The Sub-Committee met to discuss party input further and to continue general discussion on the rules as they had been drafted thus far, with the aim of developing a complete Sub-Committee document to take to the Rules Committee. The Committee went through the chapters, pausing at certain chapters where Members engaged in further discussion.
Under Chapter Four, the Committee discussed the order of business as determined by the Programming Committee, in order not to be dictated to by the majority. In Chapter Five, Members spoke about limiting the number of mini-plenaries and switching off microphones when Members tried to speak over the Speaker. Turning to Chapter Six, the Committee engaged on the issue of closing the doors of the Chamber after bells had been rung for a division and the need to potentially make this rule stronger. Under Chapter Eight, Members spoke about the difference between draft resolutions and topics for discussion, and possible time limitations in this regard.
Substantial discussion revolved around motions without notice, where Members were informed of the updated criteria with which these motions should comply in order to prevent motions simply being rejected in the House, abused or essentially becoming Members’ Statements. The Committee discussed who should determine if the motions without notice complied with the criteria, if the process should be done away with or amended or regulated accordingly, the option of having thresholds for parties to support a motion before it was read in the House, the need to prevent the motions being partisan, as well as raising points of caution around limiting freedom of expression.
Thorough discussion was also focused on rules regarding the removal of the President from office in terms of the constitutional Section 89. Members were informed of the updated guideline to assist the Speaker to consider such a complex issue by way of relevant considerations, the general and specific guidelines with which such a motion should comply, the need for prima facie evidence, the programming of such a motion, consideration of the motion in the House and the its process in committee. The Committee then questioned the nature of the committee set up to consider such a motion and who would chair it, and asked about comparative research on what other parliaments were doing in this regard, and the need for a threshold of parties or a percentage of the House to support such a motion. Further engagement was held on the urgency and seriousness of the issue because of its implications for benefits and entitlements, and the fact that some of the issues were before the courts so it might be best to wait and consider the rules after legal decisions had been taken.
On Chapter Ten, the Committee considered the question time of the Deputy President being a separate entity in the programme of the House, and not being included with questions to other clusters to ensure there was sufficient time for both blocks of questions. Suggestions were made to have the Deputy President answer six questions per month or to retain the schedule of having questions every second week, but limiting the time of the Deputy President to answer. Consideration was also given to the balance of proportionality of questions among the parties.
The Subcommittee sat for a second session on 15 September 2015, to continue discussing inputs from party caucuses. One major point of discussion included the reconfiguring of the Rules Committee, to function on the basis of a weighted vote. There were concerns that this would lead to some Members attaining more importance than others, as they would carry a greater proportion of their party’s vote, but the Chairperson made the point strongly that the present requirement meant that around seventeen Members would need to be at the Committee, even if they had no interest in participating actively, simply to ensure a physical majority vote. A DA Member took exception to this, making the point that Members were paid to do a job properly, and therefore could not choose what to do and what not to.
The other major point of discussion was around the formation of a Disciplinary Committee, and the point was made that it would not be desirable to try to set up something that ran along similar lines to the current Powers and Privileges Committee, which not only followed a very cumbersome process, but it was questionable whether that process, closely akin to employment tribunals, was in fact appropriate. Examples were cited of how disciplinary committees had worked in the past, and the kind of issues they had dealt with. It was decided that the proposal based on the old Rules of the National Assembly would be retained and proposed to the Rules Committee. This led on to a discussion as to how the Powers and Privileges Committee matter should be dealt with, and the Parliamentary Legal Advisors outlined what the Powers and Privileges Act required, which was essentially a fair process, which in turn was further explained. The point was made that the EFF had initially made some proposals, but had not availed itself of the opportunity to make a formal submission, and the Committee felt it could not present bare proposals without further input. It was noted that a DA Member was still willing to present her own conclusions from sitting on that Committee. The Subcommittee decided that the Schedule should be reviewed to make the process less arduous and legalistic, and said that more thought had to be given to allowing the calling of witnesses.
Other points were discussed around questions without notice. The ANC felt that it would be difficult to include mechanisms in the Rules, and perhaps this should stand over to a later point. There was no problem with the general quorum provision in rule 133, but the ANC would like to reinstate the rule providing for cooption of Members and alternates, rather than nomination of additional alternates up front, which would put an extra administrative burden on Parliament, and this would be put forward as an option, separate from the option about the weighting of votes. Questions were raised whether the Chief Whips' Forum should not be called the Chief Whip's Forum, but the Chairperson said it was intended to be a forum of all Chief Whips. In relation to rule 224, it would be necessary to check if the powers and functions of the Rules Committee would extend to receiving reports from the House Chairperson. Members noted that on the following day, the Subcommittee would continue to discuss Chapters 13 to 15, and the Chairperson noted that the Committee would be happy to continue taking new proposals right up to the time it presented its findings to the Rules Committee. It was likely that the same Members would be seconded by their parties to deal with the Joint Rules.
The Chairperson said that all parties had been invited to provide their input on any area of the rules with which they might not be happy, and if they were not present they were denying themselves the right to participate fully. Last week on Friday, the Sub-Committee had dealt with Chapter One (definitions). No issues had been raised with Chapter Two. He reminded Members that there would not be space to negotiate in the Rules Committee -- they would be allowed to vote only on what had already been discussed. There was some discussion under Chapter Three on the general authority of the Speaker.
Ms J Kilian (ANC) wanted clarity on the process going forward. She had thought the Sub-Committee would work through the issues, receive a revised document and then scrutinise that document very thoroughly. The Sub-Committee could not submit a document to the Rules Committee with which it was not 100 per cent satisfied.
The Chairperson clarified that after the Sub-Committee had worked through everything, it would be captured and once the draft was finalised, the Sub-Committee would meet again to look at the draft. When everyone was happy that the draft represented the general view of the Sub-Committee, the Rules Committee would then sit in October.
Ms D Carter (COPE) sought clarity on “removal from office of Speaker or Deputy Speaker.” She raised this because Members did not know who the next Speaker would be, and the issue of a secret ballot.
Mr Kasper Hahndiek, Consultant to the Sub-Committee and former Secretary to the National Assembly, said that the Economic Freedom Fighters (EFF) were insisting on a secret ballot in such a case, but he had not seen any proposal from them. He was not aware of any constitutional requirement, but if the party obtained a legal opinion, the issue would have to be revisited.
Ms Carter said she had heard the Rules Committee needed to finalise this matter, because the Constitution spoke to the need for a resolution for the removal from office of the Speaker or Deputy Speaker.
The Chairperson said proposals could be made, but there was also an issue with a vote of no confidence. The best thing was to wait until the court decided and then to amend the rules accordingly.
Ms Carter felt it was also important that the Committee establish its own rules and not expect the courts to make decisions on its behalf. She would submit a proposal on this issue in the next day or two, because she was of the opinion that the rules and the Constitution should be aligned.
The Chairperson said the Committee would perhaps look at this on Friday, but ultimately the courts would decide. He continued going through the chapters, turning to Chapter Four.
Ms N Mazzone (DA) said the order of business remained a concern. The powers of the Programming Committee were being taken away and the complete mandate placed in the hands of the majority. While she understood that a majority in Parliament needed to mean something, the institution was also democratic and that was why there was a Programming Committee. She cautioned against drafting the orders of the business paper, ensuring the Programming Committee retained the necessary mandate to create the order of business.
The Chairperson understood the parties as saying the Programming Committee would meet and work out the agenda for the order paper. The matter had been taken to court at a certain point in time. Over the last 21 years, there had generally been agreement in the Programming Committee and if there was a deadlock, the three officers would take a decision. He then turned to Chapter Five.
Ms Carter was concerned about the mini-plenary sessions, and thought the maximum number of mini-plenaries to take place should be stipulated. She suggested they should be limited to three at the same time, but should not have the number unlimited.
The Chairperson said he agreed there should be maximum of two or three at the same naturally, because there were only three venues to hold these sessions -- the Old Assembly, the Good Hope Chamber and E249 in the National Assembly.
Ms Carter proposed the rule should then be amended to include this maximum.
Ms Kilian said that Ms L van der Merwe (IFP) had presented on this matter, and the concern had already been captured.
Ms Carter was aware of this, but said Members did not have an updated list of what had been captured.
The Chairperson moved on and said the system of switching off microphones when Members continuously spoke over the Speaker was already in operation.
Ms Kilian felt it important not to restrict the ability of the presiding officer to use this power, therefore 59A (2) was not needed. She thought 59A (2) had been written before the system came into effect.
Ms Carter agreed but on the other hand, Members often moved toward the Chair, so she thought maybe (2) should be left in there to cover such a situation.
Ms S Kalyan (DA) thought it was appropriate to take 59A (2) out.
Ms Kilian said that the rule had been written before the system had been adjusted, and the Speaker needed to tell the National Assembly (NA) table staff to turn off the microphones. This was not necessary anymore, because it was already exercised in the House.
The Chairperson moved on to look at Chapter Six.
Ms Mazzone said a few weeks ago, when the Deputy President came to answer questions in the House, the clusters which had questions on that day were severely limited. This was in contrast to the National Council of Provinces (NCOP), which would sit until every question had been answered, so she suggested the Committee should look at the Deputy President’s questions being its own entity, as separate from a cluster on that day. This was only fair and courteous to the Members of those clusters
The Chairperson said that this was covered in Chapter 10. He commented that it was important that the rules stood the test of time and not for particular Members who happened to be in the current Parliament. The process needed to outlast all the Members.
Ms Mazzone referred to the process of ringing the bells after a division had been called, where the rules stated that “when the doors have been locked, no member shall enter or leave the chamber until the result of the division has been declared.” She had been disturbed to see Members try to push their way through the doors when it was actually a very sacred thing when the doors of Parliament were closed -- which was why a division was called. She thought the rule should be stronger, to say perhaps that “no member can” or “no member shall,” to indicate that under no circumstance may they push through the staff to get back into the Chamber.
Ms Kilian fully supported the principle, but asked the State Law Adviser if there was weight difference between “shall” and “may,” because this potentially meant other clauses needed to be reviewed if “shall” bore greater weight.
Mr K Hahndiek said that in the process of making changes, “shall” had become “must,” to be in line with the Constitution. However if the rule stated “shall not,” it had become “may not”.
Mr Enver Daniels, Chief State Law Advisor, added that “shall” was prescriptive, while “may” was discretionary.
Ms Mazzone asked what could be done to stop a raucous event happening outside the door in an attempt to gain access to the Chamber.
Mr K Hahndiek indicated that the rule did say the doors were to be locked, and this made it impossible to get in.
The Chairperson said that anybody witnessing Members trying to gain access into the Chamber should report it to the presiding officer. Generally, Members respected the rule but the Whippery should also deal with the matter if it occurred. He did not think the rule should be drafted any further than it was.
He noted that the Committee would come back to the issue of motions without notice, and moved on to Chapter Eight.
Ms Kilian said that on Friday, the Committee had briefly discussed that there should actually be a difference between a draft resolution and a topic for discussion, in terms of rule 98. It had been argued that the minute proper regulation of motions without notice was provided, this would be the area to be targeted. It was said a time limitation for the introduction of the topic for discussion, as well as a draft resolution, should be looked at. She wanted to ensure that the principles around this were being drafted for later discussion.
On Chapter Nine, Ms Kalyan thought there had not been agreement on rule 105 at the previous meeting, even though Ms Kilian insisted there was. She highlighted the danger of having one Minister answer several statements. She thought limiting a Minister to respond to two statements was more reasonable.
The Chairperson felt what was needed was an answer, irrespective of the Minister providing the answer. There was a long discussion on this matter, and the decision was that the emphasis was on getting an answer, as this was the main purpose of the Question and Answer session. Having the presence of the Minister was a separate issue which could be discussed.
Ms Mazzone considered it an issue of accountability. There were certain Ministers always in the House all the time and those who were never in the House. One Minister could not stand accountable for another.
Ms Kilian heard what was being said, but Members’ Statements were under discussion, and there was no notice. Members’ Statements were probably intended to raise issues from constituents and bring these issues into the public space, but this had changed in nature and most Members’ Statements related to by-election results and other issues. This made it difficult to determine which Minister should reply to them, as they were not related to a specific ministerial portfolio.
The Chairperson said the point was to have any Minister confident enough to provide an answer to a statement without notice to do so. These statements were not given in advance.
Mr K Hahndiek said he had been involved in the original introduction of Members’ Statements, and it had been seen that there were more Members’ Statements than there were opportunities for Ministers to reply, in any case. Initially the idea of having ministerial responses had been resisted by Members, as it was seen as their time and not time for the Executive. Only subsequently was it decided to given the Executive an opportunity to comment if they wished, but this was always seen as a limited opportunity for responses off the cuff by Members of the Executive.
The Chairperson said that there had been a serious discussion on Members spending more time in their constituencies and less time dealing with motions and statements – that was his view, in any case. It was important for Members to link up with the masses they represented, instead of wasting time on matters which had generally lost their meaning. Members needed more time for their constituents, and this would be a discussion which would happen soon, and for which Members should prepare.
Mr Daniels suggested the Committee should look at Minister’s delegating authority to Deputy Ministers to answer questions.
The Chairperson said this was dealt with under Chapter Ten.
Motions without Notice
Mr K Hahndiek said that he had updated the brief on the criteria with which all motions without notice must comply. These were that the motion must deal with only one substantive matter, it must consist of a clear and succinct proposed resolution, and must not contain anything unnecessary -- to point to the fact that this was not an opportunity for Members’ Statements. The long motions without notice that had essentially become Members’ Statements would not be allowed, and Members would not be seen by the presiding officer when the opportunity for motions without notice arose, but would be notified that they had not confined themselves to the criteria. The proposed motion without notice could then be adjusted and re-submitted as a motion without notice for the next sitting day, or it may be presented as a motion with notice. To clarify, if a Member did not comply with the criteria, he/she would lose the opportunity to present the motion on the day but would be provided with an opportunity to adjust it for the next day.
Ms Mazzone sought further discussion on the criteria. She did not think it the responsibility of Members of Parliament to determine whether the motions without notice complied with the criteria. This was in fact the responsibility of the NA Table, and unfortunately the Table had been a bit derelict in finding out whether these motions were suitable and met the necessary criteria before they were read out in the House. There were instances where motions without notice were pure Members’ Statements, and it needed to be ensured the NA Table stopped these Members in their tracks.
The Chairperson said the Whips Forum had taken a decision that a motion without notice would be circulated to all Members and if no party objected, the motion would be read. Others said the motion should first be read and then the Chamber would decide. The worst case was Members rejecting motions of condolences, as had been done for the late Mr Mubu as a Member of Parliament. Another issue was that if the motion was circulated beforehand, just one party could reject it, and this needed to be addressed. Reading motions in the House for them just to be objected to was clumsy and embarrassing, as Parliament was a very important body. Either the motions without notice be done away with, or the rules amended accordingly. He was of the opinion that the sky would not fall if the motions without notice were done away with, because Members could still move motions for debate. It was important to bear in mind that the rules were being drafted for future generations, but the current situation was completely embarrassing and something needed to be done. The other option was to have a threshold of parties objecting to a motion when it was circulated. Members should look at what Mr K Hahndiek had drafted, and then make proposals.
Ms Carter said the Chief Whips Forum was a very consultative body and it was out of order for the Chairperson to say she and Ms Kalyan had made a decision when in fact they, as individual whips, could not have made such decisions. She asked for clarity on what Parliament meant when saying: ‘in a manner consistent with democracy’ in item (2a). She said her concern was if parties were to start using the clause in the same format as when they would be reading their statements in the Chamber. The rule around condolence motions had to be made very strict, in that they had to be made non-partisan. Secondly, congratulatory motions had to be about recognised events. Therefore suggesting that five parties had to agree on a motion without notice was pushing it, and as such she was suggesting if two or three parties rejected a motion, then that had to be accepted. Lastly seeing that Parliament had an electronic voting system and once the motions list had been checked on the non-partisan nature of a condolence or congratulatory note of importance, the Table could then add that to the Speaker’s list.
The Chairperson said what Ms Carter had been suggesting was what had been happening since 2009 until the Whips Forum had met and decided that Members could still read their motions without notice, even if they were not approved, so that the Chamber could decide on them itself. The forum was indeed a consultative body that did not usually decide on rules, but reported on consultations to the Rules Committee. However, on the motions without notice rule, the forum had actually decided and reported a decision to the Committee, which had then created the situation of Members rejecting all motions. Therefore it was still up to the Whips Forum to revisit that motion because if there was no need for it, it had to be discarded.
Mr K Hahndiek said if it was discarded, the issue would then be how immediately Parliament would respond when notice of a motion was given to the House. The Programming Committee sat on a Thursday and it was the prerogative of that Committee to schedule motions it felt appropriate. Alternatively it could have a system where it said it would prioritised ANC motions first, then DA motions and so on, so that would be on the Order Paper for the House’s decision. The issue then was whether Rules could accept a week’s delay from the Programming Committee for programming an important motion?
Ms Kilian said that whoever was the author of the document that had been before Parliament on 24 October 2014 had had no idea of the implications of what they had been putting before Parliament. Seeing that that person was not aware of the position they were putting the presiding officer in, the ANC wanted to revert back to the unwritten rules of common decency. Therefore she felt that within rule (2c), motions without notice had to be confined to national issues. She did agree with Ms Carter that those motions should not be party-political, because a bad trend had been established, where the rule had been abused. Therefore that rule had to stay, because Parliament had to have the ability to respond. How many motions without notice had been moved in the past? From her recollection, it had always been a matter of first in with a motion between the ANC and the DA, so she strongly believed that more detail on what could or could not be allowed, had to be added to that rule.
Ms Kalyan said that the ANC had a tendency of submitting 10 motions without notice on a Monday morning, but the DA also did that. In establishing a procedure to deal with these submissions, the programme had to be able to speak to which motions were for Tuesday, Wednesday and Thursday. On (3d) there was mention of a House Secretary -- who was that? In the notes, it had also been suggested that Members be given not more than 60 seconds. However, she preferred the 90-second period to remain, because a motion without notice could not be completed in 60 seconds. She said that sometimes the Whips Forum was there to do crisis management, and she had no problem with that because otherwise the decorum of the House would go to shreds.
The Chairperson emphasised that the main reason that the Whips Forum had decided to bring the rule before the Rules Committee was that all motions presented had been rejected by one party. The rule had worked well between 2009 and 2014, but had had to be reviewed after the establishment of the Fifth Parliament since it had been abused. That was why he felt strongly about discarding the rule altogether, as the sky would not fall if that happened.
Mr K Hahndiek said that until about 2006, motions without notice had never been abused as they had to do with condolences to a deceased sitting Member of Parliament, or an extraordinary event. Since those motions without notice had now become abused, the Rules Committee was now faced with reviewing them.
Regarding the references to the NA Table, in his experience it had no authority whatsoever. In that context, the authority rested with the Secretary to Parliament. It had been agreed between parties that the Secretary to the House had to be specified as a designation.
Ms Kalyan interjected to say that her notes referred to the “NA secretary” or “Secretary to Parliament,” and not to “House Secretary.”
Ms Kilian said the terminology was commonly used interchangeably between the three terms as a reference, seeing that there were two Houses of Parliament. However, the Committee could consider just using “Assembly Secretary” as a designation to separate the distinctions between the House and the NA.
Mr K Hahndiek proposed that a definition be assigned for House Secretary, seeing that it was the first time that he had been faced with having to give a distinction between the House and NA Secretary. In terms of the time limits that Ms Kalyan had suggested, the Table would rule out any motions that would be that long to read. It was true that the Whips Forum was a consultative body, but it was also true that it was an opportunity for parties to reach agreement on certain political issues. An important issue for Members to know was that the rules could not be circumvented by a decision by parties at the Whips Forum, which was what had happened. The Forum had taken a decision which was in conflict with written rules, which had then established itself as an unwritten rule, which remained in conflict with the written rules. He was confident that if the provisions which the Committee was deliberating were applied rigorously by staff at the behest of the Presiding Officer, then the problem of abuse would be brought down by at least 90%.
The Chairperson said that he understood that the Table Staff were saying the rule could not be discarded completely, but those motions had to be regulated in a way that was appropriate for the dignity of the House. Only one person could decide on that, because if a person was still allowed to read his/her motion, the Speaker would have to rule that particular MP was out of order. The situation would be made worse than simply discarding the rule. MPs would therefore have to find a way of submitting their motions so that if the Table decided that they met the criteria for reading, then they could be read. The Presiding Officer would have to be made aware of such issues because unless that was done, the issue of rejection of motions would remain.
Mr K Hahndiek said that the rule was attempting to do exactly that. He then detailed the process of submission, vetting and notifying parties about motions which had satisfied the criteria of the Table and would be read in the House.
Mr Perran Hahndiek, Procedural Advisor Secretary, Parliament, said that (2d) 4 had an additional criterion which submitted motions had to satisfy, which said that at least five parties had to approve of said motions.
Mr K Hahndiek reiterated that all motions failing to meet the criteria would not be read on the day. Parties would be notified of all those that did meeting the criteria, so that if five did not approve of any one of those on the list, then the opportunity to read that motion would also fall away.
The Chairperson said that possibly it would be a good idea to get rid of the opportunity for parties to object, seeing that if they did not meet the criteria they would be rejected anyway, and the same thing would repeat itself with one party refusing all motions, though they would have satisfied the criteria, if that opportunity to reject was retained.
Mr K Hahndiek explained how rejection by the Table was based on separate criteria to objections by political parties.
Ms Kilian asked what happened in practice if one party objected, and wanted to explain to the Speaker why it was objecting. Was it not necessary for the rules to say that the threshold of five parties made it impossible for other members to object?
The Chairperson reiterated that the threshold should be removed.
Mr K Hahndiek explained that the threshold of five parties was that they had to have no objection to a motion without notice. The reason for that threshold was to avoid politically contentious issues being pushed for a decision by the House without notice. In terms of Ms Kilian’s question, he said that the Presiding Officer would inform the House that the motion had met all the criteria and since there had been an objection, the motion could be put to the House for a decision, where a division could arise.
Ms Kalyan said that her contention related to the discretionary criteria contained in subsection 2 of the rules. It seemed a bad idea that staff of the NA Table were to be the gatekeepers of even the circulation of documents. There were a few paragraphs where an individual had been charged with exercising his/her discretion. That was not entirely convincing for her.
Mr K Hahndiek replied that the reason those paragraphs had been written that way was possibly because the Table staff had no authority on their own to dismiss motions. There was a provision that when the staff took that technical decision, the MP concerned could appeal the decision by approaching the Speaker. However, the time limits between appeal and review by the Speaker would not allow for the motion still to be put back on to the Order Paper for that particular day.
Ms Kalyan agreed with the technicality of the provisions, but further asked what ‘unbecoming or offensive expression’ technically meant to say, in terms of the interpretation of that by an NA Table employee. The person submitting the motion could argue that his/ her motion was not offensive, especially if the decision was to be cascaded down to an employee of the NA Table.
Mr Daniels said that that could also be interpreted as limiting freedom of expression in the way that the provision was worded. Even though the principle and objective behind it was understood, it could well be limiting. Furthermore, whoever would be considering the motion could be subjective, and there were no objective criteria included into that decision-making. Another compounding factor was the requirement that five political parties had to support the said motion, because even those five parties were not being required to evaluate the motion objectively and rationally.
The Chairperson asked what was being proposed.
Ms Kilian said that freedom of expression was not unlimited in the House. There were records of unparliamentary practices from the SA Parliament, and others historically, which the Table staff could refer to. That was why the Committee was trying to work some reasonableness into the rules without discarding parts it felt were too complex. The threshold was to avoid a coalition of parties on a particular issue and to ensure that the ANC could not simply bully its issues through as well.
Mr Daniels said there was a solution to the complexity of the motion without notice. The Committee was actually adding to the solution, especially where the rules said: ‘must be consistent with the Constitution, the law and the rules.’ That could be tweaked to incorporate the section that Ms Kilian had mentioned regarding the body of unparliamentary practices built up over the years. That could be added to (1) so that from (iv-vii) that section could be deleted, because there remained a screening mechanism which was the inclusion of the clause saying the majority party, the second largest party and at least three opposition parties had to agree on the motion.
Mr K Hahndiek gave an example where a motion without notice had been read involving the floods in Bangladesh, where the House had agreed to make monetary assistance towards the relief of those victims. He had had to alert the Hose to the impossibility of such a resolution, as it had been beyond the mandate of the House.
Ms Carter said the criteria were quite important, beyond the unwritten rules of the House. If the Committee was not going to include the rule in the criteria that the motion had to be of national interest, and also that it needed to be non-political and non-racial, then the trend observed in Parliament recently would continue.
Ms Kalyan said that as a further option to ensuring where responsibility lay for the distribution of documentation, the five parties could be asked to come up with the support that would take the decision of what was and what was not offensive language, and what met the criteria for acceptance of a motion.
Ms Kilian said it sounded very nice, but the issue was that party whips were involved in Committee of Parliament work, and it was very difficult in practice to do what Ms Kalyan had just suggested, especially for the smaller parties. That was the whole reason the NA Table had been brought in. In many instances, the rules had explanations in them on what the role of the Table was.
Ms Carter added that the parties that would not have the resources for what Ms Kalyan was suggesting would be three to four parties, which would mean there would be no motions in the House; even on issues of national importance.
Mr K Hahndiek said that Table staff had absolutely no authority and responsibility in that regard. It was the presiding officers that had authority on the implementation of the rules and protected the rights of MPs on how they could participate. However, when it came to questions, a whole range of different rules applied to how questions were treated, although that boiled down to the Table staff assisting the presiding officer, as authority lay there only.
Mr Daniels read the procedure for the submission of a motion and how it would be treated going forward. He said there was nothing in the proposed rule specifying how the House secretary was supposed to treat the submitted motion, therefore the consideration was subjective. Ms Carter’s view could then be considered if it was to ensure the objectivity of the consideration by the House secretary.
Discussion Document: Rules and process for removal from office of President in terms of Sec 89 of the Constitution (the so-called impeachment provision)
The Chairperson said that there was no reference to impeachment in the Constitution, so the language used in the rules needed to be correct, and refer to the “removal of the President”. A motion for this was presented by the Leader of the Opposition a few weeks ago but there were no guidelines at the time and the Speaker took a political decision to approve the motion. The Speaker should not be set up to take decisions on such political and difficult motions. A motion for the removal of the President needed serious consideration, as it was a very complex, detailed legal issue and the Speaker needed to be assisted in this regard.
Mr K Hahndiek spoke to the discussion document noting that the Constitution provided for the removal from office of the President in two sets of circumstances:
* If the Assembly passed a motion of no confidence in the President in terms of Section 102;
* On the specific grounds mentioned in section 89. This section was very serious because it contained 89 (2), where anyone who had been removed from the office of President in terms of the subsection under 89 may not receive any benefits of that office, and may not serve in any public office.
In terms of issues for consideration, for the purposes of developing appropriate rules, a range of issues should be discussed and decided on at a policy level:
- Grounds for the removal of the President in terms of Sec 89 were specific and accordingly any charge against the President with a view to impeachment must specify the particular grounds in terms of that provision;
- There would be two steps to any such process: a motion to refer the charge against the President to a committee; and subsequently, based on the committee’s recommendation, a motion to remove the President from office (only the latter motion would require two-thirds support);
- The grounds for removal were specifically a “serious” violation of the Constitution or the law, or “serious” misconduct. An assessment would in all cases need to be made whether the alleged infringement was “serious”, as contemplated in section 89;
- For the initial motion to refer to a charge to a committee, the same requirements should apply as apply to any substantive motion against a member, namely:
- The charge must be clearly formulated and properly substantiated and in the opinion of the Speaker, prima facie warranted consideration by the House;
- Such consideration would initially be limited to the question of referral of the issue to a committee;
- The motion must relate only to the matter of the specific charge against the President;
- The charge must relate to the President in person, and not to an issue for which the President was responsible only by virtue of the President’s overall executive authority in terms of Section 85;
- The general rules relating to motions would also apply.
Note on “prima facie” evidence
With prima facie evidence, the Black’s Law Dictionary defined prima facie evidence as “at first sight; on the first appearance; on the face of it. A litigating party was said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case, then, was one which was established by sufficient evidence and could be overthrown only by rebutting evidence adduced on the other side. The Speaker would always be challenged in assessing whether the evidence presented qualified as prima facie, and would inevitably come under a lot of pressure if the motion was disallowed. It was important to note that allegations in the media did not constitute prima facie evidence.
A situation could unfold if the President violated a court judgement. In this case, the prima facie evidence would already be there for the Speaker to see, the matter would be referred to a committee and the committee may wish to look at the seriousness. A less clear cut case would be if the President was at a party and he got slightly tipsy – someone then provokes him, the President loses his cool, grabs a bottle and lashes out or assaults whoever was doing the provoking. The person ends up in hospital having to be treated but does not lay charges. However, there were other witnesses there who had cellphone footage of what happened and there are hospital records. A motion is then brought to the House to investigate whether this misconduct should lead to the President’s removal from office. The photographs of the event and the hospital records would be sufficient prima facie evidence of conduct which needed to be questioned.
Programming of a motion related to charges in terms of section 89
If the motion met the requirements indicated earlier, it could be accepted that such a motion must be programmed as a matter of urgency with two options:
1. The Speaker must ensure that the motion was scheduled and voted on within a reasonable period of time, given the programme of the Assembly.
2. Given the seriousness and possible consequences of the specific charges at issue, the level of urgency could be even greater, with the rules providing:
A motion in terms of section 89 approved by the Speaker as complying with these rules:
- It must be programmed for consideration on the next sitting day of the House, or
- If the House was not due to sit for a period of time of more than 14 days, the Speaker may
- appoint an ad hoc committee in terms of rule 214 to consider the charges or
- convene a special meeting of the House without delay to consider the motion.
Consideration of motion in the House
It should be understood that the motion to refer such charges to a committee does not provide scope for a debate on the charges themselves but would be limited to the question of the proposed referral, the size of the committee, relevant timeframes etc. In other words, such a motion would not in itself constitute an “impeachment motion”. The question of impeachment would have to await the outcome of the committee’s work.
Process in committee
A committee process woud be separately developed. The terms of reference of the committee would be:
- To investigate and make a determination on the charges;
- If the charges were proven, to determine their seriousness;
- To make a recommendation to the House in terms of section 89 of the Constitution
The nature of any “impeachment hearings” would depend on the circumstances relating to particular charges. The charges may already be based on relevant court findings, in which case the committee should clearly not engage in an effective retrial. Generally, it could be assumed that such a process would usually be of a quasi-judicial nature. At the same time, such a committee, in considering the charges before it, should avoid assuming the role and functions of the court.
The Chairperson thought this captured the discussion from Friday. It was a new area, where there was no precedent in SA. He asked if Members had any other new ideas since the meeting on Friday.
Ms Kalyan sought clarity on the committee to process the motion, whether it should be chaired by someone outside of Parliament, and also if the committee would be ad hoc.
Mr K Hahndiek responded that this would need to be looked at in more detail, but it was a function imposed on the National Assembly. Any external person would not be a member of the NA, or not have that constitutional responsibility and accountability, and this could create problems.
The Chairperson agreed that only Members of the NA could deal with the matter – the NA was not a legal court, but a political body.
Ms Kilian thought it would be interesting to get research on what other parliaments were doing in this regard. Previously, when the rules had been discussed, there was no political agreement on how to handle the issue of the Constitutional Section 102. In most other parliaments, there would be some reasonable threshold and it was important to consider this. The Constitutional Section 89 was very serious.
Mr K Hahndiek asked if it would be democratic for the majority party to vote against sending the motion to a committee if the Speaker had agreed for the motion to go ahead after assessing that the prima facie evidence qualified, or should the process of sending the motion to the committee occur at all costs. This was his concern.
Ms Kilian was under the impression that there would be a multi-party committee to ensure it was not only the Speaker who had to consider the seriousness and then recommend to the House, but that a proper committee would be appointed to investigate further.
The Chairperson thought this was a new idea.
Mr K Hahndiek said the immediate concern was that such a party mechanism would be a political process whereas the Speaker was required to engage in a technical process.
The Chairperson thought what had been prepared so far was sufficient.
Ms Kilian wanted to hear from the state law advisors on having a threshold to support the motion by a number of Members. For example, the Parliament of Kenya had a 25% threshold, while Uganda had 32%, but they did follow other different processes like submitting to the Chief Justice, who then appointed a tribunal etc. Because of the seriousness of the motion, was it not necessary to convince more broadly than just one party of the need for such a motion to the House and would this be limiting, in that nothing stopped parties from lobbying support for the issue -- or would this be unconstitutional?
Adv Frank Jenkins, Senior Parliamentary Legal Advisor, was of the view that one would run into a similar argument used by the Constitutional Court in the Mazibuko case, in the motion of no confidence. The Court said, when dealing with a motion of no confidence, that there was a certain status of urgency to it and a certain constitutional value in that a majority could not block it and there was no threshold to be set unless the Constitutional allowed for it. Section 89 called for a different process to a motion of no confidence. However, if the House objected to setting up a processing committee, there should be an alternative mechanism, because the Court required that the issue be dealt with, programmed and scheduled. It could be voted out, but the important thing was to have it served before the House. There had been a case of a premier in the Northern Cape who had been in hospital and not able to resign from her position – in such a case, one could use section 89 (1) (c). The premier did regain some consciousness to resign, but 89 (1) (c) was there not to penalise a president or premier from getting entitlements, but for the legislature to deal with the matter.
Mr K Hahndiek pointed out that in that case, the Constitution already made provision for an acting president, so he did not understand why one would immediately go to removal from office. There would have to be some grounds of permanence for removal from office to come into play, but the question was who would decide that.
Adv Jenkins indicated that 89 (1) (c) spoke to “inability” whereas 90 (1) referred to the President being “unable” to fulfil his duties, maybe as a result of being out of the country or temporarily incapacitated.
Ms Carter thought there was a difference between the inability to perform a function and not being able to because one was incapacitated. Every political party would take an opportunity to call for a vote of no confidence in the President, as there was also a political game being played. She raised the issue of the secret ballot and the opposition wanting to test the waters.
The Chairperson said the issue was before the court, and it was appropriate not to debate a matter which the court would be looking into. It was best to wait on what the court decided and then change the rules accordingly.
Mr K Hahndiek said that if the House rejected sending the motion to a committee, it would be a serious reflection on the House itself to go the route of directly presenting the charges to the Chamber.
The Chairperson said it would be very difficult for the House to simply reject something general, before the processing committee had looked at the matter. This was an event which may never happen in the lifetime of Members, but it was important to draft the rules for future generations. He never understood why parties thought they would win through a secret ballot. The point was to wait on what the court said.
Ms Ayesha Johaar, State Law Adviser, suggested the Committee should consider a scenario where the Speaker found there was no prima facie case.
The Chairperson agreed that it was important to consider and find a way of informing the Member who submitted the motion.
Mr K Hahndiek said the request would be to the Speaker in writing, so the Speaker would have to say why he/she could not accept the motion in writing, and on what grounds. The Member could not be stopped from doing a media report that he/she had submitted such a request to the Speaker, so the publicity would happen in any case.
The Chairperson said that Parliament was about politics broadly but it was important not to take advantage of the rules. It was hoped the Speaker would apply his/her mind correctly, given the guidelines put forward. He then moved to Chapter Ten.
Ms Mazzone asked that the Deputy Ministers’ question time be captured.
The Chairperson said the Committee had agreed to set a separate date for the Deputy President to answer questions in the Chamber. To cluster him and other Deputy Ministers would mean there would not be sufficient time to pose questions to cluster Ministers. The Committee agreed that the Deputy President would answer six questions per month; what the Committee needed to discuss was what a month was. What would happen during recess -- was this time also counted as a month? The principle of the Deputy President answering questions on a certain date was that the session should not exceed three hours. The Committee needed to clarify what was meant by a month according to Parliament’s calendar. The Committee would need to find another time to address the economic clusters.
Ms Mazzone said the Deputy President answering questions in the House was a very rewarding time for Members because the House got the most information and the most accountability from the Deputy President. She suggested that the Committee look at retaining the every second week schedule and having the Deputy President being limited to two hours, with the cluster briefing starting afterwards and continuing for the remaining one hour. This would entail four hours of questions.
The Chairperson asked whether Ms Mazzone was proposing lumping the question times for the Deputy President and the cluster.
Ms Mazzone said in an ideal world the question sessions would be separated, but there was a serious time factor which needed to be considered. Questions to the cluster were allocated two hours, but the Deputy President could also be given two hours and no one would feel hard done by.
The Chairperson said the main purpose was for the Deputy President to play a critical role in answering questions. The cluster should be given a separate time to answer questions, maybe every second week.
Mr K Hahndiek said the clusters would always be three hours, not two hours. The template made to capture the problem of “the month”, meant that the programming authority would look into the implications of “once a month”. These would be decisions taken by the Programming Committee.
Ms Mazzone said in the last session of questions to the Deputy President, he had answered more than seven questions in one time space. Therefore if clusters were being extended to three hours, should the same time limit of three hours not be put in place for the Deputy President as well?
Ms Kilian said there was a time limit for the Deputy President. However, there was a huge difference between the Deputy President and a cluster of Ministers sharing time to answer questions in three hours. The practicality of the proposal needed to be considered. Also, there were currently two times four questions every two weeks. Now the Committee had agreed that there would be questions once a month, except for the month when the President was speaking in the House. The Deputy President was then limited to six hours. It would not be harmful to look at a maximum of two hours, without increasing the number of questions from six questions. The five clusters were a serious problem where time was concerned, and the quality of the questions asked was also a serious limitation. How could this be improved? How could the Committee ensure that all Ministers were prioritised for answering questions?
Ms Carter spoke on behalf of the smaller parties. She agreed that it would be beneficial to have the Deputy President answering questions once a month, but this would mean smaller parties would be able to ask questions only every four or five months. How would the balance be brought in there as well?
The Chairperson said the Committee should just retain sessions to every two weeks, four to six questions per session. Ms Carter was raising a valid point.
Ms D Dlakude (ANC) thought space should be allowed for Members to consult outside of the meeting, as such a matter would not be finalised immediately.
The Chairperson said Members should also be mindful of fact that more time must be spent with constituencies. Balancing this time was much more difficult. Rules needed to be drafted in such a way to accommodate this eventuality. Members were elected by the people and should keep in touch with their communities. Members of Parliament were complaining that they did not have time to serve in their constituencies. Parliament was given resources by the state to service constituencies; Members were unable to do this because there was not enough time allocated for this work. The concerns raised around the Deputy President were valid, and they needed to be addressed. However if more time was allocated for constituency work, this could have a negative impact on the two-week rotation with the Deputy President. This was the reason why the month was suggested. If Parliament took a decision that every two months, or every month, Members went to their constituencies, this could have an impact on when the House would be meeting with the Deputy President and the clusters. The money which was allocated for constituency work was not being utilised. The gap between Members and communities was very wide.
Ms Kilian raised other matters which had been discussed in the workshop, on behalf of the ANC. Firstly, reply to questions time was limited to three minutes -- this time should be increased to four minutes on the original question. Secondly she said there should be provision for delegation, even if Minister was present in the House, for Deputy Minister to reply as they were sometimes better placed than the Minister to reply, such as the Deputy Minister of Cooperative Governance and Traditional Affairs (Cogta). Thirdly, the current time frames for submission of questions should not be decreased, as this would burden Parliament and many Ministers’ were not direct service providers and needed to get information from entities, and sometimes there was a delay in this. The ANC did not have a problem with the monitoring of the replies to questions, but because the Deputy President was responsible for this, the Speaker’s mechanisms had to liaise with him as well, according to Rule 107 (b).
Mr Michael Plaatjies, Chief Editor: National Assembly Questions, Parliament, responded to the question around Rule 111 (3) (a) which said that replies from the President had been reduced to nine working days. He said the position currently was that questions from Members needed to be submitted 16 days before the questions had to be responded to by the President. The rules as they stood indicated that questions needed to be submitted six days prior to the day questions were to be replied to.
Ms Kilian said there was a misunderstanding. There needed to be a common understanding of the rules because they could be highly technical. What the Committee needed to ensure was that the notice period was not reduced. What did the Committee need to build into the rules to streamline the process so there were no unintended outcomes? The ANC did not want to make it more difficult for Members to ask questions.
Mr Plaaitjies responded and said moving nine working days to six working days would result in stale questions being on the question paper. Questions had to be submitted 16 days prior to the President answering questions, applying Rule 108 (6). Currently the notice period had been amended to three days; this was being looked at in order to propose six days instead.
Ms Kilian clarified and asked whether the period had been left at nine days, as this would give ample time for the questions to be processed by the Speaker. The intention was not to have 16 days plus three extra days to process the question paper.
Mr Plaaitjies explained that the process for the questions to get to the Speaker took almost three days, then once the question came back from the Speaker, it went on to the question paper. Sometimes comments from the Speaker meant that there needed to be liaison with particular parties, therefore the process took a bit of a while longer. Normally a week would be dedicated to the entire process. A question would then be published six working days before it needed to be replied to. Therefore a question submitted for oral reply must be placed on the question paper “x” amount of days prior to the day they would be responded to.
The Chairperson thought Mr Plaatjies needed to link up with Mr Handiek to discuss the matter further.
Ms Kalyan asked about the relevancy of the questions if posted too early on the order paper. Also the Department of International Relations and Cooperation had two Deputy Ministers, so this was a constant diminishing of the role of the Deputy President.
The Chairperson responded and said the Deputy Minister responsible for that portfolio would be the one to respond to that particular question. Not all Deputy Ministers attended Cabinet, but they were assigned specific functions, so they should be able to respond to questions around those specific functions. Deputy Ministers should be able to answer questions in the House whether the Minister was there or not.
Ms Kalyan said she was not disagreeing, but sometimes the work of the Deputy Ministers was diminished in Parliament when opposition parties picked on them.
Mr Daniels said he understood Ms Kaylan’s concerns. He pointed out that Cabinet Ministers did not speak outside of Cabinet; Cabinet proceedings were never discussed.
Mr Plaaitjies said Rule 114 (3) needed to be deleted so that 109 (3) dealt only with the questions raised in the House.
Mr Hahndiek agreed it was a technical matter.
The Chairperson said the rules should be finalised before the end of September. There would need to be a week given for editing before the rules came back to the Committee for approval. He said if the Rules Committee did not delay, Members should come back to finalise the meeting and if not, the meeting would continue the next day. Drafting and redrafting was very difficult, because there needed to be a lot of consultation.
The meeting was adjourned.
The Committee reconvened in the afternoon.
Draft Rules of the National Assembly: Continuation of political party inputs
Chapter 10: Questions
The Chairperson said at times Members were indicating their impression that their questions had not been properly answered. However, this was more of a political management issue than a problem in the Rules of the National Assembly.
He then asked for Member’s views on the rest of Chapter 10.
Ms J Kilian (ANC) said the ANC was not completely comfortable with the concept of questions without notice, but to take this step and include such a mechanism in the Rules would be difficult. Further, the sanctioning of Ministers was felt to be adequate, with the names of Ministers who did not meet deadlines being published.
The Chairperson said he thought the ANC workshop had said that this was potentially a good idea, but the time had not come for it to be included. It could therefore be worked out for inclusion in future Rules.
Mr Kasper Hahndiek, Former Secretary of the National Assembly and Consultant to the Committee, asked whether the note relating to questions without notice should be removed.
The Chairperson indicated that it should.
Chapter 11: Messages
Ms Kilian said the ANC workshop only had some technical inputs to make on this Chapter.
Chapter 12: Committees
Ms Kilian said she felt that some of the details still needed to be worked out. While the list of Committees was not a problem, there were many notes which would need to be checked for their relevance. The need to retain these notes needed to be double checked, because some of these were recording “discussions in passing” and may not finally need to be placed before the Rules Committee. It would be better to put forward a “cleaned up” document, with clear indications of options where there had been no unanimity on the part of the Subcommittee.
Mr Kasper Hahndiek asked whether rule 133 was fine.
Ms Kilian said the ANC felt the quorum provision was fine, because a Committee should not be able to proceed without a third of its Members.
In relation to rule 134, Ms Kilian said that there was the concern that the quorum requirement would make it difficult for parties who went to several meetings of committees that were engaging in very important decision making processes, because Members had to split their time, to attend all. Therefore, the ANC proposed reinstating the rule providing for the co-option of Members and alternates. She was aware of the discussion regarding nominating additional alternates, but the problem with this was that it would place a huge administrative burden on Parliament. If a Member was captured as an alternate for multiple committees, then the parliamentary staff would have to forward all the documents for all the various committees to that Member. Therefore, the ANC felt that this could rather be managed by the political parties themselves, by allowing the various party whips to deploy Members who were not assigned Members or alternates.
Mr Kasper Hahndiek asked whether this should be put in as an option, or as the proposed rule.
The Chairperson said it should be inserted as an option, because the Rules Committee should be aware of the political issues to which it had to give further thought.
The Chairperson recalled that there was a further issue about the composition of the Rules Committee. The proposal was that a weighted vote should be used. In the previous meeting of the Rules Committee, an official decision could not be taken, because the required number was too high. A weighted vote could resolve the problem, requiring six Members of the ANC, excluding the office bearers, who would carry the 62% of the ANC. The Chief Whip would carry 12%, while the other ANC Members would carry 10% each. The aim was to ensure the Committee was not unwieldy simply because it was too big. The intention was to maintain representation for all parties on the Committee, but limit the Membership proportionally.
Ms Kasper Hahndiek asked whether the ANC Members would include the presiding officers or not.
The Chairperson replied that it should not, because the aim was to ensure these Members did not get involved in voting. They were required to make some decisions objectively, and if they were part of those who voted, this may cause problems. The ANC would be represented by its Chief Whip, Deputy Chief Whip and the whip dealing with programming. If all 13 parties were represented in the Chamber, then for the ANC to have a numeric majority there would need to be too many ANC Members present.
Ms Kilian asked whether the same principle as applied in the Programming Committee was to apply to the Rules Committee, providing for broader participation but keeping the proportional vote in place.
The Chairperson said the proportionality would only apply when a vote was necessary. Often Members could simply break for a short recess, and find a solution. However, when a vote was necessary, the proportionality would come into play. The ANC’s problem was that it was forced to bring Members to the Rules Committee who had no interest in sitting on that Committee, but they were simply present for voting purposes. It would be far better to have the 62% of the ANC represented by six Members, and this proposal should be considered. There were 12 other parties, so the DA would be represented by 3 and the other parties by one or two Members. For the ANC to have a physical majority it would require to bring about 17 Members. The weighted vote would be better.
Mr Kasper Hahndiek asked if this would mean that if only five Members of the ANC were present, then the ANC would only carry 50% of the vote.
The Chairperson agreed, but added that there would always be six Members present as other ANC Members could be co-opted. However, as the Rules Committee was to be the senior committee of Parliament, he felt there should be alternate Members, and it would not be good to co-opt people “off he streets” who had not been involved in its business.
Ms N Mazzone (DA) said it was a very Orwellian approach, and quoted that on Animal Farm “ all animals are equal but some are more equal than others”. She asked how to distinguish which Members would have more weighting than others? She further asked if that meant that if there were two ANC Members in the Committee, the ANC whip would have the weighting of three Members?
The Chairperson replied that it would not work like that. The ANC’s 62% would be represented by six Members, while the ANC Chief Whip, as the leader of the team, would be responsible for 12% and the other Members would carry 10% each. The same would apply for the DA’s 22%, being represented by a certain number of Members. The aim was to avoid requiring 17 Members to be present who actually had no interest in sitting on the Rules Committee. The Programming Committee, on the other hand, was not a problem, because any number of Members could be present; it was not a decision making body. In practice, Members there, from all parties ,would engage and if there was no consensus the three officers would make the decision. As it stood presently, the Rules Committee would not quorate. The matters should be concluded. Perhaps the option of permanent alternates could be considered, because what was required in that Committee was to have Members present who had read the Rules rather than those who were present simply in case a vote was required. He had spoken to Mr Y Carrim (ANC) who had questioned why he had to be present in a Committee in which he had no interest, but was made to be present simply for voting purposes.
Ms Mazzone said she was shocked that the Deputy Chief Whip of the ANC, who was present, would accept a Member saying such a thing. If a Member of the DA had turned to the DA Chief Whip and said she or he had no interest in being present, and the weighted vote should be proceeded with, that Member would be shown the door.
Ms D Dlakude (ANC) corrected Ms Mazzone, saying that she had not been spoken to directly in this fashion by any Member .
Ms Mazzone said she understood, but her point was that the Rules Committee was a serious Committee of Parliament. Surely ANC Members should be honoured to represent the ANC on such a Committee, and should not be saying they could not be bothered to be there because they had no interest. The members were being paid a salary by South Africa to do a job, and if they did not like it they should make way for someone else who wanted to do it.
The Chairperson said the Members were doing their jobs, but his point was that Members of Parliament should not be dragged into something in which they had no particular interest. His point was that it was not effective for seventeen Members of the ANC to be co-opted simply to “warm the benches”, instead, the Committee should be made up of Members who participated fully.
Ms Kilian raised another issue, on the Disciplinary Committee, which could be based on the principles accepted by the Rules Committee regarding Rule 53A (12) that same day. However, the powers and functions of such a committee would still need to be clarified, and there needed to be a better understanding of what was meant. She pointed out that disciplinary processes were complex. The disciplinary processes followed in councils involved charge sheets, initiators and other processes similar to those of the Powers and Privileges Committee.
The Chairperson said the point made already was that a team needed to be set up to deal with matters politically, rather than having a lengthy process involving initiators or legal representation. This process was difficult, and if it was to use initiators and representation, effectively there would be no differences between the Disciplinary Committee and the Powers and Privileges Committee. The intention was to have matters referred to the team by the Speaker, and that new committee would sit and determine the fault of the Member. It would almost be similar to peer review. The intention was to avoid a situation where the process would take too long, with rights of representation, which would not assist.
Mr Kasper Hahndiek said a typical example of misconduct could be quoted from a case where a Member of the opposition, seated in his bench, voted during a division. Seeing that his bench mate was absent, the Member took the absent Member’s card and voted for that Member as well. An official in the official’s bay saw this, and wrote to the Speaker reporting it. The Speaker at the time referred it to a Disciplinary Committee. The Member was then informed that the action had been observed, and research was done to establish conclusively that his colleague had indeed been absent on the day. The impugned Member was requested to respond, and he had to concede what he had done. The impugned Member came before the Disciplinary Committee, with his Chief Whip. The Disciplinary Committee was not constituted by a majority of Members from the majority party, but by senior Members of all parties. This Committee looked at the issue and decided that an appropriate action would be a reprimand in the House. This was the end of the matter. A different route could have been taken, involving lawyers and a more complex process. He used this to illustrate that the Disciplinary Committee could therefore be a “clearing house” for these kinds of issues where there were no concerns around Members’ salaries, or allowances at stake.
The Chairperson said the aim was to have something which would not drag, and ideally the Disciplinary Committee would indicate that a Member acted incorrectly and should stop. The political team would conduct a peer review, rather than a Powers and Privileges Committee. Therefore, it would work well in a gentleman's or “gentlelady’s” environment.
Mr Kasper Hahndiek said he had sat on several Disciplinary Committees, constituted by senior Members, usually whips. He had not experienced any occasion where he had the sense that Members were playing party interests above the interests of the institution.
The Chairperson said that had been during a time of “civilised leadership” and now it perhaps would not be entirely the same. This did not mean that the Subcommittee should not propose such a Committee as an option.
Mr Kasper Hahndiek said the Disciplinary Rules, in the proposals by the Subcommittee, were taken out of the old Rule Book. He referred to rule 194E, and pointed out that the infringement must not involve procedural issues.
The Chairperson said this should be put into the proposal. He said it would be useful to take this to the Rules Committee for debate.
Ms Kilian said that it had been decided that the “Chief Whip” was the Chief Whip of the majority party and therefore the reference to “Chief Whips’ Forum” should be changed to the “Chief Whip’s Forum”.
Mr Kasper Hahndiek said the question was whether it was the forum of the Chief Whip of the majority party, or a forum of all the Chief Whips. If the proposed change was implemented, then it would be the forum of the Chief Whip of the majority party and he did not feel that that was the intention.
The Chairperson agreed that it was a forum for all the Chief Whips.
Ms Kilian said, in relation to the Chief Whips’ Forum, the note on page 113 of the draft need not be included, because when the Joint Rules of Parliament were dealt with, provision could be made for a joint forum.
Speaking to rule 224, Mr Kasper Hahndiek said it should be checked whether the powers and functions of the Rules Committee would extend to receiving reports from the House Chairperson.
The Chairperson said this should be double-checked.
Powers and Privileges Committee
Mr Perran Handiek, Secretary to the Committee, said the only other concern was the Powers and Privileges Committee. Mr B Mashile (ANC) had at one point made submissions on the current process. The EFF had also made a submission on how it would envisage such a Committee working.
Ms Kilian said she thought that the submission by Mr Mashile was very extensive, but the Subcommittee did not engage on the work and scope of the Powers and Privileges Committee to the extent he had expected. All Members agreed that there was a need to tighten up, and ensure a proper understanding of the processes of the finer details in the Schedule. She did not think the composition and functioning of the Powers and Privileges Committee should be amended. In relation to the EFF proposal, she understood that the EFF Members had always been invited to argue their case, and she did not think that a submission on its own, without motivation, should become one of the options. The EFF had been invited on several occasions to present its submission, and it decided not to accept the opportunity. She therefore did not think it should be the responsibility of the Subcommittee to again move forward on that proposal.
Mr Kasper Hahndiek said his understanding was that the Chairperson of the Powers and Privileges Committee was unhappy with the laborious processes involved and the manner in which the Committee was obliged to conduct its work. He thought an EFF Member had said Members were not employees of Parliament and therefore a disciplinary process which treated them as such was incorrect. He was not aware of the full details, but he got the impression that the system followed was similar to the procedure followed regarding employees. There may indeed be a problem with the approach.
Adv Frank Jenkins, Parliamentary Legal Advisor, said it was more of a policy than a legal issue. The only requirement cast by the Powers and Privileges Act was a fair procedure. There was a precedent and he would suggest that this be looked at. The precedent to which he had referred the Secretary of the National Assembly was the instance when the National Assembly had dealt with the issue of the Mr Vincent Pikoli, at the time the National Director of Public Prosecutions. What was required was a recommendation from a Parliamentary committee, which had followed a fair procedure in coming to that recommendation. A fair procedure, in this context, was that the Members should not be a judge in their own case and should always afford the party whose rights were to be affected a fair opportunity to respond. A fair opportunity would require sufficient time and potentially sufficient assistance to respond to the charges. Within that broad framework, Parliament could decide what was appropriate. The process applicable to an employment context would not be required, with charges and an investigation as stipulated in the Labour Relations Act. The Schedule to the Rules stipulating the process for the Powers and Privileges Committee was loosely based on that contained in the Powers and Privileges Act, and this was why there had been concerns as to whether witnesses could be called, which may lead to the Committee needing to vote. However, if the person being charged wanted to call witnesses, and the Committee had voted against this, this would be a problem, because the Committee could not decide not to allow the calling of a person who could assist the charged Member in answering the charges. This must be kept in mind, particularly in a political environment. He therefore urged that the Committee should look at another way to deal with the section 12 procedure.
Ms Mazzone said Dr A Lotriet (DA) was supposed to present on some of the shortcomings she had experienced when sitting on the Powers and Privileges Committee, but the meeting to do so had been cancelled. However, Dr Lotriet was still very willing to come and present her practical findings, which could aid the Committee.
The Chairperson said anyone who wished to make presentations would be allowed to do so.
Ms Kilian said the Powers and Privileges Committee process had been dragged into a quasi-judicial process, and also bordered on employment processes. The EFF submission had essentially suggested that a judge or other external parties should adjudicate on the matter, except when it came to impeachment of presidents. If Dr Lotriet had something to present, she would ask for this to be submitted in writing. The Subcommittee needed to be on the same page, to be sure what was a contravention of the Powers and Privileges Act, because there had been excesses. A fair process still needed to be provided for, in a succinct Schedule.
The Chairperson said the Subcommittee would meet the following day at 09:30. He wanted to urge Members to not take what was in this draft as a final product. The remaining work should not take the Committee too long, because the State Law Advisors would assist the Committee on the rules for the legislative process. This was a very complex matter and Members of the Subcommittee should take their time, to make sure they were able to justify the proposal that they were making, particularly as they would have to convince other Members of their positions.
Ms Mazzone asked if the Subcommittee would deal with Chapters 13 to 15.
The Chairperson agreed, but added that there would be other matters which may be raised and the Subcommittee should allow space for new proposals to be made. If the Subcommittee was open, the process in the Rules Committee should be easy. There were very few areas of disagreement and there were principled agreements around declarations of vote, the Programming Committee, Rules Committee, points of order and motions without notice. As far as he knew, there was no proposal made which had been rejected in principle, as Members had only said that the technicalities needed to be worked out, such as using “must” instead of “shall”. Whatever language issues remained would be deal with by the support staff. He did not think that any major political decisions remained. There may be new and creative proposals, which the Subcommittee should be open to and consider right up to the time that its final proposals were submitted to the Rules Committee.
He was sure that all parties would second the same Members to the deal with the Joint Rules of Parliament, as were seconded to the Subcommittee. The Joint Rules of Parliament process had already started and it would take time to complete this work. He could not see any issue there which would cause a major debate and it was only the finer detail or comments which Members may want to have considered.
The meeting was adjourned.
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