Draft Rules: Party inputs

Meeting report

Chapter 5: Order in public meetings and rules of debate

The Chairperson welcomed everyone to the Committee meeting and said there was no nowhere in the world where the decision of a presiding officer had ever been reviewed, and the interim arrangement that had been reached was that the political team would assess the political situation prior to taking a decision. In a political environment, it was easy for everyone to make a political score and this made it even more difficult to review a decision that had been taken by the presiding officer. The interim decision taken by the Committee was that the presiding officer would be obliged to call the Sergeant-at-Arms to eject a Member who refused to withdraw unparliamentary language, and it did not matter whether this happened towards the end or at the beginning of a sitting. He wanted to know if there was anyone who had done research on other parliaments in order to determine whether the decision of the presiding officer could be reviewed.

Ms N Michael (DA) said that the agreement reached yesterday had been that Rule 53 A must be removed, as it was unconstitutional to have a system that looked at the removal of a Member of the House without reviewing the decision that had been taken by the presiding officer. There was no parliament in the world where there was no review of the decisions of the presiding officer. South Africa was a constitutional democracy, and therefore Members should be afforded an opportunity to have a decision that had been taken by the presiding officer reviewed. The failure of Parliament to provide recourse for the reviewing of the decision of the presiding officer would certainly result in a growing trend of Parliament being taken to court for unconstitutional decisions.

The Chairperson corrected that he was referring only to an interim arrangement that had been taken on Rule 53 A, and there would still be discussions on a permanent rule. The House was expecting the Committee to consider a permanent rule. He admitted that the Committee had indeed reached an agreement that there was a need to discuss and deliberate further on the intention of Rule 53 A.

Ms S Kaylan (DA) said it was important for the Committee to draft rules and other measures that would prevent a volatile situation in the House.

The Chairperson reminded Members that an interim rule did not in any way supersede the existing rule, and the point to be taken into consideration was whether it was possible to review the decision that had been taken by the presiding officer on rule 52 A. He said it was certain that the Committee would be compelled to eventually vote on rule 52 A.

Chapter 6: Decision of questions

Mr Kasper Hahndiek, Consultant to the Committee, said that in terms of section 53 of the Constitution -- except where the Constitution or the rules provide otherwise - a majority of the Members of the National Assembly must be present before a vote may be taken on a bill or an amendment to a bill; and at least one third of the Members must be present before a vote may be taken on any other question before the Assembly.

The Chairperson said that the overall representation from the previous elections showed that the ANC had 62.3%, the DA had 22%, and the EFF had 6%. All the parties still represented their percentages in the committees, with six Members of the ANC in committees representing the overall 62.2% and the two or three Members of the DA represented its 22%. 

Ms Michael said that she had been to Parliament a number of times and had seen the ANC’s inability to maintain a quorum. It was not the fault of the opposition parties that the ANC could not quorate, as this was clearly an internal disciplinary problem. Members were paid roughly R45 000 a month after tax, and this was the money that was paid for Members to be in Parliament, attend committee meetings and to ensure that the executive was held accountable. It was disappointing that most of ANC Members were not attending committee meetings, and this pointed to an internal disciplinary problem within the ruling party.

Ms L van der Merwe (IFP) expressed concern that the ANC wanted to create certain rules for specific committees, and assumed that this was perhaps to deal with quorum issues.

Ms J Kilian (ANC) wanted to know if the Rules Committee had been expanding in size since 2006, as this was a matter that had not been discussed. It was correct that rules should not be created to accommodate the ill-disciplined, but it had to be taken into consideration that part of the ANC’s problem in getting its Members to the Rules Committee yesterday had been because most of them were on oversight visits to various provinces. She asked if it was not possible to provide for voting and non-voting Members, and then have a composition of the Rules Committee that was pretty much in line with the portfolio committees in order to allow flexibility and inclusivity, to make provision for other parties. This would assist in retaining a smaller committee and remove the vote of the presiding officers.

The Chairperson said that the Rules Committee had been a huge committee back in 2009, with about 50 Members, and the decision had been taken that the ANC should have 26 Members. It was then decided that Members of the ANC should be reduced from 26 to 17, with Members of the smaller parties remaining as they were. The ANC had taken a decision against ill-disciplined Members, but Ms Kilian had been correct that some Members were busy with committee duties and oversight visits, as had happened this week. It must be taken into consideration that the representation of Members in the portfolio committees had been reduced to six ANC Members and five Members of the opposition parties in order to make it easy for Parliament to operate. The rules allowed for Members to attend and participate in any committee, but they couldnot vote in those committees where they were not Members.

He added that it was not in the interests of the ANC to encourage laziness, but the reality of the situation was that there were some Members who were serving in more than three committees, so it should be made easy for Members to do so. The Committee would make proposals to the Rules Committee on the concerns that had been raised in order to take the final decision on the way forward. 

Adv Frank Jenkins, Senior Parliamentary Legal Adviser, said that the rules that applied in the National Assembly (NA) also applied in the committees, and the Committee should be careful not to set rules on voting that would be incongruent with both the NA and the committees.

The Chairperson said that Members represented the parties’ proportionality in Parliament, and even a decision that was taken in the Committee was a proportional decision, as the majority prevailed in any circumstances. 

Mr Hahndiek said that the Constitution provided for a specific quorum in Parliament for a decision to be taken in the House, and it was irrelevant whether the outcome was in favour of the majority party or not. Therefore it was incorrect to say that the majority always prevailed by virtue of being a majority.

The Chairperson said that Members would need to convince each other on the matter, and the State Law Advisers would need to provide more input for further consideration. The point that had been emphasised in the statement that “the majority always prevailed,” was to show that the majority was always the one that took the final decision and in this case, this included the majority party itself. The Committee would need to look at all possible options to be presented to the Rules Committee for further consideration.

Ms Kilian said that the placement of the 50 Members did not mean that the cap had to be reduced, as the Committee could conduct its business with one third of the Members present, but could take a decision only when 50% of the Members were present. It had to be taken into consideration that Parliament had had a proliferation of opposition parties over the past 15 years, and therefore the accommodation of all parties had compelled the ANC to increase its component so as to be proportional during the voting process. The suggestion of making provision to allow non-voting Members and then retaining the proportionality of the composition, was to ensure that the voting membership in the end was comparative to all the other structures of Parliament.

The Chairperson said that the Rules Committee was the most senior committee in Parliament, and all parties had to be present in the Committee. This was consistent with the Constitution.

Ms Van der Merwe supported the suggestion to allow the non-voting or alternate Members to vote, as this was already done in the Committees. 

Chapter 5: Control of microphones in the Chamber: Rule 59A

The Chairperson said that in the event of a Member not showing due respect to the authority of, or not obeying an order or ruling or direction of the presiding officer, or acting in a disruptive or grossly disorderly manner in the House, the presiding officer may order that the microphone being used by such Member be disabled or switched off. The presiding officer needed to give a warning to a Member before the switching off of the microphone.

Ms Kilian indicated that it might be practically difficult to give a warning to each of the Members before the switching off of the microphone, especially if the majority of the party Members were not obeying an order or ruling of the presiding officer, or acting in a grossly disorderly manner. She suggested that perhaps the best way could be the making of a general announcement before the switching off of the microphone.

Mr Enver Daniels, Chief State Law Adviser, responded that although this might be correct, the point that needed to be made here was to prioritise on the freedom of speech, as guaranteed in the Constitution. Switching off an MP’s microphone trampled on the Member’s right to freedom of speech, as guaranteed in the Bill of Rights. The switching off of an MP’s microphone was as serious as throwing a Member out of Parliament. 

Ms Van der Merwe added that it was irrelevant if Members in the House did not hear the presiding officer announcing the switching off of the microphone, as long as the announcement had been made prior to the taking of such decision.

Mr Hahndiek proposed that as soon as the microphone of the presiding officer was switched on, then perhaps all the other microphones in the House should automatically be switched off.

Ms Kilian said that the system in other legislatures, especially in the City of Cape Town, had been devised in a way that as soon as the presiding officer was to speak then all the other microphone were immediately switched off, and this was what had been proposed by Members.  Section 47 of the Bill of Rights made it clear that the Members had freedom of speech in the Assembly, subject to its rules and orders, and this was to ensure that there was a balance in the House for all Members to be heard.

The Chairperson supported the suggestion for the presiding officer to just make an announcement before immediately switching off the microphone, as it might indeed be difficult to give a warning to each of the Members before the switching the microphone off, especially if the majority of the party Members were not obeying an order or ruling of the presiding officer, or acting in a grossly disorderly manner.

Chapter 3: General authority and responsibility of Speaker

Mr Hahndiek said that it was the responsibility of the Speaker to ensure that the National Assembly provided a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action in accordance with section 42(3) of the Constitution. The Speaker was also responsible for ensuring that all parties represented in the National Assembly participated effectively and efficiently in the proceedings of the Assembly and its committees and forums, and for facilitating public involvement in the processes of Parliament in accordance with sections 57 and 59 of the Constitution. The Speaker was responsible for observing and promoting compliance with the principles of co-operative governance and intergovernmental relations in accordance with Chapter 3 of the Constitution

Ms Kilian said that the Chairperson of the Standing Committee on Finance (SCOPA) had requested that there was a need to extend the authority of SCOPA to also include local municipality oversight, but the Committee was cautious not to transgress on other spheres of government. 

Mr Daniels said that the National Assembly could summon someone from provincial governments to appear before the Assembly, but a provincial government could not summon someone from the National Assembly.

The Chairperson said that the Committee still needed to deliberate and discuss matters related to the responsibilities of the Speaker, especially taking into consideration of the need not to transgress on other spheres of government.

Members agreed with the suggestion.

 

Chapter 13: Legislative processes

Ms Michael wanted to know what progress had been made regarding who was responsible for the tagging of the bills, or the Joint Tagging Mechanism (JTM), as the Chairperson had expressed a concern about the suggestion to let the portfolio committees make the decision on who was responsible for tagging.

Mr Hahndiek responded that the presiding officers of both Houses were the ones to take the decision on who was responsible for the tagging of bills, and that there was no intention to change the current JTM.  

Ms Kilian suggested that “Minister of Finance” in rule 231 (2) on page 117 should be deleted and replaced by “The Cabinet member responsible for national financial matters,” as this was the terminology that had been used in the Constitution.

Members agreed with the suggestion.

Mr Daniels said that as highlighted in rule 243 on page 122, when any bill had been referred to a committee, the committee would be obliged to report on the bill to the House and then the House would take a decision on the desirability of the bill.

The Chairperson said that in regard to rule 246 on page 124, the proposal that had been made was that the first and second reading of the bill should take place in the main chamber, since all Members were there, to allow them to learn about the objectives and intentions of the kind of bill that had been introduced.

Mr Hahndriek said that it made more sense for the second reading of the bill to happen in the main chamber, as the House was responsible for taking the decision regarding the desirability of the bill.

The Chairperson suggested that perhaps the Speaker needed to have a discussion on the decision to be taken regarding the first and second reading procedures. There was a high likelihood of more oversight work, so the Speaker needed to consider the issue of time availability. The suggestion that had been made was that everything, including the budget votes, should be done in the main chamber, but this might disadvantage the performance of oversight work. The Committee should rather decide that the first reading debates must be routinely accommodated and conducted in the mini plenary sessions, and then the second reading must be left within the powers of the Speaker to make a decision.

Ms Kilian said that the Committee had already agreed that any matter could be referred to the mini plenary by the Speaker.

Members agreed with the suggestion.

The Chairperson said that the Committee should not concentrate too much on the grammatical issues as there were language experts to deal with them in the final drafting of the bill.

Ms Kaylan wanted to know if there was consideration of the minority views in the bill, as this was an important matter to be highlighted

Mr Hahndiek responded that rule 251(3) (e) (ii) on page 129 made it clear that in addition to the majority report views, representative of the majority in the committee, it must also convey any views of a minority in the committee.

The Chairperson agreed that indeed there was a specification that the minority views in the committee reports must be conveyed. 

Ms Kilian said that the matter of the consideration of the minority views was always there in the legislative process, but it was just not stipulated in the committee reports. The report on legislation and public participation was critically important to be captured in the committee reports.

The Chairperson said that a public participation model had already been proposed, but it was still unclear if this model had been adopted by the Chamber. There was a need to avoid a situation where Parliament could be taken to court for failure to consider public participation in a bill.

Mr Daniels said that section 59 of the Constitution made it clear that the National Assembly needed to facilitate public participation, so committees were compelled to take into consideration of the inputs that had been made by the general public during public hearings.

Mr Hahndiek suggested that “Minister of Finance,” in rule 288 (2) on page 143 should also be replaced by “The Cabinet member responsible for national financial matters” so as to be consistent with the replacement that had been made in rule 231 (2) on page 117.

Members agreed with the suggestion.

Mr Daniels expressed concern that Parliament had been taken to court so many times during the Fifth Parliament, and part of the reasons for the review of the rules of Parliament was to prevent cases that could potentially give rise to litigation.

Mr Jenkins agreed that many court cases had been brought against Parliament, and this should be a major concern.

Mr Hahndiek said that it was a prerogative of the Executive to initiate bills and make policies, and this was stipulated in the Constitution. However, it became problematical when Parliament amended a bill so extensively that it amended policies, as it was assuming the policy making-function, which was the prerogative of the Executive. The solution could be that there should be a lively interaction between the parliamentary committees, role players, chairpersons and the executive members responsible for government departments.

The Committee was in agreement that the rules should not be amended after every five years but should live for at least another 20 years, so it was important not to be short-sighted when drafting the rules. It was indeed true that Parliament had been taken to court on a number of occasions in the past two years, and the courts would perhaps need to reach a decision on whether those who sought recourse in the courts should be told to solve their problems in Parliament. It was clear that the courts had been over-extended by something that was an internal design of Parliament. There was no doubt that the rule on the “point of order” would also be taken to court.   

Mr Hahndiek said that whether a bill had been passed or not, or withdrawn or not, were all political issues and it became difficult to differentiate between rationality and politics. There were indeed cases where a bill came to Parliament, initiated by the Executive, but then the Executive could withdraw it because of an outcry from the public.

Ms Michael indicated that there had been a case in the previous Parliament where the Equity Bill had lapsed because of an outcry from the public over the failure to incorporate the inputs of civil society.

Ms Kilian appreciated the inputs that had been made by the State Law Advisers, but cautioned that Parliament was fuelled by a political environment and it was therefore important to accept that the lapsing of a bill was part of parliamentary practice all over the world.

The Chairperson also appreciated the inputs that had been made by the State Law Advisers, and added that the majority party was not persuaded by the dominant view but by the rationality of the view -- and politics, of course. 

Chapter 14: Process for written instruments other than legislation

Ms Kaylan indicated that “foreign affairs” on rule 307 should be replaced by “international relations and cooperation” so as to be consistent with the Department of International Relations and Cooperation (DIRCO).

Ms Kilian suggested that “foreign affairs” should be retained so as to avoid directly naming a responsible department, as the name “DIRCO” might be changed in the next Parliament. 

Members agreed with the suggestion.

Ms Kilian said that the Committee had not found any particular solution to the handling of petitions, as this was a very important mechanism of Parliament. The Committee would need to find a way to formalise the petitions, as this was another means of public participation. 

The Chairperson said a team was working on emerging issues in the processing of petitions, but it looked like the team had not reported back to the presiding officer for consideration. The Committee was indeed of a view that petitions played an important role in Parliament, but there was still a lack of mechanisms to deal with the petitions.

Mr Hahndiek indicated that the committee responsible for a particular petition should be reporting to the House on how it was responding to a petition that had been lodged. Parliament should be responding timeously to the petitioners.

The Chairperson agreed that there should be a process to be followed for the lodging of petitions.

Ms Kilian suggested that “the Committee on Private Members’ Legislative Proposals and Special Petitions” should be deleted and replaced by “Finance Committee,” as Special Petitions dealt with financial matters, particularly pensions.

Members agreed with the suggestion.

Chapter 15: Miscellaneous 

Ms Kilian mentioned that there should be an appendix to the elements on the Constitution that required special majorities.

Mr Perran Hahndiek, Procedural Advisor Secretary, Parliament, said that Members would be provided with an appendix on the elements on the Constitution that required the special majorities.

The Chairperson said that the amendment of rules, which had begun in 2013, was almost concluded from chapter 1 to 15 although there was awareness that nothing got finalised in politics. The Committee had still to consider the issue of the motions without notice, and the removal of the President.

Ms Michael said that the Committee could not finalise the issue of motions without notice, as there had been an agreement that the DA still needed to caucus on the matter. She suggested that Members should be emailed the proposals on the motions without notice so they could peruse and scrutinise the proposals that had been made without making any rushed decision.

The Chairperson promised that Members would be emailed the proposals that had been made on motions without notice. 

Ms Kilian suggested that there should be a limit on what the motions without notice was, and what was not, and that Ms Michael was welcomed to get a mandate from her party on the position to be taken on the motions without notice.

The Chairperson reiterated that Members should not be concerned about grammatical issues, as Mr Hahndiek and his team would work on the language that had been used in the amendments to the rules. The Rules Committee would need sufficient time to consider the amendments that had been made and some of the matters could be referred back to the Committee. The intention was to adopt the whole set of rules by the end of the year. The Rules Committee had already made some proposals on the need to meet on 3 and 4 October 2015, and therefore the Committee would need to finalise its work before that time.

Ms Van der Merwe suggested that the Committee should perhaps meet on 5 and 6 October.

The Chairperson said that the Committee would consider the issue of motions without notice when meeting in two weeks’ time. 

Members supported the suggestion.

Dress code

Ms Kilian said no consensus had been reached in the previous Parliament on the dress code of Members, but the House needed to make a decision on the image to be portrayed by Members. There was a contention in the ANC caucus that Parliament should implement restrictions and guidelines on the dress code of Members. There had been an agreement in the ANC’s workshop that there should not be many details on the dress code of Members, as this could be left to the guidelines document, but there was a need to take into consideration rule 45 (3) (f), that “Members needed to dress (according to their personal tastes) provided that no party symbol may be displayed and provided further that such dress code is in accordance with the dignity and decorum of the House”. However, it had also been said that the rule was not adequate to uphold the decorum of the House. It had therefore proposed broader principles, adding that Members should be dressed appropriately, in business or traditional attire, and should be dressed in a way that reflected respect for Parliament and the Constitution, and the people who had elected them to office.

Ms Kilian added that it had also been agreed at the ANC’s workshop that Members may not wear clothing or clothing accessories that were revealing or displayed party political affiliations, and not dress in an informal way like denims, jeans, t-shirts, golf shirts, overalls, helmets or makarapas in the House. This was the dress code that had been agreed to in broad principle, but it did not mean the Committee should adopt exactly the wording that had been used, as the ANC had indicated that the matter still needed to be referred to the Rules Committee.

Ms Van der Merwe indicated that some of the guidelines that had been provided by Ms Kilian on the dress code in the House were open to interpretation, as it was difficult to break it down into what constituted business attire. It would be difficult for those guidelines to be accepted by the various parties, as the clothes that were revealing could be interpreted differently, depending on the individual’s choice.

Ms Michael said that the Committee needed to be cautious not to be restrictive when it came to the dress code in Parliament, as this would be an infringement of the freedom of expression, according to the Constitution. The stipulation of the dress code was a matter of interpretation, culture, age difference and so forth, and the Committee needed to be as unrestrictive as possible when it came to the dress code.

Mr Daniels added that indeed the matter of the dress code could be open to different interpretations, as Mr Pathekile Holomisa had gone to the Constitutional Court bare-breasted and this had been accepted as he was wearing revealing traditional dress. 

The Chairperson mentioned that the matter of a dress code had begun in 1998 and therefore it was incorrect to assume that this was an attack on the dress code of the EFF. All parties except the EFF generally accepted that there should be a minimum standard level of dress code for Members. The Committee would need to discuss the matter of the dress code further in the next meeting in order to reach consensus on the minimum dress code that would be acceptable for Members. The EFF was still taking Parliament to the Constitutional Court over the matter of the dress code, but it must be said that it was easy to threaten to take Parliament to court, but it would be difficult to submit very cogent points to be taken into consideration by court. The Committee was cognisant of the need to respect the minority views, but the majority views also needed to be respected.

Ms Kilian also agreed with the suggestion that the Committee still needed come together and decide on an appropriate dress code for Members that would be in line with the Constitution. She added that Mr Pathekile Holomisa was a Member of the ANC and had been part of the ANC caucus during the discussion on the dress code and there were suggestions that the stipulation of business attire seemed to be favouring business over labour. It was absurd that Members seemed to be aware of what constituted formal business attire only during invitations to a congress or for overseas, but not when it came to Parliament. 

Ms Michael said that the DA still needed to caucus on the proposals that had been made on the dress code in the House. The complexity of the matter of formal business attire was highlighted by the fact that there were MPs that came to Parliament wearing business suits, but were bare footed. 

The Chairperson indicated that it might be useful not to be too descriptive on the acceptable dress code of MPs, but rather to mention the acceptable dress code for a person who represented the people. It was indeed true that there was not a single Member who had rejected an invitation because of incompatibility with the dress code, and this should be applied to Parliament. The matter of traditional dress should not be a major problem, as not a lot of Members were wearing traditional dress, except to cultural events. Parliament could not be held to ransom by people who did not even wear the traditional dress code. In relation to the matter of motions without notice, the option was to either rework the rule to accommodate everyone or to reject it in its entirety, and Parliament should come up with procedure that would allow Parliament to operate smoothly.

Ms Van der Merwe said that the Committee needed to stick to the 90-second allocation for Members’ statements, as this would assist in avoiding motions that took up about four pages.

The Chairperson supported the suggestion, and added that a motion needed to be submitted to the Speaker to be screened in order to qualify, based on the stipulated guidelines. The Committee had still to do research on the removal of the President in order to carry out further deliberations on the matter. The Committee needed to meet on 5 and 6 October to consider all the outstanding issues.

Ms Kilian indicated that she would not be available on those dates, as she had to attend a course that had been paid for by Parliament.

The Chairperson thanked everyone who was present at the meeting.

The meeting was adjourned.