The meeting was called to consider the proposals and terms of reference for a new structure or committee that would be formed in terms of new Rule 53A(12), in order to look into the circumstances around removal of Members from the NA Chamber. The Secretary of the National Assembly presented and explained the proposals. It was proposed that the new committee would have a similar composition to portfolio committees, and could possibly be chaired by the Deputy Speaker. He said that essentially this committee would be the same as what used to be termed the Disciplinary Committee in the First to Third Parliaments. The mandate and powers of the Committee under rule 53A had been interpreted. It was proposed that this new committee would not be required to review of the original decision of the presiding officer which gave rise to the use of rule 53A. Instead, it would need to consider the circumstances leading to the removal of the Member, and perhaps make recommendations towards improving the process around removing a Member from the Chamber. In looking at the issue before it, the new committee would consider the (unrevised) Hansard record, the DVD recording of proceedings, the minutes of the House, a report of the presiding officer and a report by Parliamentary Protection Services.
Whilst all Members expressed their agreement with the principle of setting up the new committee, there was a disagreement between the ANC and opposition parties on the ability of the new committee to examine and review the original ruling of the presiding officer giving rise to the removal of the Member in question. The position of the ANC was that, in the interests of order in the House, the rulings of the presiding officers should not be challenged outside of the forum already empowered to review such decisions, which was the Rules Committee. One Member argued that such rulings were in no way subject to review, adding that this did not happen in any Parliament, and this ought to be the default position, given the need for order in the House. The DA and FF+ expressed a contrary view, and said that if rule 53A (12) required the consideration of the circumstances surrounding the Member’s removal, this must include the original ruling, and if that was excluded it would mean that Members would have to have recourse to the courts in order to review any decisions and this was not desirable. They pointed out that if the ANC were to insist on the inclusion of this restriction, it would render the new committee powerless, would not make any sense, and that the opposition parties would boycott serving on such a committee, rendering it totally ineffective as a multi-party structure that demonstrated a fair approach and expose it as a witch-hunt. Members of the opposition challenged the view of the ANC that the rulings of the presiding officer could not be reviewed. They agreed that, whilst in the Chamber, all parties must respect the wishes of the presiding officer and that any Member who did not would need to have a sanction, but pointed out that removal should be the ultimate and absolutely last-resort sanction and that any rulings by the presiding officer should be able to be reviewed subsequently, for the purpose of improving the process and to ensure fairness.
Members took a short break to caucus and deliberate on the points further, in a less formal setting, and on resumption of the meeting, the ANC said it was prepared to concede the point and would not press for the inclusion of the subparagraph that was causing contention. The Rules Committee was unable to take a formal decision as there was not a quorum but it was agreed to present this proposal, as amended and agreed to, to the House when it next sat.
National Assembly Rule 53A(12): Proposed guidelines on removal of a Member from the NA Chamber
The Chairperson said the Committee was having some trouble reaching a quorum, but the Members present were asked to start their discussions in any event; she felt that the meeting should at least be held, even if no final decisions could made on the point. The main item on the agenda was that Members consider the proposal regarding the process for implementing Rule 53A.
Secretary of the National Assembly briefing
Mr Masibulele Xaso, Secretary of the National Assembly, said the document that he would present first recounted the events of 9 September and then spoke to rule 53A(12), which requires the Speaker to refer the circumstances of a removal of a Member of Parliament (a Member) to a multi-party Committee within 24 hours. This had happened on 10 September, when the Speaker referred the matter and outlined the circumstances to the Rules Committee.
He explained that the reason it was referred to the Rules Committee, was because a specific multi-party Committee had not as yet been constituted, and therefore the Rules Committee was appropriate as it handled matters relating to the Rules of the National Assembly (the Rules).
The document went on to state that the Rules Committee may wish to consider the appointment of such a Committee and if this decision was taken, then it would still require a House process. The guidelines for the creation of the rule 53A (12) Committee included the following:
- it would have a similar composition to Portfolio Committees
- it would possibly be chaired by the Deputy Speaker.
Mr Xaso pointed out that this was the same as what had applied to so-called “Disciplinary Committees” in the First to Third Parliaments.
Furthermore, the mandate and powers of the Committee under rule 53A had been interpreted as not requiring the review of the original decision of the presiding officer, which gave rise to the use of rule 53A. That committee would rather have to consider the circumstances leading to the removal, and perhaps make recommendations on improving the process around removing a Member from the Chamber. This was informed by the fact that the procedure was completely new and there may be a need to develop best practice around the implementation of this rule. He pointed out that the Rules already empowered committees to determine their own procedures, and this would apply here. In looking at the issue before it, the new committee would consider the Hansard record, the DVD recording of proceedings, the minutes of the House, a report of the presiding officer and a report by Parliamentary Protection Services. Having looked at all this material the committee should be satisfied that it had sufficient information, but a committee was also empowered to call people before it. .
The Chairperson thanked Mr Xaso for the proposal and asked whether there were any views on the proposal.
Mr J Steenhuisen (DA) wanted to address himself to item A in the proposal. The reason rule 53A was developed was to deal with disruptions in the National Assembly, when the business of Parliament was not able to continue due to that disruptive behaviour. Members would recall that the rule itself was precipitated by two events. The first was that the President had been prevented from answering questions in the House, and many smaller minority parties lost their opportunities to exercise their oversight. He had taken a point of order on 9 September, because he did not believe the appropriate rule was used, but felt that rule 52 (b) would have been more appropriate, as the business of Parliament had concluded for the day. That being said, however, if the ability to review the original ruling was simply excluded from the new Disciplinary Committee process, then Members would lose their right of recourse to be dealt with fairly, transparently and even-handedly by the presiding officers.
Essentially what this meant was that a Member would immediately be found guilty, with the sentence would be discussed later, but the attitude suggested that “we’re right, you’re wrong, and there is nothing you can do about it”.
The entire point of having a multi-party committee was precisely to ensure that rule 53A was not abused, or misused to silence people in Parliament. In the arsenal of tools available to a presiding officer, having a Member removed from the Chamber was the most extreme tool available. He believed that calling in the Parliamentary Protection Services should be a matter of absolutely last resort. For the new committee to be able to review the events of the day, but not the ruling, would be pointless. If the new committee were to come to the conclusion that in fact the Member should not have been thrown out, but the ruling which led to this action was by now beyond review, it would not make sense. Whether it was correct to use that particular rule on that particular day had to be something that the new committee could apply its mind to, and then to determine whether the correct rule and process was used – in which case, the sanction would stand. It would, he repeated, be merely an exercise in futility if the new committee was allowed to review everything but the ruling. He and his party were of the opinion that in fact, the wrong rule had been used on 9 September 2015 and the events did not warrant the intrusion of the Parliamentary Protection Services, because there was no disruption. The Member could have been named, and the session closed. The Speaker, in concurrence with the presiding officer, could have imposed exactly the same sanction that Mr J Malema (EFF) was labouring under presently, and could have thus avoided the spectacle created by removing Mr Malema from the House, which he felt had also affected the dignity of the House. He wanted to put it on record that he was not defending the actions of Mr Malema in any shape or form, because he believed that Mr Malema had acted acting outside of the Rules, but that rule 52 would have been warranted, because of the repetition of the unparliamentary language, and when the order to withdraw was not sufficient.
Mr P Sizani (ANC) said he was worried that Mr Steenhuisen had begun in this way, because he was now already arguing the matters to be considered by the new structure which the Rules Committee was to set up. He urged Members to come back to the agenda of the day, and to apply their minds firstly to whether the structure should be created as suggested. The arguments that Mr Steenhuisen presented could then be presented again in another forum, in relation to the circumstances. He pointed out that he agreed that Mr Steenhuisen had been correct in his summary of the incident itself, as Mr Malema was out of order by making unparliamentary utterances. This had been a practice of the EFF but he did not want to get into that debate, as it would be more appropriate for it to be dealt with in the new structure that it was proposed should be set up. To undermine and insult Members reduced the standing, stature and integrity of Members and, by extension, that of the House also. Members had been cautioned many times before that they should not insult judges or impugn their integrity, as it undermined the judiciary and exactly the same principles applied to the House. He suggested that instead of now arguing, in a roundabout way, on the merits or demerits of the removal, the Committee should rather focus and deal with the setting up of the structure.
The Chairperson directed the meeting to the document which was presented by Mr Xaso. The proposals for appointment of the rule 53A(12) Committee were set out from subparagraph A onwards. He asked for Members' views on the proposal. The structure should be formed, so that it could then consider the circumstances of removal.
Mr Steenhuisen said he had opened his remarks by saying that he did not believe that such a Committee could be formed, if subparagraph A of the document remained in the proposal. Part of the , undertaking of that committee would have to be whether the correct rule was used, and if it was fairly applied. If the original ruling was not susceptible to review by the new committee, this essentially meant that, regardless of what the Committee said or what evidence was placed before it, the presiding officer would always be absolved and be deemed to have acted correctly. There had to be consequences if the Rules were wrongly used or abused. The new committee had to be able to express itself on that, and be able to say that in a particular instance different mechanisms were available. The starting point could not be a rule of absolution for the presiding officer. If it was done this way, then Mr Steenhuisen did not believe that the process could be fair.
Other than that, Mr Steenhuisen said he was satisfied about the creation of the Committee, as long as it was to be multi-party, constituted proportionally and that there would be a full commitment to arriving at a proper analysis of the circumstances. It would, however, be incorrect to simply absolve certain people before the process had even started, as this would also point to unfairness.
The Chairperson said the intention of the meeting was to make sure there would be a mechanism based on the prescripts of rule 53A, and to consider issues arising out of the incident in the House. She urged that this Committee should form the structure, and then let the structure apply its mind.
Dr C Mulder (FF+) said he was not in the House on the day of the relevant incident, but he took note of what happened. He felt it was a straightforward situation. He agreed with the Chief Whip of the ANC that the merits would be argued in time in the relevant structure. Rule 53A (12) clearly says that whenever a Member was physically removed in terms of this rule, the circumstances must be referred, within 24 hours, to a multi-party committee for consideration. He would argue that the circumstances would clearly deal with the totality of the situation, which started with the ruling itself. That was obviously part of the reason why a Member reacted in a certain way, and why the Serjeant-at-Arms or the Parliamentary Protection Services were called. He could not think that it would be a problem that such a committee should be able to look into the circumstances of the ruling itself, and he did not think the Rules Committee should shy away from that. Presiding officers were also human beings and may make a mistake. However, looking at “circumstances” would give an opportunity to review the entire event and come to a conclusion. Therefore, he would support everything that was in the National Assembly Table’s proposal, except the point that excluded the ruling of the presiding officer.
Mr Sizani said he agreed with the Dr Mulder, but wanted to make the point that the Rules of the National Assembly included a rule which indicated that the ruling of the presiding officer would be final. This was why he had suggested that the summary of the situation by Mr Steenhuisen was correct except that he had challenged the presiding officer during the sitting on 9 September. That had effectively prejudiced the whole process which was supposed to be undertaken, because he should be making the arguments he was presently making to the structure which was still to be set up and not to the House. Any Member who felt prejudiced by a ruling of the presiding officer could be taken to the Rules Committee. That was why nobody was arguing that presiding officers were infallible, but the Rules indicated that the ruling in that particular sitting would be considered final until subjected to review by the Rules Committee.
Mr B Radebe (ANC) said he supported the creation of the new committee, based on the proposal by the National Assembly Table. It was important to note that the new committee would be looking at the unrevised Hansard and DVD recordings of the proceedings. This meant that there was nothing which was going to escape attention; the new committee would consider everything. As had been said the committee had still to be established, so that it could start working and make Parliament a House of dignity.
Ms D Carter (COPE) said it was important to separate the events of the previous week from the need to establish the Committee in terms of the rules adopted in the National Assembly. The immediate events should be put to one side and this Committee should look specifically at the mandate, functions and powers of the new committee
Mr Steenhuisen said he wished to correct the record. He had not challenged the ruling of the Speaker on 9 September; he had merely asked for his view to be placed on record. He did not at any stage challenge the ruling of the Speaker. He had accepted the ruling, and he was aware of the procedure to make such a challenge via the Rules Committee.
Mr M Mdakane (ANC) said he thought the team which would be set up should be allowed to deal with the details of this matter. In principle, it was accepted that the matter should be worked out in the new committee, because there was a specific issue which would now be referred to it under rule 53A (12). The new committee could not avoid dealing with a matter which had been referred to it, and in designing the procedure and processes, the committee would work this matter out. The committee would be set up to deal only with the matter referred to it, because the Rules were clear that if a situation were to arise which would necessitate the setting up of such a committee, one would be formed to deal with that specific matter. It seemed that even Mr Steenhuisen was covered by the process which would be followed in such a committee. In his view, the disciplinary committee should sit, once parties had forwarding names for Members who would sit in that committee, on a proportional basis, and it would then do its work on the matter and then report directly to the Speaker of Parliament, who was responsible for the overall running of the Chamber.
The Chairperson summarised that Members seemed to be in agreement on the formation of the new committee.
Mr Steenhuisen said he agreed with the creation of the committee, and that Members should be assigned to sit on it. However, he had been in too many processes of this Parliament where he had wanted to raise a matter, but where other Members would argue that it was not within the particular committee’s mandate. He was worried that paragraph C was where this new committee was going to derive its mandate. If subparagraph A still remained, this would be problematic. He would be happy if A was left out. This would then mean that the new committee would have to “consider the circumstances which led to the removal of the Member and to make recommendations aimed at improving the process of removing Members”. This removed the blanket absolution for the ruling itself. If that was done he would be happy with the committee. However, he reiterated that he would not be happy with giving any person a blanket amnesty, because the new committee may well find that the wrong rule was applied, and then there would be no ability for it to express itself on that point.
The Chairperson said that from what she was hearing, she was sure that Members were not disagreeing with the issue being looked at, but were simply saying it ought to be taken to the committee. The committee should be given the time to apply its mind and look into the issue, on the basis of the list that itemised what material would be put to the Committee. These included the unrevised Hansard, recording of proceedings, minutes and various reports. It would not be fair for the current Committee to be pressured into taking a decision that would effectively pre-empt a decision of the new committee. Members were not saying that the issue should not be looked at, but rather that it should be taken to that new committee, so that it may apply its mind.
Mr M Waters (DA) said if the new committee was to look at all aspects of what happened on 9 September, then taking subparagraph A out would assist. Subparagraph A read: “not to review the original ruling of the presiding officer which gave rise to the use of rule 51”. That amounted to limiting the mandate of the new committee before it even started. He thought it would be preferable for rule 53A (12) to read “whenever a Member is removed from the Chamber in terms of this rule, the circumstances of such removal must be referred to the Speaker and then to a multi-party committee for consideration”. If Members were to agree with the point raised by Dr Mulder, that the new committee must look at the entire circumstances around the event, then there should be no problem with removing subparagraph A from the proposed guidelines. He reiterated that if this was not done, then the mandate and the scope of the new committee would be limited.
Ms J Kilian (ANC) said unfortunately she felt very strongly that subparagraph A could not be removed. It was expected that the presiding officers must restore order in the House. If every time that authority is exercised it was subject to review by some or other committee, which felt that a different approach or rule ought to have been used, it would be at odds with the duty. The proposal made it clear that although the original ruling could not be reviewed, it would be possible for the new committee to make recommendations aimed at improving the process.
Mr Steenhuisen had indicated that he felt that rule 52 ought to have been used. Even if that had been done, the Member would have been asked to leave on 9 September, and would still have refused. She did not want to go into the detail of that occurrence, but she wanted to say that in no Parliament in the world was there a provision which allowed a committee to review the position and ruling of a presiding officer. She said that the provisions of many other Parliaments could be checked on this point, starting with provincial legislatures. A Speaker could not be taken on review by some or other committee. She felt that the document presented was well thought-through and provided ample guidelines for such a committee do its work.
Mr Sizani said he did not understand why Mr Steenhuisen was insistent on this point, even if he was worried that, in the course of the functioning of the committee, a Member might be prevented from raising the kind of concerns that Mr Steenhuisen was raising here. Included in the material which must be used in deliberating on the matter would be the report of the presiding officer. This was not merely tabled for show, but must be interrogated and questioned by the committee. It would, therefore, be possible for that committee to look into the conduct of the presiding officer. Mr Sizani was worried that Mr Steenhuisen's suggestion was ignoring the fact that the presiding officer’s ruling was deemed to be final in the House. He cited the example when a ruling of Ms A Didiza, House Chairperson, following an instruction to Mr B Bongo (ANC) had been challenged by Mr Steenhuisen, supported by Mr Waters. He did not understand why Members continued to push for something which was contrary to the Rules; namely to question the ruling of the presiding officer – particularly when there was a process to do just that, through the Rules Committee.
Mr Radebe said subparagraph A must stay, because once a presiding officer had made a ruling, no Member should challenge it, unless that Member had followed the due process of making an appeal to the Speaker for the matter to be reviewed. The new committee must look at the issue of the removal of the Member from the House. It was critical that between the sitting of the new committee and the sitting of the House, the ruling of the presiding officer must stand. If this was not the case, there would be chaos in the House. The rest of the document indicated that the totality of the situation would be reviewed, but that the new committee could not second-guess the presiding officer.
Mr Mdakane said that Members were now discussing issues which it was not relevant or appropriate to discuss now, because the new committee would be set up, review the circumstances and advise the Speaker accordingly. If the intention was to have the new committee actually review the decision of the presiding officer, then the drafters would have said so. This was not the case, and if Members wanted to amend these proposed rules, then submissions should be made to the team amending the Rules. At present, the proposed rule covers the position of the new committee, and he felt that the Rules Committee should go ahead and create the rule 53A (12) committee to deal with the issue.
Dr Mulder said that he felt that Members must talk to directly to one another. There was no disagreement on the point that the ruling of a presiding officer in the House should stand, in the House. However, the question was how it would be viewed afterwards, beyond the House. If he understood them correctly, ANC Members were saying that even in the subsequent process at the new committee, that ruling still could not be challenged. That could never be acceptable. Ms Kilian had just said that a presiding officer’s ruling could never be challenged, but that was not true. He stressed that the new rule was speaking of a committee that would be set up subsequent to the events in the House. The ANC was arguing that the ruling of the Speaker could not be reviewed and that was why subparagraph A must remain in the proposal. If that was insisted upon, then the only recourse would be for Members to go to the courts. He repeated that all Members agreed that, whilst in the House, the ruling would stand, Members would all be expected to respect it. If they had concerns, then they must move to a subsequent procedure to address them. However, at that subsequent procedure, it would not be right to say that the committee must investigate, but may not review the original ruling. If that were to stand then the only recourse for those who felt it was wrong would be to approach the courts, something which all Members wanted to prevent. He could not understand why this Committee wanted to make it impossible to take a ruling of a presiding officer on review, subsequently, by Parliament. It was also not correct to argue that all presiding officers' rulings would be reviewed, for this would only happen when a specific event happened and a rule 53A (12) committee was set up. If the proposal were to include subparagraph A, then he could not support it.
Mr Steenhuisen said he felt Dr Mulder had summed up the position succinctly. He also added that Ms Kilian's assertion was wrong, because there was already recourse for Members to challenge rulings, via the Rules Committee. He was unsure why Mr Sizani was trying to “settle battles he did not win in the House, in this Committee”, but he was not going to respond to those. If subparagraph A were to be included, then the new committee would be completely superfluous and the DA would not support it, because then it would simply become a witch hunt which said that the Member’s behaviour must always be examined, but that the presiding officers were always immune from ever having their behaviour or rulings reviewed.
In this case, an egregious event happened, which led to a Member being removed from the National Assembly and suspended. These were unique circumstances and it did not mean that every time a ruling was made in the House, it would be brought to a multi-party committee. If A was left in, then the DA would not support the proposal. The ANC could use its majority to push the proposal through, but then he warned that there would not be opposition Members willing to serve on that new committee, and it would be exposed as a witch hunt, leading to the credibility of the process being undermined. He was asking for Members to find each other, and agree that subparagraph A should fall away, thus allowing the new committee to look at all circumstances arising on the day, in order to arrive at a conclusion which would have credibility in the House. It would then further underpin the Rules and prop them up with dignity. If this Rules Committee proceeded from the basis of including subparagraph A, then it would be a waste of time for Members to form or participate in such a new committee.
The Chairperson suggested a break, during which Members may be able to find a solution.
On resumption, Mr Mdakane said the issue had been looked at, and the ANC would no longer argue for the retention of subparagraph A of the proposal. The proposed new committee would be proportional, and would look into all the circumstances, and address the challenges. The new committee was really there to advise the Speaker, who was to take the final decision. That was the understanding on which the acceptance is being made and he was sure that the new committee would be persuasive enough to convince the Speaker.
The Chairperson asked if this was agreed to. The only technical problem was that the Rules Committee had not reached a quorum. There was to be a sitting of the House on 27 September 2015. He suggested that the options were to either reconvene the Rules Committee closer to the time, or simply bring the proposal directly to the House.
Mr Mdakane said he had not consulted many other Members on the point, but it was assumed that parties’ leadership was present, and the Rules Committee had taken a view. He felt it would be appropriate to take the revised proposal, as agreed to in principle here, directly to the House on 27 September.
The Chairperson asked if this was agreed to, and received general agreement from Members present.
The meeting was adjourned.
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