Subcommitee Report, Guidelines for Committees programming & functioning; Chief State Law Advisor opinion

Meeting report

Mr Kasper Hahndiek, Former Secretary to the National Assembly and Consultant to the Committee, suggested the meeting be postponed, as Members were otherwise engaged with Extended Public Committees and experiencing physical impediments to gaining access to the precinct. He was unsure whether this would allow for the Rules of the National Assembly (the Rules) to be considered before the term ended, but it would allow as many parties as possible to be represented.

Ms J Kilian (ANC) said the Subcommittee had previously agreed that the document on the proposed Section 89 rules needed to be forwarded to political parties for their consideration. If that could be done the Subcommittee could reconvene with feedback available. Now that another week was added to the term, she felt that the Rules should be completed.

The Chairperson said the Rules Committee of the National Assembly (the Rules Committee) would sit on 13 May 2016. His view was that Members of the ANC could not go back to the caucus to say that the Rules are yet to be completed. The caucus was clear that it must be completed by the end of May. Even the President had commented that the Rules were spoken of, but never got to the House. Section 89 rules would be put into later, because there would not be agreement on this area and “the ANC caucus would generally not agree”. This is why the State Law Advisor was requested to provide opinions. 27 May 2016 would be the last day and the Rules Committee would meet on the following Friday after budget vote 2. Everything would be finalised, parties would be given the documentation and the Rules would be taken to the Chamber the following week for adoption. Areas which had not yet been agreed upon, such as the section 89 rules, would have to come later, as the Subcommittee did not have time to postpone.

Ms Kilian agreed with that process, because the longer adoption was delayed more space was opened up to reconsider areas which were finalised. She would like the Subcommittee to conclude and proceed, because there was agreement on about 90% of the Rules and whatever remained outstanding so be it.  If the Rules could be adopted then in the third term arrange a workshop for Members on the new Rules to explain how they fit in with the Constitution provisions, what was allowed and why it was a balanced set of rules. If this were done, then Parliament would have done the necessary preparatory work to ensure that if there were errant Members it would be difficult for them to argue ignorance of the Rules. She strongly suggested proceeding in that fashion.

The Chairperson said the meeting would not be very long, the Committee Section was present to discuss its submissions, as were the State Law Advisors and Members would have to look at the Subcommittee’s Draft Report to the Rules Committee. Members must still apply their minds, because with the spirit at present among parties the likelihood that everything would be a war was very high. The spirit of working together was gone and the problem with that was that the ANC would be forced to push everything through forcefully. It would be very difficult for parties to negotiate on the Rules and there was a failure to understand that one was only an effective opposition Member if one worked well with the governing party. Even if one objected to them, they should be treated with a measure of respect. Failure to do so meant the situation would be worse. The attitudes of people had hardened and very soon Members would engage in fisticuffs. It was clear that there were many things which Members did not address and this issue should be finalised. The Subcommittee must present to the Rules Committee and whoever had an issue to raise could propose an amendment.

Deliberations on the Subcommittee’s Report to the Rules Committee
Mr Hahndiek said the Subcommittee was dealing with many things in separate documents and he had worked on a way to consolidate for the Rules Committee’s final consideration of the matter. The Rules Committee had looked at and approved Draft Eight of the Rules, with some further changes. As a result of those changes Draft Nine was produced and circulated, which captured the changes requested by the Rules Committee. That left certain outstanding issues, which had since been captured in the Draft Report of the Subcommittee to the Rules Committee. An efficient way forward would be for the Subcommittee to present that Report to the Rules and perhaps a draft set of Rules of section 89. That would mean that the Rules Committee did not have to have a reconsideration of the Rules in their entirety and could then focus on the issues which it felt it had agreed needed further attention at the previous meeting. The 13 points contained in the Draft Report were the outstanding issues and among them was Appendix B, which indicated that guidelines were awaited from the Committee Section on meetings of Committees. That could then be incorporated, for presentation to the Rules Committee.

Mr J Steenhuisen (DA) said he had a slightly different perspective on the matter, as the game had changed drastically since the Constitutional Court judgement on 31 March. The Court found that this Parliament had failed in its duty to hold the Executive accountable for its failings. It would be completely remiss of this process not take into consideration the findings of the Constitutional Court in that matter and find ways of implementing in the Rules a way to ensure proper and meaningful effect is given to sections 42 (3) and 55 (2) (b) of the Constitution. He would also like to have the Corder Reports considered, which were reports commissioned by Parliament in 1999 authored by Prof Hugh Corder. They looked at and made recommendations on what accountability and oversight, as well as what the roles of the National Assembly and National Council of Provinces were. He had not seen any of those Corder Reports being considered by the Subcommittee, although Parliament spent a great deal of money on them. He also recommended to the Committee the Kader Asmal Report on Chapter Nine Institutions, which dealt with how reports from Chapter Nine Institutions ought to be handled. While he felt there was scope for the Subcommittee to present the Draft Report of the Subcommittee, rather than rushing to finish this a far more considered approach should be taken, taking into account the new developments to ensure that the accountability and oversight mechanisms in the Rules really addressed the shortcomings identified.

Mr N Booi (ANC) said he thought that from a procedural point of view the Subcommittee made reports to the Rules Committee, which then determined what was to be done. Throughout the process the Rules had been reviewed on the basis of submissions made to the Subcommittee, based on what was before it. If there were any other matters, the Subcommittee operated on the basis that the Speaker would decide for the Subcommittee to consider them. For now, what Mr Steenhuisen was presenting did not go to the Subcommittee’s arrangement and he was unsure whether it would be procedurally correct to follow his approach. Without rejecting Mr Steenhuisen’s views, in the past the Subcommittee had been clear that there had to be a reflection on what happened in the Constitutional Court and would consider them under the Speaker’s direction. If that process was not being followed, then the Subcommittee would become a body in itself. It had to work through the Rules Committee and recommendations on what it is meant to do. The Subcommittee had instructed the Office of the Chief State Law Advisor and Parliamentary Legal Services to consider the judgements towards advising the Subcommittee on what to raise in the Rules Committee.  

Ms Kilian said the Subcommittee was proactive, but cautious as this was a Subcommittee working on instruction of the Rules Committee. If when the Rules Committee met, it decided to instruct a consideration of the judgement, the Subcommittee would have been aware of the possible implications. That was why the Subcommittee asked for the Parliamentary Legal Services and the Chief State Law Advisor to present what the implications could be for the Draft Rules. Those presentations were made on 22 April 2016 and the Subcommittee came to the conclusions that it had no implications on its work at present. She suggested, not arresting all the work which had been done, because a comprehensive review of the Rules had been undertaken. Looking at the documentation which was considered it included the Kader Asmal report. Therefore, the matters raised had been considered and with the Subcommittee having worked very hard, it was time to wrap up. A set of Rules would always be adjusted here and there, but the present work was a comprehensive revision to bring it in line with the Constitution. The Chief State Law Advisor had even made a comprehensive review of the text to look for wording issues. She suggested the Subcommittee conclude and further issues could be raised later.

Mr Steenhuisen said “perhaps I am at an advantage of serving at different levels” to Ms Killian, so she would be unaware of the discussion which happened in the Speaker’s boardroom in which the Chief Whip of Parliament, Mr J Mthembu (ANC), said that the adjustments and interrogations required would have to be in the Rules Committee. What he was doing was placing the Rules Committee on notice, because he felt it could not be business as usual when the Rules Committee meets. Had he not done so and raised them at the Rules Committee, Members would object to his not having raised it in the Subcommittee. He was therefore putting them on the table here and officially on record. When the Rules Committee sat it could begin proceeding with the undertaking made by the Chief Whip and Speaker. He was not saying that the Subcommittee should proceed as intended, but if the Rules Committee would not limit itself to the points listed in the Draft Report of the Subcommittee.

The Chairperson said it was agreed in the last meeting that the Rules Committee would consider the Report of the Subcommittee, with the work given to the Subcommittee being finalised. The issues around the judgement would need a lot of political discussion. If the Speaker decided to write a letter to the Subcommittee instructing it to consider the judgements they would be, but this could not impede the Rules being taken to the Chamber. Once parties had considered the judgements they would make proposals and the Rules Committee would consider them in totality. Mr Steenhuisen was indicating that the matter would be raised in the Rules Committee, which was proper. If the Rules Committee was persuaded that the Subcommittee ought to consider it, then it would do so. That did not stop the reviewed Rules being passed in the Chamber before the end of May. That was the approach adopted by the Subcommittee on 22 April 2016. Once the lawyers had assisted Members to understand which rules offend against the Court’s decision it would be considered, because not doing the work was not a question of the Rules. If Members were not doing what they were supposed to do the Rules did not cause this and that was also stated on 22 April. It would be important for parties to identify rules which made it difficult for parties to hold the Executive accountable. Once they were identified then the Rules could be drafted accordingly, because it would not help to discuss the broader politics.

Mr Enver Daniels, Chief State Law Advisor, said he heard Mr Steenhuisen and in certain respects he had sympathy with the view expressed. In his official capacity he had been called upon to advise in different fora on the implications of the Judgement and on the following Monday he would have to address a high level meeting on its implications. It would appear that everyone in government was grappling with the judgement. In the Subcommittee meeting soon after the judgement came out, he pondered whether the judgement was correct. It was perhaps important that here at Parliament it be studied and the full implications considered. For example, some of the dilemmas he faced included that the Court held that “some of the findings and remedial action may be binding”, but did not explain under what circumstances.  Therefore, it was left to lawyers to speculate on the circumstances in which findings and remedial actions would not be binding. More fundamental than that, he had heard judges state that they could only deal with what was presented in the papers before them, so often people who litigate make bad law, because of poor arguments presented on the papers. The Constitutional court did not look at the constitutional provisions in detail to determine what it meant when Chapter Nine Institutions account to and report to the NA. Then under the Public Protector Act the Public Protector may file further reports if they so wished. The Act was not clear what happened to those additional reports, the Rules were certainly not clear and it would appear to him, as the Chief State Law Advisor, that the Constitution and Public Protector Act will have to be considered to determine if amendments were necessary. There were so many grey areas in the judgement, that this would necessarily have to be looked into. He was not certain how Parliament would function and exercise its oversight over Chapter Nine Institutions in light of the judgement. The Rules Committee would have to consider amending the Rules as suggested by Mr Steenhuisen. However, the minute the Rules were amended to deal with Chapter Nine Institutions, many people would challenge them to see if they were constitutional. He felt Members needed to look at the Constitution and the Act, to see if they needed amendment. He was not certain in his own mind whether they indeed needed to be amended. He had only read one article critical of the judgement and nobody as yet was looking at the broader implications on both the Executive and Parliament. He was being asked to advise on some of those and when he raised the separation of powers, this was one of the rare situations where Parliament and the Executive had grounds to ask what to do in that situation and there was nothing wrong with that. Jointly Executive and Parliament needed to look at the problem which may have been created by the judgement and he said may have, because in his view a few anomalies had arisen. He had sympathy with Mr Steenhuisen, because Parliament would have to grapple with the issues.

The Chairperson said it would be a good idea to have the Rules Committee discuss this matter in detail. It may then request the Speaker to instruct the Subcommittee to amend specified rules. Surely, some of these discussions should be had in the next sitting of the Rules Committee.

Mr Booi said at the end of the day the Subcommittee did not want to start receiving submissions. Part of what Mr Steenhuisen was raising was being supported, but his concerns should be put forward in a submission. Generally, parties in Parliament took different perspectives on judgements and only when the views were in black and white could a final position be reached. For the sake of the subcommittee not being delayed by this issue, it was agreed in principle that the matter be taken to the Rules Committee which would provide recommendations on the way forward. Starting here would not help, because Members may have different opinions. Procedurally, the matter should be left there and parties should provide submissions so that the report of the Subcommittee could include these, but as for now the Subcommittee should stick to what was before it.

Mr Steenhuisen agreed with that and as he had indicated he was raising it in the Subcommittee to ensure it was raised on record beforehand, he was happy to proceed. Why he raised the Corder Report specifically was that looking at the Rules as they stood there were various standing committees prescribed by legislation and that report recommended having a standing committee on Chapter Nine Institutions. Its responsibility would be to be the main recipient of Chapter 9 reports, allowing them to be analysed in one place and brought before the House. He was happy to proceed on the basis outlined by Mr Booi, but it could not be business as usual when the Rules Committee sat and he did not want to be accused of subverting the Subcommittee process.

The Chairperson said it was agreed and the points raised were very useful. Once the Rules Committee had identified the specific rules which were in conflict with the judgement, they could be amended. There had always been sympathy with the view that a standing committee be set up to specifically look at Chapter Nine Institutions. 

Mr Perran Hahndiek, Secretary to the Committee, said the idea was to hold a Rules Committee meeting within the next week or so. On the agenda of that meeting would be the adoption of the Rules and Guidelines, but would there be a separate agenda item for the discussion of the judgements? Would it be for Members or the Committee Section to raise the matter, as he was concerned about time and what would be expected from Members.

The Chairperson said the advantage of having raised it here was that the Subcommittee Staff could raise the matter with the Speaker, who would then make it a matter for discussion. The Rules Committee, which was meant to be the senior committee in Parliament, could not fail to discuss the judgements. The Speaker would then determine who ought to be invited to give explanation on the implications. In the last meeting of the Rules Committee the Rules were generally adopted by all parties, with the governing party and official opposition not having any principled differences on the Draft Rules. The only area of disagreement had been the committee to be set up following a removal of a Member under rule 53A, which was resolved. It seemed that following the events of two days’ prior another such committee would have to be set up and before the meeting began Members had felt that protection services must wear their uniforms so that they could be identified.  

Mr Masibulele Xaso, Secretary of National Assembly, said he had raised that matter with the Speaker the previous day and Mr Steenhuisen had also raised it at the Parliamentary Oversight Authority. He was following up, but it had been raised by the Chief Whips.

Ms Kilian said it was completely unacceptable and expressed her total dissatisfaction. The Subcommittee had been working so closely on a very sensitive matter and the images were so detrimental. Not only internally, but abroad and there had to be consequence management. Who was responsible for ensuring that people were not properly attired, when a session of Parliament was underway.

Mr Booi asked Ms Kilian to stick to the issues before the Subcommittee.

The Chairperson said he thought Ms Kilian was simply raising the matter in passing.

Ms Kilian said it was agreed that there need to be an adjustment to the Powers, Privileges and Immunities of Parliament Act (Powers and Privileges Act) and what had happened that morning was a clear transgression of that Act, by those who were supposed to ensure they were able to do their work. The police at the entrances of Parliament had indicated that Members could not enter the precincts of Parliament, which was a criminal act and Members could lay charges against them. These matters need to be handled at parliamentary management level, so that everyone is on the same page.

The Chairperson said it was important for Mr Steenhuisen to raise the matter, because Parliament could not run away from the fact that there was a court judgement and it must be ensured that the Rules were in line with it.  The Rules Committee would have a very exciting discussion on this matter and it hopefully would give the Subcommittee a directive. So far no rule had been identified which impeded the Committees of Parliament to conduct oversight over the Executive. Mr Xaso would then persuade the Speaker to put the matter on the agenda. The Rules Committee would not see much contention over the Draft and Guidelines, because there had basically been agreement in the last meeting. The Draft was improved in terms of language and tightened up. The Speaker herself had raised looking into the reports mentioned by Mr Steenhuisen, including the Kader Asmal Report and Corder Report.

Mr Xaso said he was picking up that there should be three items: the report from the Subcommittee, an item on the amendments to the Powers and Privileges Act, and an assessment of the Nkandla judgement. The intention was Friday the following week and he wanted to know whether that would work for the key people involved.

Mr Steenhuisen said he was not available on Friday 13 2016.

The Chairperson said the Rules Committee would find a way to meet and a suitable date. It could meet, even if after Extended Public Committees or the sitting. The point was that the staff must have enough time to produce copies for Members.

Ms Kilian said Tuesday 17 May 2016 was the question session to the President and perhaps that could be a good idea, because that would allow an earlier opportunity to proceed.

The Chairperson said Mr Xaso should proceed and advise properly. The Subcommittee’s work now was to finalise what to present.

Proposed Rule 316A: Executive Communications to Parliament
Mr P Hahndiek asked Members to return to the Draft Report and checked with Mr K Hahndiek how to proceed. The Subcommittee had previously indicated that it wanted to go through the guidelines for Committees, one of which was programming for Committees. He did not know if the Subcommittee wanted to go through all the guidelines again or rather look to highlights.

Mr K Hahndiek said the Draft Report did not require much discussion, as it gave effect to what the Subcommittee agreed to at the previous meeting. The only entirely new thing was item six: proposed rule 316A concerning communication by the Executive to Parliament about any changes to the Executive. It was on page 3 of the Draft Report and he would like the Subcommittee to either agree or disagree with the proposed rule.

The Chairperson asked if there were any issues and said the aim of the rule was that the leader of government business must inform Parliament about changes in the Executive. If the President decided to delegate certain things, Parliament should know so it did not direct questions at the wrong person. He noted the general agreement of the Members.

Mr P Hahndiek said proposed rule 316A (b) read “the details and powers and functions formally assigned to each”, which included Cabinet Members and Deputy Ministers. Many functions of Ministers had legislatively assigned functions and would this communication include all these?

Mr K Hahndiek said he would think that would in the first place be controlled by the Presidency. Anything assigned by a law would be taken into account and the Executive would inform Parliament of all the powers and functions assigned to each Minister, whether by law or delegation. He would expect comprehensive cover from the Executive here.

Ms Kilian assumed that formally assigned would include assigned by law.  If some assignments were not captured in law, they would be done by proclamation or the like. Collectively they could all be captured under the phrase as formally assigned.

Mr Daniels said the rule was consistent with section 91(2) of the Constitution which gave the President the power to appoint Ministers and assign them functions. Then anything dealt with by legislation would automatically flow from that legislation.

Mr K Hahndiek said he did not know whether anything was ever informally assigned to a Minister for a period of time. The Constitution was clear that anything which had implications in law had to be done in writing. So as any assignment of functions and responsibilities would at least have implications for accountability under the Constitution they would have to be formal and in writing. He could not see any problem with Parliament being informed.

Mr Booi said this was being done in the context of assisting Members with questions to the Executive. The intention was to ensure that Members were certain about who ought to have the information; rather than ask questions to a Minister who had delegated a responsibility. The Chief State Law Advisor had indicated that the rule was in sync with the Constitution. The Subcommittee’s intention had been that there should be some transparency on what delegated functions the Deputy President and other Cabinet Members had. This was based on ensuring accountability of the Executive.

Mr P Hahndiek said the rule indicated that the Leader of Government Business must inform the Speaker in writing without delay and he would assume that such information would be published in the Announcements, Tablings and Committee Reports (ATC). Should this be stipulated in the rule?

Mr K Hahndiek said Chapter 11 dealt with messages from the Executive and there it would be stipulated that it must be published in the ATC.

Mr Daniels said rule 316A spoke only to formal assignments, but functions were not formally assigned to Deputy Ministers. They were appointed to assist the Ministers, who would delegate the responsibility.  He wondered whether that should be stipulated, because otherwise it may create a situation where Members demanded to know what functions had been formally assigned where there was in fact no power.

Mr Steenhuisen said looking at the Presidency for example there was Deputy Minister B Manamela, responsible for youth commissions. Was that delegation done by the President or the Minister in the Presidency? Those were the particular type of instances it was meant to cover.

Ms Kilian said the Constitution was clear that only the President could appoint Ministers, wherever they were assigned to had no effect. What the Subcommittee was trying to be corrected, was to ensure there was accountability so that Members did not try to hold members of the Executive to account for matters which they were not responsible for. This would be by formalising the communication. The question was raised about the Deputy President, because they were at times assigned specific functions for a period of time. Members wanted to ensure there was formal communication, so that Members knew they could pose specific questions to the Deputy President and Ministers who were assigned specific functions.

Mr Booi said looking at the practice in the House Members were not informed of the role played by Deputy Ministers and it then came up that the responsibility had been delegated. The opposition parties would not know what the Deputy Minister’s responsibilities were and this could cause a delay with question time. Members would have long ago written their questions, but when the response was given they were surprised that the Deputy Minister stood up to answer.

Ms Kilian said the only problem she saw was that Cabinet consisted of the President, Deputy President and Minsters. The Ministers had to account and the Deputy Ministers accounted to the Ministers. The Deputy Ministers were not part of Cabinet and if a Minister was unavailable then a Deputy Minister had to take responsibility. As she understood it, if there were a problem then it was an executive function for which Cabinet and ultimately the President would be responsible for. The minute this was opened up to Deputy Ministers, the fact that they were not part of Cabinet could lead to problems.

Mr K Hahndiek agreed and although 93 (2) of the Constitution indicated that Deputy Ministers appointed under 93 (1) (b) meant there was an accountability, Parliament did not pose questions to Deputy Ministers, they put questions to the Ministers. Then, on the basis of a delegation, Deputy Ministers would then answer. He however did not think the intention was to have Members pose questions directly to Deputy Ministers.

Mr Daniels agreed with Ms Kilian, which was why he had stated rule 316A could not talk about functions formally assigned to Deputy Ministers. Deputy Ministers were not part of Cabinet and the President usually delegated functions to the Deputy President and Ministers. Sometimes it was in writing and sometimes it was verbal.

Mr Hahndiek asked whether Deputy Ministers should then be taken out of rule 316A. The fact was that the President appointed Deputy Ministers and section 93 (2) indicated that Parliament must hold them to account. That would not be by questions, but it would be through debate and other things.

Mr Booi agreed that was what section 93 (2) indicated. They do not go to Cabinet, but they did have responsibilities. What the Subcommittee was trying to capture was that Members were informed of this. Was the Subcommittee now moving away from that? Members wanted to get closer to the work deputy Ministers were doing, even though all along questions were posed to Ministers.

The Chairperson said a rule was drafted around Deputy Ministers which indicated that a Minister could indicate that a function was delegated to a Deputy Minister. Further, the Deputy Minister could respond to a question even where the Minister was present. As Deputy Ministers were not part of Cabinet, when a Minister was absent they were not given additional functions; another Minister was appointed to act. However, because Deputy Ministers had their own understandings with Ministers about what the Deputy Minister’s responsibilities were the question would be posed to the Minister.

Mr K Hahndiek said was captured in rule 109 (2) (a) a Minister may authorise a Deputy Minister to answer a question. The proposed 316A had to be read with the other rules, because they did not allow questions to be put to Deputy Ministers.

Ms Kilian said she was a little confused when Mr Hahndiek spoke about accountability in section 92, because this referred to the Deputy President and Ministers being responsible for the powers and functions of the Executive assigned to them. Further, Members of Cabinet were accountable collectively and individually to Parliament. Again it was the Deputy President and the Ministers, who must provide regular reports to Parliament on the execution thereof. Then section 93 went to Deputy Ministers, but the accountability line was captured in section 92 of the Constitution. The communication about the appointment of Deputy Minster was not the problem, it was keeping the line of accountability.

The Chairperson said people who accounted to Parliament were the President, Deputy President and Ministers. No questions were put to Deputy Ministers if a question was put to a Minister, but the function was delegated to a Deputy Minister the Minister would authorise the answer. That was covering the situation where Members were concerned about Deputy Ministers simply standing up and answering questions.

Mr Booi said section 93(2) spoke to Deputy Ministers being accountable to Parliament for certain functions. He wanted clarity on this, because it seemed that the Constitution was indicting that Deputy Ministers had functions which Members ought to be able to hold them to account for directly.   

The Chairperson said that point was covered by the specific rule, because it allowed Deputy Ministers to account on areas which had been delegated by their Minister. That was why the Rules indicate that questions were posed to the Minister, although Deputy Ministers were given some delegated authority and must answer if need be.

Mr P Hahndiek suggested adding “and delegated” after formally assigned in rule 316A. This was where Ministers delegated functions to Deputy Ministers.

Mr K Hahndiek said the Leader of Government Business informed Parliament of the appointments of Ministers and Deputies, as well as the powers and functions assigned to Cabinet Members. However, the functions assigned to a Deputy Minister under 93 (2) were so assigned by a Minister, so would the Leader of Government Business be the correct person to ask. He felt it could be and should know in any case, meaning they could be asked.

Mr Steenhuisen supported that and the good plug in was that the Leader of Government Business attended the Chief Whips’ Forum and Programming Committee; so there was a free flow of information.   

Guidelines on Committee Meetings
Mr Sikhumbuzo Tshabalala, Section Manager: Committees, said the document had two parts, part A dealing with programmes. Although the rule spoke to meetings, the Committee Section (CS) felt it important for the conversation to start at programming level, the drafting team would then be left to determine what was relevant. Item 1 under Part A, started at the beginning of a four-year Parliamentary term. At that point the House Chairperson responsible for Committees then facilitated a process of organising Committee business. This included the days in the week when specific clusters or Committees were to meet, towards coordination. The CS had included an Annexure which indicated the number of days allocated to different clusters and Committees to sit. Item 2 indicated that before each quarterly term a ‘focus areas memo’ was signed off by the House Chairperson and sent to all Chairpersons. This memo indicated what was expected of the Committees in a particular period. The programmes of the Committee would then reflect the focus areas memo as a priority. Meaning that the document did not prevent committees from addressing other business. Once the committees had compiled the programmes which were assumed to be in line with the focus areas, they were submitted to the House Chairperson responsible for Committees for approval. On the days allocated to the Committees, item four indicated that where a Committee wished to meet outside of the dates set out in the programme of the National Assembly as being for Committee business, that there needed to be an application for approval to the Chief Whip of the majority party.

Mr Tshabalala moved to part B, saying it spoke to many matters under part A, because programming and meetings were interlinked. Item 1 indicated that committees were allocated specific days, currently Tuesdays, Wednesdays or Fridays. Some committees would be allocated time to meet throughout the week. These ware committees such as the Standing Committee on Public Accounts and it depended on the volume of work they were faced with. Item two dealt with a committee meeting which could only be called for by a chairperson, following approval by the House Chairperson. On item three, the programme of the National Assembly specified certain times for sittings and Committee business, which was when meetings were supposed to be scheduled. Item five indicated that a list of approved meetings was contained in the Z-list. This was important where there were about 42 Committees in the NA and only 29 venues in the precinct. The coordination worked for Parliament at present. Cancellation of approved meetings, also hds a process so that all relevant documents are updated.

Discussion
Mr Steenhuisen said his concerns lay under part A, who determined these focus area? His understanding was that Members were elected and should bring constituency concerns. It should be them determining the focus areas of a particular Committee. If the focus area were mainly around coordination of a legislative programme that was fine, but it should not be a dictation of what specific oversight would be conducted. It should be for Members to decide how they performed their oversight function. His main concern was not mentioned in the document but was something that was happening presently and which he viewed as ultra vires the Rules and the Constitution. When it came to determining the committee programmes, these were completed and submitted up the chain to the House Chair. This is generally done by what are informally termed as executive committees, which were unelected and generally consisted of the Chairperson and one other Member of the majority party. They would then put together the Committee programme for that term, without consultation with other Members. When the others then arrived they were presented with a fait accompli and when Members proposed rather doing another item, they were told that the executive committee had already made the decision. He ventured to say that these executive committees fell foul of the Constitution, because if it were an actual Committee it was not representative of all parties. All programme adoption should be done by the Committee as a whole, rather than the so called executive committee. He did not know if it could be fixed in the Rules, but it was a reality which he felt was a problem.

Ms Kilian was also concerned about using the terminology ‘focus areas’. What Mr Tshabalala was referring to was the legislative deadlines which determined when the budget must be processed and annual reports must be tabled. This was the overarching parliamentary programme and to call it focus areas was unfortunate, because that indicated what the committees were to work on. Was there not a better word which could be used, because there was a parliamentary cycle which was often determined by legislation, such as with the Budget and BRRR reports. It was incorrect to refer to focus areas, but those were really legislative deadlines. Secondly, on committee meetings there was no serious problem and she heard what Mr Steenhuisen raised, which had seen some discussion. For example, if the forum of Committee Chairpersons met to review the parliamentary programme as adopted by the Programming committee. If there were an extra week that feedback would be given to the committee which would then determine what was most pressing for them to deal with. She knew there was some misunderstanding and a top down approach was adopted, but most committees functioned quite well if Members were aware that they could put pressure to influence what was done by the committee. Lastly, on item six sometimes a meeting was approved and a slot allocated to that committee and if that meeting was to adopt a piece of legislation and there was no available quorum, surely the meeting could not proceed. One could not build in a requirement for approval by the House Chairperson and the Members present should note the absence of a quorum. The Members could not wait for the House Chairperson to cancel.

Mr P Hahndiek thought the focus areas were a problem, because it suggested some kind of political direction. He had seen such a memo and it was a very technical, programming memo. The name should be adjusted, to avoid the perception that the House Chairperson was politically directing committees. Further, it did not say that the committee must adopt its programme and perhaps it was clear in other rules. If Parliament required committees to formally sit once a term and adopt its programme. If that were done, then a space was opened for a discussion of what the political priorities were for the committee. That would help accommodate the various views, so that programmes were not seen as generated by outside role-players.

Mr Booi said overall what was missing was the House Chairperson’s accountability. The Subcommittee had said that they were to oversee their wo0rk, as the Speaker appoints them. When it came to the focus areas this was clear. The House Chairperson made various decisions and he wanted to see if there was any possibility that this thinking could be blended into the Chief Whips’ Forum. So that it was not the House Chairperson on their own or with the Majority Party Chief Whip. For political reasons, it was important to ensure the Chief Whips had a sense of what was going on with committees. This would assist the House to come to a decision on the priorities which would be chosen. At the end of the day it had to go through the Rules Committee and the Programming Committee. He put this suggestion forward so that there could be a bottom up approach and for Members to know what was expected of them at a particular time. A political discussion should be had in the Chief Whips’ Forum, so that by the time it reached the Speaker’s desk, everyone had buy in and knew what was going on. On cancellation, if it was felt that it was merely a decision of the majority party, affected relations within the institution itself.  The cancellation therefore could not just end with the committee itself, because it had to be seriously considered by the House Chairperson. What created an upheaval in the Public Administration Committee the previous day was that was as if the Chairperson had simply decided without the Members’ participation. Can cancellation not be done more by the House Chairperson, than only with the committee, to allow them to consider the politics.  Cancellation should not too easily be done and if the Committee was faced by non-participation then how would this be recorded. Members needed to take their work seriously, because money was involved with cancelling a meeting and where the decision to cancel was taken this had to be at a serious level.

Mr K Hahndiek said in principle each committee has the powers to arrange its own business under rule 138. Looking at rule 190, the Programming Committee had some responsibility regarding what committees were engaged with. Sub rule (e) read: ‘the programming Committee may take decisions and issue directives… to postpone or prioritise any business of the Assembly”. That brought committee’s work into line with what was happening more broadly. It was practice that the Committee Section would report to the Programming Committee what the Committees were dealing with and how far they were. He recalled a time where a committee chairperson was called to report on the failure of their committee to deal with a Bill that had been referred. The Joint Rules of Parliament also spoke to timelines within which committees must resolve matters referred to them, beyond just Bills. On cancellation, it was suggested that it was for the Committee to decide and it must be so that if there was not a quorum the committee could not proceed. However, the concern would be that in any case that should be reported to the Programming Committee which met weekly. The Programming Committee could take stock if a Committee was regularly not meeting. There were those kinds of issues which the Programming Committee could remedy through the whippery. Another issue was the chairperson’s having some sort of executive power to instruct the committee what it would consider, with the same being true for the House Chairperson.  The House Chairperson’s responsibilities were to ensure directives and guidelines of the Programming Committee on prioritising Parliament’s business were carried out. It was that kind of facilitating role which the House Chairpersons would be required to play.  If the intention were to go beyond that as suggested in the proposal, a more detailed area of responsibility would have to be drafted into the Rules. Particularly, if the House Chairperson could direct what committees engaged with. That would have to be written into the Rules for the House Chairperson to become accountable for those instructions to committees. That was the crux: ought House Chairpersons to have any executive or political responsibilities regarding what committees did and did not deal with. There was a time when there was an oversight model which suggested that there would be a super committee which would map out programmes for different committees. It did not take off and he supported that, because otherwise it would take away from the necessary powers of committees. He felt the Rules cover the issues raised.

The Chairperson said the guidelines should be in line with the Rules and should not try to give powers where the Rules had not done so. If the CS wanted such powers in the Rules, they should make a submission to that effect. Mr Steenhuisen raised the matter of committee executive committees, which was to be looked at by the Subcommittee. Certain decisions should be taken by the broad committee, such as what the programme of the committee was to be. Some committees were able to have yearly programmes, while others planned termly. The Rules allowed flexibility for committees to run their business themselves and the chairperson’s involvement was generally around budget management. A better word should be found for focus areas, but the point to be aware of was that the House Chairpersons’ duty was to assist the Speaker, not to assume some sort of executive authority. They received mandates from the Speaker, who along with the Deputy Speaker were the executive heads. Mr Hahndiek was correct that if this was to be changed it must be put in the Rules. As the Programming Committee met every week they were able to deal with the programmes and areas of focus for committees. Further, where did the House Chairpersons account? This had to be either in the Programming Committee or the Rules Committee.

Mr Steenhuisen said looking at part 8 of the Draft Rules there was a Committee of Chairpersons, chaired by the House Chairpersons and which would be the primary accounting mechanisms for chairpersons. He did not know if it actually met, but this would be the primary point of accountability. While the House Chairperson reported to the Speaker, matters of Committees not meeting could be raised there. This did not stop anyone from raising matters in Programming Committees.  

Ms Kilian said with the Draft Rules, because the Subcommittee found that there were some contradictions and an assumed role for one of the House Chairpersons, bordering on an executive function. That was not the intention, because then where did Members hold that House Chairperson accountable. Ultimately, the Speaker and Deputy Speaker must be held accountable, because they assigned the functions and powers to House Chairpersons. Therefore, it was not original authority for which the House Chairpersons. Meaning that forum where the chairpersons met was a coordinating forum. It was not a committee or a formal structure, it was simply a forum of chairpersons, so that there could be coordination. She suggested that the document be revised, because it was not quite aligned to the Draft Rules. The CS must consider it carefully, because under item 6 the quorum requirements of the Draft rule were not captured. Rule 133 (3) indicated that when a committee had to decide on a question and a quorum was not present the chairperson may suspend the business until a quorum was present or adjourn the meeting. So clearly it was not cancellation by the chairperson. She heard what Mr Booi was saying and that was where the Programming Committee played an important role. For example, where a committee was supposed to process a Bill, but was not meeting. The Subcommittee must bear in mind that Parliament was a political space and there could be a reasons why a quorum was not present. She did not think it would be appropriate to have a ‘super chairperson’ who must first give permission before a meeting could be cancelled. The committee must be able to do so. The reference to focus areas was incorrect and the rest of the document must be aligned with the Draft Rules, to ensure the guidelines were not in conflict.

Mr Hahndiek said focus areas could be called programming priorities, for instance, determined by the Programming Committee. He agreed with Ms Kilian that the Chairpersons’ Forum was not called a committee, specifically due to concerns about it having decision making powers without being representative of the parties in Parliament. It had therefore been changed to a forum as reflected in rule 195. The functions and powers stipulated in the Draft Rules, clearly reflected that it really was an advisory forum to make recommendations to the Programming Committee or the Rules Committee.

Mr Tshabalala said the input was noted and the instructions would be carried out going forward. He confirmed that the Forum of Chairpersons met quarterly if possible to deal with matters which affected committees. On the planning of committees generally, there were three levels of planning. The committee put forward a five-year plan formulated by the committee itself, assisted by the Committee Section, which it then adopted. From that five-year plan, annual performance plans were devised to implement the longer term plan. Then there were the more operational programmes, which were developed on a quarterly basis. Those were prepared in advance of a quarterly term and were to respond to the programming priorities, which was a better phrase than focus areas. These were proposed by the CS to the committee, which then made the necessary adjustments and adopt. These were the programmes which were sent to the office of the House Chairperson responsible for committees, as indicated in the document. On cancellation of meetings, the documents spoke to the Z-List which was a public document and was relied upon by the public, either to request to make representations or attend meetings. The cancellation referred to in the document was where a meeting was cancelled in advance. There were many reason which Members had raised for cancellation, such as being inquorate, but those unavoidable cancellations would not be targeted by the guideline. Perhaps that clarification should be made in the document, with the approval of the Subcommittee. He noted the further comments, but emphasised that the devil was in the detail of operationalising the Rules and how one was to ensure Committees implemented the programme adopted. The CS would rely on the drafting team of the Subcommittee to aid in the adjustments of the guidelines, based on the present discussions, so that the guidelines were in line with the intentions of the Subcommittee and again noted that what was being presented was essentially the status quo and the development would happen with the assistance going forward.

Mr K Hahndiek asked whether there was enough flexibility in the programming system with the five year plans and the like. For example, if there were a pressing matter which committees needed to deal with ad hoc and if they were able to decide to put normal business aside.

Ms Kilian said from practical experience, committees adopted an annual programme and a term programme, but sometimes Members discovered an urgent matter. Then the programme would be altered by agreement.

Mr Tshabalala said this concern was noted, but a matter which was relevant in this area and which had been discussed in the Programming Committee was the stability of the programme of the National Assembly. With the Programming Committee meeting on a weekly basis, the programme could change on a weekly basis, affecting the business of Committees.

Mr P Hahndiek said Mr Tshabalala was suggesting that the guidelines be reviewed by the Subcommittee’s drafting team, towards bringing them in line with other guidelines and the Rules. There were some principled issued and the support staff would not be able to move too far from the discussion by Members.

The Chairperson said Members had commented on several issues, but at the root the guidelines were there to assist with the implementation of the Rules. Some of the areas had been highlighted already and would be reviewed by the team, before it was presented to the Rules Committee. To ensure what was meant to be operational remained as such and what was meant to be political remains so. The forum of Chairpersons met simply for coordination purposes. Cancellation of meetings had been explained and a chairperson could convene a meeting, if it were discovered that Members were not available, but they cannot wait for the House Chairperson to approve a cancellation. Things such as coordination of venues and provision of resources, including staff, would be the types of things which the House Chairperson may need to be consulted on. Further, that the Speaker was the accountable office, because they delegated authority to the House Chairpersons. The guidelines should be reworked to be in line with the guidelines already prepared and the Rules, to ensure the language flowed.

Mr K Hahndiek said it had also been suggested that the Rules Committee should keep itself informed about problems with committees, so that it could take measures to rectify the concerns.

The Chairperson said the intention was not to go to the Rules Committee to rehash what had already been agreed upon in the Subcommittee and was rather to help the Rules Committee to make a decision. He noted the point raised by Mr Steenhuisen that an agenda item on what the impact of the recent Court judgements on the Rules was.

Mr P Hahndiek said there needed to be a little bit of planning around how that was brought before the Rules Committee, because it would need to be discussed within parties first.

The Chairperson asked if there were anything else remaining around the guidelines which the Subcommittee needed to decide upon.

Mr K Hahndiek said the Committee guidelines were the only area which had been outstanding.  

• Opinion by the Chief State Law Advisor
  Mr K Hahndiek said he had not been able to engage with the State Law Advisor (SLA) on the proposed changes to the proposed rule 53A. There had been some confusion about the role of security services, because they had a role in removing Members from the precincts, but not the Chamber. He had adjusted the proposed rule 53A to show that it covered removal from the Chamber and the precincts. Further, reorganised the rule to make it clear that there was a distinction between the two and that the security services, like the South African Police Service (SAPS), only became involved with removal from the precincts. Although, they may intervene in the Chamber in the case of violence.

Mr Daniels said an opinion was prepared on the matter.  The proposed subrule (11) was looked at and read: “in the event of violence or a reasonable prospect of violence or serious disruption ensuing in the Chamber as a result of a Member’s resisting removal, the Presiding Officer may suspend proceedings and members of the security services may be called upon by the Speaker to assist with the removal of the Members from the Chamber and precincts forthwith in terms of section 4 (1) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (the Powers and Privileges Act) or may intervene anywhere in the precincts where there is immediate danger to the life or safety of any person or damage to any property”. The precincts include the Chamber and therefore he held the opinion that the proposed rule could read “when there is immediate danger to life or safety of any person or damage to any property the Speaker may: (a) suspend the proceedings and/or, (b) authorise members of the security services to act in accordance with section 4 of the Powers and Privileges Act”. Section 4 of the Powers and Privileges Act had two legs, dealing with members of the security services to enter to perform any policing function under the authority of the Speaker. The second situation dealt with immediate danger to the life or safety of any person. The suggestion basically followed the wording of section 4 (2) of the Powers and Privileges Act.

Ms Kilian said section 4 was not in dispute it was section 11.

Mr Daniels said that was correct, but the Chief State Law Advisor (CSLA) was asked to propose a new rule, but as indicated the CSLA did not have a problem with the proposed rule as it stood.

Mr K Hahndiek said he had not had time and did it still cover the use of Parliamentary Protection Services (PPS) in normal circumstances or was the suggested subrule 11 only about the violence.

Mr Daniels said it only referred to violence, leaving normal circumstances to be dealt with by the rest of the rule.  

The Chairperson said the reworked rule would have to be presented to the Rules Committee and the Subcommittee had proposed using a Subcommittee of the Rules Committee for the multi-party Committee required by the interim rule 53A.

Mr K Hahndiek said the proposed new subrule (12) (a) that when entering the Chamber on the instruction of the Speaker, members of the security services may not be armed except in extraordinary circumstances in terms of security policy. That could be problematic, because members of the SAPS would normally be armed for the simple reason that their job was to protect life and limb. When performing the function under the revised subrule (11), there was nowhere for the SAPS members to park their firearms when on the precinct. Therefore, one would have to accept that they would be armed when entering the Chamber.

Mr Daniels asked whether one would want the security services members to be armed and possibly use those arms in a confined space like the National Assembly.

Mr K Hahndiek said police had to respond to direct threats of violence in the Chamber and there may be circumstances where they would have to fire their arms.

Mr Daniels said perhaps it was a matter for discussion with the SAPS, to amend their standing orders, because he would not want to be a Member if the security services could come in armed.

Ms Kilian said her understanding was that the SAPS Act compelled members of the SAPS to at all times be armed and did not think that under the Rules Members could contradict what was required by legislation. 

Mr Daniels, speaking subject to correction, said the Act permitted the carrying of firearms by members of the SAPS, but it was the standing orders which determined the circumstances where they may be used and when it must be worn. That was why he was suggesting perhaps meeting with the police to see if the standing orders could be changed. The only reason he was making that suggestion, because he had not had an opportunity to consider the matter. He was aware that recently a Member had managed to bring a water pistol into the Chamber and he was astonished that that could happen.

Mr P Hahndiek said it had been brought in in a box and taken out when the Member got up to speak. One thing was who was to check what Members brought into the Chamber.

Mr K Hahndiek said it has to be accepted that Parliament was a gun free area, with the possible exception of the police. He certainly took the point that it would not be optimal to allow police to be armed in the Chamber, but if it were not allowed, could it be allowed in the corridors or lobbies. There was a situation in Canada where the Sergeant-at-Arms killed an intruder into Parliament with a firearm. It has to be accepted that the world was not a pretty place and there had to be protection against all forms of threats.

Mr Daniels asked what happened if a toy gun were pulled out at the State of the Nation Address? So, was the real issue not ensuring that people could not bring items into the House which they were not permitted to. If that were addressed, then there would be no requirement to allow any firearms into the Chamber and possibly being used. Then it would only be a matter of using the required amount of people to deal with the situation. Extraordinary scenes had been seen in Parliament and he imagined that if someone were to pull out a toy gun in a melee which had occurred consequent to a Member being removed; someone could be harmed very seriously.

Mr Booi said when the Rules were finalised, perhaps this should be re-regulated properly. The DA had been very adamant that firearms should not be brought into the House, but the Deputy Minister had opened a new debate about what was brought into the Chamber and who was responsible for searching. It was always assumed that people could not bring anything into the House. Not even the whips were informed about what was going to happen. It needed to be clarified that it should be the whips or perhaps the PPS who are responsible for checking. The other concern was that once Members were removed from the Chamber, who took over to prevent access to the offices. The rule should be clear about who was responsible for removal from the precincts.

Mr K Hahndiek said the rule tried to make it clear that the PPS were the ones who operated in the House, but they may require the assistance of the police outside the House. So, if there were people in the gallery who tried to assist Members the SAPS may be called upon. He would check the Rules for a rule which indicated that Members were not allowed to bring anything into the Chamber without the prior permission of the Speaker. What was seen on television recently was going to incite further violence in the community, if they saw Parliament falling apart in that manner it would to lead to a climate in the country which was problematic. It was all a question of assuring the public that their lives were being managed responsibly in Parliament. If that did not happen in what they saw, then people despaired that Parliament would not be able to help them at all.

The Chairperson said that the leadership of the institution had met with parties, but it seemed that an understanding had not been reached. Parliament was getting more and more divided and facing a real problem became more likely. That was why the President made the call, appropriate or not, that Parliament should try to do something about its affairs. The attacks were no longer with respect, they were really personal and he felt it would explode. This was a serious problem and one way or another the governing party needed to work these matters out. These things would cause real harm to Parliament and the leadership was quite concerned. He was unsure how the Draft Rules could assist, because they only worked if Members agreed to respect them. The Rules Committee would meet soon and the Subcommittee had made a commitment to put forward what was raised by Mr Steenhuisen. The Draft Report was there and rule 53A would be reworked and presented to the Rules Committee, including the position on the multi-party Committee. His view was that if there were very fundamental issues they should be put forward, but this should not lead to the re-opening of matters already decided by the Rules Committee. There were areas to be emphasised, but he did not think the Rules Committee would want to be taken through all the rules and guidelines.

Mr Hahndiek on how to manage what was happening in Parliament, said he did not think the Rules Committee would be the answer. In the Rules Committee the parties came as political parties and what was required was leadership. When there was the incident of fisticuffs between Members in about 1999 mentioned earlier, the Speaker called the leadership of the parties who then took joint responsibility. That was what needed to happen, so that problems such as what were being seen presently, could be dealt with without damaging the institution in the public eye. The political leadership needed to sit down in a closed venue and decide on what lines to proceed upon, determine what rules allowed the institution to function and give all the rights that the parties need for them to do what they need to politically, but above all protect the institution and the democracy.

The Chairperson said Draft 10 would be presented to the Rules Committee.

Mr K Hahndiek said the way he understood it was that the Subcommittee would present its Draft Report and the proposed section 89 rules to the Rules Committee. The Rules Committee would make its decisions and then Draft Nine would be transformed into Draft 10. This would then be put forward to the House.

Mr P Hahndiek said the idea was to have a Rules Committee meeting shortly and for the Rules Committee to agree to the Rules and Guidelines. A concern was that Members would need sight of the Rules before they were taken to the House and the question was how did those Rules get to Members in draft form. One option was to produce a report which would be distributed, although 400 copies of 150-page document was quite a lot printing and money. It was unlikely that the Rules would be substantially amended in the House and if that was the case Members could use that printed version as their copy of the Rules afterwards. After the Rules were adopted many more copies would have to be made and he was trying to understand how it administratively fitted together.

The Chairperson said by the end of the month the Chamber must have accepted or rejected the Rules and it would be difficult for them to do so if they had no report presented to them. Parliament had resources and the 400 copies were necessary.

Mr K Hahndiek emphasised that 400 Members were expected to know the Rules and therefore required copies before them. One could not operate on the assumption that Members would all be able to open the electronic copies. It would require either including it in the ATC as a report from the Rules Committee or the Rules Committee produce a separate report which is circulated to all Members. Once the House adopts the Rules, he would already be working on a clean copy of Draft 10 so that within days a final version of the adopted version of the Rules could be adopted. With the House going into recess there should be ample time to get a clean, printed copy of the Rules circulated to everyone.

The Chairperson declared the meeting adjourned.