transfer of time between political parties for debate was something which had been pursued for a long time but parties had not been allowed to do so, apparently because the National Assembly Table would not allow it, other than for Expanded Public Committees (EPCs).

Ms Kilian said this was a move in the right direction, because there was no minimum time specified in the Rules previously. She understood Mr Kwankwa's point, but agreed with the comments on proportionality also. Unfortunately an agreement in the last Parliament by a task team of the Chief Whips Forum, which determined how parties were to agree about non-allocation and non-transferral, had fallen through because it was not captured anywhere in the Rules.

The Chairperson said the rule only stated "a minimum of three minutes" and parties could negotiate on this matter. He agreed that the basis of Parliament was proportional representation, but there would be no danger in parties coming to an agreement on sharing extra time.

Mr Booi said no rule was being violated, but he repeated that he had heard that the National Assembly Table had not allowed the swapping of time. The Rules would have to allow the necessary space for the political managers of parties to negotiate on this issue. Furthermore, this rule should not drafted based on the current membership of Parliament, but phrased for proper interpretation now and in the future.  Given that the draft rules were being submitted to parties for them to engage on, a system could be found to effect this. In the meantime, the Subcommittee should still work towards its own solution, so that it had a formal suggestion by the time the Rules came before the Rules Committee.

Ms September said she remembered that there had also been a problem with the executive trying to negotiate for extra time during a budget vote, and this made it unmanageable.

Mr Perran Hahndiek said perhaps an option could be drafted for this rule, stating that time may be exchanged between parties, but not the executive.

The Chairperson asked whether Members were happy with Rule 70 on points of order and asked which option was going to be taken.

Ms Kilian said she felt strongly that the option which included "as far as possible" should be removed. If a Member wished to raise a point of order s/he must know under which rule it was being raised. 

Mr Kwankwa said points of order were being used as a political strategy to increase speaking time. In Malawi, if a Member spoke without being recognised to call for a point of order, his microphone was switched off.

The Chairperson said the Chamber microphones did not work in this way.

Mr Perran Hahndiek said the microphones were controlled by the Speaker, so that all the microphones on the floor could be turned off, but not individual microphones.

The Chairperson agreed that the Malawi system seemed good and perhaps the South African chamber microphone system could be improved.

Mr Booi asked whether this would be something which had to be written into the Rules.

The Chairperson said it would not; it was just a point being raised in the Subcommittee.

Ms Mazzone said the Subcommittee was not be seen as a committee which simply sat and reviewed the Rules, as more needed to be done. She did not want to prescribe to any other party, but in the DA only a Whip could take a point of order, and it worked well. As the Whip in charge of legislation, she had to provide all other Whips with a copy of the Rules, so that when they stood to raise a point of order, they could say under which rule this was being done. It may be helpful for the Subcommittee to provide each of the Whips a copy of the rules on points of order. Without referring to one of those rules, no Member may call a point of order.

Ms Kilian agreed, and wanted to ask whether, given the present occurrences in the Chamber, the rule should specify that a Member could only rise on a point of order if recognised and appointed by the presiding officer to speak.

The Chairperson said it had been agreed that the Rules were not being drafted to deal with the present circumstances, and the rule should be generally valid.

Mr Hahndiek said this was provided for in Rule 59 which deals with recognition of Members to speak.

Mr Kwankwa said last year there was a time where the Deputy Speaker had switched off the microphones. Mr F Shivambu (EFF) and Mr J Malema (EFF) had gone to him “and literally intimidated him into switching on [the microphones]”. Since then nothing had happened. If something happened so that turning off the microphones was called for, then some form of protection may need to be given to the presiding officer, since it was claimed this was unfair as it was not being done under a rule.

Mr Booi answered that Rule 59 dealt with this exact matter, and allowed for the turning off of microphones in the event of a Member not showing due respect for the authority of the presiding officer.

Chapter 6: Decisions on Questions

Mr Perran Hahndiek said the issue of declarations was in Chapter 6 and perhaps it should be revisited, because it was quite controversial. The current rule said declarations were allocated proportionally. Therefore, Members would not get three minutes but would get a proportion of time.

The Chairperson said the point was that declarations would be proportional, and if 15 minutes was dedicated for declarations, it would be distributed accordingly. There would be no equalisation to give every party three minutes.

Chapter 7: Motions

The Chairperson asked whether the decision was to go back to motions without notice being presented with notice to parties, and to do away with the agreement of the Chief Whips’ Forum. Currently no motion could be read without agreement from other parties.

Mr Kwankwa said the reason that was agreed to was because, at the time, the EFF had threatened to reject all motions and therefore the Assembly was to sit without any motions without notice. He was sure that this would still happen.

The Chairperson said the idea was to have a threshold and that one-person parties would not be allowed to simply reject every motion. Politically, this was necessary, because the EFF had stated that it would reject every motion without notice.

Mr Perran Hahndiek said the problem was that the National Assembly Table would have to convey all these motions and keep a record of them. The sheer numbers of motions at the moment was creating problems. Some parties were using motions to make general political statements that they knew would not be accepted. The question was whether this practice was to be accepted, or how the rules could be worked to cater for the threat that every motion without notice would be vetoed. The one option was to have motions with notice scheduled by the Programme Committee. He was unsure whether that would be the best route, but it was an option.

Ms Kilian agreed. A solution was needed, otherwise the time for motions without notice must be limited, and parties should be given time to present, in accordance with their strength. She also agreed with the Chairperson that parties would have to come to a political position, because the House was being dragged into becoming a mockery.

Ms September said that when the motions of no confidence were debated earlier, the reasons for them were noted, and the same applied to motions. If there was no understanding of what the purpose of the motion was, then the rules would not help.

Mr Hahndiek said Rule 81 (2) was about giving parties the opportunity, in a manner consistent with democracy, to present motions. Parties should not be putting forth motions without notice, unless they had something substantive to put before the House. The rule encouraged bad practices, but there was a question of how to write into the rules that Members should not present motions unless they were serious. This was a political management issue, and the current phrasing was sure to be misused.

The Chairperson said that motions without notice were originally meant for congratulating people, or expressing condolences, and other such matters. They were no longer being used for that reason, hence the introduction of a threshold of a number of parties having to support a motion without notice. Having one person veto all the other parties was undemocratic, thus the need for a threshold.

Mr Hahndiek said there was another concern, that congratulating or offering condolences to any particular person through a notice of motion could start to become valueless. If one person was congratulated, why not the next? The House should therefore be reluctant and conservative in accepting motions without notice. The importance and seriousness had to put back into the idea of a resolution of the House, rather than passing numerous such motions.

Mr Booi agreed with the need for conservatism, but said that there would have to be space for new people in Parliament who took a different view. This went beyond the EFF and even the new ANC.

Ms Kilian said that an approach was needed, as the collective of Parliament, that at this level of leadership, Members represented not only the youth, but South Africans of all ages. The approach would require a dignified National Assembly, looking at matters seriously, and therefore motions should not be frivolous or put up for political expedience. She further cautioned against sub rule 2(c) which dealt with timeframes, and stated that the Member or party must make it available to the Secretary, who must then circulate the proposed motion to all involved parties by noon. She suggested that the time for submission and circulation should be earlier in the day, so that there was ample time for parties to consider them.

The Chairperson said the crux of this was trying to balance democratic participation against order. Times could be sorted out, but the important part was that a threshold was required of support from other parties, to ensure that no one party abused the Chamber.

Ms Kilian asked whether the proposed threshold was five parties.

Mr Hahndiek asked whether the proposal was that if five parties supported the motion, it could be sent to the House, so that no individual could block them any more.

Ms Kilian said notice of motions had been balanced with a sequence, because at one stage it was said that there should be a time limit on notices of motion,to avoid unending notices of motions.

The Chairperson said the sequencing dealt with that, because motions were dealt with after the main business of the sitting.

The Chairperson asked whether Members were happy with the amendments to the rules on resolutions.

Ms September asked what the background was to the amendment of Rule 96 (a), which dealt with amendments to draft resolutions relating to committee reports.

Mr Hahndiek said the committee report was not simply put forward for adoption, but the House was adopting the recommendation of the committee. If a committee had expressed certain views in its report, it was not for the House to amend those views. The recommendation determined the action to be taken and the House may adopt this. For example the recommendation may state that a matter be referred to a particular Minister, but then the House was free to decide that it ought to be referred to another Minister.

Chapter 10: Questions

Mr Mitchell said an issue had arisen relating to Rule 109 (3), because the Minister of Agriculture had not been available to answer a written question and he had been informed by the Questions Office that the Member or Chief Whip of the party had to submit a request to the Speaker to apply for the question to stand over. He asked why this onus should lie with the Member to apply for a stand over or prioritisation, if they had already submitted a written question and the Minister was absent. It seemed to be an unnecessary hindrance .

Mr Hahndiek said the intention with subrule (3) was that all the questions for a particular Minister could stand over if they were absent, but only those questions where Members requested prioritisation could be answered on a day out of sequence. This was why subrule (3)(a) read: “such questions to be placed on the question paper for the first question session following that day”. That Minister out of that cluster would have to answer the question on the next day.

Mr Booi said he thought the Question Office was out of order, because that question was ruled upon in the House. When it was reported back to the House, the question was to stand over, because the Minister and Deputy Minister were not present. This situation was special and did not have anything to do with the Rules.

Ms September asked how the power of staff in the Questions Office to tamper with the questions was regulated.

Mr Hahndiek said his understanding was that the Questions Office was trying to assist, because questions would stand over automatically if the Minister was absent. However, individual Members could request that their question be answered out of turn the following week. This was why the Questions Office approached the Whips of the party, to determine if they would like the question answered the following week. If it was not requested, then all the questions would stand over until the next Cluster date.

Mr Booi said it should never be allowed that an official could tell a party what to do. While he took a personal interest in the writing of questions, some people allowed themselves to be abused by officials who felt it within their scope to tell Members what and what not to do. It was more a question of relations than a question of the Rules.

Ms September said that did not answer her question. There were, for example, questions on matters that were sub judice which somehow found their way on to the Questions Paper.

Mr Booi said the Speaker should be requested, in writing, to remove sub judice questions.

Ms Kilian felt that Rule 109 (3) was a good rule, because it was the Member’s question and perhaps the Member was not going to be in the House for the next session, so she agreed that the onus lay correctly with the Member.

The Chairperson asked if Members were happy with the position on questions to Ministers. Deputy Ministers, if they had prior authority, would be allowed to answer a question to their Minister, provided that they did not answer when the Minister was capable of doing so, acknowledging the fact that Deputy Ministers were delegated certain responsibilities.

Mr Kwankwa asked whether the above provision had been balanced with a provision which stated that a Minister may not be absent from a certain number of Question Sessions in succession, in order to avoid the situation where the Deputy Minister would answer all questions.

Mr Hahndiek wanted to raise a related matter. As the rule stands, a Deputy Minister may only answer a question if the Minister was absent. He asked whether a Minister should not be able to authorise the Deputy Minister to answer even when that Minister was present?

Ms Kilian said often Ministers delegated specific responsibilities to Deputy Ministers, which meant they were better placed to answer those questions.

The Chairperson said he thought the position was supposed to be that the Minister was to authorise the answering of the question beforehand. The Minister was to decide, because it may cause problems if the Minister was present and the Deputy Minister answered questions without the Minister having agreed to it first.

Ms Kilian asked if this was going to be included in the rule.

The Chairperson replied that it would have to be included if it was not already.

Mr Kwankwa clarified that he was concerned of the possible unintended consequence that Ministers do not feel it was important to attend sittings of the National Assembly, because they could delegate answering to their Deputies.

The Chairperson said it was more important that the question was answered, rather than who answered. If the Deputy Minister answered the question on behalf of the Minister, the Minister was still responsible for the content. Answering of the questions was done by the executive. It was important to  avoid the situation where the Minister might not be able to attend and his Deputy would be barred from answering.

Mr Booi said rule 109 (2)(a)  dealt with the absence of a Minister and the how the authorisation was to work.

The Chairperson said that that rule dealt with the situation where the Minister was absent. The current discussion was around the situation when the Minister was present and wished to delegate the responsibility to the Deputy Minister.

Ms Kilian suggested that it be stipulated that the authorisation could occur whether the Minister was absent or not. She recalled it having been an issue on an occasion where the Minister was in the House, but there was delegated responsibility to a specific Deputy.

Ms September said she had been trying to find a formulation which stated that the Minister would generally answer the question and then give context to where the Deputy Minister may respond.

The Chairperson agreed and said it was more of a political issue in any case. Some Ministers were able to delegate functions, and some were not.

Mr Booi said how the authorisation occurred was important, because that must be communicated to the Members.

The Chairperson said that should be proposed as an option, rather than a rule.

The Chairperson noted that requirements for questions for the Deputy President had been changed to six questions once a month on their own, rather than fortnightly along with other Ministers.

Chapter 12: Committees
The Chairperson said the major changes were the removal of some Committees.

Ms Kilian said this was where a proposal for the rules around the disciplinary Committee should be included, and there should be a common understanding of what this entailed. She asked how the Subcommittee was to deal with the Powers and Privileges Committee, as well as the outstanding matter of the Committee on Public Accounts. Members needed a better understanding of what would be included.

The Chairperson thought the Subcommittee had agreed on the areas around the rules dealing with the Standing Committee on Public Accounts. Here, the language was going to be cleared up, and the Chairperson of that Committee, Mr T Godi (APC) was going to do further work.

Mr Hahndiek said the previous legal opinion had been worked in to the rules, and the subsequent legal opinion had been presented in the current meeting. He had accommodated the suggestions by Mr Godi as far as possible, with his agreement.

The Chairperson asked whether Members were comfortable with the rules around the arrangement of the business of the House.

Ms Mazzone said the DA had not held a study group on these issues, but if there were further proposals then she would circulate these among the Members.

The Chairperson asked Mr Hahndiek to trim up the language issues on "must" and "should".

Ms Kilian asked what was being used in the present draft.

Mr Hahndiek said at present there was a mix. All "shall" references would be changed to "must".

Chapters 13 - 15

The Chairperson said there had been no debate on the last two Chapters and if there were language improvements Mr Hahndiek should do them.

Ms Mazzone said in this term of Parliament many of the new Members did not have a copy of the Constitution, and she asked that this be provided. Once the review of the Rules was completed, Members should also be furnished with a bound version, along with the guidelines, to encourage buy-in.

The Chairperson asked what had been agreed to on Parliamentary Protection Services.

Ms Mazzone replied that a guideline document was being prepared.

The Chairperson said a meeting would be convened to deal with the matters raised by Mr Mashile regarding the Powers and Privileges Committee, where Dr Lotriet would present her proposals. He again requested Members from all parties to attend these meetings, to make the process of interrogation by political parties easier. He said Mr Hahndiek would complete whatever drafting was still necessary, and then present the final draft to the Subcommittee for circulation. The Subcommittee would need to write a formal letter indicating how the interrogation would be conducted, to avoid parties reopening issues. He repeated that all parties would have June and July to debate the draft. The Subcommittee would meet again in August to see what parties were proposing, but should limit itself to dealing with "profound issues only". If the discussion in August showed that there was no agreement on certain issues, then options could be put in for the Rules Committee to vote on. By September, the Rules should be presented to the Rules Committee. Hopefully there would not be many presentations on minor issues. Once it was known how many parties had profound issues, more meetings for the Subcommittee would be scheduled; if it was required to meet every day to make the September deadline, then this would be done. The process had to come to a conclusion, particularly since Members had also begun to deal with the Joint Rules.

Mr Booi asked there to be a formal announcement encouraging Members to look into the document and take it seriously, so that no Member could then say they were unaware that the Rules were being debated. Everyone must know that the Subcommittee had arrived at a stage where they should begin considering its work. He would like to avoid a repeat of the last meeting of the Rules Committee, where political managers began to disagree with positions taken by their representatives in the Subcommittee.

Ms Kilian asked if an apology was received from the EFF for the present meeting. She wanted to ensure that the correct people would receive notices about the meetings of the Subcommittee. As many people as possible should be invited to the Subcommittee, because this would make its positions more binding. Members should not be surprised by presentations in the Rules Committee, when the Rules Committee had already referred these matters to the Subcommittee. This process could not be delayed any further.

The Chairperson said the decision had been made that by September everything would be concluded. Parties could not be stopped from making proposals in the Rules Committee, but the main purpose of that meeting would be to vote on the options presented. He did not think there would be many areas of contention, but if parties took opposing views on many rules, then they could be voted out. The presentations made in the Subcommittee should be made available to parties. All the presiding officers should also get a copy of the draft Rules so that they could also make input on the draft.

Mr Kwankwa agreed that as far as possible, information which had been through the Subcommittee should be made available to political parties, because this would provide a context through which to interpret the Rules and save time. He noted that there was sometime a problem with smaller parties attending the Chief Whips’ Forum. He suggested that Mr Singh should be requested to convene a meeting of smaller parties to ensure they were informed of the need to consider the Rules.

The Chairperson said it had been agreed that the staff of Parliament would avail themselves to assist political parties and Members of the Subcommittee could also go and explain the logic of the Rules to parties.

Mr Booi said while Mr M Ndlozi (EFF) had put in an apology, he had a proposal which he wanted to make.

The Chairperson said the proposal should be submitted to Mr Perran Hahndiek for circulation.

The meeting was adjourned. 


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