Joint Rules amendments arising from 9th Edition of National Assembly Rules

Rules of the National Assembly

21 October 2016
Chairperson: Mr R Mdakane (ANC) Chair: Subcommittee on Review of National Assembly Rules
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Meeting Summary

National Assembly Rules  9th Edition : May 2016
Joint Rules 6th Edition : June 2011

The Committee held a workshop to discuss the amendments to the Joint Rules arising from the 9th Edition of the National Assembly Rules. The new Joint Rules responded comprehensively to the principles and detailed provisions of the Constitution relating to the mandate and functions of the two Houses. The Joint Rules had their origin in particular in Section 45 of the Constitution. The Joint Rules on discipline and procedure in particular would need attention. There are a range of matters in the NA Rules that in the nature of things do not need to be covered in the Joint Rules, including commencement of a session, election of presiding officers, general authority of the Speaker, whips' functions, members' attendance and programming of House business and mini-plenaries. There is a need to check, however, that attendance of a joint sitting or a joint committee is covered in the NA Rules. There is also a need to take into the declaration of private interests (NA Rule 30), the raising of a question of privilege (NA Rule 31) as well as interruption, suspension or adjournment of proceedings (NA Rule 48).

Chapter 3 and Chapter 4 on legislative process covered by far the largest part of the Joint Rules. The range of different joint committees would need to be revised quite extensively. The joint committee system is informed directly by sec 45 of the Constitution. The NA Rules provide in Rule 150(4) that the Assembly participates in joint committees and other structures in accordance with the Joint Rules. The Joint Rules could be adjusted to conform to the revised NA Rules as appropriate. It will be important to distinguish between joint committees that are made up of two House components, and committees of the two Houses meeting jointly. It was also made clear that there is no quorum requirement in respect of joint committees (ref JR 27). The process of decision-taking varies according to how the joint committees are composed. The composition of the Assembly component as well as the decision-taking in the Joint Programme Committee would have to be reviewed in the light of the revised NA Rules.

Members proposed that the Committee would need to review the exact function of the Joint Rules as envisioned in the Constitution. There are specific provisions in the Constitution that are speaking about the powers of the National Council of Provinces (NCOP) and National Assembly. The Constitution is also clear on the functions of a joint committee and the appropriate time in which a joint committee should be called to convene. It was clear at the moment that the joint committees are called for other reasons that are outside the scope of what is stipulated in the Constitution. A member felt that the Committee need to consider the problems that are arising from local government as this was often ignored and there was a need to have oversight on the House of Traditional Leaders and they should be located somewhere.

One Member noted that attention should be paid from section 42 of the Constitution onwards when discussing the composition of Parliament. Section 42 makes it very clear that Parliament consisted of the NA and the NCOP participate in the legislative process in the manner set out in the Constitution. Members also suggested that it would be important for the State Law Advisers to point out problematic rules where Parliament could have created systems that could be in contravention to the Constitution. It was concerning to see the number of cases where Parliament had been taken to the Constitutional Court. The Committee should look into which House was supposed to institute discipline in a joint sitting. It was unclear if an NCOP Presiding Officer could institute discipline over a Member of the NA during a joint sitting. The Committee was still to find a date that would be suitable for Members of the NCOP to have a further engagement on the amendments to Joint Rules.

Meeting report

The Chairperson indicated that the purpose of the meeting was to do preliminary work that would identify key areas to be discussed and proposed when the Committee is meeting with Members of the National Council of Provinces (NCOP). There are a lot of areas that would need to be discussed further with the colleagues from the NCOP and the Committee would need to be well prepared when this engagement takes place. It is important to highlight that there are already matters that had been flagged last year around Joint Rules.

Ms J Kilian (ANC) stated that the Committee would need to also review the exact function of the Joint Rules as envisioned in the Constitution. There are specific provisions in the Constitution that are speaking about the powers of the NCOP and National Assembly. The Constitution is also clear on the functions of a joint committee and the appropriate time in which a joint committee should be called to convene. It was clear at the moment that joint committees are called for other reasons that are outside the scope of what is stipulated in the Constitution. The Committee should look into the scope of the Joint Rules. There would also be a need to look at the key mandates and functions of both the NCOP and NA.

Mr M Booi (ANC) said that the Committee should also consider the problems arising in local government as this was often ignored in most cases by Parliament. The Committee should also focus on the House of Traditional Leaders and how they would be located in this whole process of amendments to the Joint Rules arising from the 9th Edition of the National Assembly Rules.

The Chairperson added that the purpose of the workshop is to provide clarity on the review of the Joint Rules and identify critical matters that would require input of different political parties to delve into topical matters. The purpose of the meeting today really is also to look at the scope of work of the Committee and how the Committee is going to work with the NCOP. The matters that had been discussed by Members would certainly be covered in the briefing document on Joint Rules.

Mr Booi mentioned that there are areas that have not been covered properly including the House of Traditional Leaders. The House of Traditional Leaders is appropriated funds in order to be able to operate and there is nothing to ensure that those funds are spent accountably. It could not be correct for Parliament not to follow the money that is appropriated to the House of Traditional Leaders as a form of accountability.

Joint Rules briefing
Mr Kasper Hahndiek, Consultant to Parliament, indicated that the Joint Rules of Parliament were developed and adopted after the formal adoption of the Constitution of 1996 which led to the establishment of a bicameral Parliament consisting of the National Assembly and the National Council of Provinces. The new Joint Rules responded comprehensively to the principles and detailed provisions of the Constitution relating to the mandate and functions of the two Houses. The Joint Rules have their origin in particular in section 45 of the Constitution which states:
"(1) The National Assembly and the National Council of Provinces must establish a Joint Rules committee to make rules and orders concerning the joint business of the Assembly and Council, including rules and orders - (a) to determine procedures to facilitate the legislative process, including setting a time limit for completing any step in the process; (b) to establish joint committees of representatives from both the Assembly and the Council to consider and report on Bills envisaged in sections 74 and 75 that are referred to such a committee; (c) to establish a joint committee to review the Constitution at least annually; and (d) to regulate the business of –
the Joint Rules committee;
the Mediation Committee;
the constitutional review committee; and
any joint committees established in terms of paragraph (b)".

Mr Hahndiek said that following on the recent comprehensive revision of the rules of both the Assembly and the Council, the Joint Rules also need to be revised and adjusted consequentially. The current Joint Rules are the 6th Edition of June 2011, which were further amended in November 2015 although those amendments have not yet been incorporated into the rule book. It will be immediately apparent that the Joint Rules for the most part concern the joint committee system and the joint legislative process. It must be made clear that the Joint Rules should not govern nor override the separate Rules of the Assembly and the Council. In the Assembly Rules, the House rules precede the Joint Rules in the “Sources of authority” (Rule 2). The Joint Rules on discipline and procedure in particular will need attention. There are a range of matters in the NA Rules that in the nature of things do not need to be covered in the Joint Rules, including commencement of a session, election of presiding officers, general authority of the Speaker, whips' functions, members' attendance and programming of House business and mini-plenaries. (c) Check however that attendance of a joint sitting or a joint committee is covered in the NA Rules. (d) Consider also including declaration of private interests (NA Rule 30), the raising of a question of privilege (NA Rule 31) as well as interruption, suspension or adjournment of proceedings (NA Rule 48). A new Joint Rule 14GA was adopted in November 2015 covering removal of a member from the Chamber. These Rules need to be adjusted to conform with Assembly Rules 63 – 77 where appropriate.

Mr Hahndiek highlighted that Chapter 3 and Chapter 4 on legislative process cover by far the largest part of the Joint Rules. The range of different joint committees will need to be revised quite extensively, as will become apparent. The Joint Committee system is informed directly by section 45 of the Constitution. The NA Rules provide in Rule 150(4) that the Assembly participates in joint committees and other structures in accordance with the Joint Rules. The Joint Rules can be adjusted to conform to the revised NA Rules as appropriate but it will be important to distinguish between joint committees that are made up of two House components, and committees of the two Houses meeting jointly. Provision is also made for committees of the two Houses “conferring” which is dealt with in Joint Rules 147 – 148. There is no quorum requirement in respect of joint committees (ref JR 27). Decision-taking varies according to how the joint committees are composed. The composition of the Assembly component as well as the decision-taking in the Joint Programme Committee would have to be reviewed in the light of the revised NA Rules.

Discussion
The Chairperson reiterated that the purpose of the meeting was to have a discussion on the amendments that had been made to the Joint Rules and the proposals to be made when having an engagement with Members of the NCOP.

Ms Kilian appreciated the extensive amount of work that had been done by Mr Hahndiek as this would assist the Committee to have an overarching view of what needed to be done. It was also clear some of the issues that Members wanted addressed. However, it was concerning to see reference to section 45 of the Constitution instead of section 42 as this is the section that was in particular discussing the composition of Parliament and the basic tenets. Section 42 is making it very clear that Parliament consists of the NA and the NCOP that participate in the legislative process in the manner set out in the Constitution. It also makes it clear that the NA is elected to represent the people and ensure good governance and accountability by choosing the President, providing the national quorum on important issues and scrutinising and performing oversight over the Executive. Section 42 also describes the different role that is supposed to be played by the NCOP and this included ensuring the provincial interests are taken into account in the national sphere of government and this is done by participating in the national legislative forum and taking forward all the issues that are affecting the provincial spheres of government. The constituencies of Members of Parliament are located at the provincial level and there are multiparty elected representatives that would be ultimately dependent on the outcome of any election.

Ms Kilian reiterated that the Committee would have to look at its scope and the Committee should perhaps prevent what had gone wrong in the NCOP Joint Rules although the Committee did not have a mandate for working on the NCOP Rules. It would perhaps be important for the State Law Advisers to point out all the problematic rules where Parliament could have created systems possibly in contravention to the Constitution. It was concerning to see a number of cases where Parliament had been taken to the Constitutional Court. It certainly could not be proper for the Committee to be writing rules that would be overstretching the role of the Joint Rules and Parliament joint sitting.

Mr B Mashile (ANC) supported the proposal for the State Law Advisers to come up with rules that could be interpreted to have extended theirs above the Constitution. It was also absolutely right that Members of the NA are also representatives at the provincial level and every province is represented at the NA. It was also concerning to see that there are hardly any delegations from the House of Traditional Leaders in most meetings except in cases where there is a State of the Nation Address (SONA). The briefing document was indeed referring to some of the issues that had been flagged by Members earlier. It also provides context to some of the underlying matters that brought about suggested amendments to the Joint Rules arising from the 9th Edition of the National Assembly Rules.

Mr Booi mentioned that the Committee would need to draft rules that would closely align to the Constitution as the country is a constitutional state and constitutional democracy. It would be pointless to make rules that would not be constitutionally compliant. It would important for the Committee to also allow members of the public to express their views on the amendments to the Joint Rules. The Committee would also need to take into consideration the proposal of the IFP for the country to adopt a federal system, which would allow people from very diverse circumstances, in very different places, to tailor their own solutions to their specific problems.

Adv Anthony Mitchell, Chief of Staff: IFP; wanted to make it clear that the party would support a full and not a consequential revision of the Joint Rules. The party agreed with the suggestion that the State Law Advisers would need to go through all the rules and ensure that they all pass constitutional muster before getting into the practice of such rules. The IFP was indeed in support of the federal system.

Adv Frank Jenkins, Parliamentary Senior Legal Adviser; indicated that there is always a difference in discipline and maintaining order. There seemed not be any problem in rules in regard to the Presiding Officer maintaining order in the House. However, the way the rules are working at the moment in “dishing out discipline” based on the automatic suspension. 

Ms Kilian said that Joint Rules 14(j) is quite clear on how the Presiding Officer is supposed to institute discipline to unruly Members in a joint sitting. The Committee should not be “found wanting” in the proposed amendments that are aimed at dealing with gross disorderly conduct of Members of Parliament.

The Chairperson noted that there is nothing that was going to stop Parliament from setting up rules that would be aimed at ensuring that Members are able to operate in a conducive environment. It would be problematic for a Presiding Officer to wait for another House to make a decision on a Member of Parliament who was behaving in a disorderly manner in a joint sitting.

Mr Booi stated that the Committee should look into the Constitution on which House was supposed to institute discipline in a joint sitting and this was aimed at ensuring that the amendments are consistent with the provisions in the Constitution. It was unclear at the moment if a Presiding Officer from the NCOP could institute discipline over a Member of the NA during a joint sitting. The Constitution is not clear on the difference between the NCOP Chairperson and Speaker.

Mr Hahndiek responded that it could not be contested if both Houses agree on a particular discipline that had been instituted to a Member of Parliament. Joint Rule 96 does offer that the decision-taking in the Joint Programme Committee could be reviewed in the Constitutional Court and this was in the light of the revised NA Rules. Joint Rule 11 is quite clear that the relief of a Presiding Officer is not limited to the chairperson of the NCOP or Speaker as a range of people could assume the position of being a Speaker.

Ms Kilian said that the NCOP basically derives its mandate from the provincial election, meaning the election outcomes of a particular province. It must be made clear that there is no such thing as an “NCOP list” as there is only a provincial list and the nominees that ultimately come to the NCOP come from that provincial list and this needed to be taken into consideration. Section 45 is quite clear that a Joint Rules Committee could be established to make rules and orders concerning joint sittings and this included law and order.

The Chairperson stated that there are numbers of issues that the State Law Advisers would need to look into and make proposals for discussion at the next engagement. The NCOP could have public hearings or public involvement on the amendments to the Joint Rules arising from the 9th Edition of the National Assembly Rules. The Committee would also need to look into the possibility of having joint public hearings with the NCOP and whether this was permissible in accordance with the Constitution. The purpose of this meeting was essentially to do preliminary work and identify issues that would need further engagement and interrogation. There is a possibility that the NCOP could also bring on board a number of complicated matters to be considered in the Joint Rules. It was clear at the moment that public participation was a bigger issue and there is no law that would be allowed to pass without involving the general public and this must be taken seriously by the Committee. The Committee would also need to be very detailed when meeting with the NCOP about proposals and the rationale behind those proposals.

Ms Ayesha Johaar, Deputy Chief State Law Adviser: Officer of Chief State Law Adviser (OCSLA), clarified that some of the rules are not constitutionally mandated but mandated by other existing laws. It would be within the Committee to decide on how the South African Local Government Association (SALGA) or House of Traditional Leaders would participate within the amendments to the Joint Rules as these are not the elected structures.

Mr Hahndiek suggested that perhaps the Committee would firstly need to hear the proposals of the NCOP before proceeding with its proposals on the Joint Rules.

The Chairperson added that the Committee would need to find a date that would also be suitable for Members of the NCOP in order to have a further engagement on the amendments to the Joint Rules. The Committee had already identified some of the Rules that needed to be looked into and those that the State Law Advisers still needed to look into.

The meeting was adjourned.

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