NCOP Rules review : 9th edition; Draft Guidelines on Petitions; Draft Guidelines on Executive Undertakings

NCOP Rules of the National Council of Provinces

08 September 2016
Chairperson: Dr H Mateme (ANC, Limpopo)
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Meeting Summary

The Subcommittee continued to consider the review of the NCOP Rules, 9th edition. At the outset it was clarified that this was a draft that should still be considered as work in progress. Draft Guidelines on petitions and on executive undertakings were also presented for discussion.

A UDM Member pointed out that he had not received invitations to attend previous meetings and for that reason had not had the opportunity to submit any amendments to the meeting for consideration. It was clarified that only those parties represented on the Subcommittee had been invited, but it was generally agreed that all parties should be given the opportunity to contribute to the draft and that additional comments would be considered.

The draft guidelines on petitions and executive undertakings was presented and explained by a Member who had chaired that respective committee for some time. The guidelines highlighted that petitions could be submitted in any language, and it was recommended that a designated person in Parliament should receive and catalogue them. The committee might be able to delegate. In respect of executive undertakings, the committee dealing with these should be able to undertake inspections, and require the presence of any person. This was a preliminary draft only and subject to further discussion.

In going through the Rules, Members noted that the issue of party whips was not initially included but would be in future, and the point was made that any structures were put in place, they should be functional and efficient. The system around whips was explained; a party with more than seven members was entitled to representation through a Whip, and all Members agreed that multiparty representation was desirable. There was discussion on why premiers were appointed as Deputy Chairpersons, instead of other delegates. The EFF regarded the rules around the Parliamentary Protection Services as unconstitutional, and the comments were noted. It was agreed that instead of appointing a provincial whip should the Chairperson be absent, it would be preferable to allow appointment of any other delegate. Members commented that the functions of the provincial whips were not clear. It was suggested that provisions were needed for replacing a Chairperson who overruled the Committee's resolutions. The positions of House Whip and Chairperson should not be conflated. It was suggested that the same rules should apply to committee chairpersons and Chief Whips.

Meeting report

Opening remarks
The Chairperson expressed appreciation for the efforts of the opposition parties, particularly the DA and the EFF, in putting their submissions through to the Office of the Chief Whip. She said that the Committee had now produced a draft of the NCOP Rules (the Rules) and the purpose of this meeting was to further fine-tune that draft.

Mr G Michalakis (DA, Free State) asked  if it was possible for Members to submit further proposals and changes once the draft had been dealt with in this meeting.

The Chairperson said that proposals would be welcome.

Minutes adoption
Members adopted the Minutes, but under “Matters Arising”, Mr Michalakis pointed out that some of the submissions that opposition parties sent through were included, but others were not. He asked if there was any particular reason for this.

The Chairperson said that it was impossible to achieve everything in one process and that it would take time. She asked that Members follow the agenda for this meeting.

Mr L Gaehler (UDM, Eastern Cape) said that there were five parties in the NCOP, and he requested that other parties like the UDM and IFP be given the opportunity to submit their comment and requests as well. He had not been invited to the meeting in which the submissions were requested.

The Chairperson asked why some members were not being invited to Subcommittee meetings.

Adv Noinyane, Parliamentary official, responded that some meetings of the subcommittee had invited only Members from the particular Subcommittee on Rules.

Ms T Mokwele (EFF, North West) said that the Committee was now deviating from the agenda that was adopted. She suggested that if there was a need to clarify such other issues then this could be discussed at another meeting.

Draft guidelines
The Chairperson asked that the draft be presented, and in the process, perhaps it would be explained why some submissions had not been taken into consideration or incorporated in the current draft.

Mr S Thobejane (ANC, Limpopo) said that the guidelines for the draft petitions were developed to give realisation to sections 17 and 69(d) of the Constitution which allowed for petitions to be submitted to the NCOP. The NCOP sought to respect and protect petitioners so that they could get their concerns across. The right to petition was open to every member of society so that they could state their views.

Petitions could be forwarded to the NCOP in any language so that every petitioner would be more easily available to get their point across. The petitioner needed to feel comfortable and confident that Parliament would act on their requests. Having an office that received all petitions would help a lot in storing records of all petitions and the person who petitioned, so that this person could be contacted in future for any purpose regarding the petition. He pointed out that if petitions were directed to particular Members, then this would require more attention. For this reason powers of the Committee had been specified that allowed the Committee to determine its own procedure.

In respect of all matters relating to the consideration of Executive Undertakings, the Committee could undertake a spot study visit or inspection in loco in order to have first-hand information and ascertain facts relating to the implementation of a particular Executive Undertaking. The Committee had the power to require the attendance of any person, including a Minister or Head of Department, with a view to obtaining first-hand information on pending Executive Undertakings and ensuring their timeous implementation.

The Committee could delegate some of the petitions, so that it would not necessarily have to consider all of them. Not all petitions could be referred to the National Assembly. The Committee was required to be accountable for all petitions at the end of the day.

The Chairperson asked for clarity if the office of the Select Committee on Petitions and Executive Undertaking was proposing a separate office for petitions, or a dedicated officer.

Mr Michalakis commended the work of Mr Thobejane, who also served on the Petitions Committee which received a lot of petitions. He recommended that a single named person be in charge of petitions, whether or not that person worked for the National Assembly. He believed that the sole responsibility would be receiving petitions and that person would determine if it was a matter for the National Assembly or the NCOP.

Mr Gaehler asked for clarity as to what would happen when a petition was submitted; would a petitioner be allowed to sit on the committee determining them if it could benefit him financially or otherwise.

Adv Noinyane said that if there was a matter in which any Member had a particular interest, he or she would need to be upfront before the meeting started, or recuse him or herself if there was a conflict of interest.

The Chairperson proposed that the Subcommittee on Petitions Draft Guidelines be considered as work in progress. There were some issues with the current draft and there was no need to rush it through to completion.

The Chairperson added that the Executive Undertakings would need to be monitored, and  Members carrying out Executive Undertaking investigations should not be limited to time constraints.

Ms C Labuschagne (DA, Western Cape) said that Ministers were present in executive committees from time and time and carried out Executive Undertaking functions. She said that a full list of Executive Undertaking should be the ideal, without interference from Ministers.

The Chairperson said that the proposal of having a separate office for petitions and undertakings would handle all these issues. Work was in progress. She conceded that the current system was not perfect.

Mr Thobejane said that there was not a suggestion from the Subcommittee that the Office on Petitions and Executive Undertakings was incompetent to carry out their job.

Review of Rules
Adv Noinyane presented the summary of decisions of the Subcommittee. He said that Members brought in inputs from their respective political parties and in principle they had reached agreement on several issues. Where there were issues that were still not agreed upon, Members had requested these to be separately reflected. Matters that were agreed on were included in the draft in blue and underlined.

Mr Gaehler was happy with the reasons given by Adv Noinyane. However, he repeated that all political parties in the NCOP, whether part of the Subcommittee or not ,should have been given an opportunity to submit their contributions.

The Chairperson agreed with Mr Gaehler and said all political parties should be given an opportunity

Mr J Nyambi (ANC, Mpumalanga) requested that Committee Members be allowed to ask for clarity on points at issue, instead of running through the entire presentation. Members had already been given an opportunity to study the document.

Ms Mokwele pointed to rule 13C on page 2, and said that she did not recall discussing the participation of political parties. The Committee took it that participation was being dealt with through the whip.

Mr Noinyane said that the issue of party whips was not initially in the NCOP Rules (the Rules), but it was something that the Subcommiteee had agreed needed to be included in the Rules.

Ms Mokwele said the Constitution covered political party representation and therefore party whips should be included.

Mr P Parkies (ANC, Free State) said that the Subcommittee should avoid putting in place structures just for the sake of having them, but rather concentrate on setting up structures that were functional and efficient. This had been agreed to, in the meeting on 07 September 2016.

Ms Labuschagne said that it was never clear that a Provincial Whip meeting would take place and that there would be a multiparty Whips Forum, therefore there should be clear definitions in the draft.

Mr Gaehler asked for clarity on section 13C (3).

Adv Noinyane said that there was a standing policy that emphasized that a party with more than seven members was entitled to representation with a Whip. The Subcommittee would have to decide on whether to accommodate other parties into the structures. If a party had less than seven members they were entitled to a party representative.

Ms Labuschagne proposed that the draft include an amendment that recognised parties with less than seven members as entitled to have a representative, and those with more than seven to have a party whip. Smaller parties should not be excluded from programming meetings just because they had less members than other parties.

Mr Parkies asked that the wording that referred to membership should be removed, which he thought would result in all parties being represented.

The Chairperson noted agreement from Members that there should be multiparty representation.

Mr Michalakis said that the position of Deputy Chairperson tended to be a ceremonial position, and perhaps there was a need to make this post a permanent one.

Mr Noinyane said the NCOP needed to have a Chairperson plus two delegates who were permanent. The Constitution supported this by saying that the Chairperson plus one delegate was to be drawn from the permanent delegates. It was not specified from which list the third delegate would be drawn.

Mr Michalakis said that there needed to be an understanding of the rationale behind why Premiers were appointed as Deputy Chairpersons, instead of any other delegate.

Ms Mokwele pointed to rule 38, regarding the Parliamentary Protection Services, and that the removal of Members from Parliament by Parliamentary Protection Services. She submitted that this  was unconstitutional and the EFF were opposed to this rule.

The Chairperson said that Members needed to get out of “the protest attitude” and make the NCOP the institution it was envisioned to be.

Mr Nyambi said that the provision as presently worded did not have any significant problems. Parliamentary Protection Services followed a protocol, where they would request members to leave. If members'  behaviour continued to be disruptive then the Parliamentary Protection Services could physically remove the member. This, however, would happen only in worst case scenarios where the Member on the podium was not being afforded the proper opportunity to preside over the House.

Ms Mokwele said that the rules for Security Services and those for the Parliamentary Protection Services were different. Her quarrel was with the rules for the Security Services. The EFF was being singled out in the past, and that was why it had not been prepared to submit to the rule.

The Chairperson noted her point, but also said that it was recognised that at this stage the draft was not perfect, but it was work in progress. She asked that the Subcommittee should move on.

The Chairperson asked for clarity on rule 13B.

Mr Noinyane said if the Chairperson was absent for a period of more than three months, this would result in the appointment of an Acting Chief Whip.

The Chairperson said that whenever she was not able to attend, she had always delegated someone who would take over in her absence.

Mr Michalakis said that instead of appointing a Provincial Whip in the absence of The Chairperson, he would rather see the appointment of any of the delegates, so that there would not be any conflict of interest with a Whip who would also be voting for their province.

The Chairperson agreed with Mr Michalakis.

Mr Gaehler said that rule 116 (2) needed to be resolved. 

Ms Mokwele said that the functions of the Provincial Whip were not clear, and they failed the Committee in terms of negotiating mandates from provinces or communicating properly with delegates.

Mr Michalakis agreed with Ms Mokwele that he had a similar encounter where the Provincial Whip acted unilaterally and contrary to what the provincial delegate proposed.

The Chairperson repeated again that the draft was in the initial phase, and all the comments were being noted.

Mr Michalakis said that there needed to be provision for replacing chairpersons of a Committee if they overruled what the Committee had agreed on.

Adv Noinyane pointed to rule 91, which defined how a Chairperson should be elected and rule 92 that dealt with appointing an Acting Chairperson in the absence of the Chairperson. He asked Members to point out any gaps that they might believe existed, for noting.

Adv M  Phindela, Secretary to National Council of Provinces, asked Members to reconsider if they would like the House Chair to represent two houses, because this would conflate the roles of the House Whip and the Chairperson.

Ms Mokwele agreed with Mr Phindela and said that was why she asked earlier that the Subcommittee should clarify the functions of the House Whip.

Adv Phindela said that process was more cumbersome.

Mr Michalakis said that instances where a committee Chairperson might be ill for protracted periods, or die, s/he could be replaced. In the political environment a committee could move to a vote of no confidence in the Chairperson and he or she would be removed. He then asked why the same conditions or rules should not apply to both the Chairpersons and Chief Whips.

The Chairperson said that there needed to be stability at the committee Chairperson level.

Ms Labuschagne said that the functions of the chairperson of a Committee were not spelt out in the new rules. If the functions were not defined, issues would persist in programming and other areas where difficulties had already been suggested. She said that there was a need to have clear guidelines.

Ms Mokwele and Mr Nyambi suggested that given the lateness of the hour, the remaining work should continue on another date.

Mr Michalakis suggested that it might be better to take a short break and work on the programme.

The Chairperson suggested the Subcommittee should set aside a full day on 22 September 2016, and adjourned the  meeting. .


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