Establishment of oversight mechanism: draft rules; Joint Standing Committee on Defence Report

Meeting report

Committee attendance

The Chairperson said Mr M Madakane (ANC) was engaged elsewhere and encouraged the Members to contribute constructively. The work the Sub-committee was engaged in was a matter of urgency, as were all matters related to the rules of Parliament, but quality should remain the modus operandi. She then asked whether Ms J Kilian (ANC) was the only Member expected from the National Assembly.

Ms J Kilian (ANC) said she was expecting Mr M Booi (ANC). She was aware that Ms N Mazzone (DA) had submitted an apology, but she was unaware about the other Members and the support staff would be in a better position to inform the Sub-committee.

Ms Z Naidoo, Joint Secretary to the Sub-committee, said apologies from Mr N Singh (IFP) and Dr C Mulder (FF+) had been received.

Mr M Mbebe, Joint Secretary to the Sub-committee, said apologies had been received from Mr M Rayi (ANC, Eastern Cape), Mr A Nyambi (ANC, Mpumalanga).

The Chairperson asked if the meeting was quorate.

Ms Kilian said as she understood the situation, the meeting could proceed as a Sub-committee, because it did not take any final decisions. If a way forward was found that would be fine and if not, then the input from the present meeting could be fed into the next.

The Chairperson agreed and said the present meeting must go on. The agenda to be followed was before the Sub-committee. He asked whether Members accepted this or whether there were any additions or subtractions.

Mr M Khawula (IFP, Gauteng) said it should be accepted, but it should be borne in mind that there was a sitting in the National Council of Provinces (NCOP) at 11 am and further, from his side, he had a delegation meeting at 10 am.

The Chairperson said she did not know how current Mr Khawula’s information was, and that the sitting was a debate outside of the present meeting. Members should therefore relax and focus on what was at hand.

Ms Kilian proposed adoption, seconded by Mr E Mlambo (ANC, Gauteng)

Consideration of minutes of 11 June 2015

The Chairperson asked if someone could read the minutes of the previous meeting or speak to the document, to ensure that Members who were not present were on the same wave-length.

Ms Marina Griebenow, Senior Procedural Officer: National Assembly Table Staff, said the minutes began with an opening welcome listing all the Members present, with only one apology from Mr Singh. Mr Mdakane had asked the staff to verify all the Members nominated, which had subsequently been done. There had been consideration of the draft agenda and the Chairperson had indicated that she had received a letter from presiding officers to ask to expedite the matter of preparing draft rules for the Oversight Mechanism in terms of the Financial Management of Parliament Act. Then there had been a discussion on this topic and the draft rules that had been agreed upon by the previous Sub-committee in the Fourth Parliament, but which the Joint Rules Committee had not accepted because of the impending amendment of the Financial Management of Parliament Act. It had been decided that those rules were adequate to use as a basis for the Oversight Mechanism under the amended Act. The discussion had ensued, raising several issues. A major one had been that the differentiation between the two Houses should not be too big a deal, because it was a single Committee which was to function as a unit. The viewpoints of the Members were reflected in the minutes and adjustments had been incorporated into the proposed rules. The agreement of the Sub-committee had also been marked in the minutes. There had been a brief report on the issues referred to the Sub-committee by the Joint Rules Committee. It was agreed that the Sub-committee would start with the report from the Joint Standing Committee on Defence and it was agreed that the Chairpersons should be invited to the present meeting, which had been done. Under any further business, Mr Mdakane had proposed a programme be drafted reflecting the dates on which the Sub-committee would meet, to make it easier for Members. The meeting had adjourned at 10:10 am.

The Chairperson asked if there were any matters arising from the minutes and receiving none, asked whether Members wished to adopt them.  

Ms Kilian asked for the Sub-committee to note the minutes as a true reflection, but it could not adopt the minutes.

Ms Griebenow asked why the Sub-committee could not adopt the minutes.

Ms Kilian replied that it was because there were not an adequate number of Members present from that meeting.

The Chairperson agreed that the minutes should be noted, to be adopted when the Sub-committee quorated.

Ms Kilian agreed and said if one looks at the Members who had been present then, and those present at the current meeting, it was less than a handful. She asked whether the support staff could indicate matters arising so that they could be added to the agenda.

Ms Griebenow said all matters arising had been captured in the present agenda.

The Chairperson said the meeting would move on with the agenda, which would mean it was to deal with item five: Consideration of draft rules for the establishment of Oversight Mechanism. She asked who would be tabling that document.

Ms Naidoo asked whether all Members had copies of the draft rules.

Ms Kilian said Members had discussed them last time, but there were also Members who were not present. Her understanding was that a reworked copy would be presented to the Sub-committee, and she did not have a copy. She “really felt the staff ought to support this meeting”.

The Chairperson agreed and said she could not emphasise the need for support more, and felt Ms Kilian was being very modest in choosing her words.

Consideration of draft rules for establishment of Oversight Mechanism

Ms Griebenow said the rules now had numbers, and began with rule 96. The establishment remained the same and sub-rule 2 contained the restriction from a deliberation on any matter in which a Member had a direct material interest. This was necessary because of the amendment to the Act. There would still be co-chairpersons from each House and the functions and powers remained the same. Members would remember that the discussion in the main was about quorums and decision making. It was agreed that while most meetings of Committees were allowed to proceed without a quorum and required a quorum only for decision-making, this Joint Standing Committee would require at least one-third of its Members to proceed and its decision-making quorum would be as in the current rules. The discussion had then raised the issue that if the component aspects were taken out of the quorum requirement, how would it be ensured that one House did not take a decision without the other House being represented? Therefore, it was decided that the quorum component would remain a majority of Members from both Houses separately. This would ensure that both Houses were present when decisions were taken. The unity aspect was brought into decisions, which were  made by a plain majority of Members present. Therefore, these rules had been brought in line with the discussions and agreements in the Sub-committee from the last meeting.

Discussion

The Chairperson asked for clarity on the matter of a majority from each House.

Ms Griebenow replied that in order for there to be a quorum, there must be a majority of the Members from each House separately. Once this was established, the decisions were made by a simple majority of the Members present.

Mr Khawula asked for an explanation of rule 96 (b) which dealt with the composition, as it spoke of the composition being from both Houses, but it did not say anything about the number Members.

Ms Griebenow said the number of Members would be decided by the Joint Rules Committee at the start of each Parliament. This was similar to the rules of the Joint Standing Committee on Defence, which was also determined at the beginning of each Parliament by the Joint Standing Committee.

Mr Mlambo said the example provided about the composition of the Joint Standing Committee on Defence, may be discussed later in the agenda.

Ms Griebenow said this was simply used as an example of where the Joint Rules Committee decided on the Membership.

Ms Kilian asked about rule 96B (2), which stated that no Member may attend a meeting where they had a material interest, which obviously aimed to address conflicts of interest. Should it not be added that the Member must indicate to the Committee that there may be a potential conflict of interest, because it was one thing for Members to submit an apology to absent themselves, and another to be upfront that there would be a conflict of interest? Therefore, it could be extended to include a provision requiring the Member to inform the Committee accordingly. This would ensure that a bare apology was not put in, and that a Member in fact declared that they had an interest. Further, how was this done in other committees?

Ms Griebenow said under the new code of ethics, Ms Kilian’s point was already covered. The old rule under ethical conduct used to read: “A Member must declare any personal or private financial or business interest that that Member or any spouse, permanent companion or business partner may have in a matter before a Committee, Joint Committee or other parliamentary forum of which the Member was a member and withdraw from the proceedings of the Committee or forum where that matter was considered, unless that Committee or forum decided that that Member’s interest was trivial or not relevant”. Therefore, a Member had to first declare and withdraw.

Ms Kilian said that this covered her point. The onus was on the Member and if a Member was not doing that and simply absented themselves, that would be a breach of the code of ethical conduct.

Adv Eric Phindela: Parliamentary Legal Advisor, said 96B (2) was phrased so that the Member indicated whether they felt their interest was material, but the Committee may have to debate whether this indication was correct. The rule did not only deal with participation, but attendance of a meeting, as a Member may attend and not participate. The rule as it read now prohibited a Member from attending a deliberation on a matter.

Ms Griebenow said the rule on the declaration of interest did say that that Member must withdraw from the proceedings of the Committee, unless the Committee decided otherwise.

Mr Khawula wanted to check whether his understanding was correct -- that the Member may attend the meeting, but would have to withdraw when the matter in which their interest lay was discussed.

Adv Phindela said this was correct, because there may be other matters which the Committee had to deal with, in which the Member did not have a direct material interest, and they may participate in those.

Ms Kilian said she felt the rule said exactly that, with the Member not being allowed to attend deliberations on a particular matter, not that they may not attend the meeting. What was important was that the rule stated that a Member may not participate, to make sure that if that Member had a material interest and participated, that Member was automatically guilty of a breach of the code of conduct.

The Chairperson said the rule assumed that there would be honesty, that Members would be upfront with their material interests. She asked how the rule read.

Ms Griebenow said: “A Member must declare any personal or private financial or business interest that that Member or any spouse, permanent companion or business partner may have in a matter before a Committee, Joint Committee or other parliamentary forum of which the Member was a member and withdraw from the proceedings of the Committee or forum where that matter was considered, unless that Committee or forum decided that that Member’s interest was trivial or not relevant”.

The Chairperson asked whether this meant the declaration was only with regard to that particular matter.

Ms Kilian said, for example, if she were in the arms trade, then she may not be able to deal with the next item on the Sub-committee’s agenda, which was the Joint Standing Committee on Defence.

The Chairperson asked what the situation would be if a Member did not have a conscience which would cause them to make the declaration.

Ms Kilian said as there was no “moral police”, in the end an alarm would probably be raised in the Office of the Registrar and they would call the Ethics Committee chairpersons to state that the matter was a contravention of the code of conduct, leading to the offending Member’s appearance before the Ethics Committee.

Adv Mandela said in the ordinary course Members were  to declare their potential interests in the matters within the scope of the Committee’s mandate. The rule also assumed that Members were  honourable and would declare their interest in a matter.

The Chairperson asked what has worked best for Parliament.

Ms Griebenow said she remembers two instances of a possible conflict of interest and in both cases the matter was investigated, revealing that it was not the case. There was a complaint from outside and one from fellow Members, because it must be remembered that Members from the ruling party and opposition watch each other.

Adv Phindela said the wording of the rule was the wording taken from the Financial Management of Parliament Amendment Act, It may be that it would be more clear to state “may not participate in the deliberations,” but it would be both unlawful and a contravention of the rules if a Member were to attend deliberations on a matter in which they had a material interest.

Ms Griebenow said the next step would be to present the matter to the Joint Rules Committee, but she would suggest that the proposal be submitted to the Secretary of Parliament for their buy in.

Mr Khawula asked whether it would be necessary to bring the matter back to the Sub-committee, given that the meeting had not quorated.

Ms Kilian said she did not feel it was necessary to bring the matter back, because Sub-committees were meant to be deliberative fora to fine tune matters which were going into the sphere of the Joint Rules Committee. Therefore, with the caveat that the rule be taken to the Secretary of Parliament and the presiding officers, it would definitely be fine and there may be further improvements in the Joint Rules Committee.

Adv Phindela said he supported the suggestion and he would make sure the Secretary of Parliament had sight of the document and that he submitted it to the presiding officers before they sat in the Joint Rules Committee.

Consideration of Report by Joint Standing Committee on Defence

Mr Khawula said it was a suggestion by Mr Madakane that the Chairpersons of the Joint Standing Committee on Defence be invited to make these presentations, and his understanding was that one chairpersons was here, and therefore the Sub-committee was on track.

Ms Naidoo said a letter had been sent to the Chairpersons to invite them to the present meeting.

The Chairperson asked if an apology had been received from the National Assembly co-chairperson.

Ms Naidoo said no apology had been received.

The Chairperson said that that was very serious, and asked Mr Mlambo to walk the Sub-committee through the presentation.

Mr Mlambo said he was not the one who was to give the presentation, and asked to be indulged to listen to the presentation as well. What Mr Khawula had said was totally wrong.

Ms Griebenow said she would take the Sub-committee through the presentation and noted that Mr Peter Daniels, Researcher for the Portfolio Committee on Defence, and Mr Wilhelm van Rensburg, Researcher for the Joint Standing Committee on Defence were in attendance.

Mr Griebenow said there was a time when the Joint Standing Committee on Defence really battled to function and one of the main reasons was that this Committee was created in terms of the Interim Constitution, which had subsequently been taken up in the Rules. That provision stated that all parties in Parliament with more than a certain percentage were entitled to be on that Committee. Therefore the composition of this Committee under the Interim Constitution was along party lines and this explained the composition proposed at the beginning of the Fifth Parliament. A formula had been prescribed for how the Committee would be composed. There was a further rule, which elaborated on that formula. Applying all of this, the composition of this Committee would be 36 Members and this was too large a number for the Committee to be workable. It was very difficult for the Committee to find a quorum and it was already difficult for a Joint Committee to meet, given the programmes of the two Houses. The other problem was a large overlap between the functions of the Portfolio and Select Committees, and the Joint Standing Committee. The Interim Constitution posed the functions of the Joint Standing Committee in basically the same way as the functions of the other two defence Committees had been cast. There had been a proposal for a delineation of the functions between the Joint Standing Committee and the two House Committees dealing with defence. The broad approach was that the Joint Standing Committee would take a more strategic standpoint, while the two House Committees would take a more operational oversight role, such as budgets. The Joint Standing Committee would not deal with legislation, for example.  

Ms Griebenow said she had distributed a presentation given to the Joint Standing Committee on Defence in the Fourth Parliament, and things had moved on since then. One of the problems had been resolved at the beginning of the Fifth Parliament, when the Joint Rules Committee had adopted a rule on the composition of this Committee, which stated that the Joint Rules Committee would determine the Composition of the Joint Standing Committee on Defence, subject to the prescripts of the Interim Constitution. At the moment, she believed the composition was a total of 13 Members -- eight from the National Assembly and five from the NCOP. As she had said, the NCOP representation in this Committee was not along provincial lines, because of the Interim Constitution provision that parties with more than ten Members must be represented on the Committee.

Ms Kilian asked whether the provisions which had established the Joint Standing Committee on Defence had been retained in the 1996 Constitution.

Ms Griebenow said the provisions were still in the Interim Constitution, but were part of the transitional arrangements and were still in force.

Ms Kilian said she asked this because her understanding was that the Interim Constitution had been repealed under schedule 7 of the Constitution.

Adv Charmaine van der Merwe, Parliamentary Legal Advisor, said item 24(1) of Schedule 6 of the Constitution retained a number of provisions of the Interim Constitution, and one of them was section 228. Schedule 7 did repeal, but subject to schedule 6, which clearly stated that it retained 228 and it could be amended, but it had not been at this point in time.

The Chairperson asked whether this was an advantage or disadvantage to the institution.

Adv Van der Merwe said it was an Act which was still on the statute book and therefore it was like any other Act where there was a newer version, but some of the older elements had been retained. The chances were that there was nothing wrong with the way it was worded, but it was envisaged that it may be changed. Overall it was not a disadvantage -- it was an Act on the statute book which must be applied.

Ms Kilian said it was important for Members to be on the same page, because Members who were very much part of the transition from the 1993 to 1996 Constitution should ask what was the relevance of the structures created today. She felt Members should have been brought up to speed on what the legal framework of the Committee was, because if it was still based on the 1993 Constitution and based on party lines, then clearly that complicated matters.

Adv Phindela said that provision had been kept alive in the final Constitution by incorporation. The question which should be grappled with was whether the Joint Standing Committee on Defence was still relevant. If it remained relevant, then Parliament should try and determine how it ought to function. If it was irrelevant, then Parliament should move for the amendment of the Constitution, because until it was amended that provision remained applicable. He went back to the wording, because the Constitution was clear that the matter should be a Joint Standing Committee on Defence, and this was similar to the Oversight Mechanism discussed above. Had the Constitution intended to establish something different, it would have said so. He therefore thought the Sub-committee should consider changing the name of the Oversight Mechanism under the Financial Management of Parliament Act, because in the rules it was cast as a Joint Standing Committee.  

The Chairperson said she thought the issue was whether the composition along party lines was helpful or not.

Mr Khawula asked how long the current composition of 13 Members would last, and whether this composition took note of the provisions of the Interim Constitution which dealt with party lines and the formula. Further, what was the mandate of the Sub-committee as far as the current arrangement was concerned?

Ms Griebenow said the Interim Constitution provisions were in place, and this determined the composition of the Committee at present. If the Sub-committee wished to change that it would have to move for the repeal of those sections of the Interim Constitution, which as far as she was aware could be done by a section 75 Bill. At the moment, the rules were drafted in terms of the provisions of the Interim Constitution. The Sub-committee’s mandate was to consider the report presented and one of the issues in that report was the composition, which had been addressed at the start of the Fifth Parliament. What had been changed was that the Joint Rules Committee determined the membership, but still applied the formula.

The Chairperson said the membership had been reduced from 36 to 13, and asked whether the party lines rule still applied.

Ms Griebenow said the formula was peremptory, and the number could never be smaller than what the formula allowed.

Mr Khawula said the formula should be understood and Members must understand what caused there to be eight National Assembly representatives and only five NCOP Members.

Ms Griebenow said she did not have the formula with her, but it was usually worked out at the beginning of each Parliament.

Ms Kilian said usually this was strictly applied according to electoral outcomes and what was important was for the Sub-committee to understand the complexities going forward.

Ms Griebenow said the second issue was the delineation of tasks between the Joint Standing Committee versus the Portfolio and Select Committees. The current rules for the Select and Portfolio Committees covered the tasks that these committees were to undertake. The Joint Rules did not stipulate the functions of the Joint Standing Committee on Defence and she felt it would help that Committee if, taking into account the Interim Constitution, a rule was drafted to cut out the overlap between the Committees. Looking at Annexure 2, which was page 3 323 of the Announcements, Tablings and Committees (ATC) of 18 October 2012, it sets out the tasks of the various committees. She expected that the tasks of the Portfolio Committee and Select Committees would be similar, with the latter having a provincial slant to it. The first thing proposed was that the Joint Standing Committee on Defence should consider and report on the employment of SANDF troops in fulfilment of international obligations or in defence of the country. All letters of employment were referred to that Committee anyway, and there was also a report on delays experienced with these, because in terms of the Defence Act the Committee also had the power to propose to the Houses that a particular letter of employment be terminated. To her knowledge, this had never been done. One of the reasons for this was that the letters arrived very late or even after the fact. Part of the report’s proposal was that the Chairpersons write to the leader of government business, and that this matter be addressed via that channel. Perhaps this should be included in its functions, because that was an important function which it carried out.

Further, the Committee should make recommendations to the Houses on declarations of the state of defence by the President. It should make investigations and recommendations on all reports submitted to Parliament by the National and Provincial Arms Control Committee (NPACC). This was a decision which had been taken by the Joint Rules Committee in 2004, because the NPACC was usually chaired by a Cabinet Member, which had to report on a quarterly basis on the sale of conventional arms. There had been a proposal that the Joint Standing Committee on Defence conduct a broad strategic overview of the SANDF with regard to transformation, integration, equity and combat readiness. The overview should be conducted and submitted mid-term in the life of a Parliament, with a final report being submitted at the end of that Parliament on the implementation of mid-term recommendations. This was with a view to inform subsequent Defence Reviews.

The Committee should liaise with civil society and report on civil military relations. This came from the previous and current Defence Review. It should exercise oversight over and make recommendations on matters affecting military veterans. It must be remembered that the Public Finance Management Act (PFMA) and Financial Management Act placed such rigorous accountability functions on the two House Committees, and therefore the “softer” issues were often neglected, such as civil military relations, and the Joint Standing Committee on Defence was ideally placed to deal with such matters.

The Committee should report to the Houses on any matter referred to it or in terms of statute and should report on its activities at least once a year. What the Sub-committee must consider was whether it wanted to include the functions and powers provision in the Joint Rules, to delineate some of these functions bearing in mind what the Interim Constitution stipulated.

The third issue raised pertained to confidentiality and closed meetings. She was of the view that the current rules covered those matters, but the Sub-committee may look into this if it wished. There were  sufficient controls so that if it wanted to close a meeting or wanted to consider confidential documents it may do so if it wanted to. There was a concern about confidential information leaking out of the Committee, but even that was covered under the Protection of State Information Act, which incorporated the standards of secrecy.

Discussion

The Chairperson said the report was before Members and asked for any comments

Ms Kilian asked whether what the National Assembly and NCOP had tabled needed to receive a broad strategic nod before they proceeded to draft the necessary rules. The reason was that, as they had elaborated, they appeared to have bundled together matters of strategic oversight for the Joint Standing Committee on Defence, which was now to be reduced in size. Further, there was a need to retain budgetary and accountability oversight for the two House Committees. In principle, what was to be decided on or left to the next meeting, so that Members could understand how to move forward, particularly as the matter had been hanging in limbo for some time and needed to be resolved? It was a pity that only one of the Joint Standing Committee’s Chairpersons was present, and she asked for an indication from Mr Mlambo about discussions which he had had with his co-chairperson, to give Members an insight into whether there was general agreement or if there were any further issues.

Mr Mlambo said the issue which had been grappled with was oversight, because there would be clashes in the programmes of the two Houses, but he felt that the functionality of the Joint Standing Committee was generally fine, since the reduced membership.

Mr Khawula said the institution had a Joint Standing Committee on Defence, a Portfolio Committee on Defence, but not a Select Committee on Defence. He wanted to know what the rationale was behind this.

Ms Kilian replied that the idea was that the Constitution compelled the National Assembly to keep a close oversight over all the executive functions and if there was a Ministry, there must be a complementary Portfolio Committee to conduct budgetary oversight and other accountability. She did not understand the separation in the NCOP, but as she understood it there were clusters reporting to Select Committees.

The Chairperson asked whether there was a security cluster in the NCOP.

Mr Mlambo said Mr Khawula’s problem was that there was such a security cluster in the NCOP, but no Select Committee on Defence. He picked up from his last point, saying that another problem which the Joint Standing Committee was faced with was that they had not seen that its composition was in the Joint Rules.

Ms Griebenow said the new rules were not in the Joint Rules Book yet, because there had not been a reprint as yet. The Rule had been approved by the two Houses.

The Chairperson asked whether Mr Khawula’s concern had been addressed.

Mr Khawula said Mr Mlambo had simply rephrased his question so that it was clear.

The Chairperson asked whether not having Defence in the NCOP security cluster caused any harm to Parliament.

Mr Khawula said this was not a debate for this meeting.

The Chairperson said the two Houses had different mandates and sometimes the pull was very strong to have the two Houses be identical. What was the Sub-committee to do with the report?

Ms Griebenow said if the Sub-committee was agreed that to bring more clarity to the Joint Standing Committee on Defence, its functions needed to be outlined and the Sub-committee agreed, then the staff could draft a rule to be presented to the Sub-committee. The Sub-committee would then report to the Joint Rules Committee to state that it had agreed that it would be easier in terms of the Joint Standing Committee’s functionality if there was a stipulation of its powers and functions. She was looking for approval so that the staff could propose a draft at the following meeting.

Ms Kilian said the Sub-committee should give the go ahead, because looking at the other Joint Committees, their functions were specifically stated in the Joint Rules and that this would bring better clarity and better oversight.

The Chairperson said the staff had received the Committee’s approval.

Consideration of Draft Programme

Ms Naidoo said item seven was pursuant to a request by Mr Madakane, and the intention was to consider the dates for meetings, which according to the programme was set out in Annexure 3. There were four dates set there, all on Fridays, which had also been set aside for Committees or Joint Committees. In the column where it said agenda, this had been left to be decided, because it needed to be seen how far the Sub-committee got. At the next meeting, the Sub-committee would look at the draft rules of the Joint Standing Committee on Defence and possibly the report on the next legacy issue, which was the Constitutional Review Committee.

Ms Kilian said perhaps it would be good to start meetings a little bit earlier, and to finish a little bit earlier for those Members who still needed to fly. She requested that if the agenda was compiled that it should incorporate a short recommendation on what was to be done. For example, it may be important for the consideration of the legacy report of the Constitutional Review Committee, that the summary or presentation given to the Sub-committee was done in such a way that the work which flowed therefrom was clear. The same applied for Scrutiny of Delegated Legislation, but in principle she felt it should be adopted.

Mr Khawula seconded the adoption, and agreed that the meetings should start earlier.

Adv Phindela said that the Sub-committee had earlier recommended that the draft rules on the Financial Management of Parliament Act should also be referred to the presiding officers and the Secretary of Parliament. He now needed direction. If the Secretary of Parliament had comments to make, should he make those to the Sub-committee or to the Joint Rules Committee?

Ms Kilian said Members had had a deliberation and if the Secretary of Parliament had any extra considerations, these could be included in the Sub-committee’s report.

The meeting was adjourned.