The meeting began with the Chairperson asking Members to approve the agenda for the day. The EFF representatives raised an objection to the agenda, because it felt that the agenda item was based on a misrepresentation of the resolution of the previous meeting of 24 June 2015. The EFF had believed that this meeting had concluded that an approach that considered any of the new Rules of the National Assembly (the Rules) would be inappropriate. For this reason, it was suggested that this meeting should rather be considering all the proposed new Rules, and not any single Rule alone. To this end, the EFF requested that the copy of the Hansard record for that meeting be produced, to check exactly what the Chairperson had said. The Chairperson indicated that this had not been transcribed at the present time, but would be produced, and ruled that this meeting proceed, as the majority of the Members were in agreement with the agenda item.
The EFF then raised the same objection to the adoption of the minutes of the meeting of 24 June 2015, believing them to be flawed. Representatives suggested that the continuation of the present meeting was procedurally flawed, because of the incorrect reflection of the resolution of the previous meeting. Those objections were noted.
The Chairperson of the Subcommittee on the Review of the National Assembly Rules presented, verbatim, the submission by the Subcommittee on the Review of the Rules, as at 28 July, dealing with interim arrangements covering disruptions during proceedings of the House.
The EFF objected to the entire proposal on several bases. Firstly, it held that the forcible removal of Members for a verbal refusal to leave the Chamber was not warranted and would detract from their freedom of speech as protected by the Constitution. If such removal were to be effected it could not be automatic, but some other form of due process must first taking place, giving that Member a right to be heard, an essential aspect of the Rule of Law. The EFF questioned the propriety of having a subjective decision of a presiding officer lead to the removal of rights without any form of due process providing other recourse for Members, particularly due to the potential and actual experience of bias on the part of the presiding officers. The EFF posited that the reason for this section of the rules being isolated, and the reason for it being "rushed through without any balance being struck between the authority of the Speaker and protection for Members" was due to an overriding desire on the part of the ANC to protect President Jacob Zuma, It warned that these provisions would be taken to be tested in a court of law.
Members of other opposition parties generally accepted that there was a need for rules aimed at bringing order to the present circumstances of Parliament. However, they raised concerns about the appropriateness of paragraph 3 of the definition in the proposal. This proposal was intended to bring in interim provisions while the parliamentary protection services - a concept agreed upon by all Members - were formed and capacitated. There was substantial discussion over the application of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, and the role that security services played there, but it was generally agreed that allowing any member of the security services, seconded or not under the South African Police Service Act, to enter the Chamber and remove Members from the House under the instruction of the Speaker of the National Assembly ran afoul of several legal requirements - including the stipulation in section 199 of the Constitution that members of the security services were not to interfere with the interests of any political interest that was legitimate in terms of the Constitution, and the fact that they would be controlled by and report to the Cabinet Member responsible for policing and the National Commissioner, so that the Speaker would have no authority to command them. The point was also raised that it was not up to the Speaker to require that any member of the security services should not be armed in the Chamber. The DA proposed an alternative compromise arrangement, whereby any use of seconded personnel would be for a limited period only, pending the training of permanent parliamentary protection services, and suggested that these should be drawn from private security services.
Subsequent to a break for caucusing, the ANC made an amended proposal. This would remove the interim measure of secondment under paragraph 3 of the definition. It also proposed that paragraphs 5 and 6 of the Standard Operating Procedure should be elevated into the Rules. These dealt with the intervention of security services in the event of violence ensuing in the Chamber. The proposal sought to include the words “or a possibility of violence, or a serious disruption of proceedings ensuing in the Chamber”, but it was also suggested that this be clarified still further by using "a reasonable prospect of violence".
Members generally accepted the proposed amendments as resolving the problems of secondment. However, the DA proposed inserting the words “excluding members of the security services” into paragraph 2 of the definition, to reinforce the distinction between security services and parliamentary protection services. After some discussion as to whether this would negate what followed, it was agreed that the intention to distinguish the two elements of security in Parliament was valid.
The revised proposal was accepted by the majority of Members present, and it was noted that the wording would be checked and "cleaned" and the proposal circulated for confirmation to all Members, in order that it be submitted to the House on Thursday 30 July. The EFF's objections to the whole basis for the Rule and the wording were noted.
Preliminary matters: approval of agenda
After noting the apologies of those Members unable to be present, the Chairperson asked that the agenda be adopted.
Mr F Shivambu (EFF) objected to item 5 of the agenda. He believed that, following the agreement at the last meeting of the Committee, this meeting should be considering Chapters 1 to 15 of the Rules of the National Assembly (the Rules). He noted that it was agreed that no part of the Rules should be looked at in isolation and they should be approved in their entirety. For this reason, he considered if inappropriate for this meeting to be looking to one part of the Rules only.
Mr R Mdakane (ANC) said his understanding was that Mr Shivambu had raised the objection in the previous meeting, but that this meeting had not taken the decision just described. Following the proposal from the Subcommittee on the Review of the Rules (the Subcommittee) the Rules Committee had mandated the Subcommittee to refine the proposals relating to disruption of matters in the House, in anticipation of a final proposal being made at the present meeting. This was not a decision of the Rules Committee, but a suggestion to refine the proposal, and that was broadly accepted by all parties except the EFF. This had now been been done and the Subcommittee is going to present the final proposal on the matter.
Mr N Singh (IFP) said the agenda of the present meeting should be guided by the minutes of the last meeting. The minutes of 24 June 2015 clearly captured the sentiments of Members who were present. Mr Shivambu had said “it is opportunistic to deal with only one proposed rule amendment at this time...". While the minutes were yet to be confirmed, he agreed with the recommendation right at the end that “the draft rules and standard operating procedures as presented by the Subcommittee on the Review of Assembly Rules be affirmed by the Committee, but referred back to the Subcommittee to address technical issues and (to) submit a final report to the Rules Committee." If the minutes were approved, this agenda item merely followed on from that.
Mr N Ndlozi (EFF) said the spirit in which Members must engage in this meeting was different to the approach suggested by Mr Singh. It was correct that the Rules Committee had not yet considered the minutes and this meant that there would be disagreement about how the previous meeting concluded. The decision not to isolate certain aspects of the Rules was not a new decision, and he believed that this matched the sentiment in the Subcommittee. He believed that the Subcommittee ought to go back to the Rules Committee with a complete set of Rules, because the rules were inter-related. Due to this interplay between the rules a comprehensive discussion would be fruitful and discussing some in isolation would not assist the conversation. He would put it to the Chairperson that she had said, at the previous meeting, that the matter “must come back with the rest”. He proposed referring to Hansard, where the Chairperson would see that she was recorded as saying that she agrees with the EFF. Even before the last meeting of the Rules Committee the spirit had been that all chapters of the Rules should be discussed after the amendment had been done in its entirety. He was not saying that the item should be removed, but rather that the entire document could be considered, as it was complete. He questioned why selected parts only were being presented? He proposed going through the entire document.
Mr M Booi (ANC) said he wanted to reflect on the Subcommittee process. The Subcommittee received mandates from the Rules Committee to consider certain matters, and this was what had been done. From the day the mandate for the present matter was received, it had been clear that this matter must be dealt with. At no stage was a different mandate received by the Subcommittee. This was reflected on the present agenda, and the Subcommittee would be standing by that.
Mr N Khubisa (NFP) asked whether it would not be problematic for the Committee if it embarked on the discussion without first considering the minutes. He asked whether the minutes were to be taken as presented. He suggested that the argument could ensue from there.
The Chairperson replied that this would mean abandoning the adoption of the agenda, and she was trying to have this done at this stage.
Ms H Maxon (EFF) said the minutes themselves were problematic, because they did not capture what the Chairperson had said. Further, she was aware that in a radio debate between Mr Mdakane and Mr Ndlozi, Mr Mdakane had confirmed the Chairperson’s sentiment.
The Chairperson said she knew that Mr Shivambu had raised the issue of the desirability of the Committee dealing with the entire Rules, and agreed that this was desirable. However, the purpose of the Rules was to also enable Parliament to do its work. If a particular issue arises it could not be said that this issue should not be addressed, because of the long process behind the comprehensive review of the Rules. The current situation had arisen, and needed to be addressed, so that the work of Parliament could proceed. She agreed that the process of the comprehensive review of the Rules needed still to be pursued and it would continue. However, that process should not obstruct dealing with a current issue that had arisen, which was what agenda item 5 was about.
Mr Shivambu said there could be disagreements about decisions taken in meetings, but these must not be distorted by incorrect minutes, for this would weaken Members' faith in the administration of Parliament. He asked for the Chairperson to consider the recording of the summary given in the last meeting. If the Committee wanted to change that decision, it could do so. He pointed out that immediately after the last Subcommittee meeting, the EFF wrote a letter to the Speaker of the National Assembly (NA) requesting access to the audio/visual recording of the last Rules Committee meeting, or access to a transcript of Hansard, to determine the resolution that was taken. He maintained that there was never a decision that the comprehensive review would continue, but meantime a specific aspect should be dealt with at the present meeting. If that was the decision to be taken, then it could still be taken, but the Chairperson should not abuse Members by saying that it was taken in the last meeting, as it was not. He again suggested referring to Hansard to check what the Chairperson said at the conclusion of the last meeting. The EFF had made a recommendation that the process should not be "taken in bits and pieces" and the Chairperson had entirely agreed. The EFF then even stated that it agreed with the summary of the Chairperson. He reiterated that there was never any resolution which said that the disruptions in Parliament should be dealt with in the next meeting. For the Committee to operate on that basis would be totally wrong. If it was said that his point was wrong, then he would like concrete evidence demonstrating this.
The Chairperson said she strongly refuted what was being said by Mr Shivambu, because the Rules Committee meeting on 24 June was called specifically because of the need to deal with the conduct that had arisen in the House shortly beforehand. That was what was dealt with, and Mr Shivambu had raised the matter of the dealing with the comprehensive review. However, it was never said that the current issue contained in the agenda item was being "dropped" to deal with the entire Rules.
Ms M Boroto (ANC) said the minutes of 24 July 2105 were headed "Special meeting", which meant there was a specific item which was to be dealt with. The notice for the present meeting also read that it was a "Special meeting". It was not denied that there would be a time for the Rules Committee to deal with Chapters 1 to 15 of the Rules. However, there was currently a specific matter which needed to be spoken to. She proposed moving on this point and continuing with the agenda.
The Chairperson said she wanted to put the agenda to the Committee for a decision.
Mr Ndlozi responded to Ms Boroto that the EFF was not denying that there was a special meeting called to deal with a specific item. The sequence of events was as follows:
- the Speaker of the National Assembly decided that there was an urgent matter which the Rules Committee must consider
- The Committee convened on the basis of that decision, to deliberate a particular matter and discussed one item
- In the course of that discussion the Committee came to the sound conclusion that the matter should not be considered in isolation. Therefore, there was agreement up to that point.
- That decision was not arrived at based on presumptions, but rather it was realised that there were other considerations, and reference must be made to other sections of the Rules
He put it to the Chairperson that if that resolution was to be the basis on which the meeting should now proceed, then the Committee must make reference to Hansard. It was now stated that the last meeting resolved that it should not deal with the matter as part of the comprehensive review of the Rules. The decision could be changed and the Committee could vote on it. However, Members must not mislead one another that it was indeed decided that the matter be dealt with in isolation.
Mr Mdakane said that before a decision was taken on that aspect, he wanted to record that in the Subcommittee the process had been agreed upon. It was true that the review of the entire Rules had been completed, and it was agreed that during July and August political parties would be allowed to workshop the document, with a view to presenting the final draft back to the Rules Committee by September, so that hopefully, before the end of the term, the entire revised Rules could be adopted by the House.
After the Subcommittee presented the last proposal, which was an interim intervention by the leadership, the Committee considered and commented on the report. The majority of the Committee then agreed - with the exception of the EFF - that it supported the intended purpose of the rules and agreed also that the Subcommittee should re-discuss, deal with the technicalities, and bring back a final proposal. A meeting of the Subcommittee was called (which required an application to Parliament, because there was a sitting of the House) and the Subcommittee did discuss the proposal. He understood that the present meeting was convened so that the Subcommittee could make its final proposal for consideration. He took the point raised by the EFF, but stressed that there was a different between raising a point, and taking a final decision. That had been captured in the remarks by the Chairperson.
The Chairperson said she would then take the agenda item as accepted, noting the objection of the EFF.
Mr Shivambu said the EFF had made a request that Hansard be accessed to confirm what the summary of the Chairperson had been, so that Members could be on the same page. The process being embarked on now was “grossly unfair” and was not consistent with the basic principle of respecting decisions taken in meetings. If the decision was to be changed, then it must be done. However, he did not want to be steam-rollered into accepting something which had not been agreed upon. He reiterated that at the last meeting, the Chairperson had given a summary, and the EFF had come back with its interpretation of the summary, which was accepted. He pointed out that in Parliament, there was capacity for every word said in Parliament to be captured. If his objection was wrong, he would accept that and the process could move forward. However, he was firm that the meeting should not proceed on an incorrect basis. The Committee should not use any other means to move forward, besides an open and satisfactory process which would be acceptable to all.
The Chairperson said she had checked with the Secretary of Parliament about the state of readiness of the Hansard record. It apparently still had to be transcribed from voice to text. This would be pursued, as suggested by Mr Shivambu, but that did not mean that the meeting could not proceed.
Minutes of 24 July 2015: Request for adoption
The Chairperson asked if Members had any comments, corrections or amendments to the minutes, taken as a whole.
Mr Ndlozi said he was sure that the Members could predict his disagreement with the minutes. He said that it was not true that the Committee arrived at the conclusion set out in the last paragraph of page 6. He said the resolution of that meeting was that the Subcommittee should come back to the Rules Committee, with the comprehensive review of the Rules. He would like to propose that amendment to be made
The Chairperson noted that it was in keeping with Mr Ndlozi’s earlier input, which was still a matter of disagreement.
Ms Maxon said she objected to the minutes also. She suggested that the Chairperson should also be objecting, because her sentiments from the last meeting were not captured correctly.
The Chairperson asked if there were any other proposed amendments or comments on the minutes.
Mr Shivambu directed Members' attention to page 5. He proposed an insertion, after the remarks made by Mr Khubisa, that reflected the Chairperson's remarks that there must not be an isolated approach to the Rules, but rather that there must be a comprehensive review of the Rules. Even after the Chairperson had spoken, Mr Shivambu himself had said that he agreed with the Chairperson on how the Committee should proceed on this question. He stated that what was currently in the minutes was a gross misrepresentation of what was agreed in the last meeting, and the minutes were not a true reflection.
The Chairperson said that it would be noted how Mr Shivambu recalled the meeting. However, she commented that "it seems to be just your skilled memory that we are hearing”.
Mr Ndlozi said he would put it to the Chairperson that if a different procedure had been followed, that would be all that the Committee would have to decide, rather than what was happening now, with “questioning our integrity as far as skills are concerned”. It would not be wrong for the Committee to have decided that the approach would be isolated. He felt, however, that serious attention must be paid to the fact that there was a resolution in the meeting, and it should not have to be voted on, as there were options like Hansard to be considered. The Chairperson today was voting against herself. He had already stated that this was not what she had said in the last meeting. The procedural flaws of the present meeting must be acknowledged.
The Chairperson said she was not disagreeing. The Committee was working to obtain the Hansard record.
She then asked if there were any matters arising from the minutes, aside from item 5 on the agenda.
Mr B Mashile (ANC) moved for the adoption, and Mr Booi seconded. The different interpretation of the minutes was noted by the Chairperson.
Mr Shivambu said the profound objection of the EFF must be noted to the “misrepresenting and cooked minutes”.
The Chairperson said this objection was noted.
Consideration of the proposed rule amendments to address disruptions in the National Assembly
Mr Mdakane said he would make the presentation on behalf of the Subcommittee. He said he would not read the background information in respect of rules 51, 52 and 54, because the Subcommittee was not tasked to deal with this, as it was accepted in the previous meeting.
Mr Singh requested that Mr Mdakane should read the document, because the records had been questioned, and there was sufficient time to allow for a verbatim reading of what was noted.
At the request of the Chairperson, Mr Mdakane then read the document entitled "Submission by the Subcommittee on the Review of the Rules, as at 28 July: Interim Arrangements Covering Disruptions during Proceedings of the House" verbatim. (See attached document)
Ms N Mazzone (DA) said the subcommittee had had substantial discussions earlier that morning trying to finalise the issues. The one issue where members of the Subcommittee did not reach agreement was under paragraph 3 of the definition rules. This referred to: “an interim arrangement that any member of the Security Services falling under Chapter 11 of the Constitution, assigned or seconded to perform any specific security and protection function within the precinct of Parliament, including removal of a Member in terms of rule 53A, acting under the authority of the Presiding Officers of Parliament”. This basically meant that in the interim police would be allowed to enter the Chamber.
It was argued that these police would not be armed. However, it was also noted that Parliament does not have the authority to disarm the security services. For this reason, it was necessary to try to find an alternative. This had been debated for months, in good faith, and it was agreed in the Subcommittee that Members never wanted to see a situation where the police (security services) entered the sacrosanct Chamber of Parliament. This was why there had been so much focus on what parliamentary protection services would be, as opposed to the security services. The DA would like to propose that, for this interim period, Parliament should employ a private security service, which would perform the function (to be later assumed by the protection service), pending the training of the permanent parliamentary protection services.
Mr Khubisa said wanted to get the definition of "security services". His view was that the South African Police Service (SAPS) should not be allowed to enter the Chamber.
Mr Singh said the Committee must be careful not to define matters based on Members perception of present circumstances. In the paragraph referred to by Ms Mazzone, there was an attempt to find a definition for "protection services" because of the situation in which Parliament had found itself in in the past few months, with the business of the House being disrupted. He thought this was a very short term way of thinking. Parliamentary protection services needed to be just that, and not security services. There must be a clear distinction between these two. He recalled one meeting of the Subcommittee, where former EFF Member Mr G Gardee had asked why police should be used when there were enough security people in South Africa (he had used the word “bouncers”) who could be used as parliamentary protection services. He would be loath to support the definition with an interim arrangement, and with trying to redefine security services as parliamentary protection services. Should there be a need for security services, he suggested that the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (Powers and Privileges Act) provides the opportunity to the Speaker to call them. This should not be confused with drawing a definition. Members must be careful how they proceed.
Ms J Kilian (ANC) said Ms Mazzone was correct and the Subcommittee had been trying to grapple with this matter in a very responsible manner. The present rules set out a procedure where a Member would be ordered to leave, but refused to do so. In the past there was no detailed description and it was felt that there should be an agreement on the process, although obviously everything done must be done in terms of the Rules. She agreed with Mr Singh; the existing Powers and Privileges Act described disturbances in Parliament and the role of the presiding officers in calling in additional help. Mr Singh had said that the Rules should not be guided by the current situation, but unfortunately the current situation had to be dealt with. The current situation was in fact causing a transgression of section 7 of the Powers and Privileges Act, and amounted to improper interference by Members and refusing to comply with the order of a duly designated member of staff, presence of persons in a particular meeting and so forth. Some of the issues were outlawed in the Powers and Privileges Act. The meeting earlier this morning did understand the sensitivities about calling police into the Chamber. It had been agreed that police should be on the precincts of Parliament, but the question was what should happen in the event that there was a very serious disturbance. The ANC had considered bringing in paragraph 6 of the Standard Operating Procedure, which dealt with the process in the event of violence ensuing in the Chamber. This would be placed after subrule 9. The revised rule could then read: “in the event of violence or a possibility of violence or of a serious disruption of proceedings ensuing in the Chamber as a result of a Member or Members resisting removal, the presiding officer may suspend proceedings, and members of the security services may be called upon to assist in the removal in terms of section 4(1) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act No 4 of 2001, or may intervene directly anywhere on the precincts where there is an immediate danger to the life or safety of any person or damage to any property”.
The Chairperson said she wanted to understand the proposal fully and asked if it was now being proposed that paragraph 6 of the Standard Operating Procedure be relocated to an earlier point in the document.
Ms Kilian agreed that this was being proposed, so that this paragraph would be "pulled up" from the Standard Operating Procedures into the Rules. There was also an understanding that whenever this was to happen, there would be a report to a multi-party Committee. This would also be in the Rules.
Mr Shivambu said the Subcommittee Report was written "as at 28 July 2015" - today's date. At the meeting of the Subcommittee the EFF had made inputs objecting to the majority of the provisions. He did not understand why the Subcommittee was now presenting the issues, on behalf of the full Subcommittee, but without making the objections of the EFF known. He felt it "very opportunistic” for this to be done. This was a process of Parliament and it must be respected that once there was an objection, it must be recorded. He said that this was how Parliament should run, notwithstanding how strongly anybody felt in terms of the decisions. When there was an objection, it must be taken and noted. Secondly, the EFF had made substantial submissions on how Parliament should deal with the issue of Members refusing a request to leave the Chamber. In the period between Mr Shivambu being present in the Subcommittee, and when he was not, some concrete submissions were made. A specific example was that when a Member of Parliament was requested to leave and refused, this would lead to a later process which could result in that Member being barred from entering Parliament. This was one of the matters that the EFF had suggested.
Mr Shivambu stated that Rule 54 of the present rule was not constitutional, because arbitrary or knee jerk sanctions were not consistent with how the rule of law functioned in South Africa. No one, not even a judge, could simply hand out a suspension without due process having been followed. There was no court which could support an arbitrary or knee jerk reaction such as contained in the proposed Rule 54, and it cannot therefore be the basis for how the National Assembly could deal with so-called "disruptions". Further, physical removal should not be prescribed as a solution for Members having said things in Parliament. If there was gross misconduct which threatened the physical security of other Members or the infrastructure, then anyone could be called to assist, even police or soldiers. If there was a threat to life, then any measures can be taken. However, physical aggression could not be used to deal with things that Members of Parliament had said. He believed that it would be consistent with South Africa’s democratic and constitutional dispensation to reject this proposal. He did not think this Committee should take the recommendation of the Subcommittee that Members could be physically confronted for things they had said or for refusing to obey what they believed to be illegal instructions from presiding officers. It was not automatic that a presiding officer would be correct on everything being dealt with. A presiding officer could make reckless statements “like the Deputy Speaker did the other time”. Ridiculous instructions could be made and on this basis, a Member could be told to leave or suspended for five to twenty days. In his view, allowing this would mean that this was no longer a Parliament which was upholding the rule of law, but made it similar to a kangaroo court or a personal visit to a private house, when Members could be told that if they did not agree, they must leave, and if not, security would be called. Parliament was not private property. It was a public institution established under the Constitution and it must be respected as such.
He suggested that in this Rules Committee Members must rise above petty issues and reject, with contempt, the Subcommittee’s recommendations. It seemed that the process was being rushed and steamrollered, “because of the want to protect Jacob Zuma, and it can never be correct...that we set aside everything else in protection of one individual… He cannot be held accountable, so we must have physical security to intimidate those who want to hold him accountable”. He continued that Mr Zuma would be held accountable when he came to Parliament, because there must be a proper response and indication of "when he was going to pay the money which the Public Protector has said he must pay".
If Members were now seeking to protect the President, then he thought Members “were barking up the wrong tree”, because this was at the core of the democracy. He strongly noted that if Members were to "let the executive and a President do as they wish, we are not going to go anywhere as a country, we will be a banana republic, like the failed states which have characterised many parts of the world. Parliament cannot be allowed to be a lapdog or rubber stamp of the executive, which cannot do anything where the Members of the ruling party gang up to suppress any forms of dissent. Such will not maintain this democracy and must be rejected with contempt".
Mr D Steenhuisen (ANC) said he would try to be as thorough as possible, because he was concerned about some distortion of what was said. The starting point had to be the Constriction, because this breathed life into Parliament. Section 57(1) was particularly important and it read: “(a) the National Assembly may determine and control its internal arrangements, proceedings and procedures; and (b) make rules and orders concerning its business with due regard to representative, participatory democracy, accountability, transparency and public involvement”. The power to do this, and Parliament’s special role to play in the constitutional democracy, was confirmed by the courts, who had repeatedly stated that Parliament has an important and special role to play in our constitutional democracy. He quoted from the case of Doctors for Life International v Speaker that Parliament "is the principle organ of state; with due regard to that role it must be free to carry out its functions without interference. To this extent it has the powers to determine its internal arrangements, proceedings and procedures”.
In the National Assembly this determination was done by the Rules Committee, which was empowered, in terms of Rule 161, to develop rules for any contingencies which may arise. These Rules and their specific role in what was done in Parliament, and the parameters they set, were set out in the Guide to Procedure, page 85, which read: “The standing rules of the Assembly, together with the Joint Rules of Parliament (are) designed to ensure that parliamentary business is conducted in the Assembly effectively, in an orderly, fair, open and predictable way. The Rules should reflect the requirement that all parties in the country respect the will of the majority, while the majority in its turn respects the validity and legitimacy of the smaller groups in Parliament and their concerns”. He added that the Rules Committee was also vested with the power to amend the Rules from time to time.
No two parliaments were the same. The Second Parliament was very different to the Fourth Parliament, and therefore it was impossible for the Rules to predict and make provision for every circumstance which may arise. This was why the Rules Committee was empowered to make ad hoc and draft rules, to be passed by the National Assembly, precisely because the Rules can never be set in stone and must be able to be altered to suit the conditions in which a Parliament might find itself. In the Fifth Parliament, Members were finding themselves in a unique position, which had not happened in any of the other post-1994 Parliaments. It would be fair to the EFF to say that this party should not bear the brunt of the blame alone, as there had been "some shocking behaviour on all sides of the House", including his own party. This was why there were Rules, because they must apply to everyone equally. By passing the Rules, Members agreed to be bound by them and they would regulate Members' behaviour.
He felt that section 58(1) of the Constitution was very specific about freedom of speech in the House and that freedom of speech is essential for all Members to do their jobs. However, these rights could not be absolute, and one Member's freedom of speech could not trample on other Members' ability to also express themselves in the House, so that one Member could not be allowed to drown out another's voice. If that was ever the intention, then there would not be Rules in Parliament and it would simply be that the party shouting the loudest would win at the end of the day. Parliament was meant to be an arena for vigorous debate and expression. Therefore, there had to be a way to deal with the disruptions of certain parties or individuals where this was going to infringe on the freedom of speech and other Members' ability to do the work the electorate of South Africa sent them in to do.
Turning to the proposal before the Committee, Mr Steenhuisen agreed wholeheartedly with the creation of a parliamentary protection service, but he had serious reservations when he noted mention of matters like secondment, or delegation from the security services. This would lead to Parliament running into a serious constitutional problem. Quoting from section 199 (5), in chapter 11 of the Constitution he pointed out that “the security services must act and teach their members to act in accordance with the Constitution”. The security service was defined in Chapter 11 as the single police force and single armed force. Section (7) was the most instructive for the present meeting and read: “neither the security services, nor any of their members may, in the performance of their functions, (a) prejudice a political party interest which is legitimate in terms of the Constitution...”Any party which was represented in the National Assembly had "a political party interest which is legitimate in terms of the Constitution". Subsection (b) said that the security services or their members must not “further, in a partisan manner, the interests of any political party”. Essentially he was worried that by seconding members of the security services this would expose them to a risk of running into constitutional problems. He also had a problem with the deployment of the security services, as defined in chapter 11, in terms of the separation of powers. The Speaker is the head of Parliament and it is that person's job to run the precinct. The SAPS service, in terms of section 206, reported to a Cabinet Member. It was the job of Parliament to hold Cabinet Members accountable. The issue of control of the security services, including the issue of secondment, was also important. He did not believe it was legal or possible to second the SAPS to Parliament, in terms of the Constitution or of the SAPS Act. Section 207 stated that the national commissioner "must" (not "may") exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet Member responsible for policing. He did not believe that the power to control the police service could be delegated to the Speaker or anyone else on the Parliamentary precinct, in terms of accountability and responsibility. He did not believe that the Speaker was able to issue an instruction to any member of the police service. He would suggest that another way must be found of dealing with the matter. Ms Mazzone has made one suggestion. He stressed that under no circumstances should a member of a service that was not supposed to interfere with people politically, come into a political arena with the aim of removing people who were part of a political party that was legitimate under the Constitution. Such actions should be done by a body of hired personnel which was controlled by the Speaker and accountable through the Speaker to a multi-party body, as suggested. This would ensure that all Members could feel that the protection service treated them fairly, through independence from the National Police Commissioner, and that the protection service was regarded as legitimate by Members, so that when they were called upon to act, they would do so with the support of all Members in Parliament. If there was even a hint of partisan behaviour, it would completely defeat the object.
Mr Steenhuisen disagreed with Ms Kilian’s point, because a full bench of the Western Cape High Court had pronounced that section 11 of the Powers and Privileges Act does not apply to Members of Parliament. Section 11 read: “a person who creates or takes part in any disturbance on the precincts while Parliament is meeting may be arrested and removed from the precincts on the order of the Speaker or the Chairperson”. This did not apply to Members, and so the SAPS was not empowered to enter the Chamber to remove Members. He heard what was being said about section 7 of the Powers and Privileges Act, but said that never again should it happen that members of the police service came into the Chamber and removing Members from expressing themselves in the National Assembly. He would also urge that "simply using the white shirts in drag” would also not help the situation, and in fact he thought it would enflame the situation in Parliament, because the people that were employed had to maintain a non-partisan mentality as well. With the postings of certain persons, such as Mr Prins, on Facebook, who had taken a very partisan line against certain Members of Parliament, Mr Prins could never again be seen as a legitimate officer bearer in the parliamentary protection services, and every time he acted there would be an element of doubt as to his real motive, which would defeat the entire purpose. He suggested that the parliamentary protection services should be created, but that this process must not be rushed. The members of the service should be trained properly and acclimatised to the environment in Parliament. In the interim, Parliament must look into getting a private security service to assist presiding officers where people openly defied their orders or inhibited the ability of other Members of Parliament to perform the function they were all here to perform.
Mr Booi said throughout the process of trying to resolve this matter Members should not interpret the Constitution incorrectly. There had been recognition of the challenges but matters which had come out in the newspapers or on websites should not cloud the issue at hand. It had been clearly expressed that all different Members of Parliament would seek a solution that would enable them to protect their freedom of expression. Within the system it was clear that all Members had different manifestos, which had led to those Members being in Parliament to perform the work, as mandated by their own voters. In that context the Subcommittee had been trying to find a solution to deal with the environment with which Parliament had been confronted. It seemed that all Members agreed that there should be a protection service. It was agreed that the protection service would not be like the police, would not be armed or go onto the sacrosanct Chamber unless a Member misbehaved subsequent to that Member being made aware of the order to leave the House by the Serjeant-at-Arms. Today, the Subcommittee was trying to present to the Rules Committee an approach to the protection services which did not run contrary to the Rules or the Constitution’s definition of what the security services are.
In the Subcommittee, it had been noted that after a Member had been approached by the Serjeant-at-Arms, s/he would be approached by the protection services. The police would only be active outside the Chamber and in the public gallery. There was generally agreement that no Member should be approached by a member of the security services as defined in the Constitution, but that the protection service would be relied upon to take action, after having been commanded to do so by the Speaker. Clearly there was a lacuna regarding the security services, but the question was whether they should simply be dismissed, given that Parliament is a national key point and they have certain responsibilities for that. The Chairperson of the Subcommittee said there was an element of fear and that was why nobody should be allowed to enter the sacrosanct Chamber of Parliament carrying a firearm. The Subcommittee still said a definition should be found as to what was most suitable for the protection services, which would give Members a common understanding of what sort of instruction was being given to deal with the particular matter. During an incident where chairs were broken or if Members were "beating up" the protection services, then at that point the police would have to be called. There was furthermore agreement that within 24 hours of the incident, the multi-party mechanism must meet to reflect on the environment, and must assist with that process, to avoid sanctions being imposed automatically, but to ensure that there will be an engagement. These mechanisms had been developed in the spirit of trying to reach a common ground and a solution that would be best for Parliament.
As had been said, Members never predicted that such an environment would arise, but clearly Members and their conduct were now different in the Fifth Parliament. It could have never been predicted that Members' rights would be interfered with by other Members. That problem had to be solved, through the definition, whilst trying to maintain the constitutionality of the rule, and the solution must remain within the bounds of the Constitution. For that reason, other parties did not agree with suggestions of bringing in private security services. He said it would not be in Members' interests to draft a rule which was unconstitutional. The ANC had tried to be open minded and to put forward what it saw as the best solution to the problem confronting Parliament. The ANC encouraged Members to reconsider and, if they had alternative solutions, to bring them forward see if they could resolve matters.
Mr Ndlozi said it must be put on record that the EFF has managed to disable Parliament from carrying on with business as usual, with a President against whom there was prima facie evidence of stealing public funds. He said that because the EFF Members "could not be found guilty in terms of the Rules", other Members were now engaged on "inventing rules which allow corporal punishment in pursuit of allowing the sleeping dogs to lie - namely, trying to have Members continue in a normal relationship, with an abnormal President". He had asked earlier under what conditions and through what process the freedom of speech of a Member of Parliament could be suspended, along with the rights of the voters to be represented by that person. He had also posed a query what would happen if the Speaker was wrong in ordering the removal of a Member, and where was there any recourse in the proposed amendment to the Rules. He questioned the rationale of passing a rule which only protected the authority of presiding officers, without giving Members any recourse - which he believed was the first fundamental flaw - and said it seemed that this was done to allow Parliament to "go on business as usual in an abnormal situation”. He said that there was prima facie evidence, in the Marikana Report, that the Deputy President influenced police, but he was still the Deputy President, because there must be due process followed. He also noted that there were 700 charges of corruption against President Zuma, because there is due process.
The Chairperson asked for Mr Ndlozi to return to the issue at hand.
Mr Ndlozi said he was speaking to the issue, by demonstrating that even though the Nkandla Report by the Public Protector had come to the conclusion that the President unduly benefited, he was still in position as President, because due process must be observed. There was thus a problem if Members were to be punished purely on the opinion of the Speaker, having decided that the Member must be physically removed.
He said that the DA had previously proposed a substantial motion where it was argued that the problem of this Parliament would be the independence of the Speaker. The DA argued that there would be bias and it did not matter what rules were passed, for they would be applied with bias and there was no recourse, given the powers of the Speaker in the Constitution and the Rules. He felt that this situation arose because the ruling party was "in a rush...desperate to tell South Africa that things can go on as usual in this Parliament, when a President has been told he unduly benefited and he does not even dismiss it". These two fundamental objections had not been answered with logic; the ruling party was failing to arrive at a balanced position and he predicted that "a court is going to embarrass you again”. It would tell Parliament that it could not engage in this, because no time was taken to do any balancing. There was no protection for Members at all, because “you are obsessed with the authority of the Speaker...you want to remove the EFF from Parliament, so that it can go back to the sleep it was in for the past 20 years, where a President mocks our questions, mocks our accents, mocks the Public Protector’s recommendations, and business goes on as usual”.
He maintained that this was the nub of what this proposal was about, and why it was being considered in isolation from the other fifteen chapters of the Rules. The reason was "because President Zuma must be protected and he must be protected at all costs”. Mr Nlodzi also commented that it had been said that there would be a multi-party Committee, but he questioned what its powers and composition would be. Chapter 12, rule 121 of the Standing Rules set out the list of Committees, which did not include the multi-party Committee. Again, he suggested that this process was being rushed, even to the point where a Committee was being “invented out of the blue”. The ANC must be told in clear language that it was "up to no good" and it was not in the interest of the Rules or order in Parliament, but rather that it was in the interest of maintaining business as usual where a President mocked the fact that he unduly benefited from Nkandla. If Members stood and demanded an apology, they would be subjected to corporal punishment. In conclusion, what the Speaker would be doing, because the EFF was sure to be counted out, would be “turning this Parliament into an apartheid school, where she is the apartheid principal, with a cane in her office and Members may even be called in turn to receive lashes." He called for a guarantee that the EFF would not play to any unjust orders. Speaking for anyone who disobeyed unjust orders in the past, he urged them to be proud and stand tall to oppose injustice, because injustice was not legitimised by authority. He maintained that this was an attempt to reduce Members, and this must be said up front in clear terms, that "this is a farce."
Mr Mdakane said he wanted to make some proposals personally, not on behalf of the Members of the Subcommittee. It has been accepted that Mr Shivambu rejected the proposal. He however noted an appeal that all Members of Parliament, including the President, must be accorded appropriate respect. Even if Members felt very strongly, it could not be right that the President could be called names. That point had been made earlier in the morning, and he wanted to make it again, that it was unfair and inappropriate for any Member of Parliament to simply ignore the respect which was supposed to be accorded mutually. He had no problem with Members voicing criticisms, but this should be done with respect, because insults and innuendos did not assist, and with four years still to run in this Parliament, such a display of disrespect now may cause problems in future. He urged that any differences should be voiced showing respect. No other Members had been insulting.
He stressed that Members had accepted all the subrules, except for the issue of secondment. He proposed that perhaps secondment should be limited to a timeframe of six months, so that within those six months Parliament must try to recruit the parliamentary protection service, who would then take over, just to try to "balance the bridge in the interim".
All Members of the Subcommittee agreed that Parliament, as the tribunal of the people, should not allow into the precincts any other body other than one which was properly equipped to deal with Parliament. As a compromise,he repeated that the interim arrangements might be allowed for six months. If these rules were to be accepted by the House, there would not, at that stage, be a ready-made parliamentary protection service. The service would need to be trained, and the proposal would allow time for this process. After that, the issues raised could be resolved.
The multi-party Committee would also need to be designed following acceptance of the proposal by the Rules Committee. Mr Ndlozi’s point could not hold, because a Committee could not be set up until it had been accepted by Parliament. Once the principle was accepted, the modalities of the multi-party Committee could be worked out.
In summary, Mr Mdakane said he was appealing for two things: general respect and for the interim arrangement to be accepted for six months.
He wanted to emphasise that although the EFF rejected the Subcommittee’s proposal, what was being presented reflected the sentiments of the majority of Members in the Subcommittee.
The Chairperson said that before putting the proposal of Mr Mdakane formally to the meeting, she would allow other Members an opportunity to make input.
Ms Kilian said she was not referring to section 11 of the Powers and Privileges Act, which was before the court. She was referring to section 7, which regulated Members exercising their privileges. She supported Mr Mdakane's proposals. It was important that the country was still trying to build as a new democracy which meant that all the constitutional principles were respected. However, it may be necessary to instruct Parliament to conduct some research into what was happening in other democracies, and observe the nature of the protection services in other parliaments. Lastly, she pointed out that the SAPS Act 68 of 1995, which had been amended several times, including in 2012, provided, amongst others, for secondment. Section 39 (3) of that Act made it clear that if a SAPS member was seconded, that member must act in accordance with the laws applicable to the department of state or authority to which he or she was seconded. This could also be further investigated. In many other jurisdictions there was a command structure and remuneration falling under a particular department, although the exercise of functions for those seconded would fall under the authority of the institution to which they had been assigned. Parliament should look at the SAPS Act, and some guidance could possibly be taken from the way in which metro police performed some functions in municipal councils.
Ms Maxon said she was not sure if Mr Mdakane was suggesting that Members must accept people who were very corrupt; she believed it necessary to be "brutal in dealing with corruption".Africa was bleeding because of people who were corrupt and she could not tolerate that. She was not sure why the present discussion was being held, for she recalled that the Speaker, during a press conference in Pretoria, had said that Members of Parliament were "afraid of the EFF" and therefore "rules would be passed to protect Members". She wondered why this process was being conducted after such a press briefing; she was unsure whether the Speaker might have influenced this process. She felt that the Subcommittee was exaggerating matters, and there was no situation which warranted security officers inside Parliament. It had been said previously that the only thing which needed to be corrected was the bias of the Speakers and Chairpersons. Once that as corrected, there would be no more problems in Parliament.
Ms Maxon said that the EFF had not threatened anyone, and would rise in terms of Rule 70 all the time. Any intention to prevent Members even from rising under that rule, but instead having them physically removed, would be unconstitutional. Three days before the State of the Nation Address (SONA) the police officers who were “called to beat up the EFF” were rehearsing inside Parliament and there were photographs of this. During the SONA, Ms N Mashabela (EFF) was beaten up, and her husband had a stroke when hearing of this, and had died. She said that this was "your own doing" in calling white shirted policemen to beat a female, with the aim to suppress. She appealed that the ANC should not take the country backwards, as the rule being proposed would do just that.
Mr Singh said he was sorry to hear about Ms Mashabela, but he wanted to take the emotion out of the debate, and simply talk about the facts. The fact was that this was a multi-party Rules Committee with the responsibility to recommend, to the House, how Parliament should regulate the way it functioned. Parliament was entitled to formulate its own Rules under the Constitution, as stated by Mr Steenhuisen. Having said this, the Committee, with the exception of the EFF, was in broad agreement that extraordinary circumstances required extraordinary measures, which the current Rules did not provide. For that reason, this Committee was looking to amend the Rules. However, in so doing, Members must differentiate between parliamentary protection services and security services.
He believed that Members, as politicians, had the responsibility to say what was necessary. Parliamentary protection services must be the first line of defence, as it were, on behalf of the Speaker. This was a political decision and then the administrators of Parliament must act on that decision to strengthen the parliamentary protection services, but not by using people who were attached to the security services. Using anyone attached to the police or the South African Defence Force would complicate matters. He did not think it was beyond the administration, on an urgent basis, to seek out personnel to strengthen the parliamentary protection services. This would not pre-empt anything, but Parliament should be prepared for that kind of situation. The politics should be separated from the administration. A political decision should be taken for the Committee to proceed in this manner.
He said that Mr Ndlozi makes a valid point on the question of suspension and the implications of who decided to suspend and other matters. However, he pointed out that the current Rules made provision for anyone who was suspended, in terms of Rule 55, to express regret, and the Speaker could decide to lift the suspension. Perhaps the Committee needed to consider rule 55, and to have a multi-party committee to work with the Speaker, to avoid a one person decision. He set out that, for example, there could be a transgression, leading to a suspension, but the Member could then express regret and the Speaker would call for a discussion by the multi-party committee constituted in terms of the Rules. This would eliminate the potential for allegations of bias. He summarised that he was trying to make two points - firstly, that the Secretary of Parliament must do his job in terms of a political decision to strengthen the parliamentary protection services, and by not allowing security services to be involved. Secondly, Parliament should reconsider rule 55.
Ms T Didiza (ANC) acknowledge the point made by Mr Steenhuisen that under the Constitution Parliament has the responsibility to develop its own rules and procedures, and this Committee was really now doing so. She thought that there was the likelihood of agreement on the way forward, although the EFF was objecting to everything. She thought that the proposal made by Ms Kilian was consistent with the concerns on alignment raised earlier by Mr Singh. She did appreciate that there may be a need to reconsider narrowing the definition, to ensure that the role of protection services was consistent and in line with what had been agreed earlier.
She added that another issue raised that may need to be looked into related to the sections of the Powers and Privileges Act referred to by Members.
It was unfortunate that she had not been in the Subcommittee and had not heard the proposals made by the EFF to ensure that issues around conduct of members and the actions of presiding officers could correlate, and said that it would be useful for this Committee to hear any proposals made.
In relation to suspension as contained in the current Rules, she suggested that the new draft should make it clear that any rules must be read together with Rule 55 for clarity.
Mr Khubisa said he believed that the administration of Parliament could work on the security issues, but he was still wary of having the security services brought in. He had experience of being at a legislature when the SAPS was on the precincts, but not within the Chamber. He disagreed that there was any need to have security services in the House. Having said that, any legislation takes its cue from the Constitution and the Rules flowed from section 57 of the Constitution, so that measures for all eventualities would flow from that section. There was general agreement on the fact that there was a need to bring order to the Chamber and that there must be a way of doing so. This did not mean that there is a call for conformity at any cost, or any attempt to stifle debate or dialogue. While debate and dialogue was always at the core of Parliamentary business, it had reached the point where Members needed to bring integrity to Parliament. If these procedures reached the point of being tested in court, they would be tested against the Constitution, and this could not be prejudged. Order did need to be brought to Parliament.
Mr Steenhuisen said it very was important to dispel the impression that that there was only one party in government that was holding government to account. This was not the case, and he was certainly not here to defend Jacob Zuma, who was not his party's President. There were a lot of “skelms” in government and this was not the sole purview of one party. There were mechanisms which Parliament had created to expose the “skelms”, such as notices of motion, calling for debates and question time. He questioned how accountability could be said to have happened when President Zuma "was allowed to leave through the back door, without having to answer a single question, and avoid fourteen potentially difficult questions that Members were sent to Parliament to ask him". Members must not try to monopolise parliamentary accountability, because there were roles played by parties in different ways. The DA liked to use the mechanisms of Parliament, because they had proved over time to be effective at flushing out “the skelms”. He said that most people would not even know about Nkandla if it were not for Parliament and the journalists”.
Mr Steenhuisen said he felt very strongly about the secondment issue and whilst and he did not want to make Mr Mdakane’s life difficult, the legal impediments were so vast that even a temporary secondment would cause problems. He heard what Ms Kilian had said about the SAPS Act, but he noted that she had only quoted from section 39(2). Section 39(3) went on to say “if a member is seconded under subsection (1) such Members shall be deemed to be in the service”. At the end of the day this meant that SAPS would remain part of the security services even if they named the parliamentary protection services or put in white shirts. At the end of the day the SAPS members would still be subject to the constraints of the Constitution. He urged that another mechanism be sought, because he had no doubt that there would be a problem with the legitimacy in the eyes of the Members. He felt the members of the security who had operated during the SONA had compromised themselves to such an extent that he did not think they would be able to perform such a function. He pointed out that this was a totally different sort of secondment to something like seconding members of the SAPS to the ports authority. It was a political environment and there were different dynamics. It was perhaps an environment where the separation of powers would have to be more keenly felt than any other environment.
In terms of the suspensions, he also felt the problem lay with the Powers and Privileges Act and he had written to the Speaker in this regard. It was a matter for discussion between parties already, there were amendments which flowed from the recent judgements and the outcome of the appeal was being awaited. This would be the next point for Members to grapple with, because it would give them recourse where they felt they had been treated unfairly, and it could deal with matters such as docking of pay. He felt the two matters should not be confused. There was a difference between the Rules and the Powers and Privileges Act.
Ms C Dudley (ACDP) commented on the matter of suspensions, and said that when the Rules were clear, Members had the choice to comply or contravene, and there was nothing arbitrary about that. The Rules must not be amended simply to facilitate the present disruptions, and a mere apology was not sufficient incentive for culprits to think twice about disrupting Parliament. The ACDP would caucus around the ANC proposal. She felt that, practically speaking, the proposal made sense, but there was the added dimension that any use of SAPS could be played out to advantage in gaining media coverage. The ACDP would probably compromise on the use of a private security company, which it was not in favour of generally, for the six month period suggested, pending the completion of the training.
Mr S Tsenoli, Deputy Speaker (ANC) pointed out that there was a book written by a British Labour Party MP, entitled “How to be an MP” and chapter 7 was entitled "How to be a hooligan". The UK Speaker at the time wrote the foreword and whilst he generally recommended the book, he had said that there was no way he could endorse chapter 7. He completely agreed on that. Part of the responsibilities on the presiding officers was to ensure that all the parties represented in Parliament acted in a way that allowed everyone else to participate. He was aware that all the presiding officers were accused of bias, but the existing political structures were intended to deal with that - so that anyone making that accusation would have to point out to the Speaker, in writing, such instances of alleged bias to allow them to be acted upon by appropriate structures such as the Chief Whips Forum and the Rules Committee. Mechanisms could be found to deal with the issue. That did not imply that meetings could not continue because a party did not like what was on the agenda or how the meeting was happening. He wanted to stress that when the Speaker had addressed the press conference, she explicitly said that this process was being engaged upon to ensure that the all parties could have their say in holding the President and executive accountable. She could not comment on the precise words used, because that was still being checked; in theory the meeting could have come out in agreement with the EFF and its proposal. That was why she could not say the meeting was going to endorse any particular rule. It was a known factor why the House had to be adjourned previously, and he pointed out to Mr Steenhuisen that the President did not "leave by the back door", but was prevented by honourable Members of the House from carrying out his responsibilities. The President's rights and responsibilities to account must be protected. Presiding officers must protect the responsibility to account and political parties' rights to hold others accountable. If those rights were disrespected in a gross manner, the rights and responsibilities would have to be protected. People in the public arena were accusing presiding officers of allowing what had been happening in Parliament. Presiding officers had a responsibility to protect the institution, which was why these rules and political work in this regard were so important. In the past the Speaker had called all political parties to talk about these issues, as a form of intervention, to see how to resolve the difficult situation. The Speaker did not think the Rules were the only solution to this problem, but also thought that a political solution was possible. He would object to any political party insisting on having its way, regardless of the consequences for the image of the institution and all Members of Parliament. There would be no hesitation on the part of presiding officers in acting as they needed, and they would as far as possible act impartially and fairly, but this would also not bar action in advance to prevent disruptions. When this was done it was in the interests of letting society see Parliament acting in its interests and in a manner consistent with integrity. He said he was speaking on behalf of all presiding officers, setting out the reasons why they agreed with sorting out the Rules for the sake of the appropriate conduct of Parliament’s affairs.
Mr Tsenoli wanted to say to Mr Steenhuisen, that anyone wanting to use language which had been agreed upon as unacceptable in the Rules, or to impute improper intentions, must bring a substantive motions and he questioned why anyone would not use this opportunity - unless they wished to "run away" from being responded to in an appropriate manner. Whatever Members expected for themselves, they should accord also to anyone who came into Parliament. At the most basic level, he urged that Members should not degenerate into using grossly irresponsible language which they would not tolerate being used in regard to themselves. All would like to be treated fairly.
Mr Ndlozi asked whether the protection services would be trained by 8 August 2015 and who would do this training.
Mr Mdakane proposed that the meeting break for a caucus, now that all the proposals had been accepted, except for one area. He felt a solution could be found on this .
The Chairperson announced a break.
On resumption, Mr Mdakane said Ms Kilian would make the proposal of the ANC, which he felt would be acceptable to all.
Ms Kilian said that the proposal was to leave one sentence out of the draft, as discussed and agreed to earlier in the morning. Then paragraph 5 of the Standard Operating Procedure would be brought back into the draft. This read: “Members who have been removed from the Chamber will be escorted off of the precincts by parliamentary protection services personnel and will not be allowed to enter the House or precincts of Parliament as the Rules prescribe".
She pointed out that this point also had been discussed, and the question raised what would happen if there was any resistance from a Member to removal from the precincts. The answer was that “members of the security services may be called on to assist". This had been agreed upon previously and ought to return to the draft.
The ANC had considered, and was prepared to consider the removal of the interim arrangement under paragraph 3 of the definition rules, on condition that paragraph 6 of the Standard Operating Procedure become part of the Rules. This paragraph referred to “event of violence”. The ANC would like to insert one phrase into it, after " in the event of violence", so that the new rule would then refer to: “in the event of violence, or a possibility of violence, or a serious disruption of proceedings ensuing in the Chamber”. This was for clarity, for it was felt that "violence" was a very vague term.
She then read out the rest of the proposed rule: “as a result of a Member’s resisting removal, the presiding officer may suspend proceedings or the security services may be called upon to assist with the removal in terms of section 4(1) of the Powers and Privileges Act, or may intervene directly anywhere in the precincts in terms of section 4(2) of the Act when there is an immediate danger to the life or safety of any person, or damage to property”. She pointed out that the wording beginning with “or may intervene directly”, was a proposed addition to the rule. This clarified what was being done. The suggestion was that this should be subrule (9). If that was done, then the ANC would be prepared to remove paragraph 3 of the definition.
Mr Shivambu asked for a translation by Mr Mdakane, because he had not heard what was said.
Mr Masibulele Xaso, Secretary of the National Assembly, wanted to check whether paragraphs 5 and 6 of the Standard Operating Procedure would remain as such or whether they would become a rule.
Ms Kilian replied that it was proposed that paragraph 5 would remains part of the Standard Operating Procedure and paragraph 6 would become a rule, although she did not think it would be a problem if paragraph 5 were to also become a rule.
The Chairperson said the Secretary of Parliament was in favour of paragraph 5 also becoming a rule.
Mr Mdakane agreed with the proposal and said elevation of the paragraphs from the Standard Operating Procedure to the rules would be valid.
Mr Ndlozi asked for a repetition of how the changes to paragraph 6 would operate and the proposed insertion after the words “in the event of violence”.
Ms Kilian repeated the wording read out earlier.
Mr Mdakane said points five and six of the standard operating procedure were being elevated to the Rules and perhaps Ms Kilian should read only the insertions.
Ms Mazzone said the Committee was reaching the point where it needed to be, but the DA felt there was a problem with the words "a possibility of violence". There would always be a possibility of and she suggested that, to make the phrasing less subjective, it should read “a reasonable prospect of violence”.
Mr Shivambu said he had tried to understand the ANC proposals, but was struggling to understand what had been changed. He proposed that someone else should read or summarise the proposal, or that the proposed changes should be referred back to the Subcommittee to effect technical changes, so that it would come back as a comprehensive proposal mandated by the Subcommittee. The areas of objection that the EFF had raised must be noted, along with the alternative proposal, because part of the present problem was that the alternative proposals of the EFF as presented in the Subcommittee were not brought initially to the attention of the Rules Committee. Perhaps an opportunity should be given to the Subcommittee to deal with the details in a manner satisfactory to all Members. At the moment, it seemed that this Committee was operating like the Subcommittee.
The Chairperson noted that other Members were more optimistic and felt that the Committee had almost reached an acceptable conclusion and hoped that the Committee would find the position to present to the House.
Mr Steenhuisen said there had been a discussion on paragraph 2 of the definition, because that was also problematic. He proposed clarifying it to read: “all parliamentary staff members appointed, assigned, delegated or seconded by parliament to perform security and protection functions, excluding Members contemplated in chapter 11 of the Constitution”. This would not negate the presence of the security services, but would aid in making the clear distinction between parliamentary protection services and who the protection services were to be.
Mr Ndlozi said he felt this rule was not constitutional, but he had already made that argument, and he felt it was clear, even if Mr Steenhuisen’s proposal was included. He pointed out that "private security guards, who report to some private capitalist in Cape Town" were often very violent. He questioned why it was not thought that Parliament must be separate from private capitalist interests. The same argument as to why the police should not be in the Chamber would apply equally to recruited paid private security. One argument against the police was that they were controlled and paid by the executive. He believed it would be even worse to move to using private security guards who were paid by and reported to a private entity.
He wanted to again reiterate that the EFF believed that Members of Parliament must not be removed, because they were refusing to leave the Chamber, as there was nothing violent or life threatening about the refusal to leave the Chamber. Disruption by Members was allowed by the Constitution, as long as there was no danger to other persons or property. In such an instance, a Member should not be assaulted, but put through a due process. If he refused to leave the Chamber, which he often would do because of the bias of presiding officers, he ought to be taken through a different process from being assaulted. This whole rule was incorrect as nobody should ever remove Members of Parliament on the basis of what they said. He strongly believed that it was not necessary to invent a rule allowing members of the security services to act when there is a threat to life, because the Powers and Privileges Act already existed. This rule was completely irrelevant to the institution of Parliament. A due process was needed, hearing a Member's side of the story pending his or her suspension.
Mr Booi said that all that was being proposed was that Parliament must have a protection service. The option which Mr Steenhuisen had put forward seemed acceptable and Members should be able to move for the adoption of the whole proposal.
The Chairperson asked for Mr Steenhuisen to clarify the DA proposal.
Mr Steenhuisen said this was intended to clarify the distinction between the function of parliamentary protection services and the security services. In order to do so, he suggested that paragraph 2 of the definition rule read: “all parliamentary staff members appointed, assigned, delegated or seconded by Parliament to perform security and protection functions, excluding members of the security services envisaged in section 11 of the Constitution”.
Mr Mdakane said the Committee was almost at the point of agreement. The two paragraphs of the Standard Operating Procedure which had been elevated ought to cover Mr Steenhuisen's point. He did not think that it was necessary to put into the rule the exclusion of members of the security services, when the paragraph being elevated spoke about security services, In no country could security services be excluded from doing their work, because it was their duty to defend democracy. He thought Mr Steenhuisen was covered by the deletion of paragraph 3 of the definition rule and points 5 and 6 of the Standard Operating Procedure being elevated, which allowed members of the security services on to the precincts. He felt a better word than "excluding" should be found, because it may be negating what was included earlier.
Mr Steenhuisen said there was a security service that could intervene under sections 4(1) and (2) of the Powers and Privileges Act. What was being done under paragraph 2 of the definition rule was to define what the parliamentary protection services were to be, and without hindering the functions which the security services were entitled to carry out. The parliamentary protection service, which would be accountable to the Speaker and the multi-party committee, would then need to be defined as not including the security services. In first instance, the parliamentary protection services would always be used, because they were controlled by Parliament, and this did not apply to the security services.
Mr Singh said the point which Mr Steenhuisen was making was a point of emphasis on the separation between parliamentary protection services and security services. It did not mean that the security services would be able to come in and perform functions as necessary.
Mr Mdakane said the political purpose was clear, but the wording could be problematic. He suggested that the drafters should work this out: "excluding" might result in a negation of what had been previously agreed. This must be simply written in a manner which captured Members' agreements.
Ms Kilian said throughout the rest of the document there was clarity on what would happen in this event. She shared the concern of Mr Mdakane that if that proposal was included, it would be inconsistent with the rest of the steps which were to be taken.
Ms Maxon asked if the Rules Committee was not now doing the work of the Subcommittee.
The Chairperson replied that the Committee was doing the work of the Rules Committee, which was about to wrap up what it was deciding on.
Mr Steenhuisen clarified that there were two elements to the security at Parliament. Firstly, there were the security services, including the SAPS, as defined in the Constitution. The SAPS was already allowed already to enter the Chamber, where there was a threat to safety or property, and the Committee could not impede their ability to do so. Under section 4(2) of the Powers and Privileges Act they did not even need the permission of the Speaker, but could come in and deal with the situation immediately. On the other hand, the parliamentary protection services had to be a separate entity altogether, because of its lines of reporting and its ability to operate in the Chamber to deal with disruptions. The parliamentary protection services would come into the Chamber and remove any Member who was causing a disruption. The word "seconded" in paragraph 2 of the definition left it open for security service members also to be seconded to the parliamentary protection service, which was meant to be accountable to the Speaker and a multi-party Committee, but not to the Cabinet Member responsible for policing. The security services could not perform both functions, nor should the two services be interchangeable.
Mr Shivambu asked if it was possible to get access to the Hansard record of the previous meeting, before this meeting concluded.
The Chairperson said she had asked the Secretary of Parliament to follow up on the Hansard record.
Mr Xaso wanted to check whether paragraph 2 of the definition, stating “all parliamentary staff members”, automatically excluded the security services.
Mr Steenhuisen said the inclusion of the word "seconded" showed that an external person was being seconded to Parliament.
Mr Mdakane said the understanding was that any reference to secondment was to be removed. The definition therefore should read “all parliamentary staff members employed, appointed, assigned, delegated or contracted by Parliament". There would be no secondment and the staff members would be managed, controlled and paid by Parliament. For this reason, exclusion would not work, because it would negate everything else, particularly as Members had no powers to remove the security services from Parliament.
Mr B Mashile (ANC) wanted to revive the previous motion by Mr Booi, for adoption of the whole proposal.
Mr Ndlozi asked for the profound fundamental objection of the EFF to the entire proposal to be recorded, and warned that the EFF "would take it for review in court”.
The Chairperson put the proposal, as amended, before the Members.
The majority of Members agreed to that proposal.
She noted the disagreement and objections of the EFF.
She noted that the text would be "cleaned up" and the final version would be circulated to all Members of the Committee. The text would then go to the House on the afternoon of 30 July.
The meeting was adjourned.
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