Rules Subcommittee Report on Rule 53A Physical removal of Members, Deputy Speaker ruling on quoting of judgments amended, Committee Report on Review of Rules

Rules of the National Assembly

24 May 2016
Chairperson: Ms B Mbete (ANC)
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Meeting Summary

The Chairperson of the Subcommittee dealing with the revision of the National Assembly Rules (the Rules) took the Committee through the changes that had been made to Rule 53A since the last Rules Committee meeting. Essentially, a new subrule 14 had been inserted, which in terms drew the distinction between the Chamber and the precincts. Subrule 11 had been amended to allow for the security forces to act anywhere on the precincts (including the Chamber) in the event of violence or damage to property. Subrule 12 had been amended by the substitution of a reference to referral to a multi-party committee with a specific statement that the matter would be referred to a subcommittee of the Rules Committee appointed for that purpose.

Members questioned the position of the presidential security services, noting that they did enter the Chamber armed at times, and suggested that this was not a matter that should be covered by the Rules but should be discussed between the Speaker and the President. The point was made that presidential security would only enter the House if there was a threat to the President. The position of other party leaders' own security was also discussed, with the need for proper uniforms being agreed upon. The point was also made that the rules should not be overly prescriptive and should be able to deal with the situation where unexpected items may be thrown or used with violence. The question of repeat offenders was discussed, and it was suggested that perhaps withdrawal of the President from the House in the case of violence would be appropriate. The rules that were adequate in previous situations were not keeping up with developments in the Fifth Parliament; hence the need to reconsider protocols and frameworks. The suggestion was made to also reconsider the position of the Serjeant at Arms and perhaps also to reconsider electronic screening of Members' bags. Members also debated whether the new wording was acceptable, and a Member and Parliamentary Legal Advisors engaged in a debate over the exact scope and effect of the Constitutional Court judgments. All parties did finally accept the new Rule.

The meeting moved to a consideration of the principle of Members being allowed to quote judgements in the House. The Deputy Speaker had made a ruling that they may not, which was then challenged, in line with the correct procedure, by a Member of the DA, and referred from the Rules Committee to the Subcommittee. The points made in the Subcommittee were outlined, and this committee had concluded that in principle, the quoting of judgments would be acceptable, provided the quotations were not selective, that they were accurate and that no abusive language or implications were made against other Members. An explanation of the ruling was given by the Deputy Speaker. The Subcommittee had recommended, and the Rules Committee accepted, that in principle court judgments could be quoted in future.

The Subcommittee had been asked by the Rules Committee to consider several instances where presiding officers had ordered the physical removal of Members from the Chamber, on 9 September and 21 October 2015, and 4 May 2016. In each case, the Subcommittee and the Rules Committee found that the presiding officers had acted correctly and in line with the procedures set out in the Rules.

The Subcommittee then presented the entire revised draft of the Rules for adoption by the Rules Committee, preparatory to presenting it to the House in the following week. It was noted that the EFF had noted its objection to the Rules, and this would be reflected in the report to the House. The DA indicated that it wished to have two issues reconsidered. The first was the order of business, since it did not agree with Members' motions being moved to the end of the proceedings. The second related to questions to the executive without notice. Other Members expressed their dismay that these issues were being brought forward at such a late stage, particularly since previous representatives in the Subcommittee had indicated their acceptance of the principles now embodied in the draft Rules. They suggested that the Rules would not be perfect, that compromises had been made by all parties and urged the DA to agree to the adoption of the bulk of the Rules and continue to negotiate and discuss these points. It was noted that it had been agreed, at quite an early stage of the process, that whilst Members would attempt to reach consensus, there would have to be times when the majority view must prevail. Several Members expressed their disquiet and suggested that the DA Members were being unreasonable, pointed out several instances where other parties had been prepared to negotiate and compromise. However, the DA took issue with some of the wording used and the suggestions that it was being unreasonable, and three DA Members walked out of the meeting. This left the Committee without a quorum, until additional Members were co-opted in terms of rule 134. The Committee then took a decision to agree to the Report of the Subcommittee, which contained the revised Rules and to recommend their adoption to the full House on the following Thursday.

Meeting report

Chairpersons opening remarks
The Chairperson said the meeting was struggling to reach a quorum and there was a proposal to begin consideration of the issues now, in anticipation of reaching a quorum later.

Consideration of Draft Agenda and Minutes of 17 May 2016
The minutes of the previous meeting on 17 May 2016 were accepted, subject to a change in the initials of Mr S Tsenoli (ANC).

Mr Masibulele Xaso, Secretary of the National Assembly, indicated that any matters arising would be covered in later agenda items.

Briefing by the Subcommittee on the Review of the Rules of the National Assembly
Mr M Mdakane (ANC), Chairperson of the Subcommittee that had reviewed the Rules (the Subcommittee)  said the Rules Committee had mandated the Subcommittee to look at three issues: amendment of Rule 53A, submission on the principle of quoting from court judgements, and the report in terms of Rule 53A (12). He outlined the decisions of the Subcommittee under each item.

Amendment of Rule 53A
Mr Mdakane said the Subcommittee met and considered interim rule 53A as adopted. Based on the discussion had in the Rules Committee on 17 May 2016 it was agreed to rework subrule 10. The Subcommittee added subrule 14, to deal with the issue of the precincts and making the Chamber a distinct space. Further, an amendment has been made to subrule 11, allowing the security forces to enter in the event of serious danger to life or property. This was a technical amendment and the essence of the intention had been captured. He pointed out that under the Powers, Privileges and Immunities of Parliament and the Provincial Legislatures Act (the Powers and Privileges Act) Parliament is allowed to use the security services when there is a danger inside the Chamber. Further, they may also enter the Chamber of their own accord in such a dangerous situation, unlike the Parliamentary Protection Services (PPS) who have to be called upon. The security services are not under Members’ control and cannot be told to enter the Chamber unarmed. However, the Speaker may call upon them to assist. In subrule 12, which dealt with the situation where a Member is physically removed, the requirement of referral “to a multi-party committee” has been removed and it is now stated specifically that the matter must be referred to a subcommittee of the Rules Committee appointed for that purpose. That was a principle accepted by the Rules Committee at the previous meeting.

Ms N Mazzone (DA) said when the Subcommittee was deliberating on subrules 10 and 11, an interesting point came up regarding the presidential security services. The presidential security are armed, and during the last physical removal of Members the presidential security immediately formed a circle around the President. Members have to consider that while these rules are in place, there has to be a form of dialogue between the Speaker and the presidential security, stressing that it is a rule of the House that there may not be any armed security forces in the Chamber, unless there is a threat to life or property. Somehow the Committee will have to find a way to accommodate the presidential security, otherwise, parties will always be able to claim that the Speaker is being biased, because the President is allowed armed security, but Members are not.

Mr B Mashile (ANC) said Members need to be clear that presidential security does not enter into the House unless there is a threat to the President. That is what they have been practising all along. He was not sure whether there was anything which needed to be done, but currently they escort the President and stop at the door. Once the suspect a threat to the President they could come in.

Ms J Kilian (ANC) said the Subcommittee also deliberated on the fact that there needs to be some form of security protocol. This could not be contained in the Rules and is a separate matter. The Subcommittee was also concerned that Mr J Malema (EFF) had his own security who acted as part of PPS. The need for proper uniforms was again stressed in the Subcommittee, but Members had concluded that not all of these matters could be dealt with in the Rules. That would be part of a different set of protocols applying to another arm of state.

Ms M Kubayi (ANC) said the times when the security services are not armed is very critical. On a previous occasion dangerous objects went flying and the Presiding Officers (PO) should not be overly constrained so she felt that the Rules should not become too prescriptive. The POs and Speaker have a duty to protect all Members in the Chamber; there may be no time for the Speaker to issue instructions if someone’s life is in danger. She would urge that as there are mechanisms for reporting and evaluating how Members have been ejected, that is a safeguard against POs acting outside the Rules.

Ms Kubayi also wanted to speak to the issue of repeated offences. A Member could cause chaos, be suspended for seven days and return, only to repeat the offence. She thought that there should be special considerations. Even if salaries are deducted, Members may have other streams of income and there is nothing punitive, so they could repeatedly offend. Part of the function of the Rules is to ensure the House is run efficiently and where there are repeated offences, Members should be able to pronounce upon that.

Mr M Waters (DA) responded that as far as he remembered there was provision for incremental suspension, from five to twenty days. In relation to PPS, Parliament needed to sort out the uniforms sooner, rather than later. It was unacceptable that leaders of any party could have their own bodyguards dressed in the same way who could just walk on to the floor of Parliament, as this could be a danger to other Members. Presidential security were armed and sat in the bays where Director Generals sit. This too needed to be looked at. Section 11 would be invoked when they were permitted to walk on to the floor, and other security services members are allowed to come in. He agreed that  Parliament needed to engage with the presidential security to ensure they understand the Rules and Members understand where they are coming from.

Mr C Frolick (ANC) agreed with the end of Mr Waters’ statement. Members must keep in mind the regulations and laws under which the presidential security operates and their core function. It would be very difficult to regulate how they protect the Head of State and Deputy President. Generally, the spirit is that the presidential security does not get involved in the functions of PPS. However, Members must be sensitive to presidential security not needing the permission of anyone when they deem a situation dangerous to their principles, and act.

Mr J Mthembu (ANC) was not attempting to defend the presidential security but asked what their responsibility was if they are seated and then form the opinion that the life of the Head of State is under threat. The reality is that Parliament has become quite violent, when the Head of State is in attendance. He agreed that everyone needs clarity, but pointed out that the Constitution empowered the presidential security to safeguard the Head of State’s life.

Ms Mazzone said in other Parliaments the protocol normally is that if the Head of State is in danger they are removed from the situation, but the question is where would the President be moved, because she was not aware of a safe room near the Chamber. That being so, if the President’s life is in danger, the presidential security is allowed to use whatever force necessary to protect the President, and that may include firing a weapon, which might well hit another Member. Perhaps the Speaker could suggest that where the President is in danger he be removed from the Chamber, so that there was no chance that firearms needed to be fired in the House.

Mr Mdakane said the matter of the presidential security could be agreed between the Speaker and the President. This cannot be guided by the Rules, because Parliament cannot dictate how to protect people. Rule 53A is part of a set of rules from rule 51 to 54, but the real problem is that the court has not ruled on what to do with the Powers and Privileges Act. The decision is still awaited on whether Members can have their salaries docked. He agreed that for a person who is well financially resourced, a fine would not really have any effect. Once that judgement is delivered, Members will revisit this area to ensure that it is tightened up. The Subcommittee’s view was that the political leadership of the institution should discuss the matter and decide it from a political management point of view.

Mr L Tsenoli (ANC) said when Members come to Parliament, they take an oath to obey the Constitution and all other laws. He thought that consequences should apply when they do not abide by the Rules repeatedly.

The Chairperson said many of the issues raised may not go into the Rules, but will inform the Speaker’s engagement with the executive. Even a possible protocol has been mentioned. The Rules started off with the assumption that every Member would act honourably, but in the Fifth Parliament Members are faced with a totally different environment. Therefore, Parliament has to upgrade how things are done, and the protocols and frameworks which enable the institution to be managed on behalf of South Africa. All of this will feed into future engagements and other actions to be taken, in response to lessons unfolding before everyone. There must be a differentiation between the PPS and anyone else who comes into the House. It only took a few people dressing like the PPS to enter the Chamber and be part of the disturbance. That matter was now urgent. Parliament also needs to consider the impact of upgrades around the precinct, and the ease with which people can come and go from the precincts, bearing in mind also that this is “the peoples’ Parliament”. While there needs to be an open Parliament, this should not be reckless. Members also need to look at the office of the Serjeant-at-Arms, to see whether this needs to be strengthened; in another Parliament, that person could be called upon to act when a person entered the Chamber with a gun, thus preventing a disaster. She agreed with the need to discuss what more can be done, and was trying to arrange a meeting with leaders of political parties, before Parliament rose, to talk about these matters of national importance. Members and the Speaker have the responsibility to the public and Members, even given the constraints of this election year.

Mr Waters said the proposed rule 53A is supported. Whilst he did not realise this at the time, one EFF member allegedly also had a brick in her handbag and was using it to hit PPS. He was unsure how Parliament could prevent bricks coming into the precincts, but this could cause serious harm.

The Chairperson said it was perhaps time for Members to consider measures which they had previously rejected, such as Members’ bags being put through electronic screening.

Mr Mthembu said the electronic system would not pick up a brick, because they only scan for metal. He shared concerns on how to safeguard the lives of Members in the Chamber.

Mr Mashile followed up on the point by Mr Tsenoli, and said compliance with the Rules and law, as also with the Constitution, is also provided for in the Code of Conduct for Members.

Mr Kasper Hahndiek, Former Secretary to the National Assembly and Consultant to the Committee, confirmed that there was a change in the wording, by insertion of the phrase “and in the Chamber” after the reference to the Powers and Privileges Act. This was a technical change, done because Chamber was excluded from the definition of precinct.

Ms Mazzone said there had been endless discussions on this point. Whether or not Members liked the Constitutional Court judgment, it did state that there may not be armed forces on the floor of the Chamber. She did not like that addition without a prior discussion, and especially not since the Constitutional Court judgement required that the Chamber be excluded.

Ms Kilian said the Chief State Law Advisor (CSLA) was present and had had said that the critical component of subrule 11 was that it comes into effect when there is immediate danger to the life of any person or damage to any property. In such circumstances it is permissible to then call in security services. The POs have a responsibility to protect the lives of Members, so that there are not any out of control upheavals. There was a proviso that security services would only be called upon in instances of threat to life or property. That provision was in any event already currently in section 4 of the Powers and Privileges Act.

Mr Hahndiek said this change was only made because of the addition of the new subrule 14 which excluded “Chamber” from “the precincts” for the purpose of rule 53A. Section 4(2) of the Powers and Privileges Act requires that in the case of danger the security services may enter the Chamber. That was purely a consequential change, and if it was not inserted, then there was no provision that security services may not enter the Chamber in the case of immediate danger.

Mr Frolick asked what the definition of “Chamber” is and whether that included the public gallery. He was often concerned about what was happening in the public gallery, which could have an immediate impact on proceedings.

Ms Ayesha Johaar, Deputy Chief State Law Advisor, said the insertion of the new definition of “precinct” was precipitated by section 2 of the Powers and Privileges Act. In section 2, Parliament and its precinct is defined as including the Chamber. Within rule 53A(1) to (11), both the words precinct and Chamber are used, with the later referring to the House but excluding the broader grounds of Parliament. The CSLA believed that, to ensure that the rule would be constitutionally sound, “precinct”  ought to be redefined to exclude the Chamber. Under normal circumstances, where rule 53A applies, PPS is used within the Chamber. However, in circumstances where there is violence and immediate danger to people or property, both PPS and security services would act under the auspices of section 4 of the Powers and Privileges Act.  CSLA accepted Mr Hahndiek’s advice. If this was not done, then  section 4 would be applicable everywhere but in the Chamber, which would defeat the purpose of this debate.

Ms Mazzone said the Constitutional Court ruling dealt with section 11, and indicated that no Member may be removed by security services. That is undisputable, and Members must be removed by PPS. However, the DA noted that the subrule indicated “immediate danger”. She cited the example where a PO ordered a Member to leave the House, the Member refused and their entire caucus started to shout at the Speaker. The PO could possibly apprehend immediate danger and call upon the South African Police Services (SAPS) to remove the Member. However, this was a perception, and she thought that unless the Member produces a weapon or engages in an act of violence, the PO cannot apprehend immediate danger. That has to be defined for POs to safeguard themselves.

Mr Tsenoli noted that the SAPS did not need anyone’s permission to enter where life or property is in danger, as it was their own judgment call. It so, then he believed that the phrase alone was sufficient to protect them and the POs could not be accused of bias.

Ms Kilian noted that rule 53A envisaged a progressive process. First, the Member refuses to obey or recognise the authority of the PO. The Member will then be requested to leave the Chamber. If the Member then refuses to leave, the Serjeant-at-Arms is called upon. PPS will then, if necessary, come in. The Member persists in resisting attempts to remove and there is a build up. Subrule 11 reads “in the event of violence” and by this stage she would think there is already violence. The Subcommittee deliberately removed the wording “a reasonable prospect of violence”, for it was too difficult for the PO to determine a “reasonable prospect”. There is no need to differentiate between the Chamber and the precinct in the case of violence. The Subcommittee has been very sensitive to what the court ruled, on what was allowed and what was not. Section 4(2) has not been outlawed, so clearly it is the responsibility of the PO to protect Members, when there is an element of violence.

Mr Johan de Lange, Senior Parliamentary Legal Advisor, said Ms Mazzone should read the judgment again, because her interpretation was not correct. The judgment had related to one technical point, whether the mechanism used to remove Members from Parliament should be in an Act or legislation. The court held that because the Constitution indicates “subject to the Rules”, the mechanism to remove Members should have been in the Rules, as it was now, by being put into rule 53A. What mechanism should be used was not actually discussed or ruled upon by the Court. Secondly, when the court specifically dealt with one party’s points about the separation of power issue and whether the police could be used in Parliament it had indicated that it could also not decide that point, because of the prior decision that it could not rule upon the mechanisms. All that the Court had actually ruled was that such issues should be contained in the rules, and not in a Act. The Court had left open the question around the use of police.

He added that there was a sound legal reason to add the wording proposed about the Chamber, which was for legal protection of SAPS. In other circumstances, a police officer is protected because of section 49 of the Criminal Procedure Act, which specifically allows for arrests and other actions, but because here a new instrument was being created, then there was a slightly different procedure. The Speaker can, if there is violence, adjourn the sitting and call in the police to remove (not arrest) the Members engaged in the violence. If the words “and Chamber” are not included then the police could be sued personally if they act in the Chamber at the request of the Speaker.

Ms A Didiza (ANC) thought, at the beginning of Ms Mazzone's statements, that she was agreeing with the issues, but was concerned on how to define immediate danger. The caveat in the beginning of subrule 11 expressly indicated in what circumstances this would be used, and the latter part of the rule must be concurrently.

Ms C Dudley (ACDP) said the ACDP agrees with the proposed rule 53A with the inclusion of “and the Chamber”, which would be necessary to achieve the aims.

Mr Waters said the DA supported the revised rule, and asked where the police had been in the previous week when there was violence and danger.

The Chairperson said she had asked for video footage, and was also interested to know where the police had been. She had not seen the whole series of events, which had spilled out into the corridors.

Mr Mdakane was pleased to note that the questions of the revised rule 53A at last seemed to be resolved.

Deputy Speaker's ruling: No court judgments to be quoted in the House
Mr Mdakane said the matter was referred to the Subcommittee by the Rules Committee at a previous meeting. The Deputy Speaker had made a ruling that no court judgments may be quoted in the House and Mr J Steenhuisen had written to the Rules Committee to raise objections to it. The Deputy Speaker had now also made a written submission explaining the ruling. The Subcommittee confined itself to a consideration of the principles of the matter, without a view to overturning that ruling, and made some observations and recommendations. It observed the need to respect the integrity of every Member, and made the point that no one should simply make allegations without providing a substantive motion. Secondly, if there is an allegation of wrongdoing on the part of a Member, any other Member could bring this to the attention of the NA by way of a substantive motion. If that was agreed to, then it could be debated and a resolution taken.

The Subcommittee recognised that a court judgement dealt with not only allegations, but findings. It was the view of the Subcommittee that Members should be allowed to quote, but must do so accurately, and in context, without making selective quotations from the judgments. Such quotations may indeed be about another Member acting unlawfully. However, despite the findings of a court, Members should not verbally abuse other Members, or speak in a manner that does not contribute to meaningful debate in the Chamber, either through name calling or disparaging personal remarks. There will be instances where there is a dispute about the accuracy of the quotation and the PO should be given a discretion in ruling on these matters. This may include studying the Hansard to determine the context and verify facts.

Consideration of Circumstances and Reports on the Application of Rule 53A
Mr Mdakane said on 9 September 2015, Ms M Boroto (ANC) ordered Mr J Malema (EFF) to leave the National Assembly, due to unparliamentary remarks. The Subcommittee acknowledged that the House Chairperson appropriately exercised her discretion in accordance with the circumstances and that the relevant rules and procedures were correctly followed. There was a view that as the incident took place after the business of the day had been concluded, the House Chairperson could have simply adjourned. The determination of the Subcommittee was, however, that the discretion of the PO should not be undermined and the relevant rules were properly complied with.

Mr Mdakane then spoke to the removal of Members on 21 October 2015, in line with a ruling by Ms Didiza. The Members to be removed were identified by name and were automatically suspended by operation of the Rules. The Subcommittee agreed that the circumstances necessitated the application of rule 53A and that the correct procedures were followed. It had decided that the PO therefore took a correct decision.

Mr Mdakane then turned to the removal on 4 May 2016. On that day the Speaker ordered a number of Members to leave the National Assembly for creating a disturbance and disregarding the authority of the PO. Rule 53A was then invoked and PPS were asked to remove the Members. The Subcommittee agreed that the circumstances necessitated the invocation of rule 53A, and found that the correct procedure was followed.

Mr Mdakane said general comments on the application of 53A included:
- Members of the PPS should be in uniform when performing official duties, to assist with identifying who they are
- In circumstances where there is severe chaos, the identification of Members ordered to leave the Chamber will be difficult, and the PO should exercise discretion whether to name each Member
- If the behaviour of members of the public becomes directly or indirectly provocative, the police should be taking care of that space. Attention needs to be given to ensuring that adequate security measures are in place to control the public’s behaviour
- Future reports from POs on the circumstances around rule 53A removals should include feedback from the Serjeant-at-Arms in each case. The Subcommittee had observed that when the Serjeant-at-Arms is requested to ask Members to leave, Members use very unbecoming language, and in future there could be implications for Members who insult staff of Parliament.

Mr Mashile  moved that the report of the Subcommittee on the Rule 53A matters be accepted.

Mr B Radebe (ANC) agreed on that point. He would like to speak, however, to the quoting of court judgments and made the point that this could be done only when the process had been exhausted. The only court judgments not subject to being changed were from the Constitutional Court. In other courts, if the parties had not yet launched an appeal, the judgment might be used to cast aspersions on Members, although the process had not been finalised. On the identification of Members, he felt that the video footage should also be used, because it would be impractical for the PO to name every single Member.

Mr Mthembu said the point was whether court judgements can be cited in the Chamber. Whilst an appeal might follow, the legal position was that there was already a standing judgment by a court. This was a moot point. He agreed with the Subcommittee and the reflection of the Deputy Speaker that the judgments and findings of courts can be quoted. If there is another finding later, it will be brought forward.

Member accepted the report of the Subcommittee, with no objections

Rules Committee Report on Revised Rules: Deliberations
The Chairperson tabled the Committee Report on the Revised Rules, which contained the entire revised Draft Rules. She noted that it would not be necessary for Members to go through every rule as that had been done already.

Mr Xaso made the point that when the EFF was in attendance on a previous occasion, when the Rules were adopted in principle by the majority of Members, the EFF had indicated their objection. Out of fairness, the Report should reflect that objection.

The Chairperson agreed and said that the record would note that.

Ms Mazzone said when this Report was put to the House on Thursday, it would be important to read into the record the clarification about the Constitutional Court judgements, to show that Members had applied their minds to the various rulings. When the Rules were initially discussed, one of the major sources of contention was the change of the order of business. Parliament had a new Chief Whip, and the DA hoped that he would be willing to negotiate on certain things with the order of business, but the DA was in disagreement on the way things were proceeding at present, although consensus had been reached on some points which had led the DA to hope that further attempts to meet each other could be made.

The Chairperson asked what was being proposed on the order of business.

Ms Mazzone said the order of business was contained in rule 29. She stressed that because this is the peoples’ Parliament and the peoples’ business must reign supreme, matters of Members should come before any other business. However, that was not what was expressed in the draft Rules, which is why the DA objected initially, and would continue to do so.

Mr Mdakane noted that a long discussion had been held on this point in 2015 and the parties disagreed. The view expressed previously was that although the parties would attempt to reach consensus, if this was not possible then the majority should then prevail. The objection was noted. There had been engagements on the matter, but the ANC felt strongly that this rule should be as currently presented. He suggested that the Rules must therefore be accepted although there was nothing to prevent further discussions in the Chief Whip's Forum.

The Chairperson said when the Report was presented to the National Assembly, the objections of the DA must be clearly pointed out.

Mr Waters made a final appeal on that point. Effectively pushing Members' business to the bottom of the agenda, almost as a second thought, was not consistent with a people's Parliament. Members are encouraged to bring things to Parliament on behalf of their constituents, and these matters appeared first on the order paper. He asked why now was the emphasis on constituency matters being diminished, and the executive business raised first. He said that this point could be the make or break point for the DA caucus supporting the Rules or not. He said that it would not look good for Parliament if only the ANC were to support the new Rules.

Ms D Dlakude (ANC) said that the Chief Whips' Forum allowed for discussion of issues which they would like to see on the order paper. Members would need to send through those points for discussion at the next sitting of that Forum. There had been many sittings of the Chief Whips’ Forum where these issues were not raised, so she asked why at this point the DA appeared to be grandstanding on the point.

Mr Mashile said this matter was discussed extensively in the Subcommittee. The order paper should prioritise the business of the House. If legislation is to be passed, then the NA must be able to do so. The same applies to the Budget. Everyone has seen how motions and statements can detract from dealing with the business of House. No one was saying that these should not be considered, but it was necessary that the main work of the House by Members would be done. He did not agree that the current wording of the Rules made it difficult to raise constituency matters.

Ms Dudley said that prior to the Fifth Parliament the ACDP would have agreed with the DA’s sentiments. However, given what is taking place, and as Whip for the smaller parties, she could note that the smaller parties were feeling abused by larger opposition parties. The ACDP was not in favour of making changes although it would like to see the rules on motions working properly.

Ms Didiza said there was always space and room for persuasion. At the moment, most Members seemed to be in broad agreement with the Rules, although it was accepted that there was not full agreement on all points. Ms Mazzone was raising the point that the DA understood that there was not full consensus, but that would not prevent the passing of the Rules. During the five-year term Members could continuously engage and attempt to persuade each other. However, there is a point where the Rules must be accepted and a framework put in place from which to work.

The Chairperson said there had been sufficient discussion and airing of views on the Rules over the years, and appealed to Members to now agree that the Rules could be taken to the House for adoption.

Mr Waters said that the DA was proposing, in respect of oral questions to Ministers, that questions should come directly from the floor without notice, as happened in many other democracies. This ensured that Ministers must know their portfolios and allow pertinent issues of the day to be raised, rather than having “stale” questions answered by the time lag between submission of questions and answers when they came to Parliament.

The Chairperson said she understood that the DA was taking advantage of this platform to engage the new Chief Whip. However, she asked if the DA was prepared to agree that the Rules as now framed were accepted and should be taken to the House for adoption.

Mr Waters said they were not and the DA was thus forced to leave.

The Chairperson asked if the DA was walking out, and why?

Mr Waters said the DA was walking out. This was being done because there was no negotiation on the two issues which it had raised. If the ANC wanted to engage, the DA was ready and willing to do so.

Ms Kubayi said the DA Members were being unfair and Mr Waters was attempting to bring in new issues on the pretext that there is a new Chief Whip. Members had sat through a lengthy process and engaged. They should not “throw tantrums” when there was disagreement; the ANC had also compromised on some issues with which it was not entirely comfortable. The DA's disagreement on issues should be clearly indicated and flagged, so that the Report would reflect that. She did not think it was justifiable for the DA to walk out now because there were two issues on which it was not getting its way

Ms Dlakude agreed and said these points were discussed in the Subcommittee, and it was unfair to now try to “smuggle” the issues back again. They had been dealt with although Mr Waters was not part of the meeting. Where there was not agreement when discussing a matter in committee, there was no necessity for Members to walk out. She described this as “cowardice”, and made the point that matters should not be either the DA's way, or no way at all. The DA's point of view was not agreed to by the majority in the Subcommittee. She regarded this as grandstanding and suggested that the DA was “trying to take over from the EFF”. She appealed to the DA to be the reasonable opposition party that it had been in the past.

Dr G Koornhof (ANC) also appealed to the DA to be reasonable. He pointed out that the rule on the order of business noted, in subrule (1) what the order is but (2) stated that this could be altered. An order would be set, and so he failed to understand the new argument that the constituency matters would not appear. They would be there, but the order has changed because it simply had not be workable in the Fifth Parliament. Motions without notice, or formal motions, had not been taken out; they were an addition after the formal business. That was reasonable. He appealed again to the DA  not to grandstand on this issue or dig into trenches. Questions without notice were discussed in different caucuses, and Members came back and agreed, so that he did not regard it as fair play to reopen a debate on the eve of adopting the Rules.

Ms Didiza said that in any engagement or debate, parties to the debate may not get entirely what they wanted on all points. This had been a very long process, and the patience of the Speaker must be applauded, since the Speaker held the view that the Rules should have been passed long ago. However, the Speaker had allowed parties to continue engaging, because the intention was to ensure inclusivity. In that process, all Members moved from their original positions. She gave the example of rule 53A, which the Committee had just discussed. Originally, the parties were at completely different points, but they moved towards each other. Even on the issue of the PPS, the ANC had initially taken the stance of sticking by what was contained in the Powers and Privileges Act, which mentioned security services, but was later persuaded, and came to the compromise of having the PPS. These were just illustrations of how Members' positions had been fluid as the process of discussion unfolded. Specifically on questions without notice, Members could appreciate the need for spontaneity but in fact a hybrid situation is in place. There are written questions for oral reply, and follow up questions which no Minister could be expected to answer off the top of his or her head, if they were of a very technical nature. If answers were given immediately and were incorrect, Members would be able to claim that the Minister had lied. She urged that the current hybrid system should be retained for the stage at which South Africa found its democracy. It would be ideal to simply have questions from the floor but she would argue that South Africa was not at the stage where this was possible.

As the interim Rules showed, there was a process of continuous engagement. If in August a Member feels that a particular rule ought to be revised, then there was nothing to say that the Speaker would not allow that to be looked into. One example of this was the recent concern raised by Mr Steenhuisen, which had been looked into. This had always been the practice. She urged that Members should not create the situation where their political posturing meant that the needs of the country were not put first. There were points at which party interest must be put aside, in the interests of moving forward. She again urged the DA to regard this as a matter on which there could be continuous engagement. However, the framework had to be set. She said she did not think it would be correct or a good example of leadership for the DA to walk away after the long journey travelled.

Mr Waters said he did not think using words like “tantrums”, “childish” or drawing comparisons with the EFF boded well when trying to reach compromises. Nobody had raised their voices in a tantrum, and Members had engaged throughout as adults. He had not tried to “smuggle” anything in at the eleventh hour. The DA was not trying to outdo the EFF. Speaking to the questions, he noted that while there were follow-up questions, the Minister would not know what was to come, and when Members were restricted to the original questions, they could often be outdated and stale. Questions must be submitted fourteen days beforehand, and by the time they were discussed, those issues had long ceased to be immediate and relevant. The media cycle and events move quickly and Members should be raising issues which are affecting a particular Department on that day. He did not agree that there was a hybrid system. He also asserted that the DA was indeed putting the country and Parliament first, because it wants the business of MPs and constituents to be first on the agenda, not last, and take precedence in time over issues of the executive. He did not think it would be possible to reach a compromise. The Rules would be presented to the caucus, which would decide whether to accept this Rule. However, he did not see any point in remaining, and he repeated that the DA Members would be leaving. 

Mr Mashile said that the intention of asking questions in the House was to source responses for a Member's constituency. Therefore, it is important that Members should receive a full and well thought out response. Even a spontaneous follow up based on the written question meant that the Minister had prepared on an area. If a question is asked around a matter which the Minister is not even aware of, and the Minister asks to come back on the issue, that too does not achieve anything. Members should understand that it is more beneficial to receive a comprehensive and planned response on behalf of their constituency.

The Chairperson noted that the walk-out by the three DA Members meant that there was no longer a quorum.

Mr Xaso said 23 Members are required and the Committee must look to whether it was possible to co-opt other Members to adopt the Rules.

Ms Dudley said the ACDP would like to see the issue of questions put on the order paper, to find a way to update those questions and ensure matters raised were more current. The ACDP would like to see this issue back on the agenda of the Rules Committee.

The Chairperson said this would be part of the on-going discussion, but should not obstruct the adoption of the Rules.

Ms Dudley agreed. She made the point that if people came to listen to debates, but had to leave late in the evening without their matters having been debated that was inconsistent with having a people's Parliament. 

Ms Kilian said it was disingenuous of the DA to come with these proposals. The Western Cape Provincial Legislature did not have a similar provision to the one that Mr Waters was now wanting to “foist upon” the national Parliament, and he was using this to blackmail the Committee. The sequence of business in the Western Cape Legislature also did not follow through any similar structure to the Programming Committee, where parties can participate on what goes onto the order paper. Instead, there was a very small group of the governing party determining what the sequence of proceedings would be. For this reason she thought it was utterly disingenuous of the DA to bring this argument, more than a year into the process, having removed Members from the Subcommittee, and eventually agreeing that rule 29 was fair. There was, to her mind, a fair balance between processing the orders of the governing party, while at the same time giving opportunity for all parties, including small parties, to participate and move motions. It was a pity this had been done. The previous representatives of the DA in the Subcommittee had understood the issues. That was the major problem, that every time representatives had agreed to something in a meeting, they tended to be moved. Over the years it had been seen that new elements coming in could destroy the agreements virtually reached and suddenly it appeared that the largest opposition party wanted to renegotiate everything.

In the meantime the process to co-opt Members had been followed.

Mr Xaso indicated that the Members had been co-opted under rule 134, and with the addition of Ms M Matshoba (ANC), Ms G Tseke (ANC) and Mr L Khorai (ANC), the meeting had now quorated.

He noted that there are guidelines which are to be accepted by the Rules Committee and other guidelines to be agreed to by the Programming Committee, dealing with the declaration of vote on the main Appropriation Bill. Those would be taken out of the Rules Committee’s Report and taken to the Programming Committee.

The Chairperson said that, for the record, further Members were continuing to enter the venue, and so there was no fault with the procedure.

Mr Mdakane formally moved for the adoption of the Rules as presented by the Subcommittee, and was seconded by Mr Mpumlwana.

The Chairperson asked the Members present if there were any objections to the Rules then being presented for adoption at the plenary sitting on the following Thursday. None were noted. She announced that this being the case, the Committee would be able to report that it was proposing an amended and agreed-to set of Rules, in the House.

The meeting was adjourned.


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