The Subcommittee continued to debate the revised Rules of the National Assembly (the Rules). A briefing was presented by the Secretary to the NA, on motions in terms of section 89 of the Constitution, to remove the President. It was emphasised that this procedure would lead to the removal of the President on specified grounds. There were various stages: firstly, there would have to be a motion in the House preferring the charges against the President, and proposing that these be referred to a committee of the National Assembly, and that would need one third of Members to be present in the House, with a majority to support the motion. After that committee had reached a finding, and made a recommendation to the House, a new motion would then come to the House on the recommendation, and two-thirds of the House must support that in order for it to be passed. The Speaker was required to look at the proposed motion to refer the matter to a Committee and be satisfied that there were prima facie grounds for the removal. The Committee would then consider the seriousness of the charges put to the President and come up with a recommendation to the House. This procedure was distinguished from impeachment in the sense that it was applied in USA, since the President was not an executive President. The Consultant to the Committee, a former Secretary of Parliament, took Members through a previous discussion document and distinguished the section 89 motions from motions of no-confidence, already dealt with, which would have to be supported by a majority of Members of the NA. A vote of no confidence in the President would result in the removal of the President and all ministers and deputy ministers. Members had an unfettered right to introduce such motions, which were to be treated as urgent. The “impeachment process” would normally follow a finding by a court either on misconduct grounds, or violation of the Constitution, or of the law, to an extent so serious that it warranted removal from office. The starting point would be that anyone disqualified from being an MP could not be President. It was likely that any section 89 proceedings would be preceded by a court decision, and here the committee would have to process the issue similar to the Powers and Privileges Committee, in a quasi-judicial process. The charge should relate to the President in person, and it would not be sufficient for him to be acting as the head of Cabinet. The urgency meant that it might be possible to have the matter heard even if Parliament as not in session. The scope of the debate on the referral was limited, and could not pre-empt the work of the Committee. Research was being done on the position in other parliaments with similar frameworks to the South African Parliament. The Parliamentary Legal Advisors agreed that the starting point would be to look at disqualification of MPs in terms of section 47 of the Constitution, then to consider a higher bar, and fiduciary duties. Members agreed that further research was needed and in the meantime the Parliamentary consultant should also continue to research. Members debated what might follow and felt that impeachment may need to be defined. The consultant pointed out that because cases were so different it was difficult to come up with one set of rules, but that it was most likely that all such issues were likely to be referred to special committees. Members debated whether a broad framework should be provided, or each case decided on its specific merits, noted that the Power and Privileges Committee process was long and complex, and thought it would be useful to have at least guidelines agreed to by the Rules Committee. Members agreed to await further research.
The next deliberation concerned motions without notice, with Members drawing on the guidelines in the Second Report of the Rules Committee document. Members agreed that despite the guidelines, there was not proper compliance, and that the volume of motions without notice being proposed was problematic. The mechanism, originally intended to congratulate, issue condolences or express concern, was being abused to essentially make statements. The IFP and smaller parties proposed a limitation on the content, the number of motions without notice which could be submitted by a party and the time allotted for the reading out of such a motion. Members, during the discussion, felt that the proposals should be augmented to limit the ability to present an amended motion without notice following its rejection by the Speaker for non-compliance with guideline, so that an amended version could be presented only on the following day. They emphasised that the presiding officers must apply the rules consistently and intervene to stop a Member reading a motion without notice which contained unparliamentary language.
Members then started to go through the Rules chapter by chapter to give all political parties the chance to make their input. It was noted that all parties had been invited to participate but the EFF was not present. Members decided to re-insert the definition for Parliamentary Protection Services, and it was suggested that a definition for a question of privilege should be inserted to clarify that a question of privilege related to an infringement of the privilege or powers of a Member or the House. In relation to Chapter 4, the ANC suggested that rule 17A should not be worded in a way that effectively placed the onus on the Speaker to ensure that all parties and Members participated effectively and efficiently. The Subcommittee decided that if the opening words of 17A (1) were kept in mind they would be a sufficient limit on the scope of the Speaker’s responsibilities. In relation to Chapter 4, Members discussed the practical workings of mini-plenary sessions, as the smaller parties had expressed concern that if multiple mini-plenary sessions were held concurrently that their Members may be unable to attend. Members discussed whether there was a need for speaking lists and time limitations per Member, or only per session. It was decided that multiple sessions should be allowed to run concurrently, because extended public committees had run concurrently in the past and Members of smaller parties were able to participate. In rule 21CE and others it would be clarified whether “secretary” meant Secretary to Parliament or Secretary of the National Assembly, and it was noted that references to “members” also needed to be clarified. In relation to mini-plenaries, the ANC felt that speaking lists and time allocations would be important under rule 35, but the DA felt that this was not necessary, to encourage spontaneity, and the point was made that the Rules could not be written always to accommodate every smaller party. It was confirmed that sufficient time must be given to respond to debate. It was suggested that, in the Rules, the placement of motions without notice and notices of motion should be juxtaposed.
Under rule 45, a small group had looked at the dress code and made proposals. In relation to dangerous or threatening objects, these should be brought in only with prior approval. In regard to dress code, a proposal was made that required Members to wear normal business or traditional attire, show respect and not wear clothing or accessories which were revealing, displayed party political emblems, or was informal, including tracksuits, overalls, caps, hats, mascaras or informal, construction or casual wear. These guidelines would be finalised and taken to the Rules Committee. Members differed on rule 52: some felt that consultation should be required, but others pointed out that this would place too much onus on the Speaker. A long debate ensued on Rule 53 and when the Parliamentary Protection Services should be called if a Member refused to leave. The ANC suggested that the interim measures in rule 53A be adopted. It was stressed that the rule was aimed at restoring order to the House so that it could carry on with its business. The DA was asked to bring forward proposals to improve rule 53A. Substantial debate took place on rule 54 also, on the period of suspension and whether salary should be suspended. Members noted that it would be necessary to observe due process, the possible involvement of a disciplinary committee, that party benefits would not be forfeited, and discussed whether forfeiture should take place immediately, and why suspension should be without pay. The practice in other parliaments was noted, and this was intended to put a pinch to the pocket of recalcitrant Members, who would have had the opportunity to apologise. The Parliamentary Legal Advisers would give an opinion on that, and the court decision would be awaited. Rules imposed something like that. He asked for more time to apply his mind to the issue and consult his colleagues.
Rules 81 dealt with declaration of vote, and discussed the proportionality arrangements. It would be up to the parties’ whips to determine how they would make use of the time allocated. Under rule 84, there was a proposal to raise the number from four to ten Members, and concern was expressed that Members could demand a division then walk out. The rules around motions without notice, and the abuse of these at present, were also discussed at length, including the difficulty of motions that had not been properly translated, which recently cause the House to pass a motion that called the Minion Mining Company and everyone who worked there “corrupt to the core”. Notice of a motion should also not be abused. Chapter 8 dealt with matters of national importance that must be scheduled on the day, and the Member would have to motivate for that. In relation to Members statements and executive statements, the Committee had considered increasing the allocated time for an Executive Statement to three minutes and it was re-emphasised that the Subcommittee was of the view that multiple Ministers could respond to a Member’s Statement, because they were political in nature and may raise concerns in various functional areas.
Chairperson's opening remarks
The Chairperson said anyone who wished to observe the meeting was welcome and could make application to make input. He stressed that all if they wished to make an input an application to do so could be put in. All parties in Parliament had been invited and were supposed to be present to voice their views on the Rules of the National Assembly (the Rules), following their workshops. The Subcommittee’s intention was to finalise the Rules, hopefully by the following week, and he stressed that sufficient time had been given, over the past two years, for parties to look at the Rules, make proposals and try to persuade Members from other parties to agree with their views. It was clear now that all parties in Parliament had been accommodated and allowed to participate fully in the review process. He hoped that when the Subcommittee presented its proposals to the National Assembly Rules Committee, that committee would be able to take decisions and not to re-negotiate. If any party missed the opportunity to engage with the Subcommittee, there would not be enough time in the Rules Committee to do so, because options would be presented there and if there was disagreement they would be voted on. The Rules Committee was a senior Committee of Parliament and would not have the time to engage on every rule. Four years had been spent on this process and Parliament could not afford to spend much more time on it. All parties had been given the draft of Chapters 1 to 15, with the critical areas of contention highlighted. This did not mean that parties could not review the entire Rules, but this way of presenting them was aimed at making full use of the work already done by the Subcommittee. Highlighted rules still required political engagement or were technical in nature.
The Chairperson noted that the Subcommittee would now move to the specific items set for discussion at this meeting, then proceed to a chapter-by-chapter review, with input taken from various parties. This would allow the Subcommittee to move with a bit more pace, because it had tried its level best to capture all views. The Subcommittee had generally agreed on many points, and whilst party positions would be presented, it was hoped that Members on the Subcommittee would have been able to argue the position effectively. This Subcommittee did not intend to renegotiate everything, but what the parties had to say would be heard. If the Subcommittee agreed then Mr Kasper Hahndiek, Consultant to the Committee, who was the former Secretary to the National Assembly, would have to begin drafting final changes for presentation to the Rules Committee.
The Chairperson hoped that any political parties who were not in attendance would not try to claim that they had not been invited to participate in the Subcommittee. Members who were to participate in this part of the process must be prepared for the amount of technical work ahead of them in the next few meetings. He was aware that several parties had met, and that the DA and ANC had also conducted workshops, which had produced some views on the draft Rules. He was not sure whether the EFF had held a workshop, but would be able to share the outcome.
The Chairperson asked for, and was notified of apologies at this point, by Mr Per ran Hankie, Committee Secretary.
Ms J Kilian (ANC) noted that there was no apology submitted by the EFF representatives, asked whether there was confirmation as to who had received the invitation.
Mr Perran Hahndiek said the invitation had gone out by email and he was unsure who had received it.
Implementation of motions in terms of section 89 of Constitution, and motions without notice: Secretary of the National Assembly's briefing
Mr Masibulele Xaso, Secretary of the National Assembly, said the Speaker had referred two matters to this Subcommittee for consideration. One related to the implementation of motions in terms of section 89 of the Constitution, dealing with the possible removal of the President. The issue here was how Parliament should deal with these motions and what considerations should be taken into account when a Member submitted such a motion. The Speaker had requested that this be prioritised.
Secondly, the challenges which had been encountered around motions without notice in the House had led to the Speaker requesting the Committee to make recommendations around how these could be overcome. Members would recall that in November 2014 new rules were accepted to regulate motions without notice. It seems that the rules were either not fully understood or there was a gap in them.
The Chairperson thanked Mr Xaso and said motions without notice were irritating Members in the Chamber. The section 89 motions were tantamount to impeachment of the President. He invited Members to make general comments in this regard.
Ms L van der Merwe (IFP) said the IFP caucus, after having met with the smaller parties, had some ideas on how to deal with motions without notice, and asked whether she should make these submissions now or when the Subcommittee reached that point in the Rules. The IFP had brought a document suggesting how to deal with the issue.
The Chairperson said he would allow this comment now, because the Speaker had requested that the matter be prioritised.
Ms Kilian said she believed there was a background document on section 89 of the Constitution, and suggested that the Subcommittee go through that, to decide broad principles.
The Chairperson said there had been some work done in this regard and asked Mr Kasper Hahndiek to take the Subcommittee through the document.
Discussion Document on Section 89 Removals of the President
Mr Kasper Hahndiek said there were two sets of circumstances where the President could be removed from office under the Constitution. One was by way of a no confidence motion and the other was the section 89 motion. The no confidence motion had already been dealt with in detail in the Rules. This would have to be supported by a majority of the Members of the National Assembly. Although the Constitution does not require grounds to be presented for such a motion, the Rules do provide for grounds to be presented. In essence the “no confidence” was a political assessment by Members into why they no longer had confidence in the President. If the National Assembly, with a majority of its Members, decided that the House had no confidence in the President the result, under section 102 of the Constitution, was that the President, Cabinet and all deputy ministers had to resign. Therefore, this was a way of removing not just the President, but the entire upper echelon of the executive. As a result of a court case it had been decided that Members' rights to introduce such a motion must be unfettered and treated as a matter of urgency.
By comparison, impeachment under section 89 had to be passed by at least two thirds of Members of the National Assembly. Section 89 resulted in the removal from office not on the grounds of political disagreement, but based on specific measurable, concrete events which constituted a serious violation of the Constitution or the law, serious misconduct or an inability to perform the functions of office. He assumed the third ground would revolve around the President’s health and resultant capacity to perform in the office, although there were a range of circumstances where this ground would apply.
Mr Kasper Hahndiek said the problem was that there was no precedent for impeachment in South Africa. He pointed out that “impeachment” might not be the correct term, as it was not the same as the American impeachment process. There were a number of factors which had to be taken into account. The grounds for removal had to be very specific and any proposal for removal of the President under section 89 had to identify the precise grounds upon which it was being proposed. He was aware of what had recently been called an impeachment motion, but, as an observer, he had felt that it was not in fact properly described. He suggested that there were two steps which would always be required for an impeachment. Firstly, there must be a motion in the House preferring the charges against the President and proposing that these be referred to a committee of the National Assembly. Secondly, the House would have to await the outcome of that committee’s work and its finding, which would be conveyed as a recommendation to the National Assembly. The decision on the committee’s recommendation would lead to a new motion coming before the House, which would require the support of two thirds of the House to pass it, although the initial motion to refer the issue to the Committee would not require two thirds support, but would rather be a normal decision of the National Assembly, requiring that a third of Members be present and the majority of those Members to support it. The Speaker was required to look at the proposed motion to refer the matter to a committee and be satisfied that there were prima facie grounds for the removal. This means that there would have to be substantive reasons for thinking that the impeachment process was warranted. These would normally be a finding by a court either on misconduct grounds, or violation of the Constitution, or of the law. This would be the starting point and these would obviously be prima facie grounds for referral to a committee, with a view to the possible removal of the President from office.
Mr Kasper Hahndiek said the main issue that such a committee would have to deal with was not whether the President violated the Constitution or the law or was guilty of serious misconduct, but whether such violation or misconduct was so serious that it warranted removal of office. There was no indication in the Constitution of what would constitute “seriousness” in such a case. He was of the view that a factor towards seriousness would be indicated by the circumstances which disqualified a Member from remaining a Member of the National Assembly – the same would presumably be sufficient for the removal of the President. The threshold could perhaps be very low, as it would be more serious for a President to violate the law than it would be for an ordinary Member to do the same. From his perspective, it was important to respect the separation of powers. He could not imagine that the National Assembly would, under section 89, be called upon to try the President or act as a court superior to any others in the country. Therefore, he would assume that any section 89 proceedings would be preceded by a court decision. If the committee had to then process this, it would have to do so in the same way that the Powers and Privileges Committee does, in a quasi-judicial process, involving a hearing and arguments from both sides. That entire process still had to be worked out and perhaps the model of the Powers and Privileges Committee could be informative.
Mr Kasper Hahndiek said the initial process for the motion referring the matter to the committee would have to meet the current requirements for all motions and specifically those dealing with reflections against Members. The charge must be clearly formulated, properly substantiated and, in the opinion of the Speaker, must prima facie warrant the attention of the House. This meant that the current rule 63A would apply. At this first stage, the House would be limited to deciding whether the issue should be referred to a committee. The motion should deal only with the charge against the President and no other matter. The “impeachment motion” which had recently come before the House dealt with a range of matters, and was not exclusively about the President. He felt the charge should relate to the President in person, and it would not be sufficient for him to be acting as the head of Cabinet, therefore taking responsibility for each action by every member of Cabinet; the President could surely not be removed for an offence committed by a member of Cabinet. As he read the section, it would have to relate solely to the incumbent of the office of President.
Mr Kasper Hahndiek said once the conditions had been met for the motion, then this motion would have to be treated as a matter of urgency, in line with the court’s ruling on the no confidence motion. Given the serious nature of the motion and the issues, it would seem that it could be even more urgent than a motion of no confidence. Furthermore, it was possible that it would have to be programmed for the next sitting of the House, to have the motion referred to a committee. If the House was not due to sit for the next 14 days, a special meeting could be convened to enable the House to refer the matter to a committee.
He stressed that when such a motion to refer came before the House, it must be clearly understood that the scope of debate on the referral issue was limited to whether the matter warranted referral, and matters relating to the committee to take the referral, the the size of that committee and by when it must report back to the House. The debate should not be used as an opportunity to pre-empt the work of the committee, which was the practice in all parliaments. He noted that he had requested the National Assembly Table to do some research into the practices in other parliaments and specifically parliaments with similar frameworks to the South African Parliament. He was sure that these practices would assist the issue.
The Chairperson said the above were the principle considerations if the Subcommittee wished to propose a rule on this matter.
He invited Adv Frank Jenkins, Parliamentary Legal Advisor, to make a contribution.
Adv Frank Jenkins, Parliamentary Legal Advisor, said he agreed with the framework sketched by Mr Kasper Hahndiek. On the issue of seriousness, he agreed that the starting point would be to look at section 47 of the Constitution, dealing with disqualification of an MP; if a person did not qualify to be a Member of Parliament, then she or he ought not to be competent to be elected as President. He said that a breach of constitutional duties would not necessarily mean criminal conduct. What was to be considered serious would depends on the facts of each matter. He would, however, agree that the bar would be stricter in relation to higher positions – and here he used the analogy of fiduciary duties of a company’s directors, and cited the example of the Electoral Court, which had made a finding in relation to former Chairperson Ms Tlakula, leading to her resignation.
Ms Kilian said that when the Subcommittee deliberated on rule 102, this matter was mentioned in passing and it was said that this could be introduced under similar circumstances. There was a note in the Subcommittee’s report that this was an outstanding matter. However, she felt it would be proper to differentiate between the two. Rule 102 ought to be more of a political no confidence debate, while this issue was of a more serious nature. The Subcommittee did not get into the detail of this when discussing the issues previously. She agreed that it would be interesting to get hold of some research. As Mr Kasper Hahndiek had said, impeachment by the United States Congress was completely different, with different mechanisms such as the Congress appeal body which had tried former President Clinton. In some Parliaments this sort of mechanism had fallen into complete disuse, but when giving further thought to section 89, it was an important mechanism. In the late 1980s, a former President suffered a stroke, so there could be a need for such a mechanism. She would therefore agree that there must be a clear differentiation between the two process. The Subcommittee may encounter difficulty in setting the criteria for seriousness, but the broad outline presented was a good one. Perhaps some particular terminology should be developed. She fully supported more research on impeachment type process to see if other parliaments provided a comparable outline. She also suggested that Mr Kasper Hahndiek should continue investigating the matter while the research process was on-going.
Ms S Kalyan (DA) referred to section 47(1)(e) of the Constitution, which deals with a Member being convicted of an offence and sentenced either within or outside the Republic. For the sake of argument, she asked what impact it may have if the President were to be found guilty by the International Criminal Court (ICC) following his submission of motivation regarding the Al Bashir matter by 5 October 2015. She understood Mr Kasper Hahndiek to be saying that there were two processes: the committee process and the impeachment motion. The substantive motion to establish a committee to consider the charges must be done first, and then, based on this committee’s recommendations, an impeachment process could follow. She felt that a definition of impeachment would have to be inserted into the definitions Chapter, if the Subcommittee were to go forward with this concept.
Mr Kasper Hahndiek said one of the reasons why this had not been developed in the Rules was that it was very likely that in each case the circumstances would be so different that a strict set of rules could not be applicable in all cases. He had always been aware that there was nothing in the Rules. He assumed that if it were ever to happen, a referral to a committee would happen under rule 63A, and before that Committee enters into any impeachment process decide on the process it would follow. So that when that happened the relevant committee would apply its collective mind to the circumstances and decide on a suitable process. In relation to the example of the ICC, there were a number of matters which would require clarity. He thought that if the ICC decided that South Africa was at fault, it would report to the United Nations rather than finding the President in person in breach of international law. A range of circumstances would have to be weighed up before proceeding.
Ms Kilian agreed fully with Mr Hahndiek on the necessity to report to the United Nations. There was a common understanding that the charge must relate to the President in person and not to matters which were the responsibility of other Ministers. Motions of no confidence, which were political motions, could affect the President and Cabinet. However the Constitutional motion was exceptional, requiring further investigative work and a quasi-judicial process.
Ms Kalyan said that on the Al Bashir matter, the Presidency was the lead department although there may be three or four other departments involved and she questioned whether here the President could not be held responsible. She had understood the local judgement to be against the President, even though other ministries were involved, and asked for clarity on this.
Adv Jenkins said it must be realised that successful section 89 applications brought about very serious consequences, as the President would loses all benefits including the pension and may not serve in a public office ever again. He would think that, in the absence of precedent, section 89 ought be interpreted strictly. The President could make any decisions on his own other than as Head of State, such as appointing ambassadors and conferring senior counsel status. There may be times where the President had done something specific on his/her own, which would warrant the serious implications of section 89. If the President had taken an executive action taken in consultation with Cabinet, there was a remedy in the form of the motion of no confidence, which would speak to the collective responsibility.
Ms Kilian said that South Africa did not have an executive President, but an executive with the President as the head. Therefore, it must be understood that there was collective leadership under the President. In the case of an executive President, then there could be a different response and this informed the approach of the United States.
Mr Kasper Hahndiek reiterated that circumstances may vary a lot from one instance to another. In the Al Bashir matter for instance, there could be evidence or a court finding that the President, in person, took the decision to allow Al Bashir to leave, without the executive being able to override or take a joint decision. He was not sure that in those circumstances the President would be able to use the fact that it was an executive decision. If the President could be shown to have personally taken or influenced a decision which was in conflict with a court order, then clearly the President could be personally responsible. However, in other circumstances it may only be possible to conclude that it was an executive decision, with the President as the head. It was a question of looking closely at the circumstances and deciding if the issue hinged around the person of the President or the executive as a collective.
Ms Kalyan asked whether it would not be too loose to provide that a committee would be able to decide on process once the matter was referred to it. She understood that it would differ from matter to matter and issue to issue, but if there was no broad framework then this could provide too much latitude to the committee to formulate the process.
Ms Kilian said that a substantive motion would be brought, with very specific charges, and clearly this would form the basis of the committee’s terms of reference. It would be a case put before the House, which the President would then have to answer. It would therefore depend on the circumstances and the substantive motion that comes to the House, leading to a committee being formed to answer those specifics. That committee would not be able “to go wild and investigate anything”, it would have to be concerned with what was submitted.
Mr Perran Hahndiek said the Rules would have to cover the situation where the President was allowed to have legal representation or have someone to put the case to the committee. This was essentially what happened in the Powers and Privileges Committee, with a prosecutor being appointed. Members impugned were allowed to have their own defence. The Rules would have to specify something along those lines. He was cautious to suggest a straight adaptation of the process, because the Powers and Privileges Committee process was long and complex, and would not necessarily be advisable to follow here, as it would create a whole new Chapter in the Rules. He felt the broad brush-strokes should be laid down in the Rules, with the committee being left to fill in the details.
The Chairperson said he thought the process would be that a Member raised the motion, which would then go to the Speaker. If the Speaker agreed that there were valid grounds, not through a political assessment, then it would be taken to the Chamber. The House would then set up a subcommittee or ad hoc committee to discuss the matter. However, in order for the Members' motion to come to the Chamber, the Speaker must be absolutely satisfied that there was a specific charge and a clear violation which justified the bringing of the motion, even if the motion would be defeated by the numbers inside the House. If the matter made it to the Chamber, then the Speaker would have almost agreed that the President had done something wrong as an individual. A committee would be set up. However, it was necessary now to consider the points around legal representation arises and whether Parliament could be allowed to have quasi-judicial processes. The difficulty was how the Speaker would deal with the motion put forward. The Speaker should be assisted with clear guidelines. There were already motions of no confidence. He agreed that section 89 motions should be specific to the President rather than a general political assessment. He also agreed there should be more research on this, and thorough guidelines developed. He was sure the Speaker would face such a situation in the future, and it would be useful to have at least guidelines agreed to by the Rules Committee even if there was no specific rule in the Rules.
Ms van der Merwe also agreed that there was a need for more research and good guidelines. There were already quasi-judicial processes, such as the Ethics Committee’s processes relating to the Former Minister of Communications Dina Pule. Ms Kilian had asked whether there were comparable examples in other parliaments. Ms van der Merwe had done her own research, and noted that in November 2015 the French law makers had passed impeachment laws. These were particularly interesting, because they only required 10% of the House to agree to the initial process.
Mr Hahndiek said it was possible to attempt to produce guidelines, but the test would nonetheless be that the Speaker applied only objective considerations, and no subjective views. It must be readily evident, if the Speaker were to refuse such a motion, that the grounds cited were not prima facie evidence of misconduct. A report in the media could never be sufficient grounds, because this was hearsay evidence which some member of the media claimed to have received from an undisclosed source. Criteria would develop and there was surely something in the history of Parliament which could inform this. Clearly there needed to be an objective measure. The same considerations applied to the removal of judges, a process also within the powers of the National Assembly which was not stipulated in the Rules, but it would be much the same approach. The Pule case had been conducted in a Joint Committee process, which had agreed that legal counsel could provide guidance.
He noted again that if there were charges against the President which did not arise from a court finding, but where there was prima facie evidence of wrongdoing, then the first thing the committee would have to decide was whether it would go through a court process. The committee could potentially refer the matter to the National Prosecuting Authority to lay charges and await the completion of a court process, rather than allow Parliament to assume that responsibility. These were some of the considerations which had to come into play. He would always be reluctant to see Parliament take on judicial functions. Any Committee was a collective of politicians and the majority party would most often be the majority in any Committee, so any decisions made in this context would be political, rather than judicial. It had to be accepted that Parliament was not the correct body to make judicial decisions, especially when they could lead to the removal from office. He cautioned that it was important not to overstep powers; and he had heard claims that the courts were doing so, and Parliament should not follow suit.
The Chairperson reiterated that this matter should be referred for further research, and proposal of guidelines for the Speaker’s decision, rather than a rule at this point.
Ms Kilian added that there should be a threshold for these motions, such as was the case in Uganda.
The Chairperson asked Members to agree that more work was required in this area and for the time being he asked if Members could apply their minds to guidelines, because he felt the Speaker and their functionaries should not be left on their own. It was always a good idea for the guidelines to pass through the Rules Committee.
Deliberations on Motions without Notice
Mr Perran Hahndiek said the document Second Report of the Rules Committee 2014 had been circulated, which provided guidelines on motions without notice. He felt this could form the basis for the present discussion, because Members could assess to what extent the guidelines were being applied. In some cases the problems had arisen because the guidelines were not being applied and in others because the guidelines did not go far enough.
Mr Xaso said the issue was that the guidelines were being applied by the presiding officers, but they were not being complied with. Firstly, he asked that the Subcommittee should grapple with the number of motions without notice which were allowed on a given day. Secondly, Guideline 9 spoke to a motion requiring a decision of the House, and this set out the conditions which were supposed to be met. Point 10 stated that a motion would be ruled out of order if it did not comply with the given criteria. The problem was that Members were proposing motions which did not meet these criteria and were reading these out in the House, expecting to complete the reading of such a motion; even if the motion contained unbecoming or offensive language. Perhaps a provision could be inserted which barred the reading out of such motions in the House. On average, in previous Parliaments, there would be around four motions without notice, but the present Parliament was averaging 30 motions without notice. Most of these motions contained unparliamentary expressions and were out of order. Despite advice given beforehand, Members would still proceed with reading out such motions in the House, and this was a problem. He said that over the past three weeks, about two motions without notice had been passed – one relating to a judge, and the other to inadvertent passing, but the rest were objected to.
Ms van der Merwe said Mr N Singh (IFP)had drafted a document indicating what the IFP caucus felt were some of the solutions which could possibly be discussed.
This document read: “After careful consideration, and taking into account current customs within the House in respect of Motions without Notice, the IFP suggests that in the interests of a working Parliament, the following additional changes to the rules governing Motions without Notice be considered by this subcommittee:
Time limits for Motions without Notice: -
It is not uncommon for time limits to be placed on items before the House. We currently do so in terms of Members’ Statements, speaking time, follow-up questions and Ministerial Replies.
A rule should be implemented which:
- speaks specifically to content parameters allowed in motions without notice;
- places a time limitation on the reading of a motion without notice to 90 seconds.”
Ms van der Merwe added, in regard to the proposed limit on content of motions without notice, that these should not be quasi-member statements and that the rules as to what these motions should be must be complied with. It was also proposed that the number of motions moved by a party be limited, so that one party would not seek to move 20 motions. It was also proposed that the objection threshold be increased from “any one party” to “any three parties”.
The Chairperson summarised that this was the content of the submission by the IFP and the six smaller parties which it represents.
Mr Hahndiek said that the motion without notice mechanism was being abused. It was never the intention that a motion without notice should become a Member’s statement, but it was the intention that in principle all motions should require notice. However, in the eventuality of a sudden death or a sudden politically relevant event occurring, to which the National Assembly wished to respond immediately, then it was accepted that this could not be done if there was no rule providing for motions without notice. It was for those exceptional circumstances that the mechanism was intended, but he reiterated that it was not intended to be another opportunity for Members’ statements. If there was such a level of frustration that Members were using all kinds of mechanisms to make more and more Members’ statements, then this was indicative of another problem elsewhere. He felt that in a way the mini-plenaries could help resolve the problem, as they created the opportunity for Members to air their views on recent developments, in the context of a political debate. If there were these kinds of frustrations about inability for Members to express their views on the issues of a particular day, then Parliament must look into ways to address this. Mr Hahndiek had been instrumental in ensuring that Members’ statements were incorporated into the rules initially, for this reason. He suggested the need to get back to the position where motions without notice were not used for Members’ statements.
One alternative, now that there was pre-circulation which was a form of notice, that motions without notice could be scrapped. If the situation ever arose that the House wished to express itself or take a decision on something, then the rule which prevented moving without notice could be suspended. The large number of motions without notice that was happening at the moment was particularly problematic but it was essentially shutting the door on genuine motions without notice. There needed to be a way to protect the original mechanism against abuse by Members.
Mr Perran Hahndiek said the Subcommittee did make recommendations on motions without notice, in the NA Rules Subcommittee Proposals: Chapters 1-9 Draft 5 15 June 2015. It may be useful, as a starting point, to look at these initial proposals. The Subcommittee had said that motions should be regulated in terms of time and sequence, as determined by the Rules Committee. Furthermore they should rotate amongst parties. A provision was also included which required a threshold of party support to put the motion to the House. He recalled that this was set at five parties, but the question was what happened when a motion did get to the floor of the House, as even though that motion had been allowed, the House still had to agree to it, by way of a vote. The process envisaged that there were vetted motions, which five parties supported, but that there were a limited number of slots for motions per day. The motions would then be voted on if necessary, or otherwise parties could simply indicate their objections.
Mr Kasper Hahndiek said the proposal from the Subcommittee at present was that if the criteria were not met when the motion was circulated, the Member was informed that the motion was not acceptable. In such a case, the Member would not be given the opportunity to read out the motion at all. If this was adopted, then it would prevent the problems cited by Mr Xaso, such as motions containing unparliamentary language.
Ms Kalyan asked Mr Xaso what the current process was. She thought that the motion would have to be circulated by 12 pm, and that someone would do a checking exercise. She seemed to recall, from her days as a Deputy Chief Whip, that the party would receive a notice that it was either agreed to or not.
Mr Xaso reported that when motions were received from the parties, they were then vetted. A register was developed which indicated compliance, and whether the motion contained more than one substantive matter, party political statements or unparliamentary language. This register was then sent to all the parties, together with the motions, as soon as possible after 12 pm. It was always stated that parties may resubmit their motions to comply with the guidelines. When the House was sitting, the register was taken indicating all the motions which had been circulated, and if a motion was read out which was not circulated in advance, it could be noted as such.
Ms Kalyan said the presiding officer would obviously have this register and know that a party had read out a compliant motion, but she asked what mechanism could be put in place to deal with Members reading motions without notice which did not comply with the guidelines. Although she did not have a party mandate, she might propose that perhaps the presiding officers could be stricter about allowing non-compliant motions to be read out, or make use of the rotation system which applied to other processes. She would not support doing away with motions without notice altogether. The original intention, as she understood, was salutary, congratulatory or sympathetic. Somewhere between May and June 2015 this changed and became political. As research was being conducted on the impeachment issue, she suggested that perhaps research from two or three other countries which had such a mechanism should also be done, so that there was a form of precedent on which the Subcommittee could “hang its hat”. This should be aimed towards returning to the original principles behind motions without notice.
The Chairperson said everything that was being said was in the rules, but the problem was that the rules were not being respected.
Ms Kalyan said the presiding officer could simply not recognise a Member who read a motion without notice that did not comply with the purpose or was not approved. She suggested having these motions as the last item on the programme, as opposed to having them as the opening item. On days when there were Ministerial statements, the motions without notice took up a long time when Members were wanting to hear the statements. The psychology of the time slots for reading them must be considered. She agreed that the rules had to be there and strictly implemented, but at the same time a corrective mechanism to counter the problem had to be found.
The Chairperson said there were two options: either to do away with the process or set it at the end of the programme, with limited time. He observed a problem that even when the presiding officer requested some Members to stop reading the motion, they simply continue. It was very difficult to set a rule when it was not respected, because then people would have to continuously be removed from the Chamber, which also was not helpful.
Ms van der Merwe said the Chairperson was raising a fundamental issue, because it seemed that the presiding officers were very different in their approaches. Some presiding officers would, when a Member raised an invalid point of order, simply switch off the microphone. The Rules empowered them to do so, because they should not be spoken to in an inappropriate manner, or outside a rule. Other presiding officers would wait until the Member had finished speaking. The issue boiled down to how the Rules were implemented and how the House was conducted. She received the register, which indicated the status of the various motions as containing racist or party political statements, but those motions would still be moved on the floor and there were no consequences. She agreed with the suggestion to move motions without notice to the end of the sitting and limiting the time, but it was also important to ensure that the presiding officers implemented the Rules.
Ms Kilian said the Subcommittee’s report set out a good basis, because it dealt with proportionality and time limitation. However, it did not deal with time limitation on a particular motion, and this could be abused. Members’ statements were given 90 seconds and therefore she did not agree with that amount of time, as 60 seconds could be ample. The Rules did not set out anything about the practice that these motions were not of a political nature, or parochial content,and perhaps that could be written into the Rules. There were some concerns raised, when the ANC discussed the matter, about the need for a five-party threshold. A possible solution could be to require that the five parties must include the ruling party, the largest opposition and at least three other parties to support the motion. There should also be provision for a party to be called upon to read a motion, only once the motion had passed the vetting process. She fully supported what Ms van der Merwe was saying, because motions which were known not to meet the requirements were still being read, and Members did not not how they had passed the scrutiny of the National Assembly Table. No one should be allowed to read a motion which was not approved,s and a party sequence and list must be presided over. She urged that the current abuse of the mechanism must stop.
Ms Zainab Naidoo, Procedural Officer, National Assembly, said that in addition to the process for motions without notice, the Subcommittee could perhaps look at the guidelines which would be passed through the Rules Committee, since sometimes motions would come which the guidelines did not indicate were out of order. In the past, she agreed that motions without notice would congratulate individuals or companies, but now they were used to make discourteous remarks, and the guidelines should perhaps cover that, for there was no way for those addressed in those remarks to set the record straight.
Mr Kasper Hahndiek wanted to clarify that when there was no objection to a motion being proceeded with in the House, this did not indicate that a party or a Member accepted the motion. The first objection related only to the principle of the motion being moved in the House without notice. If there were no objections to the absence of notice, then the motion itself was put before the House. At that point, any party or Member could object to the content. On the proposal to divide or amend the motion before the House, Members must decide what becomes of the substance of the motion. Every motion that was passed in the House must be communicated to the subject of the motion. The House must be careful to not bring itself into disrepute. Parliament would need to consider on what basis it would select, for instance, motions of condolence to one person over another, and must consider the implications of doing so. Members had to be very conservative in the number of condolence motions they were prepared to consider. The suggestion to move motions without notice to the end of the day raised the concern that by that stage there may not be sufficient quorum to pass a motion, which was, historically, the reason for putting them first on the programme.
Mr Perran Hahndiek said the argument for a quorum for motions applied equally to having a quorum for Bills so the same argument applied for moving motions to the end of the day. The Subcommittee would have to decide what to do with motions without notice in the meantime. The process of reviewing the Rules would take approximately another two months, and in that time there would be House sittings where motions without notice would be called every day. He asked if the Subcommitee was happy to allow matters to proceed as they were, or whether it wanted to take an interim decision to suspend motions without notice, or propose new rules to better regulate these motions.
Ms van der Merwe said she had recently been in a Chief Whips Forum meeting where this matter was discussed. The ANC Chief Whip proposed suspending motions without notice, but other Whips were not very willing to be seen to be putting in drastic interim measures to cater for the present problems, but rather in favour of letting the review proceed through the Rules Committee. She thought that an interim measure was needed. However, she had a further concern in allowing Members who objected to motions to make statements, essentially using that objection process as a platform to respond to the motion, which was setting a bad precedent. .
Ms Kilian supported the notion that the Subcommittee should move with an interim rule and although not everything was covered by the Subcommittee’s proposed rule, it was a good start. She would propose taking the standing proposal and refining it, to make it clear that there was a threshold to even having the motion read out in the House. The motion could be put to a vote if some Members supported it and others did not. Interim rules should be put in place. Deciding whether to place it at the end of the programme was not much of a consideration, as it was much more important to deal with legislation, which required at least 50% of Members present. She agreed that Members' statements were presented for executive members to respond to, so clearly motions without notice were for the House to deal with. The tradition and practice of Parliament needed to be restored and whatever was required to achieve this should be done.
The Chairperson noted that Members tended to make statements when objecting to a motion without notice, not because there were no rules on the point, but because of what was discussed under the new rule 53, which was what had led to Mr J Malema (EFF) being removed from the Chamber. Members know very well that there were clear rules and detailed guidelines, but the Members had no intention to respect these rules. New rules could be designed every day, but it still would not work. Mr Kasper Hahndiek had raised the point that the problem may lie elsewhere than the rules. The Subcommittee should try to formulate an interim measure to try to limit time and the other aspects as mentioned. The practice used to be that if all parties were agreed to a motion, then it could be read in the House, but the problem was now that Members would still read motions even if the National Assembly Table staff had told them that these were not in line with the guidelines. This was done under the guise that the party whips had decided that the motion should be read and then the House could then object. The Subcommittee should find a better and thorough way of dealing with this, as he would not like to see any interim rule being referred back to the Subcommittee, because there were gaps or because it did not solve the problem.
Mr Kasper Hahndiek believed the problems could be dealt with, with only a slight adjustment of the Subcommittee’s current proposal, and also thought a rule could be put in place with immediate effect. When it was put in place, the presiding officers should announce that it would be strictly observed and implemented. If a party were to get a response that a proposed motion without notice was out of order and reasons were given, there should probably not be another opportunity to adjust and resubmit, and parties must be disciplined enough to recognise that they would then have to wait until the following day to get an opportunity to re-submit. Parties must also be aware that the Member would not be recognised to read the motion on that particular day in the House and the presiding officers should be informed of any proposed motions had been found to be out of order by the National Assembly Table. He felt that this would force parties to exercise more discipline.
Ms Kalyan agreed, but said the presiding officers had to come to the party, and this should not be left to Members and their whips. If a Member were to rise and begin to read a long story, there was the option to switch the microphones off, or for the presiding officers to rule that the motion was akin to a Members' statement and there would be the opportunity to make statements later. It may be helpful for the presiding officers to indicate that Members knew what was on the ATC programme and the impugned motion was not agreed to, because it fell short of the criteria, and the Member would get another opportunity the following day. MPs were currently running rings around some presiding officers, but if the rules were in place and consistently enforced there would be no problems. The presiding officers perhaps had to be taken through the proposed rules and informed that they had to implement the rules and not allow Members to “rant in the Chamber”.
The Chairperson said conduct in the House was unbecoming, but should the rules be amended simply because one party was not abiding by them? This may require a constant re-adjustment to the rules, depending on the parties and their behaviour. Members should also be sympathetic to presiding officers, because it would be wrong for them to remove Members continuously. Parliament was a political institution, not a church, and was meant to be a place for contestation.
Ms van der Merwe said the idea of moving forward with an interim rule was a good idea, but she did not think that rules were being made to deal with a specific party. The Subcommittee was confronted with a degenerated situation and at the end of the day presiding officers could all act consistently and in accordance with the Rules. While the House was a place to debate politics, and “people would want to take chances”, Members had to act within the rules. Presiding officers should not be allowed to sit and listen to people making frivolous points or irrelevant statements, which was why the mechanism to switch off microphones was there. Some presiding officers used it very effectively to control the House. Members must implore the presiding officers to act in unison and implement the tools available to them.
Mr Perran Hahndiek said Members were essentially suggesting either an interim rule, or working with the guidelines but ensuring that they were implemented properly. The problem with the current guidelines was that motions had to be submitted to the National Assembly Table by 12pm each day. The National Assembly Table could receive 20 motions and some would comply, while other would not, and the Table must make that assessment. The final decision was, however, made not by the Table but the Speaker. If a party was informed that the National Assembly Table had decided that a motion does not comply, they would ignore this, so the Speaker should make that decision, which raised the question of how to handle this administratively.
Ms Naidoo said, in relation to the circulation and the register, that it was found that parties would circulate motions weeks before the time. There used to be a gentleman’s agreement that if one party moved on a topic, another would not, but this was no longer the practice. It was found that parties would place matters on the register weeks before time, but they were not moved in the House. A section of the register listed matters which were proposed but not moved, which even included some matters dating back to February. It was not for the National Assembly Table to decide that the motion would not be moved, but there needed to be a time set for the circulation – whether on the same day, or a few days before. It had been found that parties would move items from the previously circulated list.
Ms Kilian said the mechanism was meant for matters which had occurred within the previous 24 hours which should be the cut-off date. Motions without notice were a specific type of motion, and time bound. If the motion was not moved on a specific day then the party could have adjusted it and therefore there needed to be a list, with the specific text that was agreed to, a party sequence and parties being called on to make proposals. It might be a long standing issue that a party with six percent representation might “dominate and bully the House... with whatever they want to move even though the content of those motions was disallowed”.
Mr Kasper Hahndiek said there could be a requirement that motions without notice must deal with very topical and current issues only. If that topicality could not be shown, then the motion should not be allowed, because then notice could be given. That may be a useful criterion to try to bring motions without notice back to their original intention. He added that 12pm was too late a cut off time for any further processes. The National Assembly Table was working under the authority of the Speaker, just as with questions, and would send notices to Members indicating that the motion was out of order. If the cut off time was 11am, then the Members would understand that there was an opportunity to appeal to the Speaker. It had always been the case that if the Member disagreed with the National Assembly Table’s initial view, there was an appeal to the Speaker. It was uncertain whether there would be many appeals to the Speaker, but the Speaker should be able to deal quickly with clear abuses such as unparliamentary language or not being topical.
Ms Kalyan said that in a previous Parliament, the Chief Whips’ Forum had decided that because of the burden of responsibility on which motions without notice to place on the National Assembly Table, only those that had national issues such as condolences or congratulations would be allowed, but in exceptional situations, then international matters could also be recognised. She asked what had happened to that practice. She had spoken to a representative from the EFF, asking whether they understood what the National Assembly Table had to do, when such a motion was passed, including finding all details of the relevant person and drafting and delivering a letter, and this process was not generally known. If appeals to the Speaker were allowed, she could foresee problems. Her recommendation was that if the motion without notice did not comply, the Member would be entitled to resubmit the motion the following day, with the required amendments.
The Chairperson said the Subcommittee's original proposals would be augmented by the present proposals and would be presented to the Subcommittee as an interim arrangement in the next week. If accepted, the Rules Committee must meet to work on it. He suggested it would be better to limit the time proportionally for the parties, and this could perhaps then remove the need to have them set for presentation at the end of the sitting.
He summarised again that in relation to the removal of the President, it was agreed that more research would be conducted and guidelines developed to assist the Speaker in deciding.
Party Inputs on the Rules of the National Assembly
The Chairperson went through the Rules, chapter by chapter, asking for input from any of the parties.
Chapter 1: Sources of Authority of the National Assembly and their Application
Mr Kasper Hahndiek said the definition of “parliamentary protection services” needs to be reinserted.
Ms Kilian agreed with the re-insertion. She noted also that some Members of the ANC had felt that the reference to the Secretary should be specifically to “the Secretary of the National Assembly”. There was a definition for a question of privilege, but she had experience of Members raising this as their privilege to ask a question. Perhaps there should be a definition of what was “a privilege” and of “the immunities”, because these were contained in the Constitution. This would make a stronger link between the documents, and all Members would understand what “a question of privilege” related to. She understood that a new procedure had been created and there may be a need for a definition.
Mr Hahndiek said there were places in the Rules where reference to “the Secretary” was correct and others where “Secretary of the National Assembly” would be the correct reference, as opposed to “Secretary of Parliament”. An extra definition could be put in for “Secretary of the National Assembly”, but the correct reference would have to be determined for every single rule. He was not sure that the Subcommittee had applied its mind to the distinction and which Secretary was responsible for particular functions.
Mr Perran Hahndiek said the assumption was that the Secretary of Parliament delegated and the Secretary of the National Assembly was the delegatee. This was the same as having a reference to the Speaker, as head of Parliament.
Mr Kasper Hahndiek said the issue was whether it was accepted and assumed that the Secretary of Parliament would have a role to play in National Assembly proceedings. This had always been a concern to him when he had been Secretary of the National Assembly, because he felt he had a direct responsibility, having been elected by the House and was answerable to the House. Should the references in the Rules be to “the Secretary of Parliament”, where the Secretary of Parliament had no direct procedural responsibility? He felt this warranted closer attention and closer inspection of the relevant references. For example when papers were tabled, “the Secretary of Parliament” had to ensure they were published in the ATC, but when it was specifically a function and responsibility of the National Assembly,the reference should be to “the Secretary of the National Assembly”.
Ms Kalyan asked what was being decided.
The Chairperson said it was going to be reviewed, but his gut feeling was that whatever happened in the National Assembly, the Secretary of the National Assembly should take charge.
Ms Kilian's noted that the definition of a question of privilege presently set out that it “means any
report of an act which may constitute a breach of privilege or contempt of Parliament”. She was wondering if it could read “a question of privilege is a motion to bring a perceived breach of privilege by a Member in relation to the business of the House, to the attention of the Speaker”. If it was defined more closely, then it would link better to the process detailed in the Rules.
Mr Kasper Hahndiek said defining this as a motion could be slightly problematic, because bringing something to the attention of the Speaker did not mean proposing that a motion should be immediately moved. If the Speaker accepted that an issue of privilege was involved, the Speaker would then allow the Member to give notice of a motion immediately.
Ms Kilian said she meant “motion” in a broader sense.
Ms Kalyan asked for a specific example of a question of privilege.
Mr Kasper Hahndiek said that pre-1994 there was a committee of Parliament which met in Pretoria, at the Reserve Bank building. The Reserve Bank insisted that their personnel be in charge of the entrance of the Members and insisted in looking into the bags of the Members. Immediately as the Members came into the committee, they took a point of privilege, saying that it was unacceptable that their baggage should be searched by external people when entering what was deemed to be the precincts of Parliament, given that a committee was meeting there. It was decided that the Reserve Bank personnel had no say over the Members or what they brought into the Chamber, because Parliament would take the responsibility. If a Member were prevented from coming to Parliament on a particular day, because of what the Committee was discussing, then that would be a question of privilege. If the House was going to take a decision on a matter and a Member was phoned and threatened, then this should immediately be brought to the attention of the Speaker as a question of privilege.
Ms Kalyan asked whether a question of privilege related directly to the individual Member and his or her rights, or privileges which pertain to the position of Member of Parliament..
Mr Xaso said section 7 of the Powers and Privileges Act would assist with scenarios defined as being a breach of privilege. There was a breach of the privilege of specific Members, but also the collective House Members enjoyed privilege.
Ms Kalyan raised a hypothetical question whether, if a political party offends the House, other political parties or Members could raise the question of privilege.
Mr Kasper Hahndiek said it would depend on when it happened. As soon as it happened it must be brought to the attention of the Speaker. Just as Members take points of order, they could take points of privilege. It could also be a threat against an individual Member, which would mean meeting with the Speaker for the Speaker to take the necessary action. He would suggest that if it applied to the sitting of the House and to the functioning of the House it could be brought up in the House, but otherwise it ought to be brought to the attention of the Speaker.
Mr Xaso read section 7(a) of the Powers and Privileges Act: “a person may not improperly interfere with or impede the exercise or performance by Parliament, a House or committee of its authority or functions”. Section 7(e) reads: “where Parliament, a House or committee was meeting, create or take part in any disturbance within the precincts”. A person who engaged, in such actions was breaching privilege and in contempt of Parliament.
Mr Perran Hahndiek said that since freedom of speech was part of parliamentary privilege, a Member who was denied his or her opportunity to speak could raise a point of privilege.
Ms Kilian said freedom of speech was not absolute; it was subject to the Rules and orders of the house. Therefore, if a Member abused the privilege and spoke against the Rules, that Member could be denied that opportunity to speak.
Mr Kasper Hahndiek said this had been an issue, and Ms Kilian said was perfectly correct, it was subject to the Rules. He had seen court judgments indicating that the substance of what was being said could not be limited, but when it came to unparliamentary language, repetition or speaking when not recognised, these were essentially substance issues rather than process issues. He would therefore think it was incorrect to say Parliament was not in a position to rule on the substance of a remark, because it was, and it had to be. He was not sure where the courts were coming from, but these issues were all about substance. For example Members may not pre-empt a discussion which was pending in Parliament, and this did amount to stopping a Member from speaking about the substance of an issue.
Ms Kilian noted that the ANC workshop felt that the definition of “substantive motion” should be refined. The purpose of the motion was to ensure that any allegations levelled against a Member must be substantiated. She felt reference to the relevant rules ought to be made, so that Members were clear.
Part II: Sources of Authority of the National Assembly.
Ms Kilian said under rule 1A(f), the reference was to directives and guidelines as approved by the Rules Committee, and the reference to “as approved by the National Assembly” was deleted. She was wondering whether this was correct. At one point the Subcommittee argued from the point of view that the Rules Committee could decide and adopt things, but on the other hand the Rules must be approved by the House. Therefore, should a guideline document, when it carried similar authority, not also be tabled in the House?.
Mr Hahndiek said rule 161 defined the powers of the Rules Committee. It had always been the case that the Rules Committee had the authority to make directives and guidelines. There was no suggestion that they had to be adopted by the National Assembly. If they were adopted by the House they became sessional orders. The key question was whether the Rules Committee ought to be authorised to take decisions on its own, about rules and guidelines, or whether these should be taken to the House for formal approval. This was similar to Ministerial Regulations, with the relevant Act dealing with the broad framework, and the detail being altered from time to time by the Minister through regulations. It was never necessary for Parliament to approve every regulation. The way he understood it was that this level of detail was dealt with by the Rules Committee, and was published in the ATC, but that it did not have to go to the House for adoption.
Mr Xaso said this matter had been a source of frustration, especially when it came to briefing lawyers who dealt with matters relating to Parliament. It would seem that guidelines had an ambiguous status and it was not clear whether they were binding. Furthermore, there were concerns about whether they would withstand court scrutiny. He urged the Subcommittee to apply its mind and determine how best to proceed. He agreed that once the guidelines were passed by the House, they would cease being guidelines and become orders of the House, but the Constitution did authorise rules and orders.
Mr Kasper Hahndiek said rule 5A: Directives and guidelines of the Rules Committee was in point. Rule 5A (2) states that Members must comply with any such guideline. This was not optional and the rule therefore declared that Members were in fact required to comply.
Ms Kalyan said that in drawing the corollary between guidelines and regulations, she agreed that regulations did not come before the House, and there could be a similarity in how they were dealt with by the House.
Mr Kasper Hahndiek said the guidelines need not be a source of concern. All parties participated in the Rules Committee and guidelines were intended to deal with a level of detail which did not need the formal approval of the House. If parties felt, at a given moment, that a Rules Committee decision was not weighty enough, then they could propose that it should be taken to the House.
The Chairperson said he thought that once the Rules Committee took a decision on guidelines, these would bind Members, because the intention was to allow the Rules Committee, as the senior Committee of Parliament, to take decisions which would be implemented. If the decision needed to be changed to a decision of the House this was still possible, but generally the guidelines would be accepted.
Mr Hahndiek said reference to “guidelines approved by the Rules Committee” was found throughout the Rules, including the criteria the Speaker was to use in allowing motions, criteria for questions, criteria for dress code. All of these were detailed conditions, which had up until now been published in the Guide to Procedure and were understood to be accepted practice. Now they were to get the formal approval of the Rules Committee. If it was felt that these criteria were so important that the House ought to adopt them, this was still possible.
Ms Kilian said there was a proposal in the ANC document on rule 5: Unforeseen eventualities. During the ANC workshop it was suggested that the provision should include the words: “including protecting the dignity and decorum of the House”. She, however, believed that there were adequate rules for the Speaker to be able to do that, and she did not think it should be included under unforeseen circumstances.
Chapter 2: Proceedings in Connection with Commencement of Session
The Chairperson noted that there were no specific comments raised. He hoped that parties had applied their minds and they would not open a long discussion in the Rules Committee on matters which they had been given sufficient time to apply their minds to.
Chapter 3: Presiding Officers and Members
Ms Kilian referred to rule 17A, saying that there was an expression of doubt whether it would be appropriate to place such an onerous responsibility on the Speaker as was done under 17A(1)(b). This was to “ensure that all parties in the National Assembly participate effectively and efficiently”. If parties did not participate, the Speaker could not compel them in any way. She thought that this particular provision required review.
The ANC Workshop did not believe that the provisions of the Constitution needed to be repeated, otherwise it could amount to placing a responsibility to ensure compliance.
In relation to rule17A (4), dealing with general authority, she made the point that the rules were written for Members to have rights, but the way it was formulated at present spoke to the rights of parties. The ANC was of the view that it was individual Members, and not parties, who had privileges rather than rights. The suggestion was to amend this to read: “the Speaker must in exercising his or her authority apply the rules with due regard to ensuring the participation of Members of all parties in a manner consistent with democracy”.
Mr Xaso questioned whether, in relation to rule 17A (1), Ms Kilian was suggesting taking some words out and leaving others in,
Ms Kilian said that the point was that it should simply read that the Speaker should make possible for Members to participate. The second part of 17A(1)(b), referred to facilitating public involvement, but the ANC felt it was not necessary to make reference to sections 57 and 59 of the Constitution.
The Chairperson said it caused no harm for the reference to be there.
Ms Kilian agreed but said that if the Rules were going to go into such detail, it could imply that a fully burden was being placed on the Speaker, and therefore the wording must capture the essence of what was being suggested. The Speaker could not be held responsible for ensuring the effective and efficient participation of all Members and parties, as some Members would and some would not participate.
Ms Kalyan disagreed, and said this was the Speaker’s job and this was why the mechanisms were in the Rules. She would like to see the provision stay as it was. She also thought it particularly important to have a reference to sections 57 and 59 of the Constitution in the Rules. If these were referred to specifically, then people would not have to look elsewhere. Public participation under section 57 was an important part of passing legislation.
Mr Kasper Hahndiek said he thought it was problematic to say that it was within the authority or the responsibility to ensure that parties participate effectively. The manner in which parties participated could not be the responsibility of the Speaker. What the Speaker must do was apply the Rules and ensure they were applied consistently, and the purpose of that was to ensure effective and efficient participation. It was slightly problematic to suggest that the Speaker had no responsibility in this regard.
Mr Perran Hahndiek said perhaps it could be amended to read “ensure all parties represented in the National Assembly participate fairly”.
Ms Naidoo said the duty of the Speaker was to enable Members to participate and she proposed “ensuring all parties represented in the National Assembly were able to participate effectively and efficiently”.
The Chairperson perhaps removing the qualifications of “effectively and efficiently” could be a solution. The Speaker was there to ensure that every Member of Parliament participated in the proceedings, but was unable to judge whether Members did so effectively and efficiently.
Ms Kalyan said she agreed with the removal the word “efficiently”, because what was “efficient” differed from Member to Member. However, “effectively” was important, because the Speaker had a duty to provide Members with the tools of their trade and a safe working environment. It was not the Secretary of Parliament who was responsible for this, but it was the Speaker.
The Chairperson clarified that Ms Kalyan agreed with the removal of efficiently, and felt that there was no harm in cross referencing to sections 57 and 59.
Ms Kilian asked whether it would then not be better to keep “efficiently”, as this spoke more to the provision of tools of trade and the like.
Mr Kasper Hahndiek said he was unsure where the wording of this rule came from, but if the Subcommittee were to argue between “effectively” and “efficiently”, similar concerns would apply to rule 17(1)(a). This required the Speaker to ensure that the National Assembly provides a national forum for public consideration of issues. How could the Speaker do this, other than by applying the Rules? He suggested that this should be revisited entirely and amended along the lines of requiring the Speaker to ensure that the Rules of the National Assembly and relevant constitutional provisions were complied with, in the running of Parliament, rather than trying to pin point a number of responsibilities.
Mr Perran Hahndiek said perhaps it could read “ensure parties participate in a manner consistent with democracy”, because this linked the rule back to the issue of participation, which he felt was important in the context of the rule.
Ms Kalyan asked whether this language was talking about the capacity to participate efficiently and effectively. She wanted to know what duties, apart from the tools of trade, the duties linked to.
The Chairperson said Members should be careful to separate what their party caucuses had stated and their own individual further thinking, because this may be beyond what the party caucuses had accepted. If there was disagreement, then various options could be noted, and the Rules Committee would take the final decision.
Mr Perran Hahndiek said he thought there was an agreement that a note should be put in, under these rules. Secondly, there was a dispute as to whether subrule (b) was necessary at all or whether it could become an option.
Mr Kasper Hahndiek agreed with the Chairperson’s position and said that unless there was a party caucus position, it would be safe to leave the rule as it was.
The Chairperson said the ANC position did not dispute that the Speaker had these general responsibilities, but was more concerned with the appropriateness of the language.
Mr Kasper Hahndiek said the opening words of rule 17A (1) were overlooked and they set the context, because the Speaker was only required to comply with the rule “In exercising the authority of the Speaker, as provided for in the Constitution and legislation”.
Part 2: Members.
Ms Kilian said a comment was made by the ANC on absence without a medical certificate and the like, but this was dealt with, because these were submitted to the Chief Whips who were supposed to keep a record.
Part 3: Members’ attendance
The Chairperson pointed out that there was a policy in place already.
Mr Perran Hahndiek said one concern from the smaller parties was that their Members served on various Committees which sat at the same time, meaning that they could not physically get to all the meetings. They asked if they would simply need to note apologies to all the committees which they would not be attending.
Ms van der Merwe said smaller parties did get together and decide which Members would sit on what committees, but the concern was that these Members would also be alternate Members on other committees. Members never in fact managed to go to these committees and at times were marked absent.
Ms Kilian said it was important to differentiate between full Members and alternate Members, because alternate Members did not even need to submit an apology. The Rules were written in such a way that they referred specifically to full membership of a committee, where absence without an apology would become a concern.
Ms van der Merwe said the problem was the application of rules, because Members were at times marked absent when they were in fact alternate Members.
The Chairperson said the language should be made clearer in the Rules. The Subcommittee agreed to the concept of roving Members, who would attend meetings where they could, but they should submit apologies to their “main” committees.
Mr Kasper Hahndiek said the way he understood it was if a Member was present in one committee, then obviously they would be absent from all the rest, and whether an apology was submitted or not the Member could not be penalised, as the records would show the attendance of one committee in that timeframe. If a Member was a full Member of a committee and requested their alternate to attend the meeting this would be communicated to the committee. In that case the alternate would then have to submit an apology if s/he could also not attend.
Ms Kilian referred to rule 21CC (1), and said perhaps it was necessary to clarify that a period of leave may not exceed 15 consecutive sitting days per annum, and not per session.
Ms Kalyan said under 21CE, reference was made to the Secretary, and the Secretary to a committee. She asked if the first reference was to the Secretary to Parliament.
Mr Kasper Hahndiek said this was in line with his earlier concern, because he felt that in this instance it would be the Secretary of the National Assembly.
Chapter 4: Sittings of the National Assembly
The Chairperson asked for input on part 1: General. He asked whether any party had any serious opposition to this section. He noted that the EFF was not here, that it had boycotted and then they would accept the Rules by acclamation”. He thought the EFF might be hoping that the courts would say all the Rules were wrong, but when the courts said Parliament was within its rights, they would be far behind. The EFF Members had been making serious contributions.
Ms Kilian said there was an option for rule 24A (1)(a), but perhaps it was not properly understood. It was felt that the decision must be made “with the concurrence of the Speaker and Leader of Government Business”. However, the ANC felt it was unnecessary to get the concurrence of the Leader of Government Business, but instead the wording could be “after consultation”. The option was captured and it was felt that it was important to add “when any government business was prioritised”.
Mr Perran Hahndiek noted that rule 24A(1) was worded as “subject to these Rules and especially any Rule providing that the Speaker must exclusively make a specific programming decision,”. He asked whether using “especially” was normal language to use in rules.
Mr Kasper Hahndiek said “particularly” may sound better.
Mr Perran Hahndiek felt a rule should be in strict language and should not have qualifications like this.
The Chairperson asked whether the removal of “especially” would cause harm.
Mr Kasper Hahndiek said it was emphasising the obligation of the Speaker, and the Chief Whip was obliged to recognise these responsibilities. If it was removed, then Members may not be aware that the Speaker had this particular responsibility, leading to challenges to what the Chief Whip does.
Ms Kalyan asked what the word was being changed to, and Mr Kasper Hahndiek replied that the suggestion was that it should be “particularly”.
Ms Kalyan said that under rule 24A (2), the word “Secretary” was used and asked which Secretary this was referring to.
Mr Kasper Hahndiek said he would go through each rule and determine whether it was the Secretary of Parliament or the Secretary to the National Assembly that was meant.
Ms Kilian said that another point was that sometimes there was a reference to Members of the Assembly and at other times merely to Members, therefore the language needed to be cleaned up.
Part 3: Mini-Plenaries
Ms Kilian said there was a concern raised that there could be chaos if there were no speaking lists or time allocations. There was therefore a need to put in an option for that. She wanted to avoid the intimidatory atmosphere seen in other proceedings of the House where there was no clear understanding of who does what and when.
Ms Kalyan said it was her understanding that mini-plenaries worked along the same lines as a first reading debate, but she saw that a global time may be set, meaning that the process would work on proportionality.
Mr Kasper Hahndiek said his understanding was that a global time may be set, but it remained the responsibility of the presiding officer to see Members from various parts of the House throughout the discussion. He compared this to how proceedings were run during a committee meeting, without a speaker's list or proportionality, but a global time being set.
Ms Kalyan said if a speaker's list was chosen then rule 35(1) would be in conflict with 35(3) and she recalled that the Subcommittee was very much in favour of allowing a Member more than one opportunity to speak, if the global time was allowed. Therefore, she suggested leaving the rule as it was, because the idea of mini-plenaries was to encourage spontaneity.
The Chairperson said he was under the impression that the idea was accepted by all parties.
Ms van der Merwe said she recalled from the smaller parties’ workshop that they would not like to see more than two of these mini-plenaries take place at the same time, since their Members would not be able to participate, if the party had only one or two Members.
Mr Kasper Hahndiek said that was indeed a concern for the smaller parties and if they were prevented from making their inputs that could be serious. Rule 31(3), which reads “more than one mini-plenary session could take place simultaneously” could easily be adjusted to limit it to no more than two.
The Chairperson said the move was to move from Extended Public Committees (EPCs) to mini-plenaries. The idea was that they would function along the lines of a committee, with a presiding officer and no speaking list. Members in committees did not read speeches, they engaged spontaneously. If these were reduced, then it might impact on the intended budget process in mini-plenaries. If they were limited then it may cause difficulties, for the idea was that sometimes two, if not three, budget votes would be dealt with at the same time. It should not be narrowed to the point where the intention could not be understood.
Ms van der Merwe said the proposal was raised by the smaller parties and as she represented them it was incumbent on her to raise it. She fully understood why it might not be possible.
Mr Kasper Hahndiek said if a challenge in court was raised about the inability of the one-or two-member parties to participate in three simultaneous mini-plenaries, then it could cause trouble. Perhaps the rule should rather provide that the number of concurrent mini-plenary sessions allowed should be determined by the Rules Committee, to allow it to be more flexible after a general election.
Ms Kilian said she would support that suggestion. She thought, however, that mini-plenaries were no different from EPCs which did have three running concurrently. Important budget debates took place in this fashion and what happened in practice was that there was a practical arrangement by Members, moving from one to the other. Therefore, there were ways to accommodate the concerns, and the Rules could not be written to accommodate every single one-member party.
The Chairperson said this point almost negated the point the smaller parties raised earlier about absence from committees, and alternates. If these parties wished to come to the Subcommittee they were free to do so. However, the Rules Committee could be the appropriate place to decide.
Ms Kalyan asked whether this would be decided by the Rules Committee or the Programme Committee.
The Chairperson said it would be the Rules Committee. The Programme Committee was set up to seek consensus and where this was not found the Speaker and Chief Whips made the decisions, in consultation with the Leader of Government Business.
Mr Kasper Hahndiek asked whether this should be put in as an option. He agreed that it should be finally decided by the Rules Committee, which also decided issues such as the number of whips per party and the size of Portfolio Committees. After each general election it had the responsibility to assess its impact on the functioning of the House.
Mr Xaso asked if members of the executive would also be able to participate in mini-plenaries.
The Chairperson agreed that they could participate during the global time.
Mr Kasper Hahndiek said it was important that there should be some recognition of the fact that members of the executive should be given sufficient time, by the presiding officer, to respond to the debate. A debate was all about an engagement between MPs and the executive, therefore it may be necessary to indicate this in the Rules.
Mr Xaso said that in first reading debates, members of the executive had fifteen minutes, and would decide how to use that time: generally ten at the beginning and five at the end of the debate. Perhaps the same route could be followed here.
Part 4: Public Access
Ms Kilian said the ANC caucus had expressed the opinion that perhaps the placement of motions without notice should be together with notices of motion. Depending on whether, with the interim arrangement, the present disturbing conduct could be rectified, then it may not be necessary to move it. Further, in relation to the Serjeant-at-Arms, she pointed out a typographical error; “security forces”, instead of “security services”, which must be corrected.
Chapter 5: Order in Public Meetings and Rules of Debate
The Chairperson said the Subcommittee had recommended that parties look at the rules relating to: : - Conduct of Members (including dress code)
- Removal of Members from the Chamber
- Period and sequence of suspension
- Rules of debate.
Ms Kalyan said rule 45(3)(e) required Members to not bring dangerous or threatening objects into the chamber, “excluding cultural objects approved by the Speaker”, but it would be better to phrase it so that they could only bring them in if there had been prior approval.
Ms Kilian said there was a request by the ANC that rule 45(3)(e) should say that an MP may not bring a weapon of any kind.
IN relation to rule 45(3)(f) she was requested to liaise with Mr N Singh (IFP) and Ms N Mazzone (DA), which she had done and she indicated to them that she had made a further elaboration on the dress code. As the body of the Rules were being dealt with, she would not report on this aspect presently, aside from indicating that the ANC workshop had essentially adopted a draft dress code.
The Chairperson asked what the ANC workshop had said.
Ms Kilian said that in summary, it referred to “dress in a manner befitting the dignity and decorum of the House, as provided for in guidelines approved by the Rules Committee, provided that no party symbols may be displayed”. The guidelines to be proposed to the Rules Committee and read as follows: “Members must be dressed appropriately, in formal business or traditional attire and generally dress in such a way that reflects respect for Parliament, the Constitution and people that they represent in that office. She said it went further to say that Members must not wear clothing or clothing accessories which are revealing or display party political emblems or insignia, nor should they be dressed in informal wear such as denim jeans, shorts, t-shirts, golf shirts, tracksuits, overalls, caps, hats, makarapas or any other item which may be described as informal, construction or casual wear.
The Chairperson said the guidelines could be constructed from there, but the rule must be accepted, He suggested including the latter two paragraphs spoken to by Ms Kilian.
Ms Kilian asked whether the Chairperson was suggesting an extension to (f) and would like to hear what other Members were saying.
The Chairperson said the guidelines could be worked out with the smaller team, and taken to the Rules Committee.
Ms van der Merwe raised a point on rule on rule 52(b). On behalf of the smaller parties she was asked to suggest that the rule read “after consultation with the presiding officer and the whips of Parliament”. This would ensure that the remedial action applied following the application of the rule was not perceived as one-sided.
Ms Kilian said she did not think the Speaker could be put in such an onerous position. In most cases the Speaker would liaise with the whip of the relevant party, but not with all the whips. The ANC would not support this, because then the authority of the Speaker was being eroded
Ms Kalyan said the DA also would not support it, because there were mechanisms which the Speaker had to use – whether this was to refer the matter to the constituted committee, Powers and Privileges Committee or the Ethics Committee. The role of the whip was different to these other mechanisms.
Ms Kalyan added that, having looked at the ATC of 29 July 2015, she thought it would be incorrect to go straight to hauling in Parliamentary Protection Services if a Member refused to leave and this should only be done if there was violence or gross misconduct. The incident which happened the other day had no violence and the Parliamentary Protection Services need not have been called in, as the Member could have been named, particularly as it was the last item of the day. There ought to be one more option available to the presiding officer before calling in the Parliamentary Protection Services.
Ms Kilian said the Subcommittee had deliberated what should be put into rule 53A at length, before consensus was reached and this was then tabled and adopted as an interim measure. She would argue that the rule as it was should thus be incorporated into the Rules. Ms Kalyan was suggesting something that could turn into a very slippery slope, because if the presiding officer was only able to effect the removal of a Member where there was violence, then the goalposts had been shifted very significantly. Members wanted order in the House to be restored and for individual Members who were disregarding the authority of the Speaker or presiding officer to leave the House. Any Member had a choice and if s/he did not want to leave voluntarily would be removed, because otherwise the House could not conduct its business. Otherwise, every time there was disorder the Speaker must adjourn the House, and Parliament could not continue in that manner. The ruling was a considered one and was not taken as a spur of the moment, emotional reaction by the presiding officer. It was anticipated that the Member in question would withdraw, but he in fact repeated the statement, disregarding her authority and when called upon again, he again repeated the statement. That was very serious disregard for the authority of the Speaker. She reiterated that the ANC would propose incorporating rule 53A as adopted by the House.
The Chairperson said perhaps there would be further discussion in the Rules Committee, because the interim measure was meant to restore order, which had been done. There would be no harm in introducing new rules if Members had new ideas. Refusal to leave, following a request by the Serjeant-at-Arms, left no option aside from removal by the Parliamentary Protection Services. In a case of violence, the police would be called in to handle the situation. He knew that the DA Chief Whip had argued that there had been no serious disturbance when the Member had been removed by Protection Services, but it was not only about serious disturbance. The crux was the refusal to comply with the order of the presiding officer, even after requested to do so by the Serjeant-at-Arms. If there were new ideas which could enhance the rule, he was sure they would be welcome.
Ms Kalyan said there was an interim arrangement, as considered by the Rules Committee. She asked if the interim arrangement now takes precedence over a standing rule, because rule 52 (a) and (b) still applied. Naming of a Member was still an option, which would be consequent to a refusal to withdraw, whereupon the presiding officer should name them, followed by the impugned Member’s suspension.
Mr Kasper Hahndiek said rule 52 did still stand, but rule 53A dealt specifically with a Member who refused to leave the Chamber. The option of naming and suspending a Member remained at present, but rule 53A had been formally adopted by the House.
Mr Perran Hahndiek said, on the naming issue, that one point for consideration was that when a Member was named s/he had to leave the Chamber. If the Member refused to leave the Chamber, then the Parliamentary Protection Services had to be called upon, and therefore the outcome was the same.
The Chairperson said he understood the DA's position and suggested that it bring forward proposals to enhance rule 53A.
Ms Kilian said there were three options for rule 54. Firstly, to leave the existing rule as was. Secondly, to replace the rule with: “the period of suspension on any occasion continues for three parliamentary working days”. The third option had been covered in a presentation relating to concerns that a court had ruled that the funding of a party could not be removed. She would suggest that the third option be refined, to make it clear that it was the removal of a Member’s salary that was envisaged, and not removal of a party’s funding. This would therefore restrict the punishment to the Member and not their party.
The Chairperson said the main concern was how this would be done without a due process being observed. It would be a good idea to propose all the options to the Rules Committee.
Ms Kalyan asked what the proposed wording was.
Ms Kilian read out the proposal: Rule 54(3) “A Member who is automatically suspended forfeits all remuneration and allowances payable and any other benefits afforded to a Member by Parliament during such suspension”. Essentially this proposal was to clarify that it does not affect party benefits. For example, one could not skip a monthly payment to Parlmed, but there must be a provision for a Member’s basic salary to be forfeited.
Ms Kalyan asked that “suspension” be clarified first. If a Member was suspended for five days, she asked where in the Rules it was said that s/he would forfeit remuneration, other than in the option to be presented. The precedent had been to suspend with pay. She asked why the Subcommittee had now decided to present that option. Furthermore, remuneration was a package, including Members’ airline tickets, and she would be loath to see a Member lose these sorts of benefits. Her first question was whether suspension would be automatically suspension without pay. This was not how it was done in any other field; for instance some former public service heads had been suspended for two years with full pay, pending an inquiry.
Mr Kasper Hahndiek said the existing rule 54 still stood. This provided for the progressive periods of suspension being five, ten and twenty parliamentary working days for each successive infringement. The second option was to replace this with three additional parliamentary working days on each occasion. The full third option suggested for five, ten, 20 and 30 days on each successive occasion. Subrule (3) provided that where a Member was automatically suspended s/he would forfeit all remuneration and allowances. If the Member was a Committee Chairperson, then there were certain allowances attached and the same applied to being a whip. The Subcommittee needed to be clear on whether the forfeiture was limited to the Member’s salary or whether the provision included such allowances.
The Chairperson said the rule ought to be specific, because the intention was not to punish Members but rather to bring order to the Chamber. The point argued was that Members could be suspended 20 times, but this could have no effect, so this was intended to put some “bite” on to the Member’s pocket, to make him or her realise that Parliament was serious about order in the Chamber. It was important to limit the provision to salary, because the entire remuneration package could affect a Member’s children.
Ms Kilian said this practice did exist in other parliaments, but there was already provision for increasing periods of suspension, depending on how often a Member was transgressing against the Rules. At present, there was ongoing conduct in Parliament which was making it difficult to restore order. The original rule set the progressive increases in periods for consecutive transgressions in a single annual session. This, however, would not work if Members could effectively take leave with full pay. It could be taken as a “nice prolonged holiday”. Therefore, the additional penalty of forfeiting salary for the period of suspension was included to emphasise the seriousness of the situation. Members were not only disregarding the authority of the Speaker, but in fact were in contempt of Parliament. If Members continued with their misconduct they ought to feel the pinch to their pocket.
The Chairperson said perhaps the removal of remuneration could come in as a last resort, only after the first infraction. The basic point was to encourage Members to observe order.
Mr Kasper Hahndiek said at present this was not the case and the removal of pay was effective from the first suspension.
The Chairperson said the point which he was trying to make was that the Rules were not intended to punish Members, but it was recognised that there were certain behaviours which warranted a penalty. In his opinion, if someone repeated an offence, there ought to be a penalty. He noted that there was also the potential for creating a disciplinary committee to handle these matters, but the position at present had not been resolved. The Powers and Privileges Committee processes took too long. Perhaps this could be something which should be considered as an option. In the case of Mr J Malema, his salary had not been removed. The Subcommittee must be clear on when it wanted the docking of a Member’s salary to be imposed.
Ms van der Merwe said if Members were going to be suspended, there must be other consequences, whether appearance before a Disciplinary Committee or the docking of a salary. She agreed with Ms Kilian that otherwise it simply became an extended holiday. She would suggest either referral to a disciplinary committee or suspension of salary from the outset.
The Chairperson said the suspension would be proportional and this clarified the points
Mr Kasper Hahndiek said the Disciplinary Committee proposal needed to be clarified. In the case of Mr Malema the disciplinary committee hearing was automatic, although the salary had not been suspended at this point. If the option of the disciplinary hearing was taken up then this would take time and would have to review the ruling of the presiding officer, to determine if the offence was serious and whether the salary ought to be removed.
Ms Naidoo asked whether a legal opinion had been provided on this, because as far as she was aware, a process could be required before the step of removing a Member’s salary was taken. She was suggesting that if there was no legal opinion perhaps one should be requested.
The Chairperson said if a Member agreed to leave the Chamber then there would be no suspension and no consequent loss of salary. However, if the Member refused, to the point where Parliamentary Protection Services were called upon, then the suspension was automatic and the Member’s salary would be removed. He was aware that Adv Frank Jenkins, Parliamentary Legal Advisor, had been present when the matter was discussed, but a follow up would be made.
Ms Kilian said that under rule 55 a Member had an opportunity to express regret and then the severity of the penalty could be reviewed. Rule 55 read: “A Member… who has been suspended or named may submit to the Speaker written expression of regret and if the Speaker approves such expression of regret, he or she may discharge the suspension or other action taken against the Member or reduce the severity of any such action and the Speaker must inform the House accordingly”. Therefore, there was a way out, and for that Member to ask the House to accept the expression of regret.
Mr Perran Hahndiek said the EFF had taken Parliament to court recently over Mr Malema’s suspension and he thought that one of the issues which the EFF was raising was the ability of Parliament to suspend without due process. The matter had been moved on an urgent basis, but he was unsure of the decision, which may clarify matters around this rule.
The Chairperson said the rule should be left as proposed, for the moment, but if the court ruled in favour of Mr Malema then it would have to be reviewed. He did not think the court would do that in any case, after the meeting with the President and the team. He expressed the view that “the court knows now that they must not overreach, because overreaching also compromises them. They were compromised with the vote of no confidence judgement now, but the ruling had been made” but once the court makes it decision then it would have to be followed.
Towards the end of the meeting, Ms Naidoo said Adv Jenkins was now present and could speak to the requested legal opinion on removal of Members’ salaries.
Adv Jenkins said he had concerns, but he would urge Members to apply their minds to the issues of administrative justice, which was very important. He asked Members to consider whether the Member facing the sanction should not be given the opportunity to submit reasons why the punishment should not be imposed. There was no proper precedent where the Rules imposed something like that. He asked for more time to apply his mind to the issue and consult his colleagues.
Chapter 6: Decisions of Questions
The Chairperson said the Subcommittee had had a long discussion on rule 81: declaration of vote and asked what proposals there were by parties.
Ms Kilian said there was a period when there was a common understanding that when a Member made a declaration of vote, the National Assembly Table would be informed. This was captured under option (b). It was important that there be proper information of declaration.
The Chairperson said the issue of proportionality was raised and if, for example, all 41 budget votes must be handled, the Programme Committee would meet and allocate a global time. All parties would then be allocated a proportional amount of time to speak. The parties would decide which budget votes they wanted to make declarations on.
Ms Kalyan spoke to rule 80(1) which she did not think read properly.
Mr Hahndiek said this was to ensure that, at that point, no Member could rise and propose amendments, and a technical point had been reached where those options had fallen away.
Mr Perran Hahndiek said declarations happened on various matters and there were declarations on normal sitting days. Therefore, the global time needed to be limited, because if too much time was allocated then it ended up being a debate. Parties would therefore need to be limited to perhaps three minutes per issue.
The Chairperson said it would be up to the parties’ whips to determine how they would make use of the time allocated.
Mr Perran Hahndiek said if the period was limited, the smaller parties would need less than three minutes.
The Chairperson said the basic principle was proportionality and the amount of time allocated by the Programme Committee would be determinative. The Subcommittee had raised the point that declaration of vote should not be turned into a debate, but if the House wished to debate a matter it should do so.
Mr Kasper Hahndiek said at present, in the Rules, there was a minimum of three minutes per Member for a debate. In the case of declarations of vote, a minimum time was required and it could be one minute.
The Chairperson agreed that one minute would be fair.
Ms Kilian said there was a proposal that, for rule 84, that this should be lifted from four Members to 10.
Furthermore the ANC had discussed the reference in rule 88 that a Member demanding a division may not leave. There was a provision to indicate that if a Member was present they must vote or abstain.
The Chairperson said there was a strong view in the ANC caucus that the threshold under rule 84 ought to be ten, and that four Members in a Parliament of 400 should not be allowed to dictate.
Mr Kasper Hahndiek said fewer than ten Members could be put in as an option, but the purpose of this rule was to assist in the recording of votes. With four Members, their names could quickly be noted in the minutes. Noting ten Members would take time and this was merely a technical issue.
The Chairperson said the option should be noted, because the issue may be technical but there were strong views in the ANC caucus.
Ms Kilian said the issue which had been contentious in the caucus was actually to do with Members walking out after calling for a division, which was covered by rule 88. The Subcommittee’s concern was that Members could not be forced to stay, but there was a lot of irritation in the caucus that Members could demand a division and then walk out.
The Chairperson said the provisions should be presented as they were proposed.
Chapter 7: Motions
Mr Perran Hahndiek said if motions without notice were going to be abused, then notices of motion could similarly be abused with long, party political statements. He did not think there was a limit on how many notices of motion a party could submit.
Ms van der Merwe agreed that notices of motion were also being abused with long statements being read in. She agreed that when dealing with the interim measures around motions without notice, it would be useful also to cover notices of motion. She had heard notices of motion, which were meant to introduce a debate, turning into long winded motions containing political statements.
The Chairperson said perhaps limiting time would be best, perhaps a minute would be sufficient.
Ms Kilian said provision was being made for that under the proposed rule 98, but she preferred the option on page 53 of the draft, which required minority parties to be allowed to move motions” in a manner consistent with democracy”. Furthermore, the number of motions, period of time allocated and sequence of party participation must determined by the Rules Committee. As there was already the precedent of the Rules Committee determining the sequence and time for Members' Statements, this could apply here too. The Rules Committee could then also draft guidelines for the detail of notices of motion, such as the length. She understood what was being said about the limit of one minute, but the requirements depended on the nature of the motion.
The Chairperson said there was global time allocated, and if Members were squeezed out of notices of motion, then motions without notice would be abused.
Mr Kasper Hahndiek said again the problem was not allowing in Members’ Statements. Subrule (4) under the option set out the criteria that notices of motion must comply with, including being concise, referring to a single substantive matter, complying with the Rules and relevant guidelines approved by the Rules Committee. The real issue, as raised earlier, was that unless rules were applied, then the problems would persist. The presiding officer could stop a Member mid-motion if this was turning into making a Member’s Statement.
Ms Naidoo said there must be a distinction between a subject for discussion and a draft resolution, such as a motion of censure and motions under rule 102. If a time limit was going to be placed, then this distinction would had to be borne in mind. A subject for discussion could be done within the time limit, but these other motions require the Member to go through specifics.
The Chairperson asked if there were any other points to raise under Chapter 7.
Ms van der Merwe said there were media reports that Members had passed a motion which called the Lonmin Mining Company and everyone who worked there “corrupt to the core”. She thought this motion had been read in Sesotho; it was supposed to have been about a lady who was injured.
Ms Naidoo said that at times motions were circulated in a language which the people vetting the motions were not able to handle in time, and by the time it reached the House it was still not known exactly what it states.
Mr Kasper Hahndiek said if the motion came in only one language, which the majority of Members did not know, they should not be prepared to pass the motion. Language interpretation should be required immediately so that Members understood what they were being asked to pass. He recalled that during the term of former President Mbeki, motions without notice were being passed in the NCOP in large numbers and one had been passed unawares, with blatant criticism of President Mbeki’s stance on HIV/AIDS. This caused huge embarrassment and the House eventually had to rescind the decision. This may have to happen in this case also.
The Chairperson said the next sitting was in October and the EFF would publicise this at every opportunity.
Mr Kasper Hahndiek said he would advise that a written notice of motion be presented to the Speaker as soon as possible, so that at least there would be evidence of corrective measures.
Ms Naidoo said this was an example of what she was referring to about discourteous remarks towards individuals, companies and friendly foreign states.
The Chairperson said the ANC itself should decide on this matter and it was not for the Subcommittee to have a discussion on the matter.
Mr Kasper Hahndiek said the relevance to this meeting was how motions without notice were to be managed, because by definition there was no prior notice. The first time Members become aware of such notices was when they were presented and the House needed to protect itself.
The Chairperson said this was exactly why the Subcommittee had been tasked to work on the matter.
Ms van der Merwe said the resolution was as outlined by the Chairperson, but she thought all parties needed to express themselves on the point. In the present context, the importance of providing properly for motions without notice was highlighted, because this was “a national embarrassment”.
Ms Kilian said this was a clear indication of why it was necessary to make provision for tightly proper processes. She was glad that this had arisen now, when the Subcommittee was still dealing with the Rules for the matter needed to be corrected.
There was also another matter which was of serious concern, which was that there was a misunderstanding of the privilege of Members. Members seemed to think they could appear on any platform in the country and think they were protected, but they only enjoyed privilege for pronouncements in the House or in committees. This was why she wanted to have a specific reference to privileges in the definitions section, so that Members understood the limits of the privilege under section 58 of the Constitution.
The Chairperson said motions without notice had been dealt with and proposed guidelines on this issue would be presented.
Chapter 8: Discussion of Urgent Matters of National Public Importance
Mr Kasper Hahndiek said the rules dealing with matters which were so urgent that they must be scheduled for that day and those dealing with matters which were only urgent enough to warrant scheduling in the near future had now been merged. The Member must now indicate why the matter was urgent, and the presiding officer would determine when to slot it in.
Ms Kilian noted that rule 104 dealt with “sufficient” notice for withdrawal and thought that “sufficient” should be described, so that the House was not coming together to debate a matter for it then to be withdrawn, as happened with the motion of no confidence moved by Agang.
Mr Kasper Hahndiek said that by the time that the Members had assembled as described, this would not be sufficient. However, “sufficient notice” had to be determined with reference to the urgency of the matter initially, and the Speaker would make that call. If a matter was scheduled for later that day and a Member were then to withdraw, this might be acceptable if the House was to sit in any event, but it depended on the context. If a Member had a motion on the order paper and the Member rose to move the motion placing it before the House, it was at that point not the Member's motion any longer, but that of the House, and so the House would have to agree to withdraw. This was not dissimilar to a request for a snap debate.
Mr Michael Plaatjies, Chief Editor: National Assembly Questions Office, said questions had always been regarded as belonging to the Member, even up to the point where the Minister was about to answer. He was unsure why the same would not apply to a motion.
Ms Naidoo said a Member must bring another motion to withdraw, and confirmed that it would have to be put to the House.
Mr Perran Hahndiek said the new rule states that the sub judice rule applied to these discussions and there was a debate about whether the sub judice rule was relevant.
Mr Hahndiek said a sub judice rule had been passed in the Subcommittee and it would be relevant if the matters went to the heart of the issues before the court.
Chapter 9: Members’ Statements and Executive Statements
Ms Kilian said that some Members felt that the responses of executive Members could be increased to three minutes, so that proper responses would be received.
Mr Plaatjies said Ministers had three minutes for the initial response, and two minutes for any follow up questions, and this should be sufficient.
Ms Kalyan asked whether Members would also get more time to make the statements.
The Chairperson said they would not, because statements were made to get the responses.
Mr Perran Hahndiek said the issue the previous day was that the Minister requested to not make a statement and the Chief Whips’ Forum decided that it should go ahead. The question was at what point the Minister should be allowed to withdraw a statement.
Mr Kasper Hahndiek said it was entirely at the initiative of the Minister and if a Minister did decide not to proceed at the last minute, s/he should simply do so.
Ms van der Merwe said she was at the Chief Whips’ Forum, when the letter was received that set out that the Minister had requested that the statement be made, and the reasons why it would be withdrawn were presented. However, the feeling expressed was that the NCOP had already had a debate on the police killings, and the National Assembly, as the upper , should also allow its Members to express itself. It was considered to be such an important matter that it must go ahead. The Chief Whips’ Forum therefore wrote back to Minister saying that if he would not continue, it would stand as a Member’s motion.
Ms Kalyan referred to rule 105 Member’s statements, and asked whether subrule (11) remained.
Mr Kasper Hahndiek said subrule (11) had not been captured in the new rules.
Ms Kalyan said her party had always been opposed to having more than one Minister standing up to respond to a single question.
Ms Kilian said the Subcommittee had deliberated long and hard on this. She said there was a problem in the Subcommittee when there no continuity of participation. There had been unanimity that this subrule was not necessary. Members' statements were by nature political and could implicate more than one ministry and therefore different Ministers could answer various elements of a statement. The point was made that if the House was geared towards free participation, there was no reason to suggest limitations. There was not even an option proposed by the Subcommittee.
The Chairperson said the Subcommittee could think further on this, and if new views came out by the following Wednesday, then an option could be inserted. The intention was to accommodate all parties.
Chairperson's concluding remarks
The Chairperson said on the following Wednesday the Subcommittee would begin with Chapter 10. The guidelines for questions would be important and the Subcommittee would also have to define times around the monthly question session for the Deputy President, so that there was not a situation where there was no sitting planned but Members were called because the Deputy President was to answer questions. Members should also apply their minds to the issues around unanswered questions, and sanctioning Ministers. He hoped that the input from the Leader of Government Business would be received by then.
The Chairperson was pleased to note that the Subcommittee had moved with great speed, given the amount of work put in. It seemed that parties had generally agreed with the proposals of the Subcommittee and hopefully there would not be a huge debate when the matter came before the Rules Committee.
He noted that one area of difficulty may be the legislative process.
Mr Kasper Hahndiek said there may be an issue about tagging, which may be a joint rules concern.
The Chairperson said it seemed that there would be no problems on messages, and there might be some concerns on the Committees Chapter, but hopefully not only others.
The meeting was adjourned.
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