Disruptions during National Assembly proceedings: proposals

Meeting report

The Chairperson said the Subcommittee’s work of reviewing the Rules of the National Assembly has been completed and will be ready for circulation in a few days. An electronic copy will be sent to every Member and political parties will be given the opportunity to engage on the Rules during June and July. Based on those engagements the Subcommittee would return on August to finalise matters raised by the political parties. Hopefully Members who sit in the Subcommittee will be able to persuade their parties to accept the logic of the Rules Subcommittee and not have them propose major changes. The present meeting is to deal with matters which have been worrying Members in the Chamber and the Speaker had asked the Subcommittee to try to find solutions for the recurring problem of disruptions during sittings. As is known the previous Thursday 18 June when the President was supposed to answer questions, some Members made it difficult for him to do so. The Presiding Officers therefore decided that the Subcommittee should try to find some way of dealing with this matter immediately. The Subcommittee is not a disciplinary committee nor the Powers and Privileges Committee, but is a Subcommittee of the National Assembly Rules Committee. The Rules Committee would be meeting the following day to discuss the rudimentary report from the present meeting. When the Speaker had instructed the Subcommittee to meet, the Chairperson requested that the administration staff come up with some ideas. If the meeting agrees, he would request the Secretary of the National Assembly, Mr Masibulele Xaso, to present a proposal and Members could then comment. The intention is to try to finalise the matter presently, if not, a process for completion will have to be formulated. This matter is part of the entire review of the Rules, but this is an urgent matter which must be addressed. The document had been circulated to Members, to take to their parties.

Ms D Dlakude (ANC) announced that there is a problem in the National Assembly plenary sitting, because some Members particularly from the opposition have indicated that they would like to be part of this meeting, but the House is still sitting. She therefore asked if this meeting cannot wait for the House to rise.

The Chairperson said the meeting is not far away from the House and if Members are required to vote they can leave and come back. If there are whips they should be allowed to come, to have all parties represented by at least one person.

Dr C Mulder (FF+) said he did not want any party to complain afterwards and say that they could not participate, because the House was sitting.

Ms J Kilian (ANC) said she did not understand the problem, because often there are Committee and Subcommittee meetings while the House is sitting. She thought the problem should not be exaggerated, because this is only a meeting of the Subcommittee which will receive a presentation to be decided upon by the Rules Committee. There will be no final decisions and therefore, the Members should hear the presentation and begin to find a way forward.

Ms N Mazzone (DA) said the meeting has been called and there need only be representatives from each party, not the entire party. She had attended meetings of the Subcommittee for weeks as the only Member of the opposition, it did not bother them and she did not understand why it should bother them now.

The Chairperson said if whips wanted to attend they should, he did not think the Subcommittee was causing problems for the smooth running of the National Assembly chamber, but he took Dr Mulder’s point. All parties would attend in the Rules Committee and receive a report, upon which they would make their decision. The Subcommittee would love to have Members from other parties attend.

Secretary of National Assembly briefing on Disruptions during Proceedings
Secretary of the National Assembly, Mr Masibulele Xaso, said the document presented is intended to be a discussion document and the essence is how to give effect to rule 51. Rule 51 reads: “if a Presiding Officer is of the opinion that a Member is deliberately contravening a provision of these rules or that a Member is in contempt of or disregarding the authority of the Chair or a Member’s conduct is grossly disorderly, he or she may order the Member to be removed from the Chamber for the remainder of the day’s sitting”. How is this going to be given effect in the event that the Member does not cooperate with the Presiding Officer?

Mr Xaso turned to the statutory background, saying section 57 of the Constitution gives the National Assembly the power to determine its own arrangements. Section 7 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act deals with issued of disturbance and provides that a person may not improperly interfere with or impede the business of Parliament in a sitting; while section 1 defines what a disturbance is. Section 4(1) gives authority to the Speaker or Chairperson to instruct a member of the Security Services to perform a policing function and section 4(2) allows members of the Security Services to perform such functions without authorisation if there is immediate danger to any person or property. Section 199(1) of the Constitution defines Security Services as a single defence force, a single police force and any intelligence services established under the Constitution. Section 199(3) provides that other armed organisations must be established in terms national legislation. Section 198 states that national security is subject to the authority of the Parliament and the national executive. Lastly, section 199(7) states that neither the Security Services nor any of its Members may prejudice a political party interest that is legitimate under the Constitution or any interest of a political party in a partisan manner.

Mr Xaso said rule 52 empowers the Speaker to suspend a Member if a contravention is so serious that an order to withdraw is inadequate or any other Presiding Officer to name such a Member. A Member ordered to leave the Chamber or who has been suspended must leave the precinct immediately. Rule 54 outlines escalating periods of suspension where a Member repeatedly offends (on the first occasion for 5 Parliamentary working days, on the second occasion for 10 Parliamentary working days, and on any subsequent occasion for 20 Parliamentary working days).

Mr Xaso said elements of the proposed rule 53 have been taken from the proposals by the Subcommittee. It states that if the Member refuses to leave the Chamber the Presiding Officer shall then instruct the Sergeant-at-arms to remove the Member. If the Sergeant-at-Arms is unable to remove the Member, as the Member refuses to cooperate on approach, the Sergeant-at-Arms will then bow to the Presiding Officer. The Presiding Officer will then invite the Parliamentary Protection Services to assist in removing the Member. The Subcommittee has proposed that where a Member is removed in this manner, the Member will automatically be suspended for the period dictated by rule 54.

Interruption due to National Assembly disturbance
Mr Perran Hahndiek, Secretary to the Subcommittee, said the Secretary of the National Assembly is requested in the House, because there is disturbance due to the present Subcommittee meeting.

The Chairperson was not sure why the House would have trouble over a Subcommittee meeting and individuals are again holding Parliament at ransom. It cannot be right.

Mr Singh suggested the documents be received and the meeting reconvenes the following morning.

The Chairperson said Parliament will never work if a situation like this, where individuals disrupt the entire process, is allowed. If parties wish to attend the Subcommittee they should send a representative and that arrangement would not cause any harm.

Ms Mazzone suggested taking the documents home and discussing them in the Rules Committee the following day.

Ms Kilian said how can Parliament and its Committees be held to ransom by people who are not getting their way. It is like naughty children, performing until they get their way. This is the principal objection she had. For weeks on end the Subcommittee meets and apologies are received, particularly from the EFF, but now they want to again have the National Assembly sitting collapse, because the Subcommittee is sitting. Can there not be a formal request from the Presiding Officer for the Subcommittee to adjourn, but to allow Mr Xaso to finish presenting.

Dr Mulder said this is a good sign, because it means that people who disrupt Parliament realise that such disruptions are coming to an end. He therefore, did not feel Members should be disturbed by it, but the question is how to deal with the matter at hand. If the idea is that the Rules Committee adopt the document the next day then it needed to be formalised presently even if after the National Assembly plenary session had ended. He would not support postponing until the following morning if the intention was for the Rules Committee to adopt the proposals then.

Mr F Shivambu (EFF) arrived to say that the meeting of the Subcommittee must be adjourned, because Members are busy in Parliament and rules cannot be discussed in their absence. The meeting can reconvene once Parliament has risen. A meeting cannot be convened on top of another meeting, when Members are expected to participate in both.

Ms Dlakude said Mr Shivambu’s request is unfair to the Members present in the Subcommittee. It is not for the first time that a Committee sits while the House is sitting. What is wrong with sending one Member from the EFF to attend and contribute in the Subcommittee until the House rises. Members cannot be held to ransom.

Mr Shivambu interrupted saying the EFF Members are still busy inside the House.

The Chairperson said there needs to be a modicum of respect for Members. Every party was invited to the meeting.

Mr Shivambu interrupted saying he could not be invited to two meetings at the same time. He was told in the House to raise the matter in the Subcommittee and this is what he was doing.

The Chairperson said Ms Dlakude still had the floor.

Ms Dlakude said the suggestion by the Presiding Officer was for herself and Mr Shivambu to call the Secretary of National Assembly into the House and try to find a solution; not to come and disrupt the Subcommittee meeting.

Mr Shivambu said the Presiding Officer has clearly indicated that for a meeting to happen on top of a sitting of the House there must be an application and he had it on good authority that no application was made, because the Subcommittee meeting was anticipating that the National Assembly would end before 5pm. The fact was that all EFF Members needed to be in the House to participate and they want to participate in the Subcommittee as well. It is a simple request to have the meeting stop until the House business is completed and then it can resume. He requested not to be deprived of the opportunity of participating in the work of Parliament by having meetings scheduled on top of one another.

Mr M Booi (ANC) said thus far Mr Shivambu was working on gossip.

The Chairperson interrupted suggesting that the Subcommittee break until the House rises and then reconvene.

Mr Dlakude said what Mr Shivambu is doing is unfair to all Members of the Subcommittee.

The Chairperson said Members should go to the House and then return later. There would be no harm for that to be done and they would not lose anything. The House was on its last item on the agenda, it would be finalised and Members could return.

Ms Mazzone said this is unacceptable, because she had sat Friday after Friday without the EFF having been present and this is nothing more than grandstanding on the most revolting scale. The rest of the Members are here and prepared, but they must sit aside because “Floyd Shivambu says we must; with respect no one is that special”.

Mr Booi said this meeting had been announced to all Members and there is no new precedent which is being set. The Subcommittee has been meeting and there has been a lack of participation from the EFF. The Subcommittee has been patient and tried to persuade them to come to the meetings. The EFF cannot now try and innovate a rule which does not exist. Portfolio Committee meetings have been called while the House sat. Mr Shivambu was not bringing a reasonable reason for adjourning, because the parties of all Members present were in the House and the Subcommittee Members had prioritised this meeting. He agreed that there was no need for the Subcommittee to adjourn.

Mr B Mashile (ANC) said he wanted to indicate that this is unreasonably unfair, because many times the Subcommittee has met and raised the concern that some parties are not participating. It had been agreed that all parties should be invited to the Subcommittee to contribute in a consultative forum and this was communicated to all Members. Further, there is a formula which guides attendance and there is no requirement that an entire party must attend a Committee meeting. Mr Shivambu is saying that all the EFF Members want to be present, but parties ought to be represented in a particular manner.

Mr Shivambu said he is on the speaking list in Parliament.

The Chairperson said no one is stopping Mr Shivambu to participate in the debate. A majority of the Members can decide that the meeting will continue. He asked Mr Shivambu to have a modicum of respect for other Members, because he was not in Parliament to instruct Members on where they should be.

Mr Shivambu said that is fine, because the Presiding Officer had told him to consult with the Chairperson and “if you don’t agree we are going to [go] and stop the House”.

The Chairperson said the House should not be allowed to be stopped by individuals. “We cannot be undermined by 6% of the people, everywhere [that] we work they come in and bulldoze us” and this cannot be right.

Dr Mulder suggested that the meeting continue.

The Chairperson agreed and said Dr Mulder was right that the havoc in Parliament was coming to an end and that is why those Members were panicking. The Subcommittee should deal with this and close the matter. He was sure that some form of havoc was going to be caused in the National Assembly chamber, but this has to be balanced against the broader interest and the House should be able to handle it. It cannot be a Subcommittee that resolves those issues, when it is in a meeting. The Subcommittee is sitting in compliance with an instruction from the Speaker. He was happy that the Subcommittee is being called to deal with this exact situation. It is not possible to have people “undermining the 94% majority in Parliament. Surely, you cannot have a 6% dictatorship, that completely undermines every rule”.

Mr Singh said Mr Shivambu did not tell us that he is participating in the debate in the Chamber, if he had informed the Subcommittee it would have allowed him to leave to speak and come back. This has come as a new thing and Members cannot be held to ransom like that.

The Chairperson asked Mr Xaso to continue.

Secretary of National Assembly briefing on Disruptions during Proceedings (continued)
Mr Xaso continued saying he was on Point 4 of Section C, dealing with the proposed rule amendment. It provides that if a Member resists an attempt to be removed, Protection Services can use either minimum force or such force as may be reasonably necessary to overcome the resistance.  Point 5 bars any member from interfering with the removal of another Member. If proceedings are suspended, then it is proposed that all Members should immediately clear the Chamber and the lobbies around the Chamber, until the bells are rung for Members to return. This aims to avoid a situation where other Members become involved in the removal of a Member.

 Mr Xaso moved onto Section D on the Draft Standard Operating Procedures which are provided for under the proposed rule 53. The procedure entails the Sergeant-at-Arms approaching the Member and then bowing to the Presiding Officer to indicate that the Member is refusing to comply. The Protection Services will enter the Chamber under the direction of the Sergeant-at-Arms, to escort the Member off of the precinct. The Member will then be prohibited from entering the precinct of Parliament as provided for in the Rules. Members of the public in the gallery who participate in disorderly conduct will also be removed by Protection Services. Point 7 deals with instances of violence ensuing in the Chamber as a result of a Member or Members resisting removal from the Chamber. In these circumstances, the rule could read, “must suspend proceedings” to allow members of the Security Services to intervene under subsection 4(2) of the Powers and Privileges Act, where the safety of people or property is threatened. Point 8 indicates that both Security Services and Protection Services may not be armed when ordered to enter the Chamber by the Presiding Officer.

Discussion
Ms Mazzone said when the Subcommittee initially started discussing this matter it was the proposal of the DA that Parliament have its own guard, which was likened to the Swiss Guard of the Vatican. It was said that this should not be a police service or a military service to ensure a distinct separation of powers. She felt the Subcommittee had agreed to this. She was glad to see that there is a provision that no one is to be armed, but she was still concerned that the Protection Services did not capture exactly what was the agreement in the Subcommittee. What was intended was for it to be the Protection Services of Parliament that worked together with the Sergeant-at-Arms which was answerable to the multi-party Parliamentary Oversight Authority (POA). The police would certainly not be appropriate, because a situation where the police are working with the governing party, whoever that may be, should be avoided. We have to make a distinction as to what and who the parliamentary guard would be. The proposed rule also indicates that 'minimum force' should be used, but this will need to be defined in the rules. What is not wanted is to have thugs as happened the last time with the “white shirts”. Rather what is sought after is people who are trained in high distinct art of non-invasive tactics to remove people from an area. They must also be able to deal with conflict situations, because what happened last time with the “thugs” was that they were more scared than the Members and so there were two groups of people who were scared, which is what caused the “big fights” and a reoccurrence of that is obviously not desired. If the parliamentary guard is called in, there must be provision requiring a full report to a multi-party POA after the fact, to determine what caused the action and who authorised everything; to ensure that the correct procedures were followed. This has to be a highly regulated body, because what is not wanted is a “cowboy” Presiding Officer who simply decides they have had enough and calls in Protection Services for no reason. Her biggest worry was that in this document protection services still includes the police and she and her party maintain that at no time, unless there is a distinct threat to life should the police ever be able to enter the sacrosanct area that is the floor of Parliament.

Dr Mulder said it is said that success has many fathers and at the first meeting of the Subcommittee on 21 August 2014 he was the one who proposed a force similar to that of the Vatican and the minutes of the POA will also reflect that. Be that as it may, the document is moving in the right direction. If 'minimum force' is to be a requirement, then it will have to be defined. Although he was not against “such force as may reasonably be necessary”, because it is not known how much force will be necessary. There is an uncertainty as to whether Parliament needs to be suspended or not, because the standard operating procedure does not specifically refer to the suspension of Parliament and this will have to be looked into further. One matter which remains a bone of contention is involvement of the police service. He did not know whether this matter could be concluded in the present meeting, but the Subcommittee was very close to consensus.

Mr Mashile said going through this proposal document there is an indication that the Rules are moving towards responding to the present events in Parliament, although the ANC would still have to look at the matter. Especially talking to the issue of police under the last point, surely it cannot be said that there will never be any need for the police to enter the chamber. Certain things may happen which would require the police to intervene, such as a Member or a civilian could bring a firearm into the Chamber. He was not sure banning the police from ever entering the Chamber would be advisable, because then Members could find themselves running helter-skelter in their own Chamber. On the question of arms being carried, although time may be required for the ANC caucus to speak on this matter, it should be established whether it is possible to have a policeman who has been issued a firearm, to leave that firearm out of his/her possession. Also there is a need for some definition of what 'minimum force' is, because minimum force may be a moving target depending on the situation which must be responded to in the House. Therefore, either the phrase must be defined or an alternative found. He felt that the document was taking the Subcommittee forward.

Mr Booi said the document is moving Members forward in finding a solution to what is being confronted. As Mr Mashile has said, perhaps the Subcommittee should request the Rules Committee for more time to consider the issue. Perhaps the document should be submitted to the Rules Committee and an opportunity to fine comb the provisions be requested. Point 6 of the proposed rule deals with the removal of members of the public from the gallery, when Protection Services has not even been capacitated. Particularly as the rule is more geared towards removal of Members. Therefore, if a Member brings a rent-a-crowd intending to cause a disturbance, what will practically happen? In such a situation making use of the police could be a legitimate option, because the police have the broad constitutional responsibility to protect every citizen.

Ms Dlakude interrupted to say that the meeting can continue, because the EFF motion has been defeated in the House; not through voting, but through the processes of Parliament.

Mr Booi continued saying that the Subcommittee needs to think through Point 6, because the extent of the Protection Services has not been defined. Also, the Subcommittee should be careful about what the Constitution requires. However, the Subcommittee should submit the document to the Rules Committee which will provide guidance on the matters raised.

The Chairperson said if it is possible to finalise things they must be finalised. In the case where there is no congruence, if there is agreement on certain issues they should be identified and finalised, otherwise the havoc will be allowed to continue. Therefore, the Subcommittee should try to tighten matters now.

Mr Singh said everyone is agreed that extraordinary circumstances require extraordinary measures to be taken and that is why the Subcommittee has been convened. What has necessitated this is the behaviour of Members in the House who do not respect the Rules of Parliament. His view was that the Rules at present are sufficient to deal with order in the House and it is just that some people do not respect these rules and therefore extraordinary measures are required. He thought the Subcommittee needed to have available the role of Parliamentary Protection Services, which have been employed for more than 20 years. What is their distinct role and what are they not supposed to do? The section of the Powers and Privileges Act which makes reference to Security Services being called in at the request of the Speaker needs to be found. He agreed with Mr Mashile that a distinction needs to be made between Security Services and Parliamentary Protection Services, vis a vis the order recently made by the court, because in terms of the Constitution, Security Services includes the police. But what is the definition of Protection Services in the specific case of Parliament. In principle, from the view of his party, extraordinary measures must be taken to deal with the situation faced the previous week. It may be bold to say that as a party even after 21 August 2014, they were not entirely opposed to the manner in which action was taken to remove disruptive Members from the House, save that it was the police that was used. It must also be remembered that if two Members are to be removed, five others are caught in the ruckus. Therefore, the Subcommittee must take note of how the Protection Services deal with people in the event that they are called in.

Mr M Ndlozi (EFF) said he was in the House and there was a long debate about the proceedings and the opportunity for more Members of the House to be able to participate in the present important discussion. He therefore wanted to request, as the first speaker is on the podium in the al-Bashir matter, that the House be allowed to conclude its business. As Members want to be part of that debate of national importance, to see what the ANC position is on the court order. He wanted to propose, temporarily suspending the Subcommittee to allow Members to participate in the last order of the day which would allow Members to return to complete the discussion on the document. He was requesting that this is put as a proposal to the Members of the Subcommittee, because the al-Bashir matter was a crucial matter, because the President ignoring a court order is a serious matter and therefore there should not be two meetings at the same time. All Members should participate in that debate, which is the first of its kind since the dawn of democracy, then Members can return to deal with these internal processes. A simple request was being made, because unfortunately the debate was placed right at the end of the Parliamentary sitting. This prejudices some Members rights as individual Members and therefore he pleaded with the Members of the Subcommittee. This was the logic of his request.

The Chairperson said Mr Shivambu was in the Subcommittee. It was debated and agreed that only one person need be sent to represent each party in the Subcommittee, as this would not disrupt the quorum of the Chamber and it would be useful to have all party representatives in the Subcommittee. The Members present do have interests in both meetings, but the Subcommittee was allowing space for the meeting to continue. It was up to the Member’s organisation to decide whether it wishes to be represented in the Subcommittee or whether all its Members are required in the Chamber. Other parties have decided that the meeting will continue, on the basis that these Members were invited to deal with the present matter.

Mr Ndlozi asked for it to be put on record that the proposed position is based on the lobby with smaller parties, because even if the EFF can deploy one person, there are smaller parties which cannot do so, because they have only one Member in the House. He argued that the al-Bashir matter and the court order were so critical that Members would like to participate until the conclusion and then to come back. He was not speaking purely on behalf of the EFF, but smaller parties which had only one Member in the House.

Dr Mulder referred to page three of the proposal document, under Point 3 it states that a Member is immediately automatically suspended, under the circumstances of rule 54. He asked whether this was a suspension with or without pay and he would prefer it to be the case that it is automatically without pay. This would avoid going through an Ethics process and Members would know that such a suspension is automatically without pay.

Mr Singh spoke to what Mr Ndlozi said when he mentioned other parties, because he was the whip which coordinated the ten smaller parties and he must say that the leaders of those parties came to the Subcommittee, but when they realised that it was a Subcommittee of which they were not full Members, they said that they would come to the meeting of the Rules Committee scheduled for the following day. He did not think that every Member of smaller parties was keen on attending, because they had their representatives present in himself and Dr Mulder.

Mr Mashile said he wanted to indicate that the request has been heard from the EFF and it has been resolved. Ordinarily the EFF represents itself in all Committees and the small parties are known which are represented by one or two Members. Therefore the argument from Mr Ndlozi that he is representing Members of the smaller parties in the Chamber does not hold water.  The meeting should proceed to completion.

The Chairperson said there is a proposal that the suspension be without pay and Members do not object as the matter of disruption is being taken very seriously. Members should never allow anyone to disrespect the Rules of Parliament and it seems that suspension without pay is being supported by most Members.

Mr Ndlozi said having been in the House he was not entirely sure what the proposal is and he was seeing the document for the first time. The Rules seem to indicate that the suspension is when the Speaker decides, because the rules state if in the opinion of the Presiding Officer the Member deliberately disrupts the House. The EFF has circulated its own proposal and it objects to the submission by the Secretary of the National Assembly. The objection was based on the basic laws of natural justice, because a decision cannot be arbitrarily be taken on the conduct to the extent that a sanction is imposed, without due process. Even criminals still have to be heard and a due process has to be followed to determine why they performed the crime. If Members subscribe to the rule of law, they cannot support a rule which says in the opinion of the Presiding Officer. There are two problems with the Presiding Officers, the latest experience in Parliament is that Presiding Officers from the ANC apply the rules in a biased way and the evidence is found in the previous week where points of order from certain people are recognised and those of others not. Whatever Committee is gone to, the ANC Members will ensure that they protect the Presiding Officer. This cannot be how misconduct is dealt with, so the person who is deciding is not neutral and they have the potential to be biased and they are deciding on a Member's salary, denying them speaking rights or removing them from the House. These are not rights similar to those of employees, and this is an important part of what came out of the recent court proceedings, because Members are public representatives who represent a larger voice. The right to speak and participate in the business of Parliament cannot be denied arbitrarily and there must be due process if these rights are to be taken away. The question then is what is this due process to be. He said that the EFF proposal has been circulated. There is a principle in law that justice must not only be done, but be seen to be done and a mere perception of bias is grounds for judicial review. Further, the presumption of bias by Presiding Officers is critical. The proposal here is that in instances of grave disorder, the incidents must not be referred to the Powers and Privileges Committee, but should be referred to an independent judge. The proposal is much more comprehensive and he could delve into it, but the objection is based on these two major grounds.

Mr Kasper Hahndiek, Former Secretary to the National Assembly and Consultant to the Committee, said if a parliamentary protection service is envisaged legal advice needs to be sought, because the Constitution defines Security Services. If a separate body of people is being created to be controlled by the Presiding Officers then it may need to clarify whether this is constitutionally legitimate. Secondly, on the operating procedure he would recommend that if at any point the Protection Services are to be called in this should be controlled by the Presiding Officer personally and it should not be left to the Sergeant-at-Arms at any point. If it comes to that, the Sergeant-at-Arms should report to the Presiding Officer that the Member will not leave, so that they can give the instruction to call in Protection Services. It needs to be that clear that the Presiding Officer is solely responsible for the parliamentary protection service being called in.  On arms, while under all circumstances the Parliamentary Protection Services should not be armed, but the possibility that one or more Members are armed in the Chamber needs to be catered for which would necessitate allowing the police to carry their guns. Further, the police who sit in the gallery may always need to be armed to protect Members from the public. It is precisely for such circumstances that section 4(2) of the Powers and Privileges Act applies allowing police to use their firearms to secure the safety of Members. Therefore, there are circumstances in which the use of firearms may be warranted.

Dr Mulder said the idea of using a judge may be good, because a judge has powers beyond suspending Members from Parliament and could send people to prison. Members cannot want to position themselves in terms of the rule of law when it is useful, it goes both ways. Where one Members rights end, the next Member’s begin. For example, the previous week there were parties which were prepared to ask the President questions, some of whom get to ask the President once in five years and their opportunity has been lost. Therefore, claiming rights when it suits some Member’s should not be at the expense of other Member’s rights. On suspension without pay, when the Presiding Officer may need to state in terms of which rule they are acting when they deal with the more strict rules. So that Members know what is at stake at that point. Law and order need to be maintained in Parliament, because Members all have rights and all represent a constituency. 

Ms Mazzone said she agrees that if there is a genuine threat to someone’s life, then arms may be allowed in the Chamber. However, she maintained that a “Korean style militia” which is called in every time the opposition disagrees with the ruling party, they are hauled out. There has to be respect for the House and the Rules, at the moment there is a distinct disrespect for the Rules. Members should not let themselves get overly emotional. Just as one party is not allowed to determine whether the Subcommittee should continue to meet, one party should not dictate how the Rules must be written, “because in 2019 6% will be no 0%”. Members must remain calm and must think logically about how things are done. She reiterated that a parliamentary guard should be put in place instead of the police, because there needs to be a separation of powers. South Africa is not a police state, nor do Members want to turn it into one. She agreed that in the public gallery, which is distinct from the sacrosanct floor of Parliament, police as the security service which protects the precinct of Parliament ought to have control. This is particularly so, as members of the public have gone into other parliaments and shot people as unfortunately happened in the Afghani parliament. When the proposed rules on disruptions is presented to the Rules Committee a distinction ought to be made between who protects the precinct of Parliament and who protects the floor of the National Assembly. The same will have to be done for the National Council of Provinces as well in the Joint Rules.

The Chairperson said whether it is called Parliamentary Protection Services or a parliamentary guard what Members intend is that there should be a set of persons controlled by the Speaker alone, who work in Parliament full time and who are called upon to remove Members who disrupt the Chamber. Whatever the service is called, the principle is accepted. Ms Mazzone is making a further point that the precinct of parliament needs to be distinguished from the Chamber. Police can take charge of the precinct, but the Chamber is served by the Parliamentary Protection Services.

Ms Kilian said the document should be welcomed and she agreed with Ms Mazzone that the matter should be approached in a very sober manner, because it must be remembered that extremely exceptional circumstances are being dealt with. What has been seen in the Fifth Parliament is unprecedented and these incidents are the wilful disregard of the authority of the Speaker by a Member. What happened in the past is that Members have conducted themselves in a questionable manner, but when the Sergeant-at-Arms moved towards them they would at least get up and leave the chamber. This was the arrangement which existed and this exists in all Parliaments, where provision is made for certain rules to kick in where Members do not respect the authority of the Presiding Officers. When this was dealt with in the Subcommittee, reference was made to several Parliaments including Malawi, Canada and Uganda, all of which have provisions for the Presiding Officer to ask a Member to leave, failing which the Sergeant-at-Arms will escort the Member out. Unfortunately what has been seen is the absolute refusal to leave and therefore now extra provision must be made to allow the rest of the Members to proceed with the business of the House. As Dr Mulder has said the penalty of the automatic suspension should be without pay, which she supported. It must be remembered that under section 57 of the Constitution the National Assembly can draft its own internal policies. As far as the Security Services are concerned the Members are finding each other, because the delicacy of having the police deal with Members in the Chamber is understood. However, it must be remembered that Parliament is one arm of government and it is not absolute that police are not allowed to be around Parliament. Members of the police service are also very active in the courts and judges are allowed to call on the police to remove people who misbehave. Although it is understood that the House interacts with the executive, which is generally in control of the police, but the Constitution in section 198 states that there is a role for the Parliament and the national executive as far as the Rules are concerned. In the end Members should not be ignorant of real or possible threats and must guard against South Africa’s Parliament becoming a spectacle, although it has been already to an extent. Therefore, Members must be tactical with their moves, to ensure that the dignity of Parliament is retained. As this is ultimately what it is about, the privilege of the other Members and the dignity of Parliament as the institution which is elected by the people of South Africa.

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, said presently in terms of the Powers and Privileges Act, if a person willingly causes a disturbance in terms of section 7 read with section 27, including a Member of Parliament, that person is committing a crime. There is a court judgement which questions the definition of disturbance and this judgement has been taken on appeal, meaning that the judgement is suspended. In any event the judgement suspended itself for a period to allow Parliament to deal with it. In his view if there is a disturbance in the House that falls within the Powers and Privileges Act, then a crime is being committed. An aspect which the court was asked to deal with and which it did not deal with in enough detail, is whether it is constitutionally acceptable to arrest a Member for causing a disturbance, in light of the issue of parliamentary privilege under the Constitution. The Constitution very is broad in this sense and states that there is immunity for anything a Member says or produces any document in the House or a Committee. This is unlike previous Constitutions which were very specific which indicate that immunity is only in relation to what is done and said that is relevant to parliamentary procedures. Therefore, the situation is difficult to resolve. However, using minimum force or imposing a penalty, such as a suspension without pay, affects fundamental rights, which under section 36 can only be limited by a law of general application. The Powers and Privileges Act is such a law and it therefore gives the power to suspend a Member and without remuneration. He was concerned about the rule because punitive sanctions are being imposed without observance of the audi alteram partem principle, which requires the other side to be heard. He did not want to be interpreted as saying that it was not a concern in the way that Parliament is being stifled from carrying out its constitutional duties. The discussions on the proposed rule are very useful and take the matter forward. As there is a challenge at present, the court stated that there are sufficient ways of dealing with this externally from Parliament and perhaps Parliament should test these avenues.

The Chairperson said the point should be borne in mind, that the rights of 94% of the Members must be respected as the rights of the 6% are respected, because if this is not done then Members are allowing 6% of Members to take over, run amok and undermine the rights of every other party. The court is reasonable and will understand the reason why Parliament has to be defended. His view was that the Rules should be tightened and if Members were aggrieved they are free to litigate. If order is not brought, then the rights of majorities are trampled upon and a dictatorship by minorities is allowed. This is undemocratic and cannot be allowed to happen to any Parliament, therefore it must be clamped down on. Parliament has to be allowed to defend its functioning and the Rules must to drafted to bring order. If a court says that Parliament was wrong, then this will be respected, but no court in South Africa can run if a single person such as a criminal is allowed to take over the proceedings.

Mr Ndlozi said he felt a big mistake was being made, because the process is going to be rendered useless. A political problem is never going to be solved through rules. He wanted to give examples from the Fifth Parliament, because it is thought that it is the EFF alone which has said it is not going to obey rulings of Presiding Officers. There was an instance where the Deputy Chief Whip of the DA, Mr M Waters, told the Speaker that he would not leave the House, the Sergeant-at-Arms was not called despite the defiance of the instruction. Recently the Chief Whip of the DA [Mr J Steenhuizen] was told to withdraw and he did not withdraw. The DA chanted the entire time that Mr Mzwandile Masina, Deputy Minister of Trade and Industry, was talking, the House was never suspended. There were no media reports that these people were disrupting the House. He wanted to show that the problem was not the EFF, but was the political problem. This problem is the legitimacy of the rulings and there is no trust between Members and Presiding Officers. If Presiding Officers were implementing rules without bias, then the incidents with Mr Waters, Mr Steenhuizen and all of those with the EFF would not have occurred. When he had refused to withdraw the question about the animals, it was because a little earlier on the Presiding Officer had not called a Member of the ANC to order. If one talks of bringing order to the Chamber, one cannot only talk about rules, because they must also be applied without bias. What happens when the Rules are being applied with bias and in every Committee one find oneself in, is dominated by the ruling party. We can all debate what really happened last week but because President Jacob Zuma is above the Rules of Parliament, we will never agree to that, but the Speaker has made such pronouncements. He was concerned that the problem not be cast as a 6% or a 23%.

The Chairperson interrupted asking whether Mr Ndlozi agrees that order needs to be brought to the House.

Mr Ndlzoi said he agreed and he was saying that if people move from an emotional point of view to think that the problem is the so-called 6% of the EFF or the instances of the leadership of the DA where it deliberately disobeyed the Presiding Officers, they are wrong. The problem which needs to be resolved is that given the rules, what happens when those who preside over the order of the House are biased and are implementing the rules in an openly biased way: this is the crisis of the fifth democratic Parliament. He wanted to provide a solution, because the EFF was not coming from an emotional standpoint. He wanted to restate that what is being dealt with is an instance where all of us realise that the rules are not being applied equally, some people are exempt, and what is to happen? What has happened thus far is that Members deliberately say no to the rulings of the Speaker and authority is eroded.

He said that the EFF is concerned about order in the House and 90% of the time the rulings are obeyed, even if the rulings are not accepted. “We have been instructed to leave Parliament and we have left”. The first time we were instructed to leave is on the Marikana question and we left”. The EFF has the best interests of Parliament’s orderly functioning at heart. What happens when a Member who has deliberately refused to leave and the Security Services are called in to remove them for what they have said, not because they were posing any danger; but because in his view the Presiding Officer is acting in a biased manner. Is it fine for their salary to be suspended, on the spot without due process? He added that misconduct was not a crime and Members are not criminals if they disobey and the term crime should be reserved for heavier things. Further, what happens where the Presiding Officer rules in contradiction to the Rules or the Constitution and Members are expected to accept a ruling that the President is not equal to the Members. He was demonstrating that the power rests with Presiding Officers and if they are fair and consistent, then most of the incidents which Members have been involved in could have been avoided. Therefore, the solution which is being proposed is that the offending Member be given a due process. The Presiding Officer would then refer the Member to a disciplinary hearing and the Rules Committee would appoint an independent judge to make the ruling. It has long been agreed that where a physical danger is posed to a Member, the offending person must be physically removed.  However, this has to be distinguished from injunctions based on the freedom of speech. He understood that there is the limitations clause, but to suspend a Member from participating in Parliament violates not only their personal rights, but the rights of all the people who voted for them. If that right is to be taken away, due process must be applied and this cannot be coming before the same biased Speaker or the Powers and Privileges Committee which takes decisions on the basis of party caucus. This is not the administration of justice, if the problem is approached in a sober manner, his view is that a point will be arrived where there is order in the House. Even if the EFF is not in Parliament in the next ten years, this will be its legacy: that people’s rights cannot be violated without due process.

The Chairperson said that a general view has been taken and Mr Ndlozi is for order in the House and he is in support of the Security Services being called in by the Speaker in instances of physical danger. Therefore, Members were moving closer to a common position.

Dr Mulder said it was fascinating to listen to Mr Ndlozi and Members have been very patient and should speak directly with one another. The party which Mr Ndlozi represents, before the election made it very clear that the revolution is being brought to Parliament. Democracy cannot be used to destroy democracy.  It is very rich to say that one Member’s rights cannot be violated, but neglect all the other Members’ rights. Mr Ndlozi had said that “we have the best functioning of this Parliament at heart”. This has not been demonstrated once since the election. He has been in Parliament for the past 27 years and no other Presiding Officer has had it as tough as what has been experienced by the Presiding Officers in this Parliament. It is very easy to say that the Presiding Officers are biased, but what would you have done in their shoes. Presiding Officers are also human and may make mistakes, but it is not correct to state that they are resolutely one-side in their application of the rules. They have been very patient and tried to accommodate to a very large extent and if Members do not want to abide by the Rules and listen, what must they do. If the legal advice says Members should be wary of the audi alteram principle, because of the Constitution then he accepts that and the Subcommittee should be calm, take its time and close all the loopholes. Once and for all Parliament should function the way that the public and Constitution expect it to and if there were people who did not want to do this they are free to do whatever they like, but he was not prepared to be held at ransom for one more day in Parliament.

Ms Mazzone said this was going to be a beautiful question for the Constitutional Court and Members who swear an oath to the Constitution should have all the right to ask the Constitutional Court for an opinion in this regard. The rule does not have to be passed presently or in the following day’s meeting, but there is time until the completed revised Rules must be passed. When the parliamentary guard is being defined, Members should not forget to look into what a ‘disturbance’ is, because individual interpretations of what a disturbance is vary and it should not capture petty matters. As Dr Mulder said all the loopholes should be closed and the meaning of disturbance is one of these.

Mr Booi said people on the radio say “going to that circus” about Parliament. In his 21 years of Parliament he had never before seen a single Member coming with the purpose to have a meeting suspended. The innocence which Mr Ndlozi pleads can be argued in many other ways. There is a process for asking questions and the imposition which happened last week was shocking with no rules being followed. The Subcommittee has been very patient and asked all parties to put forward their proposals so that a halfway point could be found. Even as Mr Ndlozi argued presently, it was more about the bias of Presiding Officers and although Members may not agree with the opinion they were trying to meet halfway. As the Chairperson had said there should be respect and when this is shown, Members will be more amenable to the points presented and be able to make their decisions calmly. When people are pushed, then reasonableness goes and Members do not want to be put in such a situation. He felt the Subcommittee has moved and it is clear that there are submissions. Political issues will be resolved elsewhere, but he wanted to be able to say to any Member of Parliament that disturbances must be resolved. So that when Members walk out there is some level of dignity left in representing the people. The same case will be put to the Rules Committee the following day and whatever the legal team does, it should be aimed at finding solutions, more than criticising proposals. 

The Chairperson said it seems there is general agreement, but he suggested using the proposed rule amendment as the basis from which to work. He then proceeded to go through each subrule from the discussion document before them. He did not think anyone could find any difficulty with the proposed rule 53(1) where the Presiding Officer will order the Sergeant-at-Arms to approach a Member who has refused to leave the Chamber to escort the Member out.

Mr Ndlozi wanted to appeal to Member’s rationale, including teasing out the perception of what happened during the presidential question sessions. He did not know when that opportunity would come, but it seems time is decisive in closing the gaps in the Rules. His difficulty was the principle of natural justice in accepting the entire proposed rule 53. The EFF’s entire submission focuses on what it means to remove a Member in terms of their rights and the rights of voters, because it must be understood that Members are not at work in the typical sense and that is why they have a particular set of immunities. Members are special, because of the job they do in Parliament and this is what the Constitution envisages and the reason it grants immunities which ordinary citizens do not have. When a person is removed and their salary suspended arbitrarily based solely on the opinion of the Presiding Officer, the EFF has a problem with the absence of due process. He was not contesting the facts, but he had heard people say that there has been a lot of bias. He noted that the FF+ had supported a motion for the removal of Ms B Mbete (ANC) as the Speaker, because she would be biased. But now it is said that there is no bias. His point was that when rules are made all possible situations should be tested. What if a Presiding Officer makes a decision inconsistent with the Rules or is biased? Therefore there must always be due process where these rights are being removed. This is not applicable where there is danger. Therefore the EFF disagrees with proposal and feels the only provision which should be inserted is one which provides for the offending Member to be referred to a disciplinary hearing where the Member appears before a judge, who will then hand down the sanctions such as suspension or removal of the Member’s salary and this would be legitimate, because due process has been followed.

He continued that if a Member has grounds to suspect that the Presiding Officer is ruling in a biased manner, then the Member must have the right to a fair process. Particularly, because rights are being removed and therefore the imposition of these injunctions should not be taken lightly. Finally there is reason to doubt the Speaker, even if they are benevolent, because the Speaker is elected by the majority party and sits in the majority party caucus. There is reason, in law, to believe that whenever one comes before them they will lose. Therefore, watertight rules must be made by Parliament, which is the best custodian of natural justice and this will be violated by the absence of due process. Even if there is recourse the Member will not have participated in whatever business of Parliament they had been removed from and yet they are there precisely to represent the voters.

Mr Singh said the right to say whatever Members want to say cannot be denied and he agrees with Mr Ndlozi there. The way Members act must conform to the rules of decorum and dignity and it is the way Members act which bring on these reactions from Presiding Officers. Whether Members like it or not, the election has given Parliament a ruling party and minority parties and this has to be lived with. Having said this there has to be fairness in the application, but this is at times subjective. He made an analogy to a football game and here the rules have to be followed and players are at times red carded and there is recourse if the decision turns out to have been wrong and they are reversed. However, the referee is in charge at the time and is respected, the Speaker is in the same position. There are due processes and matters are sometimes referred to the Powers and Privileges Committee which is a parliamentary process, because the Speaker cannot suspend or fire. There is due process, but at that point Members cannot just say that a Speaker has ruled on a particular matter and they do not care. The Rules have to be followed and the ruling party has to respect Member’s rights to say whatever they wish to say, whenever they want to say it. However, when Members act in an untoward manner then appropriate action needs to be taken and this is what is at hand.

Mr Mashile said the Constitution dictates that the Powers and Privileges Act should be promulgated and the same Constitution expects Parliament to make the Rules and therefore the action taken is within the Constitution and should be respected. One thing needs to be clarified, it must not be said that Members are asked to leave the House because of what they have said, which may be that what has been said is unparliamentarily, rather it is the refusal to accept the ruling is what causes Member’s removal. However, Members keep saying that they are being called to order for what they are saying. Yet Members have only been removed when they have refused to accept a ruling. If the EFF says that the problem is not the Rules, then they should not have a problem when the Rules are tweaked. The objections which the EFF have are not in conflict with the proposed rules and these proposed rules can be passed as they do not contradict their position. The issue of the ANC’s majority is not of the ANC’s making, it is the people who have voted as such. Similarly, a minority party is not the fault of the ANC.

Dr Mulder said the way he interprets freedom of speech and privilege is that Members under the Rules  are entitled to say whatever they like or produce whatever they like, but they are not allowed to behave however they like. Most instances where there have been problems, it is generally where the authority of the Presiding Officer is disregarded. Section 57 of the Constitution makes it clear that Parliament is allowed to make its own arrangements, so that it may continue with its business. The argument from Mr Ndlozi is that Members are entitled to do anything. Such a process cannot be followed in the House, as nothing can get done and it cannot be like this. He was trying to understand what the EFF is saying and the crux is the proposal in their document to amend rules 51 and 52 to read “if the Presiding Officer is of the opinion that the Member is deliberately contravening a provision of the rules or a Member is in contempt of or is disregarding the authority of the Chair or that Member's conduct is grossly disorderly, he or she may refer the Member for a disciplinary process”. Is the expectation that when the Presiding Officer refers the Member to a disciplinary process, the Member will sit down and keep quiet? This would be contradictory to what has been seen since the last election and he would like to properly understand the proposal.

Ms Kilian said Mr Ndlozi has indicated that the EFF is in full support of the Constitution and the rules and it is only that the Presiding Officers are making it impossible for them. Yet they have signed allegiance to the Constitution and therefore to the Rules which includes rule 49 which states clearly that when the Presiding Officer rises to speak during a debate, any Member offering to speak shall resume their seat and the Presiding Officer will be heard without interruption. This is one of the most severe transgressions which is repeatedly seen in the House. Whenever the Presiding Officer is rising to make a ruling, there are several Members of the EFF who completely disregard the Presiding Officer’s authority.  Secondly in the current Rules, rule 51 provides for the Presiding Officer to rule on grossly disorderly conduct. Further, under rule 53, a Member ordered to leave the Chamber, suspended or who is named, shall subject to subrule 2 forthwith withdraw from the precincts of Parliament. All that is being done presently is that gaps are being closed, because there is reason to believe that some elements must be tightened up so that the business of the National Assembly can proceed.  All that should be proposed on subrule 1 is that the Presiding Officer upon requesting the Sergeant-at-Arms to remove a Member, order that all Members resume their seats, because this will help prohibit Members hopping up to raise invalid points of order. This should be considered so that it is abundantly clear that the Presiding Officer is ruling, so that it is clear that they are calling in the Sergeant-at-Arms and the business of the day can be continued without delay.

The Chairperson said Members should not attempt to convince each other, because there is general agreement and all that remains is to work out the wording. This cannot be done presently and therefore the proposal is being taken as a minimum of what must be done to bring order. Subrule 1 is generally accepted as a base and under subrule 2, the point raised was that whether it is called parliamentary guard or Protection Services, it is accepted that those who are within the Chamber should not be armed. The police will not be in the Chamber, but will be present. On subrule 3, the view of all the parties is that the suspension should be without pay. The point of due process is taken, but the problem is that due process requires order. On subrule 4 Members have said that 'minimum force' may need to be defined and perhaps the alternative of such force as may reasonably be required should be accepted. It is clear that when Members simply refuse and are removed and other Members are in danger reasonable force should be used. On subrule 5, the point is that no other Members may interfere with the removal of the Member named. On subrule 6, if the sitting is suspended for the purposes of removal, all other Members must leave the Chamber. This would be under very extraordinary circumstances, because Members will generally comply with the ruling of the Speaker. These rules should be finalised as soon as possible. He had heard Adv Jenkins say Parliament should test out the procedures in court. On subrule 7, he felt the House must approve the standard operating procedures.

The Chairperson noted Mr Ndlozi and before allowing him to speak said he has the potential to be a good Member if he respects the Rules. Further, the Subcommittee has generally taken a view and they are in possession of the EFF’s proposal. He can persuade Members, but it should be noted that Members must move forward on the proposed rules. The more Members do not listen to the rulings of the Speaker, the more difficult it will be for others to accept their points. As Members cannot be forced into acceptance.

Mr Ndlozi said the Chairperson could give these directives, without patronising, because he really did not appreciate it. He appreciated the guidance, but it should not come with the extras, because he was going to be made to react. It seems that as the Subcommittee is moving on, he could state the objections of the EFF. He wanted to know whether they were supposed to state their objections now or to wait for the Subcommittee to go through the entire proposal. Further, there have been questions about the EFF’s proposal and no opportunity has been given to respond. He wanted to put it out that Parliament being a circus or a joke has partially been attributed to the conduct of the President. So such matters should be left to a different forum, otherwise things will degenerate, particularly as ANC Members know how sensitive they are about the person of the President. He would be forced to say what President Jacob Zuma is doing to turn Parliament into a circus. Therefore, he asked for guidance on responses on his proposal and whether to object as a whole.

The Chairperson said he would never patronise a Member, he was only trying to assist. The meeting would proceed to the Standard Operating Procedures section and there are matters which Members have already agreed on and it would be democratic for Mr Ndlozi’s views to be noted afterwards. He thought Mr Ndlozi had agreed that he was for discipline and order in the Chamber. That is why he thought they were in agreement. 

Mr Mashile said right at the beginning, before the Chairperson went through each rule, Mr Ndlozi had had a field day in stating his position and objections. Eventually Mr Ndlozi said he was rejecting the NA Secretary’s proposal in its entirety and proposed alternative amendments. This should not be forgotten and if the Subcommittee is going through each rule and he states his objection to each it will take too long.

The Chairperson said Mr Ndlozi will take five minutes and Members should be patient. Mr Ndlozi must convince the Subcommittee, but it also has a right to move forward.

Mr Ndlozi said what was being objected to was Part 3, not the entire document.

The Chairperson clarified if the EFF was objecting to the proposed amendments or to the proposed Standard Operating Procedures.

Mr Ndlozi clarified that he was objecting to Part three which contains the proposed rule 53, not necessarily the Standard Operating Procedures.

Ms Mazzone said she had a problem with Point 6 on page 3, she did not think that it was a good idea for all Members to immediately leave the Chamber if proceedings are suspended. Rather she felt everyone should sit down and remain calm while the parliamentary guard does its job. Imagine if all 400 Members are trying to leave and are streaming out into the corridors, while Protection Services are trying to remove a Member. This will lead to chaos in the corridors and this can lead to people losing their tempers and physical altercations. Therefore, that entire section needs to be taken out and replaced with a provision for Members to remain seated and whips are to control their caucuses, because if all Members try to leave, there will be utter chaos.

Dr Mulder agreed, but said there is already a rule providing for the Speaker to possibly suspend the House in circumstances of grave disorder. Perhaps under normal circumstances it will not be necessary and Members can sit down, but if there is grave disorder, the House may be suspended.

The Chairperson said that is a good idea and Mr Hahndiek and Mr Xaso would take it into account. For the rest of the draft Standard Operating Procedures Members seem to be in agreement.

Mr Mashile said he still had a concern about a police officer being required to leave their issued firearm somewhere else and it should be determined whether Parliament has that power.

Mr Ndlozi said proper consideration needs to be given to the principles of natural justice and he did not feel that the Subcommittee was applying itself to the suggestion of the EFF on how order was to be maintained. The EFF did not think that the rights of Members should be removed arbitrarily and only under instances of physical danger should anyone be removed from the precinct of Parliament. The Subcommittee should proceed from the premise that Members are honourable and he had not seen any act by Members in the House where they have engaged in an unreasonable manner. Often they have got something which Parliament must hear which explains their conduct. A violation of administrative justice principles will be caused if the requisite due process is not applied where Member’s rights are taken away.

The Chairperson said he thought Mr Ndlozi wanted to persuade Members, because if the view is taken that everything is to be objected to, then it will be very difficult.

Ms Mazzone said she completely disagrees with the logic of Mr Ndlozi and there are checks and balances. There are times when Members' rights are somewhat limited, but this is for a good reason. This is Parliament and as the parliamentary law advisor has said the principle of audi alteram partem is at play. When Adv Jenkins had said this she had asked Dr Mulder whether Members have the right to appeal rulings, which they can do at any time. This can be done by individuals and by parties either through the Rules Committee or the Powers and Privileges Committee. She failed to understand Mr Ndlozi’s logic, because then no ruling of Parliament could ever be made as it would adversely affect at least one person. What is the point of having any Rules, because then Members would be able to object to being called out of order, because they would be able to object that their right to speak is being infringed. A Member’s right to speak is taken away, because they have broken a rule of Parliament. A social contract is entered into when Members accept their positions and that contract is called the Rules. As Members of the National Assembly, they are bound by the Rules and the Rules state that Members have the right to appeal if they are aggrieved.

Mr Booi agreed and said the Powers and Privileges Committee of Parliament is being challenged. An elaborate case has been made on this. Whether there should there be a disciplinary committee separate from the Powers and Privileges Committee is being considered, so that there can be due process. Therefore, the proposal is not rejected. What drives this particular aspect of the rules is how Members conduct themselves and how the Rules resolve this. No Members are owning the document and the party positions may lead to more being raised. The basis is the exchange of views, to see how close Members can come to accommodating each other’s views. At the broader political level the frustrations being felt are practical and these challenges are trying to be resolved by taking a long term view. He appreciated the submission by the Secretary of Parliament and felt it was a basis to work off of.

The Chairperson added that the spirit of the submission is broadly accepted, because what will be worked on now is the wording.

Mr Mashile said it was unnecessary for Mr Ndlozi to comment on the Standard Operating Procedures which arise from the proposed rule as he had already rejected the proposed rule.

Mr Ndlozi said he supports the Presiding Officer having the authority to make rulings and so on. What is disagreed with is the conditions under which a Member is removed from the House. The Rules state that it is when a Member engages I grave disorder or when in the opinion of the Presiding Officer there has been grave disorder. Then the rules anticipate that the Presiding Officer will order the Member to leave, if the Member refuses there must be a physical removal. The disagreement was not that Members should not respect the rulings of the Presiding Officer, but that the conditions under which a person is removed from the House physically must either be where there is physical danger or where there has been a due process. It has to be an incidence of grave disorder to warrant physical removal. Under no condition should there be physical removal of a Member of Parliament without due process. If the member is engaged in such behaviour they must be referred to a disciplinary tribunal.

Dr Mulder said due process may have different interpretations and he would argue that section 57 entitles Parliament to make Rules and in terms of those Rules the Presiding Officer has the power to listen to the Member and make a decision. This is due process under the circumstances and due process cannot be what has been suggested, because this would mean that Parliament has to stop. Mr Ndlozi was also making a mistake in saying that removal is only possible in an instance of grave disorder, because this is when the Presiding Officer can suspend proceedings in the House. The Presiding Officer has the right to ask for removal under certain defined circumstances. 

Mr Mashile again raised the matter of policemen deserting their arms.

Adv Jenkins said the problem is that SAPS is an armed service, which has operating procedures, there is an injunction on the member to be armed and they are issued with an arm for that purpose. The Speaker and Chairperson have the authority to ask members of the police to maintain the order in certain circumstances. He would suggest that it can be done, but there should be a protocol, otherwise the members of the police service are being placed in a predicament between the Presiding Officer and their SAPS commanding officer.

Mr Xaso asked for clarity on what will be presented to the Rules Committee the following day.

The Chairperson replied the document as presented would be presented to the Rules Committee and areas where more work is required will be pointed out, such as the issue of creating a parliamentary guard and police officers deserting their firearms, but generally the rules as proposed are broadly accepted, although work will need to be done on the matter. This will also allow Members to consult the principals of their parties, but the spirit of the rule is accepted and the wording simply needs to be refined. Once that is accepted the Rules Committee will decide on how much more time to give the Subcommittee even if they are called to meet during recess.

Mr Singh asked for a document on the Parliamentary Protection Services, what their terms of reference are and what they are to do. Further, could the court findings be forwarded to Members. 

The Chairperson said this should be provided by the support staff. This is what would be presented to the Rules Committee the following day, the Subcommittee was not presenting a complete job, because it was a work in progress and the Rules Committee would take it forward. The Subcommittee has reviewed the entire Rules and Mr Hahndiek would be completing the process by the following week, with the document then being circulated electronically to all Members. The Rules Committee meeting should not take long, as much has been agreed to and covered in the general review of the Rules. He declared the meeting adjourned.