Guidelines & Constitutional Court judgment: Removal of MP; Removal of President, Recusal of Speaker: Legal Advisor inputs

Rules of the National Assembly

22 April 2016
Chairperson: Mr R Mdakane (ANC)
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Meeting Summary

Opinions were presented to the Subcommittee by the Parliamentary Legal Advisors and the State Law Advisors on the implications of the recent Constitutional Court (CC) judgment in the matter of Democratic Alliance v Speaker of the National Assembly. Essentially, that judgment had dealt with the meaning of section 11 of the Powers, Privileges and Immunities of Parliament Act, and how this impacted upon constitutional privilege and immunity of Members of Parliament, particularly in regard to their removal from the Chamber, and then from the precincts of Parliament. Section 11 reads: “any person who creates or takes part of any disturbance while the House of Parliament is meeting may be arrested and removed from the precincts, on the order of the Speaker or Chairperson or a person designated by the Speaker or Chairperson, by a staff member of the protection services”. The issue at the CC was whether “a person” in section 11 of the Powers and Privileges Act includes “a Member”. The majority of the CC found that “person” does include a Member. Having found that, the Court then had to test whether the section was constitutionally valid. The CC made the point that the privilege contained in sections 58(1) and 71 can never go so far as to give a Member licence to disrupt parliamentary proceedings so that Parliament would become “hamstrung and incapacitated from conducting its business”. The Houses have constitutional authority to control their proceedings through rules and orders, but these must not denude the essential content of parliamentary privilege , and can only limit free speech in order to protect that content. The CC found that section 11, however, did in fact limit privilege and immunities of a Member in two ways. Members who created a disturbance were potentially liable to criminal charges and that could stifle robust debate, and section 11 was held to directly infringe the principle of Members' immunity from arrest under section 58 of the Constitution (although other views were expressed from the advisers on this point). The CC thus found section 11 to be invalid to the extent it applied to a Member. In order to cure this the phrase “other than a Member” must be read into the section.

The legal advisers discussed how the majority judgment had gone into the question of conduct and had concluded that there was quite a stringent two-stage test; the first part saying that the disturbance must be sufficient strong to hamstring Parliament, and the second saying that it must be of a nature that would suggest that business could not be resumed within a reasonable time. The judgments noted the need to balance deliberations and decision making. Free speech is important, but debates cannot go on for ever, and the views of the majority may at some point prevail. Parliamentary free speech may only be limited by the Rules, and not through legislation. Immunities of Members are absolute and Members may not ever be sued or arrested for anything they say in the House.

The Court had not actually ruled on either the draft new Rules, or the existing Rules of Parliament. Rule 51 already dealt with Members ordered to leave the Chamber. It had already been established that the Rules can limit free speech and in the De Lille case the Court stated that the powers of Parliament as set out in section 57(1) of the Constitution are intended so that if may maintain internal order. That power includes to exclude Members from the Chamber if they are disrupting and unreasonably impairing the House from conducting its business. Rule 53A dealt with removal of a Member from the Chamber. The legal advisers discussed the meaning of the “security services” referred to and where “security services” as defined in the Constitution may operate. The Parliamentary Legal Advisers thought that this rule would have to clearly distinguish between violent conduct which may justify the calling of security services to escort a Member from the precincts and disruptive conduct, which would not attract any criminal sanction. The question of automatic suspension following a Member being asked to withdraw was discussed within the context of what the rule seeks to achieve, and whether this is a move merely to maintain order, or a sanction.

The State Law Advisers recommended that perhaps the proposed rule 51 would need to be amended to specify that this will only apply where the Member’s conduct is of such a nature that it incapacitates Parliament from conducting its business. Rule 53A(10) currently referred to “security services” and it was felt that the specific reference to Parliamentary Protection Services should be inserted. The drafters said this point had been considered, but the reference to “security services” was left in to cater for the situation in the precincts outside of the Chamber, although the clear understanding would be that the Parliamentary Protection Services would deal with conduct in the Chamber. The Secretary to the National Assembly clarified that rule 54(10) also had spoken to a situation where there is a possibility of violence occurring in the Chamber. The Chief State Law Adviser queried the implication that a Member could disregard the authority of the Presiding Officer, and the drafters said that perhaps this could be redrafted to make it even more clear that the removal would be a last rather than first resort. Presiding Officers needed a certain degree of discretion to decide what “a disturbance” was and how to deal with it. Removal from the precincts could be seen as a deterrent. The Parliamentary Legal Adviser stressed that the CC had made the point that Parliament was evolving and was not running along a pre-ordained path, and had to allow some issues to be dealt with in a new way. Members were urged to re-think how the Powers and Privileges Committee is run. Some Members made the point that rules 51 to 53A could be seen as setting out a natural progression, and a balance would have to be found. This was particularly so since the implications of events in the House went wider than the House itself, impacting on ensuring a free flow of ideas, public perceptions, investor confidence and proper recording of views from all parties. An ad hoc Committee will be established to look at the implications of the judgment for the Powers and Privileges Act. Members agreed that there were no issues of principle on rules 51-53A, but that the language could be improved and 53A(11) would read “Speaker” rather than “presiding officer”.

A second briefing document by the Chief State Law Advisor (SLA), on the case of Economic Freedom Fighters v President of the Republic of South Africa was referred to the full Rules Committee, since it may have to make decisions of policy which were presently outside the Subcommittee's mandate.

The Subcommittee then moved on to the consideration of three draft rules and briefly considered draft guidelines. In relation to the draft rule on recusal of presiding officers, the point was made that the DA believed that the Speaker should have recused herself from the debate on Nkandla because she had been cited as a party in the judgment, and because the Speaker in South Africa was an active member of the ruling political party. The NA Table said that the Speaker was cited ex officio and not individually. In view of the differences of opinion between parties, a draft Rule would be presented as an option to the Rules Committee.

The second matter related to removal of a Member under rule 53A, and the composition of the new subcommittee to be formed to deal with such matters. Members agreed that since the new subcommittee would consist of whips (of the larger parties) an inclusive rather than proportionally-represented body would be in order, were in favour of a fairly flexible structure with the power to co-opt, and agreed that this body would not actually have the power to review the rulings of the presiding officer. A proposal with options would be put to the Rules Committee.

Members felt that a draft Rule on Section 89 Removal of the President was too political to be decided by the Subcommittee and should be presented to the Rules Committee. All political parties would have to discuss the matter themselves and consider the complexities at the Rules Committee meetings.

The Subcommittee began to discuss guidelines such as those for the times for declaration of vote by smaller parties and questions to the Deputy President which are to be informed by a list of delegated responsibilities, according to a list provided by the leader of government business. However, it was felt that there was too little time to do justice to the document and the consideration was postponed. 

Meeting report

Constitutional Court judgments: Legal input and deliberations on implications
The Chairperson said the purpose of the present meeting was to assess the impact of the Constitutional Court rulings on the rules already drafted. Furthermore, the Committee would need to finalise the rules around section 89 of the Constitution (removal of a President). Other than that, the review of the Rules of the National Assembly (the Rules) were finalised, having been submitted to the Rules Committee of the National Assembly.

He pointed out that there remained areas of contention around the decorum of the House and the dress code for the House. The issues around rule 53A were resolved, because the political parties met and decided that rule 53A should be retained in its present form. The multi-party team is to meet where any Member is physically ejected from the Chamber, for whatever reason. There was not complete agreement, but views had been expressed, around decorum of the House under the rules already drafted. A Member will dress in a manner befitting the decorum of the House. All other matters would be contained in the guidelines, which will stipulate what can and cannot be worn. The guidelines should not cause many problems, because they are not the Rules.

He noted that the Rules should be submitted to the Rules Committee, before Parliament rises in the following month. If there are still very serious issues they should be finalised before the end of May 2016. The process had been long, with broad consultation, workshops within the parties themselves and with effort to bring new parties up to date with the process. The Subcommittee of the Rules Committee (the Subcommittee) had almost reached the end of its task, although at times there may be areas referred to the Subcommittee by the Speaker of the National Assembly.

He did not think there would be agreement, on the very difficult area of removal of the President from office, under section 89 of the Constitution, before the Draft Rules were taken to the full House, but this should not delay the process. Parliament has been waiting for the Rules to be finalised. The Subcommittee has tried to facilitate as many parties as possible and some parties do not have the capacity to attend these meetings, but that cannot prevent the Rules going forward. The date to present the latest version, Draft 9 of the Proposed Rules of the National Assembly, will be arranged. He repeated that the dress code as it would appear in the Rules was agreed to, leaving just the guidelines to finalise. The team to assist with the Court rulings debate may give input on that too. Finally he noted that all Members of the House would be provided with Draft 9 before the House debate.

Dress code input

Mr Kasper Hahndiek, Former Secretary to the National Assembly and Consultant to the Committee, referred to the dress code, and said that rule 45 (f) currently says there “must” be guidelines. He recommended this be changed to “may” to give greater flexibility; he pointed out that whilst the rule stood at the moment there were in fact no guidelines.

Ms J Kilian (ANC) agreed that “may” would assist, and leave the matter more open for if in future times there were offensive incidents they would be able to be dealt with. It is understood that how one dresses is part of self-expression, as long as it is done within the confines of the dignity of the House. This proposal would be an adjustment to Draft 9 and Mr K Hahndiek has previously presented a list of technical amendments. She questioned the process: would Draft 9 be presented to the House, with the technical amendments in an annexure?

Mr K Hahndiek said that he thought the idea would be that the Subcommittee goes to the Rules Committee with a Draft 9, which would also accommodate the technical changes. However, for the next Rules Committee meeting, there could be a clean Draft 10 if Members wished.

The Chairperson said he thought it was agreed that the Subcommittee only deals with the substantive issues and the technical issues could be worked on to produce a Draft 10.

Mr M Booi (ANC) said the ANC caucus felt that everything should be finished and submitted to the House by the end of May. On any new developments, the ANC was consulting extensively internally. The previous day the caucus felt that anything which had been finalised already should be submitted to the Rules Committee. The Rules would then be regarded as finalised, with a new book on the table. This was preferable to keeping on reviewing the Rules constantly, every time there was an incident. The ANC is weary and challenges could still be sorted out in the House. He thought that the process should be clearly stated that from the Subcommittee, everything will be submitted to the Rules Committee. At the Rules Committee meeting, Members should be prepared to recommend that the Rules are ready to be taken to the Chamber. Draft 10 would be a vital document bringing closure to the process. The ANC was ready, and wanted to have the Rules submitted to the House.

Mr Perran Hahndiek, Committee Secretary, said he wanted to introduce the documents presented which would give an idea of the agenda. There were two legal opinions, one from the State Law Advisors and one from the Parliamentary Legal Advisors. He also tabled the guidelines and determinations requiring the approval of the Rules Committee, which the Committee had been through previously. Based on the previous discussions there are three draft rules, as follows:
- a draft rule for section 89 of the Constitution
- a proposal on how a rule may be framed for recusal of the Speaker, which includes an opinion and a proposed rule
- proposed rules for he rule 53A subcommittee, which was to be a subcommittee of the Rules Committee

Briefing by Parliamentary Legal Advisors:

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, said the opinion was prepared by Ms Sueann Isaac, Parliamentary Legal Advisor, and it was aimed at applying the principles of the case to the Rules. It was not necessarily making concrete proposals, but raising the issues for discussion.

Ms Sueann Isaac, Parliamentary Legal Advisor, said the case under discussion was Democratic Alliance v Speaker of the National Assembly. The issue there was section 11 of Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (the Powers and Privileges Act). It reads: “any person who creates or takes part of any disturbance while the House of Parliament is meeting may be arrested and removed from the precincts, on the order of the Speaker or Chairperson or a person designated by the Speaker or Chairperson, by a staff member of the protection services”. This case was initially heard in the Western Cape High Court, which found this section to be constitutionally invalid in so far as it was being applied to Members.  As a matter of course the case went to the CC to confirm the order of constitutional invalidity, but it was also appealed and cross-appealed by the parties. The issue at the CC was whether “a person” in section 11 of the Powers and Privileges Act includes “a Member”. In the majority judgment of the Court, the importance of parliamentary free speech was emphasised, noting that it was of great importance to the functioning of Parliament, in law making and oversight. The majority of the court found that “person” in section 11, given the use in the Powers and Privileges Act as a whole, includes a “Member”. Some important points were made by the Court, which included that the privilege contained in sections 58(1) and 71 can never go so far as to give a Member licence to disrupt the processes of Parliament, so that it would be “hamstrung and incapacitated from conducting its business”. The court did say the Constitution gives the respective Houses the authority to control their proceedings through rules and orders. However, these can only be to the extent that they do not denude the privilege of its essential content. They can only limit free speech to the point that the essential content is protected.

Because the Court found that section 11 included “a Member”, it then had to test whether the section as it did apply to a Members was constitutionally valid. The Court held that the effect of the section was to limit privilege and immunities of a Member in the Constitution in two ways. Firstly, a Member who takes part in a disturbance takes part in a criminal offence and there is the possibility that a Member may be arrested, detained and convicted. While this may not happen in practice, the fact that this principle exists creates a chilling effect on robust debate, because the potential hangs over a Member’s head. Secondly, section 11 directly infringes the principle of immunity from arrest that Members enjoy,under section 58 of the Constitution, because of the criminal proceedings which may come about. The Court stated that unlike parliamentary privilege, which may be limited, a Member’s immunity from arrest may not be limited. Given these two points, the CC thus found section 11 to be invalid to the extent it applied to a Member.

In discussing the meaning of “a disturbance” the majority judgement noted that it is not all conduct which amounts to an interference or disruption. Before a Member should be removed properly from the Chamber, an interference or disturbance must go beyond the natural bounds of robust debate. Anything less will result in an erosion of parliamentary free speech. The judgment made the important point that interferences or disturbances sufficient for the removal of a Member must be of a nature which hamstrings and incapacitates Parliament from carrying out its business. Furthermore, there must be no anticipation that there can be a resumption of business within a reasonable time. This is quite a stringent test set by the Court, which looks not only to the immediate disruption causing Parliament to be unable to proceed with business, but also that the business of the House will not be able to resume in a reasonable time.

In conclusion, the Court found that section 11 is constitutionally invalid to the extent that it applies to a Member. In order to cure this the phrase “other than a Member” must be read into the section.

Ms Isaac said key points from the judgements are that there is a need to balance deliberations and decision making. Free speech is important in the parliamentary context. However, the Court noted that deliberations cannot go on forever, and if need be the views of the majority must prevail. It ruled on what constitutes an interruption or disturbance. Parliamentary free speech may only be limited by the Rules, and not through legislation. Lastly, immunities of Members are absolute and Members may not ever be sued or arrested for anything they say in the House. That too cannot be limited by the Rules or legislation.

Ms Isaac said that the Court made no ruling on the draft Rules or the Rules as they stand. Rule 51 deals with Members ordered to leave the Chamber. This reads “if the presiding officer is of the opinion that a Member is deliberately contravening a provision of these Rules or that Member is in contempt of or disregarding the authority of the Chair, and that Member’s conduct is grossly disorderly, he or she may order the Member to leave the Chamber immediately for the remainder of the day’s sitting”.

Ms Isaac noted that it has been established that the Rules can limit free speech and in the judgment the De Lille case is cited. In that case, the Court stated that the powers of Parliament in section 57 (1) of the Constitution are to maintain its internal order. By way of example, this includes the power to exclude from the Chamber, for limited periods of time, a Member who is disrupting and obstructing its proceedings and unreasonably impairing its ability to conduct its business in an orderly or regular manner, acceptable in a democratic society. Therefore, rules can allow for the removal of Members. However, looking at this judgment, the Court has set a very stringent standard and removal may only take place when a Member’s conduct amounts to an interference or disruption of such a nature that it hamstrings and incapacitates Parliament from conducting its business and there is not anticipation of the resumption of business. Therefore, the conduct must go beyond the natural confines of robust debate.

In rule 51, the first part states “if the presiding officer is of the opinion that a Member is deliberately contravening a provision of the Rules”. The rule itself does not itself set criteria which the presiding officer (PO) makes this determination. The Court noted that in the heat of debate one must expect that a Member’s contribution will not come to a screeching, mechanical halt when a presiding officer has rules. Therefore, just because the PO has ruled on a Member’s conduct one cannot expect the Member to immediately cease. Rule 51 gives the presiding officer quite a wide discretion to instruct a Member to leave the Chamber and the question is whether the rule meets the standard set in the judgment. She felt that it is not clear that it does, because of the wide discretion and the conduct of the Member would have to be of such a nature that it stops Parliament from proceeding and from resuming within a reasonable time. The second part of the rule is where the PO is of the opinion that a Member is disobeying their authority. Here the same applies and the Court held that all behaviour which annoys and tests the patience of the presiding officer does not automatically amount to an interference or disruption. The Court is indicating that Members may not respond in the way POs want them to. Further, that robustness, heatedness and standing one’s ground are inherent in the nature of parliamentary debate. The rule does not distinguish from the normal course of debate where a Member may disregard the authority of the Chair and instances where this disregard is so serious that it impedes Parliament from proceeding. Therefore, she was of the opinion that the rule must be clarified. The third part of rule 51 is if the PO is of the opinion that a Member’s conduct is grossly disorderly. Grossly disorderly conduct is not defined and it could be interpreted as meeting the standard of the judgement.

Ms Isaac moved on to discuss rule 53A, which deals with removal of a Member from the Chamber. Under subrule (10), if a Member offers resistance to being removed from the precincts, members of the security services may be called upon assist with such removal. Subrule (11) indicates that in terms of section 4(1) of the Powers and Privileges Act the Member may be removed from the Chamber and precincts of Parliament. The issue is whether security services can be called to effect such a removal. Section 58(1) has been said by the Court to give absolute immunity to Members and a Member can never be arrested. Therefore, the question is - what is the purpose of using security services to remove a Member?

The Constitution defines “security services” in section 199 and it is referred to also in the Powers and Privileges Act. The functions set out for the security services include policing, preventing crime and protecting the inhabitants of South Africa and those of the South African Defence Force. The Subcommittee needs to examine why the Rules are calling on security services, and what role they play in the removal of a Member. Rule 53A set out two reasons why a Member may be removed: violence or disruptions. Removal for a disruption has been discussed above, but removal for a violent act or threat is something different from what is protected by parliamentary free speech. Ms Isaac suggested that perhaps this rule should be clarified by separating out any conduct which is violent and outside the bounds of free speech, and disruptive conduct. When conduct is outside parliamentary privilege the Speaker still has the powers, under section 4(1) of the Powers and Privileges Act, and such conduct could be criminal in nature. That should be dealt with in a different way to disruptions.\

She noted that another issue that was not directly linked to this case was that where a Member is asked to withdraw s/he must also leave the precincts, and this provides or automatic suspension. In relation to the requirement to leave the precinct the question is again what that rule seeks to do?  If the intention is to restore order to the Chamber, then it seems that once a Member has left the Chamber, so that the source of interference has been removed, order can be restored to the House. The rule goes even further, making the Member leave the precincts, and this may prevent the Member from accessing his or her parliamentary resources and carrying out the functions as a Member outside the Chamber. It seems this is a sanction which goes beyond maintaining order, and is actually seeking to punish a Member. This would seem to be quite a risk, considering how the court emphasised the protection of free speech and the need for robustness.

Briefing by State Law Advisors

Ms Ayesha Johaar, Principal State Law Advisor, said the State Law Advisors had focussed on the same paragraphs of the Democratic Alliance judgement as the Parliamentary Legal Advisors. The judgment emphasised the use of the word “person” in the Powers and Privileges Act, in various sections and the Court set out to clarify what “person” meant in the context of section 11 and the Act as a whole. It came to the conclusion that the “person” in section 11 included a Member and as a result of that the Court declared this section unconstitutional, on the basis that the Constitution provides that a rule or order may only provide for what was also provided for in the Powers and Privileges Act.

The State Law Advisors interpreted the judgment as answering the question whether any instrument other than the Rules or orders of Parliament could be used to limit free speech. The CC was of the view that section 11 limited the privileges and immunities contained in the Constitution. This section was also regarded as unconstitutional because it infringed on the immunity from criminal proceedings and imprisonment that are granted under sections 58 and 71 of the Constitution.

The CC also held that the removal of a Member of Parliament, in the event of a disturbance, may deprive that Member of further participation in the business of Parliament for the duration of his or her removal, thus also limiting the Member’s privilege under the Constitution.

She repeated that the Court believed that, in order to justify the removal of a Member, any disturbance must be of such a nature that it incapacitated Parliament, and that there must be no anticipation of the resumption of business within a reasonable time. It acknowledged that Parliament had the power to remove Members forcibly under rules 51 and 53A of the Rules. The Court therefore held that the declaration of the invalidity of section 11 would not leave Parliament unable to deal with Members who cause or take part in disturbances.

Ms Johaar said the proposed rule 51 provides the instances in which a Member may be ordered to leave the Chamber. In light of the CC’s finding, the State Law Advisors recommend that the rule should be amended to include wording that specifies that it will apply only where the Member’s conduct is of such a nature that it incapacitates Parliament from conducting its business. The Draft Rules do not contain these exact words, but they are the words of the judgement.

She also addressed the issue that rule 53A (10) refers to “security services”. The State Law Advisors felt that this could be problematic. The concept of Parliamentary Protection Services (PPS) had been introduced. If different references are used then the interpretation would be that the National Assembly intended to refer to something other than the PPS. The definition of “security services” will lead to section 1 of the Rules and this would be security services as envisaged in the Constitution.

The Chairperson said his understanding was that the reason the PPS had been introduced was to avoid the problems with security services. The rule must be specific, so that it was made clear that the rules were not speaking about the “security services” as set out in the Constitution but to the PPS, which were designed to maintain order in Parliament.

Mr K Hahndiek said that point had been considered when the Rules were drafted. The requirement now is that PPS are the only services who can remove a Member from the Chamber. However, it had been decided that “security services” should be left in the Rules, to apply to the precincts, outside of the Chamber. Once the Member is outside the Chamber, people from the gallery may try to intervene and a general melée could develop, which the PPS may not have the capacity to deal with. Therefore, it was felt that outside the Chamber security services could be called upon if need be. If that wording was removed, then it would mean that no security services could ever come into the precincts, except in the case of violence, and that might be taking matters too far.

Ms N Mazzone (DA) said the Subcommittee should have worded this more carefully. It must be stated, so that there is no shadow of a doubt or ambiguity, that PPS are used in dealing with Members, and security services are used in guarding the precinct or in dealing with the public. There must be a very clear distinction, because she feared that otherwise this draft rule, as it stands, will not pass constitutional muster.

Mr Masibulele Xaso, Secretary to the National Assembly, said rule 53A will have to be reconsidered, because the involvement of security services is not only meant for outside the Chamber. Subrule (10) also speaks to a situation where there is a possibility of violence occurring in the Chamber. The intention was that if there is a possibility of violence, then the security services would be called in. In light of the judgement, that subrule will need to be reconsidered.

Mr Enver Daniels, Chief State Law Advisor, had a query about the Parliamentary Legal Advisor’s opinion. Paragraph 29 had a suggestion that a Member may disregard the authority of the Presiding Officer (PO). He asked for an instance of where this would be possible. He understood that the disregard shown to the authority would have to be of such a nature that it hamstrings the business of the House. He did not know of any instance where the authority of any Chair could be disregarded, and it would be unfortunate if it was being suggesting that a Member could do so.

Mr Xaso replied that the paragraph reiterates what is in rule 51, which is triggered when the PO is of the opinion that a Member is deliberately contravening the Rules, is in contempt or is disregarding the authority of the PO. An example would be where a PO repeatedly asks a Member to sit down and he or she will not, or where a Member continuously refuses to withdraw an expression.

Mr Daniels said he understood this explanation. However, the paragraph reads “the subrule does not differentiate incidents in the normal course of robust debate where a Member may disregard the authority of the Chair”. The paragraph therefore seems to suggest that a Member could disregard the authority, which would, he suggested respectfully, be unfortunate. He accepted that people do sometimes disregard the authority, but it seemed to suggest that there could be circumstances where a Member may do so. 

Mr K Hahndiek said he agreed with Mr Daniels completely, and there was no way the Rules could tolerate the disregarding of the PO’s authority. The moment that was allowed as a prospect, Parliament would stop functioning. It is critical that Members must respect the PO’s ruling at all times, and if they disagree with a ruling they can take it up afterwards. In relation to an order being given that that a Member must leave the Chamber, the wording of the rule emphasises that the order to eject will not be the first response, because if that was so, it would reflect poor ability of the PO to manage the sitting. He felt the rule did try to emphasise that there would have to be exceptional circumstances before a PO would resort to removing a Member from the Chamber. He felt there was already an awareness of the infringements on Members' rights. However, if this was unclear, it could be refined to clarify the point.

Mr Hahndiek said that he had some problem with what constituted “a disturbance”, where the Court had attempted to define what may be “a disturbance”. This is one of the areas where POs need to be given some discretion to decide whether the events do amount to “a disturbance” and how the PO would deal with it.  Secondly, he also thought that there had to be a certain amount of discretion in relation to the the determination that the Member’s action is of such a nature that the business of Parliament may not resume within a reasonable time. If a Member stands at the podium and says that he or she will not sit down or respect the PO, that is a disturbance. Whether is is a sufficient disturbance is the PO's call. In all cases, the individual circumstances are critical and the PO must decide at what point a disturbance would incapacitate the House. Whenever a disturbance occurs, the PO must try to manage and minimise the disturbance, and should not take disciplinary action as a first resort. He did not think the Court offered assistance in this regard. He also did not think that the Rules are at fault in this regard – and that was not a suggestion from the Parliamentary or State Law Advisors, and also not from the Court.

Mr Hahndiek found it distressing that the issue of Member’s arrest was cited as being in conflict with the Member's constitutional rights. The issue of arrest is only raised in section 58 of the Constitution, which suggests that in all other circumstances Members may be arrested. Section 58(1)(b) reads “…Members of the National Assembly are not liable to civil or criminal proceedings, arrest, imprisonment or damages for anything they have said in, produced before or submitted to any House or the Assembly or and committee, or anything revealed as a result of anything they have said.” This is specifically about what the consequences of revealing anything are. This is a very limited, but critical right and protection which Members have, and it does not mean that they cannot be arrested under other circumstances. If Members engage in acts of violence on the precincts, they may be arrested, because that is not a free speech issue. Part of the problem has been that it has always been argued that Members are being removed from the Chamber for exercising free speech. That is not the case; Members are being removed for their conduct or disregard of the PO. He could not recall any instance where a Member had been removed or penalised for something said in the House.

Mr Hahndiek said that he heard the point that a Member's removal from the precincts was seen as punitive, but this could also be seen as a necessary deterrent. If the conduct of a Member is so serious that it prevents other Members from exercising their rights, and the Speaker requires their removal, this should be removal from the precincts.  Removal of a Member from the Chamber only will work for an unparliamentary expression, but it would not work for more serious infringements. Therefore, there needs to be a deterrent. This was something that had been recognised internationally. Salaries and benefits could be seen as punitive, but the deterrent aspect is very important. His sense was that there is nothing specific that needs to be changed in the Rules as they stand, following the Constitutional Court judgment.

Ms Isaac answered the point made by Mr Daniels. She said paragraph 29 of the opinion did not mean that a Member could disregard the authority of the PO. The paragraph is based on what the Court had said about not expecting a Member’s contribution to come to a screeching mechanical halt once a PO has ruled on it. She was speaking here to the issue – at what point can a PO order a removal? The judgment did not deal with the Rules, because they were not put before the Court, so the Court had dealt with the Powers and Privileges Act. The Rules could therefore still be challenged.

Adv Jenkins said the opinion was trying to say that the issue of arrest goes beyond arrest for a criminal action. The minority judgement held that arrest is anything which limits a person’s freedom of movement. Parliament must be alive to these nuances and in the long run, must look at this exercise with a view to the values which it is desirable to instil in Parliament. The CC was saying that South Africa was still building a democracy and must be careful of removing Members simply because they are taking part in a debate which is going beyond what the House might have expected. Parliament had been used to debating in a certain way since 1994, but now there was a new atmosphere in the House. He felt the CC was saying that that is fine, and that Parliament had to allow certain issues to be dealt with in a new way. What needs to be made clear is the progression. Looking at Rule 53A it is clear that a Member may not disregard the PO, but if he or she does so, this should not automatically mean that the Member is removed from the House straight off. If violence amounted to the kind of actions that had been seen in the House, then the standard set by the Court has been met, and the House genuinely could not continue with the session. When the Speaker exercises the discretion to call the PPS, it could be seen as a serious matter and the House may not reconvene. He would think that the progression should be made clear, A disregard of the PO's authority could be referred to a Committee like the Powers and Privileges Committee, because it is contempt of Parliament. There is a dovetailing of the Powers and Privileges Act and the Rules here, because disregarding a rule is contempt and disorder in the House. There could be a double punishment for disregarding the PO’s authority. He urged a re-think of how the Powers and Privileges Committee is run, saying that Parliament should not be acting like a court with prosecutors. There should be full recognition of the audi alteram partem rule and the Committee could take a recommendation to the House. Where there is a disruption, the Court had said there could be a basis for a removal. However, that cannot amount to an arrest, and it cannot be only for something which was said. Removal can constitute a type of arrest and in this new area the Subcommittee must be alive to those complexities.

Mr Booi said this is a new area. On the previous day, an EFF Member had refused to refer to a Minister as “Honourable”, because they did not respect that Minister. What is a PO to do in such circumstances? Members need to find a way of making it clear that the PO is in a position to decide that a Member is disrupting the House. When the EFF Member did that, it demeaned another Member of Parliament. He knew that part of the campaign of the EFF was to say that they did not respect the President, referring to him only as “Zuma”. The trouble was that there was still uncertainty as to at what point the PO had to ensure that a Member is removed to allow the House to continue.

Mr Booi said that when a Member is delivering a speech. other parties interject, raising points of order, which is a very problematic area. This takes up time, and it may be that a Member from a one seat party might have to abandon their time to speak, because the time was instead taken up debating with other Members about utterances during a speech. He thought that the main problem was how to maintain the authority of the PO, and deal with disruptions in the House. The law would not be able to define “a reasonable time”, because, under the Rules, Members may forsake their own speaking time. These are the types of problems which the Court has not provided guidance on. In particular, the Court had not provided guidance on the stage at which the PO can decide that a Member has done enough to warrant removal by the PPS.

Ms Kilian said the security services issue needs to be examined, to see how an adjustment could be made. She could not see any problem with the way the rest of the Rules are drafted. Members must bear in mind that POs derive their authority from the Constitution and are elected. The House reflects the proportionality of an election outcome and that gives them the authority to preside. Secondly, while it is understood that while a Member is still speaking and the PO tells them to stop, it may not be mechanical, but it cannot be that the Member has a discretion to disregard the authority of the PO.

Ms Kilian did not agree with Adv Jenkins and thought that there was progression set out in rule 51 to 53A. Perhaps it could be  explained better, but there is a natural progression. The Rules even go on to imposing periods of suspension. This is not a punitive measure - although she would support a punitive measure – and she felt that it must be automatically imposed after a time because repetitive  bad conduct disrupts the efficacy and efficiency of the House. It must not be forgotten that for every minimal number of Members who are repeat offenders, there are 397 others who want to proceed with the business of the House. A democratic outcome could not be undermined through misconduct, otherwise South Africa would have an absolutely fickle democracy which is going nowhere. She would suggest that it is all about balance. She urged the Subcommittee to “not throw out the baby with the bathwater”. The exercise of the authority is ultimately where the scrutiny will take place and there will be some challenges. However, the PO's authority could not be limited to the extent that the PO was not allowed to decide when something is or is not a disruption. Parliament, at times, has specific deadlines and there have been instances where things have been thoroughly deliberated and must be decided upon, but Members continue disrupting to make sure that the deadline is not met, so that they would get their way. If this were to be allowed, it would fly in the face of the democratic outcome of the election.

Lastly, on freedom of speech and the change in manner of debate, the Constitution clearly stated the principles, and there cannot be different interpretations after a particular election. It cannot be that new parties are allowed to disobey the traditions and practices of Parliament. The Constitution only protects freedom of speech in the Chamber and the Committees, subject to the Rules. If the Rules provide for ways and means about how to table information, surely they must be obeyed and Members cannot just stand up in the middle of a sitting to introduce other points. If there are orders in the House, then everyone must abide by them. If questions are to be posed, there are specific times to do so. Clearly, freedom of speech does not give free reign for Members to do as they please. If it were so, then there would be a completely unchecked executive, and what had been seen in recent months will lead to absolutely no scrutiny or oversight.

The Chairperson said the Subcommittee should focus on whether there is anything wrong with the Rules, because it is agreed that section 11 of the Powers and Privileges Act was declared unconstitutional. Mr K Hahndiek had indicated his view that nothing fundamental was needing to be changed with the Rules, although the language could be improved. It must be borne in mind that when the matter was taken to Court, there was no PPS. He was of the view that the meeting must move on and it must be accepted that the Rules are a living document which will be amended from time to time as required. The Powers and Privileges Act will be remedied, but the Rules do take a staggered approach to removing Members, using warnings and other steps first, to allow time to persuade Members to cooperate.

Mr Daniels said the opinion had been circumspect and had not attempted to suggest what the Subcommittee should do. He had grappled with the recent judgments, because they are complex and difficult to understand. They must be looked into carefully to see what exactly they mean, in relation to the Constitution and the Rules. He was mostly covered by what Mr Booi and Ms Kilian had to say. However, there was another element which had been left out of the debates completely. The PO is not simply there to maintain order in the House, but also to ensure that there is a free flow of ideas and a proper debate taking place for the purpose of recording, in a coherent way, the proceedings of Parliament. The records of Parliament are public and are also used internationally by various kinds of bodies when they are trying to get an understanding of how to deal with issues which have confronted South Africa. When there is a situation where the proceedings are constantly disrupted, the record reflects that disruption, and ultimately no one will take that Parliament seriously. It should be appreciated that there is a bigger context than simply maintaining order in the House on the day. The record needs to actually help to show what is happening in the House. As the Court pointed out, if needs be the majority view must prevail, but one may also want to see what those who did not agree with the majority view had to say. One issue which worried him was that if there is extreme violence in the House, the CC could not have possibly been suggesting that a Member could not be arrested for perpetrating such violence. 

Mr Xaso said an ad hoc Committee will be established to look at the implications of the judgment for the Powers and Privileges Act.

Mr K Hahndiek spoke also to the broader implications, which he agreed were not confined only to maintaining order in the House. Broader issues included confidence in the country as an investment destination. Perhaps the most important was to have public confidence in Parliament as an institution. It was unfortunate if the public was only now starting to take an interest in Parliament because of the disruptions. He felt there was some disquiet developing in people that Parliament was not doing what they thought that it should for them. For that reason, POs must ensure that the democratic process can happen and that minority parties can be heard in a fair way. This, and the court ruling that Parliament had not been observing its constitutional functions, are all major issues, directly impacting on the public perception of Parliament.

Mr Booi said Mr J Malema (EFF) had said that the ANC government would “be removed by the barrel of the gun”. This raises a very difficult matter and these kinds of statements were not up for consideration or overview by the CC.

Ms Kilian said she was still concerned that all Members sign an oath of office, before taking up their seats. Section 16 of the Constitution, limits the right to freedom of speech because it does not allow speech which is inciting imminent violence or advocating of hatred based on race, ethnicity or gender, or which constitutes  incitement to cause harm. Any Member of Parliament who is so deliberately contravening section 16 is clearly not showing any respect for the institution and its functioning, despite taking that oath. The other Members cannot sit back and allow this to happen. She would be interested in what mechanisms would be to follow up, or what charge would be brought against a Member who is deliberately contravening the Constitution in this way.

Mr Booi said Ms Kilian was now bringing in new issues. He had not raised that point to promote or start further debate. He felt that Members should deal with what was in front of them in this Committee.

The Chairperson said the Subcommittee is clear that a team may be set up to amend the Powers and Privileges Act. The Rules, as they stand, cover Parliament, although perhaps in some points there could be improved clarity.  When the judgement had been handed down, the Members had not been removed by the Parliamentary Protection Services and this is what would be amended. The Rules are a living document and are not cast in stone. The CC rulings may themselves take some time to understand, and may influence the Rules. On rules 51-53A, there is no issue which the Subcommittee needs to change, but the language could be improved.

Ms Johaar said rule 53A (11) reads “in the event of violence or a reasonable prospect of violence, or a serious disruption ensuing in the Chamber, a presiding officer may suspend proceedings and members of the security services may be called upon to remove Members from the Chamber and precincts of Parliament, in terms of section 4(1) of the Powers and Privileges Act”. She heard the distinction between the precinct and Chamber and she agreed with this not being a bar to having security services on the precincts. However, the heading to the rule confines itself to “the Chamber”, but subrule (10) speaks to “precinct”, then in subrule (11) there is a reference to both “precinct” and “Chamber”. This is not necessarily problematic from a constitutional point of view, but perhaps a reorganisation would be in order.

The Chairperson said it should be reorganised, but it seemed that all Members agreed that there was nothing fundamentally wrong with the principles set out.

Mr K Hahndiek said a technical change would be made: the reference to “presiding officer” in subrule (11) would be changed to read “Speaker”, so that only the Speaker may authorise security services into the Chamber.

Second Briefing by the Chief State Law Advisor

Mr P Hahndiek said the second legal opinion by the Office of the Chief State Law Advisor (SLA) was still to be considered. This looked at the effects of the case Economic Freedom Fighters v President of the Republic of South Africa.

The Chairperson said he was unsure how that judgment affected the Rules at present and a long discussion had been had in the ANC caucus about the issues. The Subcommittee will listen to the opinion and have a discussion. Once the Speaker decides to refer matters to the Subcommittee it will deal with them.

Mr P Hahndiek said the briefing should probably be given to the Rules Committee itself, because it would be difficult for the Subcommittee to determine new policy directions. The Subcommittee could look at whether the judgment impacts on the current draft of the Rules.

The Chairperson said that was the reason why the SLA was invited, so that they could brief the Committee in relation to the draft Rules. It was decided that the Subcommittee could not just ignore court judgements when drafting rules. There would, however, be much broader policy considerations, on which the Speaker is to take a political decision. The matters could then be referred back to the Subcommittee once a decision is made at a higher level. The Subcommittee should allow the briefing and engage, because it would not hurt to make proposals to the Rules Committee.

Mr Booi said the Subcommittee was mandated to work on the review of the Rules and if it is trying to re-work its mandate it may find itself in trouble. It would also mean that the period which the Subcommittee was required to sit will be longer. It needs a clear mandate from the Speaker and the Rules Committee.

The Chairperson said there should be some engagement and the Rules Committee would also receive a legal briefing to interpret what is relevant. Once it has been looked , the political leadership will take a decision on what to do.

Ms Kilian thought the conclusion was the most important part of the Opinion, because in paragraph 23 it indicates that the CC reiterated the power of Parliament to make its own rules. The reason for asking for an opinion was that, given the importance of the judgment, Parliament would be remiss in its duties if it had not specifically considered the effect and relevance of the judgment to the Rules review process. She thought that the matter should now go to the Rules Committee, from where a new mandate could be given.

Ms Johaar said the CC considered the role of the National Assembly in holding the President and executive to account, under the Constitution. The CC was clear that the judiciary  has a distinct duty to refrain from undue interference with the functional independence of other branches of the government. To this end it falls outside the parameters of judicial authority to prescribe to the National Assembly how to scrutinise the executive, what mechanisms to establish or what mandate to follow in fulfilling the oversight and accountability functions. The Court went on to say that it is not for the CC to prescribe what structures or measures Parliament must employ in fulfilling the responsibilities entrusted to it. At the end of the judgment the CC did set aside the resolution of the House, but that did not affect any of the Rules. The SLAs could not determine any specific concerns, and therefore it did not make any specific recommendations. It did look at the principles from the judgment and these were encouraging in that the judgment reiterated that there was a line between what the judiciary may and may not do and it cannot be permitted to interfere with another branch of government's functions. The rules, orders and internal arrangements of Parliament were for Parliament, and should be preserved as such. Further, given that there was good cause for the resolution to be set aside it may be appropriate that Parliament consider exercising its powers to make internal arrangements and look at a process to deal with the relationship and interaction with the Public Protector. That was a suggestion, it was not an order and Parliament cannot be compelled to do that, but it should sensitise Members when trying to avert any problems in the future.

The Chairperson said the leadership of Parliament should look at that principle, because there are many Chapter 9 institutions. The leadership should deal with all of that and decide whether rules are needed or not. It seems the point being raised is that there is nothing in the current reviewed Rules that needs to be changed.

Mr K Hahndiek said he had picked up on some wording, which he felt Parliament should be exploring in detail, around the concept of enhancing enforced accountability. That goes to the heart of what Parliament should be doing. However, as the Chairperson had pointed out before, that was not necessarily something that would need to be written into the Rules. It was more a matter for political management.

Draft Rules 53A, recusal of Presiding Officer, rules to govern section 89: Further deliberations
Mr P Hahndiek said that the Subcommittee now needed to look at three draft rules, which were:
- removal of a Member under  53A, which has draft rules which provide for what such a subcommittee could look like
- recusal of the Presiding Officer (PO) from the Chair
- rules to govern section 89 of the Constitution, which has been a work in progress. In the various parts of the rules, there had been some options proposed. If the  Subcommittee cannot agree on those, they could be taken to the Rules Committee. This touches on fundamental issues and is a new area, so perhaps the feeling is that the Subcommittee needs more guidance from the Rules Committee.

Recusal of Presiding Officers

Mr Xaso said the matter was raised the last time the Subcommittee met. Some Members had wanted the Speaker to recuse herself, given that the CC had found against the President and the Speaker. The Speaker’s position was that the papers were filed, and the Speaker does so by virtue of their office. Her view was that the judgement was not against the person of the Speaker, but against the actions or inactions of the National Assembly, and for that reason she did not see a basis for her recusal from the Chair.

Mr K Hahndiek said his document went to that and made the point that the Speaker was challenged on the basis of her being the respondent in the CC, but the CC found against the National Assembly. The Speaker acts ex officio, for all Parliament’s court cases, and it cannot be held against her personally.

Rule 19A deals with declaration of private interests, and there may be circumstances where POs have a direct private or personal interest. If the House were debating a censure against a Minister who happened to be a PO's relative, would it then be appropriate for the PO to preside over the debate? Probably not, and in those circumstances it would be wise for any POs to recuse themselves, because of these personal ties. However, he did not see a need to have a new rule dealing with a reasonable perception of bias. This was different from the recusal of judicial officers, in circumstances where there is a reasonable perception of bias which could influence a judicial officer or make that officer come to wrong decision. The PO is not asked to adjudicate on matters before the House. The PO simply maintains order, ensures that the House carries out its business and can reach democratic decisions. He did not feel there was a need for a rule on recusal, but he did offer to draft one if it was felt that this would be needed.

Ms Mazzone said she disagreed with Mr K Hahndiek, especially as the South African Parliament is in a fairly unique position. In most Parliaments around the world, a Speaker, once elected, would resign from his or her political party. This did not apply in South Africa, and an unfortunate precedent is being set. That is why one can always assume that there is a bias, based on the lack of political distancing of the Speaker from any political party. In the Nkandla judgement there were direct references made to the Speaker and her behaviour, as opposed to broader aspersions against Parliament. She agreed that there are cases where the Speaker acts ex officio for Parliament, but there are also instances where the Speaker would be cited as having conducted something irregularly. She therefore maintained that a new rule is required. She would be happy to draft something for the Subcommittee. She believed that because of this lack of political neutrality, there were occasions when presiding officers would have to recuse themselves. 

Ms Kilian said there is a proposed rule in Mr K Hahndiek’s document. However, she did not think the parties would reach agreement on the issue, and so perhaps this draft should be regarded as an option. The ANC believed that this was covered by rule 19A. The DA clearly held a different view. Therefore, it should be accepted that there will be a difference of opinion. Ms Mazzone is welcome to also submit her own version or to replace Mr K Hahndiek’s version with her own.

Ms Mazzone said the draft read that a PO “may” or “must” recuse him or herself from presiding at a meeting of the House where there is reasonable apprehension of bias on grounds of direct personal interest in the business before the House. Already the word “may” gives far too much discretion to the PO. The Subcommittee had already heard that the Speaker did not feel she ought to recuse herself and therefore did not. If the word “may” was taken out, then the question is what does “reasonable apprehension” mean? She would draft an alternative wording, and distribute it to the Subcommittee.

Mr Daniels said it would not be appropriate to call for an opinion for the recusal of a PO, simply because it is being reduced to a personality at the moment. That personality is the Speaker, who also happens to be the Chairperson of the ANC. Adv Jenkins had already referred to proceedings during different eras of Parliament being different. It was necessary to look at Parliament as an institution, how it functions and what is necessary for its smooth functioning, and to consider whether there is a need to have a rule for recusals. The problem is that in a multi-party democracy, with an extraordinary number of parties represented in Parliament, there will always be a perception of bias. He did not know how “a reasonable apprehension” would be defined.

Ms Mazzone said she wanted to make it clear that this had nothing to do with personalities, but it had to do with having a Parliament which does not require POs to resign from their parties, unlike most parliaments in the world which did require POs to maintain political neutrality. There was not an option to have a politically neutral Speaker.

Mr Daniels said he understood that, and he meant that he was speaking to the fact of having a personality who also happened to be the head of a political party. That should not be the main consideration; there must be a broader consideration.

The Chairperson said this is a political question and the Subcommittee should not try to resolve it. The Rules Committee will debate it and if it felt that rules should be drafted, then they will be. It is a complex matter because there are other parliaments also where Speakers do not resign from their political positions. The crux of the matter was really around the way  in which POs conduct themselves. This is a political question and was raised by the Speaker herself. There would be no harm in parties engaging with each other on a political level in the Rules Committee.

Mr K Hahndiek asked if the intention was to refer to all POs, or just the Speaker. He knew it had become customary for the Members to accuse the PO of bias, and such accusations would have been unthinkable in previous parliaments. Accusations of bias are very serious things and unfortunately, as part of the new culture and part of challenging the way things are done, it is now “open season”. If there is a reasonable perception of bias, that PO should not even be there, so that there should be no suggestion of bias at any point. Of course it is up to individual POs to earn the respect of Members. The question was whether accusations of bias could be entertained, without formally responding to them.

The Chairperson said it was something to be dealt with politically. The Rules already deal with how POs should conduct themselves, and their removal. The issue raised is much more of a political than a rules issue.

Ms Kilian said she heard what Ms Mazzone was saying about bias, but the previous Speaker was also a member of the National Executive Committee of the ANC and there were fewer accusations of bias. That would imply that this is in fact boiling down to objections to the individual. She would suggest that there are accusations of bias in the Western Cape Provincial Legislature and the Cape Metro Council as well – that was part of the political process and she did not think it appropriate to put this into the Rules, because it is a political management issue. If there were concerns, party leaders can approach the Speaker or go to the Chief Whips Forum. The point of the matter is that it becomes a political strategy, and the Rules should not provide for a political strategy. Rules are instead intended to deal with maintaining order in the House.

Mr Booi said each party has the right to present their own drafts, to be debated. The Subcommittee should not try to pre-empt what would be presented. Once these had been received Members will deliberate on the views submitted. He urged the Chairperson to close the matter until the Subcommittee has something substantial before it.

The Chairperson said presentations would be made, but the report of the Subcommittee should indicate that it is a political matter which needs political discussion.

Subcommittee to consider removal of a Member under rule 53A

Mr K Hahndiek said this matter was raised previously and it was decided that the body to decide on removal of a Member should be a subcommittee of the Rules Committee. The rule that had now been drafted accordingly referred to it as such. An option was left around the composition of the subcommittee. It could either have proportional representation, like other subcommittees, or it could be the equivalent of a disciplinary committee, which did not have any majority and was chaired by the Deputy Speaker. He was asked to capture what the functions of this Committee would be. The draft said that it would include taking into account all relevant aspects including the conduct of the Member, the ruling by the PO, and the manner in which the Member was removed. Something specifically excluded was that consideration of the matter does not extend to disciplinary proceedings against the Member, nor will this be a formal review of the PO's ruling.

The Chairperson said that would be part of Draft 10.

Ms Kilian asked why, if the consideration is not a review, the subcommittee would even be tabling the question of the ruling by the PO.

Mr K Hahndiek said that his understanding was that the entire picture had to be before that subcommittee. It might regard the ruling as a bit hasty, but its powers would not extend to reversing the ruling.

Ms Johaar said that this point is important. Within the next 24 hours, the Speaker is going to submit a report and ideally both the Speaker's and the Members' perspectives should be taken into account.

Ms Kilian discussed the composition of the subcommittee. One option was for it to be a normal subcommittee, and the other was to have it be similar to a disciplinary committee.

The Chairperson said the view of this Subcommittee was that the new subcommittee did not have to be proportional, because it would be run by the Deputy Speaker, look at the circumstances and then go to the Speaker with recommendations on how to improve. Because it would not go to making decisions, it was felt that there was no need to have it strictly representative, although it should be inclusive. He stressed that the important point to note was that this subcommittee was not set up to review the PO's decision.

Mr P Hahndiek said that it was specifically stated that this does not amount to a disciplinary hearing, which is important. He asked if the Member would be allowed to present a case, or whether that would amount to a disciplinary process?

The Chairperson said the intention was not to create a disciplinary committee. This new subcommittee was just set up to facilitate rule 53A. It was also to protect Members, so that there is not wanton removal from the Chamber. He asked if Members felt that the Member should be allowed to state a view that s/he was unfairly removed or be allowed to be represented by their party?

Adv Jenkins said the question was always what is the function of the new subcommittee. It would have to be made very clear whether it could come to a decision, or whether it must just report back to the House for a Rules amendment if principles were not consistently applied? As he understood it, the intention was also to give the offending Member an opportunity to have a say and give an opinion on whether the removal was just or unjust. Practicalities are also important, because the timeframes in which these things must be done also impact on the rights of Members.

Ms Kilian said that if the subcommittee were to follow that route, she felt that the purpose would be defeated. She thought that the purpose was to ensure that POs do not simply remove Members willy-nilly. Whenever that happens, it is quite serious and there should be a very rapid calling of the subcommittee. The intention was to have buy-in from all parties to protecting the proceedings of the House. She did not think that Members would be called in, particularly since all party whips will be represented, and it will be their responsibility to argue the case. It must be remembered that there is the option of an expression of regret. A physical removal is quite a serious matter, but the subcommittee cannot be turned into a disciplinary committee.

Mr Booi said he thought the issue was quite clear, and it is part of the progression mentioned by Adv Jenkins. When the PO removes a Member, the Member should not be left alone, but there should be an immediate mechanism to see if there was ill treatment. This new subcommittee represented a mechanism to be able to quickly work on matters. This is not intended to be a disciplinary committee, it is intended to ensure Members feel there is a protection against PO’s authority.

Mr K Hahndiek said the function should be left open ended. In most cases the subcommittee will be satisfied. In any circumstances where there was a problem, the subcommittee will hear about it and will report its concerns to the Rules Committee, to be taken forward. That may include a ruling that a Member’s actions were so outrageous that a formal disciplinary process needed to be followed. This was an attempt to have a quick multi-party response to the incident.

Ms Johaar asked whether normal powers of committees would be applicable to the subcommittee.

Mr K Hahndiek said the proposed rule reads “in carrying out its functions the subcommittee may exercise all powers contained in rule 138”, which does include all the normal powers.

The Chairperson said this would be presented to the Rules Committee. It was really a compromise position, so that Members felt comfortable that no PO would be able to order removal of a Member without multi-party oversight.

Mr K Hahndiek asked if Members were proposing that the option for the proportional composition of the subcommittee was to be taken out.

Ms Kilian said the idea was that it would be open, although she questioned whether this should not be retained and put to the Rules Committee as a possible option.

The Chairperson said the aim was to ensure it is not a decision making body, because the Rules Committee would be making the decisions.

Mr Booi said the ANC was sensitive to the involvement of other parties in Parliament and would not want to battle about the numbers in the subcommittee. This was more about adding credence to decisions of Pos.

The Chairperson suggested that the option should be retained.

Mr P Hahndiek spoke to the composition of the new subcommittee. It referred to “a senior whip from each party”. There were 13 parties in Parliament, but some of them did not have whips. He questioned what then would be the process to appoint the subcommittee, whether it was to have a standing composition or whether, on every new occasion, new names would be submitted, and how the smaller parties would then get representation.

Mr K Hahndiek said the idea is that it would be constituted primarily of those parties which are big enough to have a whip,However, there would be an attempt to accommodate other parties, also based on who was involved in the House. The only slightly problematic aspect is that if every time there is such an event, the Rules Committee would have to meet briefly to consider composition. Furthermore, the composition may vary, depending on the circumstances involved, and Members may want more gender representativity. However, he also made the point that it might be useful to have the Rules Committee meet more often in any event.

Mr Xaso said that perhaps an option should then be considered which does not actually require the Rules Committee to sit, as this was quite onerous, especially in getting a quorum. The idea was that whenever an incident happened, it could quickly be referred to the subcommittee.

Ms Kilian agreed and felt that assigning a role to the Rules Committee on this point would not work. She would like to see some flexibility, depending on which Member was involved, but it would be good to have a fixed committee, with the option of co-opting, which would cover the need for a degree of permanence whilst being flexible. The committee members would then become familiar with the process.

The Chairperson said that the Rules Committee could then appoint permanent Members.

Mr K Hahndiek said that if the Deputy Speaker was presiding at the time, then the subcommittee would have to resort to one of the House Chairpersons, and there was a need to consider which one that might be. He thought that perhaps the Speaker might decide on that, and make the call on issues of flexibility. He agreed that the subcommittee should be empowered to co-opt by agreement.

The Chairperson said the Subcommittee was creating something new, and did not know how it would work. However, it had to implement the compromise by way of the new rule, to accommodate other Members. He agreed that Mr Hahndiek's suggestion would be workable.

Removal of the President under Section 89 of the Constitution
Mr P Hahndiek said some options had been added to the draft, based on earlier discussions. The view was that parties needed to look at the matters in detail. It is quite a sensitive issue, but it is also quite technical and it would be quite a challenge to develop something which is constitutionally sound and also implementable.

The Chairperson said parties may need to re-look at this issue and decide what they wished to do.

Mr K Hahndiek said one area where he had no clarity, and which needed fairly serious workshopping, was the idea of a panel of external experts. Rule 102 set out some of the issues to be considered, such as what would be the criteria for appointment of such experts, who would make the appointment, what would be their terms of reference, and what would be the status of the findings of the panel. These are new considerations and although they had been relevant in other countries, different systems were in place there. South Africa needs to find its own way and if there is a need for a set of rules to enable Parliament to function with the greatest level of constitutional certainty, it would probably be the Draft Rules as provided. These do not go to the appointment of a panel, but allow for a legal expert to be appointed to assist. That would give Parliament a mechanism which it could use right now, whilst exploring all the possibilities would require much wider consultation with parties.

The Chairperson said it is clear that parties must be allowed to look at the matter. Some people take the view that Parliament cannot outsource its responsibility.  Others take the view that there could be a panel, but the duty remains Parliament's duty. At the moment the governing party did have a large majority but there could come a time where coalition parties might be in power, and if coalition partners withdraw, the panel could run into problems. The Subcommittee needed to come up with a view after parties had held discussions. This was a very complex issue and must not be taken lightly, it should be given over to parties to debate and the experience of other countries should be  used to inform the rule. Perhaps the Rules Committee could be given a broad understanding of the concerns.

Mr Booi said that since Parliament involves both Houses there would have to be careful consideration of the Constitution. In Brazil, an impeachment had to go to the Senate. That made him think about the role of the National Council of Provinces (NCOP), although section 89 it only speaks to “the National Assembly”. It is impossible to ignore the NCOP when dealing with the President. He agreed that this was a complex issue and he did not want to start a debate here, but agreed that suggestions were needed. He said that the ANC would debate it internally to be sure that it knew what its position would be.

Ms Kilian said she also felt it should be looked at carefully. She made the point that this was actually the role of the NA, as it was specifically mentioned in section 89, since the NCOP had no part of this process under the Constitution.

Mr K Hahndiek said there may be charges or allegations with substantiation, and the matter would then be referred to the section 89 process. That committee may find that indeed serious misconduct had occurred, but that would still need to be judicially tested. He did not think there was anything to stop that committee from recommending to the House that it is not in a position to make a finding, or recommending that the matter be referred to the National Prosecuting Authority to be pursued in court. Based on the outcome there, the matter could then come back to the National Assembly. That may be used as a postponement tactic, but he did not think that a referral to the courts would be entirely out of the question. He did not think the Committee would be required to find whether a President was guilty or not, ending the process there.

The Chairperson said more research was needed by both parties and Parliament. The Rules Committee would get a recommendation that political parties should be allowed enough space to finalise the matter.

Guidelines requiring the Approval of the Rules Committee
Mr P Hahndiek said the Subcommittee had been through this document already, but there were a couple of points where changes had been made. The first was the criteria for questions to the Deputy President. Initially this included a list of responsibilities given to the Deputy President. However, it was then indicated that these responsibilities could change, so the criteria were then changed to read “while the President is assisted by the Deputy President in execution of the functions of government, the President allocates responsibilities to the Deputy President from time to time. Questions to the Deputy President must relate to this and a list of these must be developed for each Parliament in accordance with information received from the Leader of Government Business”.

Mr K Hahndiek thought that the wording should read “maintained for each Parliament”. The important point was that this must be in accordance with information officially received from the Leader of Government Business. He thought that the Rules should specify that the information must come forward.

Mr Booi said the Subcommittee must be clear that the nature of questions is informed by the requirement and Parliament must know what the responsibilities are.

Ms Kilian pointed to a possible error and a reference to “the President” in line 2. She agreed that it would be necessary for the leader of government business to communicate any changes, so that the Questions Office was aware of this.

Mr K Hahndiek said this issue was more fundamental than merely having engagement with the Deputy President. It related to all engagement with the executive.

In relation to appointment of whips to the smallest parties, it was being proposed that any request must contain the names of nominated Members and must be endorsed or signed by the leaders of the majority of the relevant parties affected. It must be “all relevant parties” and it should not be assumed that a small party which had not signed had accepted the whip.

The Chairperson did not see any problem with that proposal.

Mr P Hahndiek said the other issue was in Chapter 6, and related to the provision on the proportionality of time given for a declaration of vote. It was originally proposed that the time for declaration of vote be as follows:  ANC - six minutes, DA - four minutes, EFF - two minutes and all other parties - 45 seconds. The proposal was based on an adaptation of party responses to executive statements. However, the feeling was that 45 seconds for the smallest parties was a very short period of time. The question was how far to extend that, because if extended too far it would distort the formula for other parties. The intention was to have a concise declaration of vote.

Mr K Hahndiek said this was discussed and it was proposed that an option be included which gave the smallest parties one minute.

In relation to manual voting, three further options had been introduced, which would allow for the recording of names of Members. He did not think that needed to be finalised now, since it could be taken to the Speaker, to be put in place in due course. Recording of names could be important for critical matters before the House, where all parties wanted to see who voted and in what way. Such a system could be used if the electronic voting system is down.

Ms Kilian said she did not think justice was being done to the document by going through it so quickly now. It would require further scrutiny. There were some errors identified and she urged Members to not to rush through it. She suggest that the Subcommittee should ask  those who were involved with the finalisation of the guidelines to come back with a finalised document for presentation to the Rules Committee.

The Chairperson agreed that this would be acceptable. The Subcommittee would be meeting prior to the Rules Committee meeting, to ensure that everything is ready to be submitted. Hopefully, the Rules Committee would not need to re-debate issues already discussed in full in the Subcommittee.

He summarised that the Rules Committee had already accepted many of the Rules. Outstanding matters were rule 53A and the guidelines for the dress code. The majority party was anxious to pass the Rules; if they had already been passed, many of the recent problems could have been avoided. He said that the Subcommittee would need to fix a date to take Draft 10 to the Rules Committee. Parliament cannot adjourn this term without passing the Rules. If new ideas came about, for there were many matters not covered by the Rules, Members could always write and present these matters.

The meeting was adjourned.  

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