Rules of the National Assembly 9th Edition
The Committee met to adopt the Report of the Subcommittee on its Review of Assembly Rules, which had met on 14 October 2016 to look into the procedure for motions without notice. The EFF was not present. The Chairperson of the Subcommittee took members through the proposals. The first related to motions without notice where it was proposed that a group of five, consisting of a member from the ruling party, a member from the official opposition and members from three of the other 13 parties should sit with the Secretary of the National Assembly (NA), thirty minutes prior to a sitting, to note whether or not they wished to object to a notice without motion. If they did object, the motion could not be read. If they did not object it would go through. If one MP resiled from the party line, the motion would not be put to the House but would be regarded as a motion without notice from the individual.
The Subcommittee presented the outcome of discussions also on Chapter 10. Editing of questions, in relation to rule 134, would be done not on the content but was intended to ensure that the language used was not denigrating or offensive; any questions with offensive language would be disallowed. Members discussed whether this was a restriction on freedom of speech but most were in agreement that it was possible to disagree without being disrespectful or derogatory. Guidelines were proposed for questions to the President and Deputy President, and these were to the effect that the questions would not be asked if responsibility had been delegated to ministers, and where new responsibilities were given to ministers, the Speaker would have to be informed of that formally. Rule 137(7) dealt with the form and arrangement of questions and the Subcommittee agreed that members could stand-in to pose questions if the originally designated member was unavailable to read the question. Rule 136 dealt with monitoring of questions – and again this was not about political content but was designed to ensure that a procedure would be followed if a Minister did not answer the question. A subcommittee would be appointed, chaired preferably by the Deputy Speaker, who would then follow through with the final procedure coming back to the Rules Committee.
The DA suggested that because rules 103 and 104 made clear provision for recordal of names, electronic voting should follow a similar system and proposed a change to rule 115 to make it clear that all members present should vote or record an abstention, and that members' names should be printed in the Minutes of Proceedings.
These suggestions were approved.
During their discussion Members made the point that any editing of a member's questions had to be done in consultation with the members. The point was also made that in the past some members had changed the wording of motions after they had been vetted but before presentation and there should be provision for that in the Rules. Some felt that all members had the right to question statements by Deputy Ministers during questions to the President. Other members pointed out that the rationale behind criticisms of House decisions was that it was presupposed that all decisions had been taken by a proper democratic process. A proposal was made that in relation to the removal of Speaker or Deputy Speaker, the guidelines should cover voting by secret ballot, but the ANC was not in favour of that, saying that the Constitution did not provide for it. Other suggestions were to reduce the formula for whips from 1 for 6 members, to 1 for 4 members and a Member asked for additional support staff as well, if the finances allowed it. There was a proposal that the forum where party leaders met with presiding officers should be extended to include party whips. All these proposals would be referred back to the Subcommittee.
The Chairperson noted that the EFF did not appear to be present.
The Committee Secretary noted that matters arising from the previous meeting would be discussed under the report of the Subcommittee on the Review of the NA Rules (the Subcommittee)
Report back by the Subcommittee on Review of National Assembly (NA) Rules
Mr R Mdakane (ANC) reported that the Subcommittee had met on the 14 October 2016 to look into the procedure for motions without notice.
Motions without notice
The Subcommittee had then made proposals that set a role for the governing party, the official opposition and three other parties (meaning any other of the 13 official parties in Parliament). If there was a motion presented for consideration; the ANC, DA and three other parties of the National Assembly would sit with the Secretary of the National Assembly (NA) 30 minutes before a sitting took place, to say whether they were objecting to the motion without notice which had been suggested. presented. If there was an objection from the group of five parties the motion would not be allowed to be read in the plenary sitting of the House. Rule 123 set guidelines in the rules on what was a motion without notice. Mr Mdakane said that the Subcommittee had agreed on (i) because it was important for Parliament to avoid allowing people to come into the Chamber to read a motion that was insulting a party or an individual.
He stressed that this was not an attempt to censor any Member of Parliament (MP). If the five parties agreed that there were no issues with a motion without notice, then it could be read.
Subsection (ii) had been a legal issue generally in that the Subcommittee agreed that all MPs were party members and as individual, MPs were protected but if there was one MP out of the party line who then decided to agree with a motion which his or her party had disagreed with, that motion would not be put to the House for voting but would be accepted and submitted as a motion without notice from the individual MP.
He added that any pending motions without notice had been suspended until the Rules Committee had considered and voted on the work done by the Subcommittee.
He further noted that guidelines were in place, to assist the presiding officers in implementing the Rules and were not to replace them.
Appointment and responsibilities of whips
Mr Mdakane also said that in relation to the appointment and responsibilities of whips, parties could come together in terms of rule 33(3)(a). This had now been expanded up on by the Subcommittee. If political parties did not qualify to have a whip because they had less than six members in Parliament, they could combine and approach the Speaker with a signed request to consider a whip for the smaller parties. Party leaders had to be amongst those signing. If the Speaker then agrees the proceedings would go unhindered.
Chapter 6 Decision of Questions
The Subcommittee had thought it best to clarify the procedure to be followed for both the manual and electronic voting systems, and that explained the changes made there
Chapter 10: Questions
Rule 134. Notice and placing of questions
Mr Mdakane drew attention to rule 134(6), which said that if a notice of a question is not consistent with these rules or any guidelines that may be approved by the Rules Committee, the Speaker may either amend the question or return it to the member who submitted it.
Mr Mdakane said that the Subcommittee had affirmed that editing of questions would relate not to the content, but the language; this would probably apply if the language being used was considered to be denigrating or offending. The general form and content to be contained in a Parliamentary question had been discussed and agreed upon by the Subcommittee and so in the future any questions with offensive language, and those that were not really a matter of political judgements, would be disallowed.
There were further guidelines on how questions deemed to be out of order could be handled by the Office of the Speaker. For instance, a question could not seek to express an opinion. Additionally a repeated question with simple changes in grammar, but where the content remained an opinion, also would be disallowed by the guidelines. Furthermore the guidelines discussed by the Subcommittee said that questions directed at Ministers must be sector specific and not general.
Rule 140. Questions to President
The Subcommittee proposed guidelines in terms of questions to the President. Essentially, questions to line departments could not be addressed to the President when he had delegated responsibility to line Ministers.
Rule 139. Questions to Deputy President
The Subcommittee had agreed that when there were new responsibilities given to Ministers the Speaker had to be informed of that formally by the Leader of Government Business (Deputy President) so that the Deputy President (DP) would not have to respond to questions on responsibilities given to line Ministers.
Rule 137. Form and arrangement of questions
Mr Mdakane said that rule 137(7) read that an authorised representative of a party may, before 12:00 on the day after questions for a particular question day had appeared on the Question Paper for the first time, notify the Speaker in writing of the order in which questions put by members of that party are to be placed on the Question Paper.
The Subcommittee had agreed that members could stand-in to pose questions if the member originally designated was unavailable to read the question.
Rule 134. Notice and placing of questions
Rule 134 (4) said that, subject to these rules and any guidelines that may be approved by the Rules Committee, and in particular Rules 137(7) and 140, questions must be placed on the Question Paper in the order in which they are received.
The Subcommittee had agreed that the current system of order for questions from political parties in Parliament was correct as it allowed everyone an opportunity. There was, therefore, no need to change the rule, nor the guidelines supporting it. That included the keeping the system of clusters for questioning every plenary sitting.
Rule 136. Monitoring replies to questions
Mr Mdakane said that rule 136 (1) said that the Speaker must, in consultation with the Rules Committee, establish a system to monitor and report regularly to the House on questions that have been endorsed as unanswered on the Question Paper, in terms of Rules 143(2), 144(5) and 146(3).
Mr Mdakane said the Subcommittee had discussed that monitoring, although to be done by the Speaker in terms of the Rules, was in fact a responsibility of the Chamber as a whole since members of the Executive were MPs before their appointment by the President. Although the monitoring was not about the political content of questions, the Subcommittee had proposed that if a Minister did not answer the question, then a Subcommittee had to be established, chaired (preferably) by the Deputy Speaker or by any other presiding officer designated by the Speaker, to work on monitoring of replies to questions. That Subcommittee on monitoring of replies to questions should then be a permanent structure until such time as the Rules were changed. That Subcommittee would be established according to a resolution of the NA Rules Committee, which would also determine how big the Subcommittee would be. It would have to include the DP, or a representative that he chose, so that there would a be link between the Executive and the Chamber, without undermining the principle of separation of powers. The Speaker would then receive reports from that Subcommittee. Members of the Executive who had failed to answer the questions must then respond, either in person or in writing, to the Subcommittee on monitoring of replies. Thereafter that Subcommittee would submit a report to the Speaker, who would then table the report to the NA Rules Committee, which would be the final decision maker on the matter.
Chapter 12: Committee System
The Subcommittee had referred back chapter 12: Committee System, to political parties for their consideration and input so that the guidelines for that chapter could be finalised speedily as well.
Rules 103 and 104: Voting procedures
Mr J Steenhuisen (DA) quoted rule 103(6): Electronic voting system- “(6) members’ names and votes must be printed in the Minutes of Proceedings”.
He also quoted rule 104(3): Manual voting procedure-” (3) if the manual voting procedure permits, members’ names and votes must be printed in the Minutes of Proceedings”.
He suggested that, because of these rules, the wording of rule 115 should also be changed, to make it clear that all members present in the Chamber must vote or record an abstention. He added that consideration should also be given to inserting wording in this section to the effect that members’ names must also be printed in the Minutes of Proceedings after voting.
Ms N Mazzone (DA) wanted to stress that any editing of a member’s questions had to be done in consultation with that member. She added that the prohibition on criticising decisions of the Houses took away members’ rights to freedom of speech. She also said that members should have the right to question public statements by Deputy Ministers during questions to the President.
Mr M Waters (DA) said that voting by secret ballot was not provided for in relation to the removal of the Speaker or Deputy Speaker, and suggested that this should be included in the guidelines. He also questioned how the proposed standing order on motions without notice would be implemented successfully.
Ms D Dlakude (ANC) stated that if five parties objected to a proposed motion without notice, the motion would not be read in the House. She added that the Constitution did not provide for voting by secret ballot. In relation to Ministers appearing before the Subcommittee on monitoring of replies, she thought that Mr Mdakane had possibly read that out incorrectly as she believed that it was the Minister who had to be invited to come and respond to questions that s/he had not responded to, before the Subcommittee.
Ms M Boroto (ANC) pointed out that some parties had in the past changed their motions without notice after vetting by the Table, and they then would include un-Parliamentary language in the version that was read out in the House. She suggested that either the rules or guidelines had to speak to changing statements after vetting.
Mr N Singh (IFP) raised a concern about the practicality of the system proposed for motions without notice, which he thought had to be made easier. As far as the allocation of whips was concerned, he said that the principle of rotation of whips representing the smaller parties should be considered. Additionally manual voting should only take place in cases where the electronic voting system was not available. He also questioned the meaning of “semi-state bodies” for the purposes of asking questions.
Mr J Mthembu (ANC) stated that the process for motions without notice required further reflection and that it may become a problem for the presiding officers if all parties did not cooperate fully with the proposed system. He added that consideration should be given to reducing the formula for whips from 1 for every 6 members, to 1 for every 4 members, if it was financially viable. He also agreed with Mr Steenhuisen on the insertion of the wording in Rule 115 to reflect that all members present in the Chamber must vote. He agreed that decisions of the Houses could be criticised.
Mr Singh requested that the Committee solicit a legal opinion on the insertion of the wording about voting into rule 115. He added to the earlier suggestion on the formula for allocation of whips and said that the smaller parties ideally wanted more support staff, if that was financially possible.
Ms J Kilian (ANC) questioned if it was necessary to include rule 115 in the guidelines, as the rule was already very clear that members had to vote when present in the Chamber. She added that previous Parliaments did not experience problems with motions without notice because if one party objected, the motion fell away. Her proposal was that the Fifth Parliament had to go back to that system.
She indicated that the idea behind prohibiting criticism of the decisions of the Houses was because those decisions reflected the democratic will of the House in question.
Mr Waters said that the guidelines were not supposed to suppress freedom of speech and he thought and that criticism of the decisions of the Houses must be allowed. He agreed that motions without notice had been abused. He supported the principle of not allowing a motion to be read out in the House if five parties had objections. On the issue of the secret ballot, he pointed out that the Constitution also did not rule out the use of a secret ballot and that Parliament thus had discretion to decide what it wished to do.
Mr Steenhuisen reminded members that the case of Tlouamma and Others v Mbete, Speaker of the National Assembly of the Parliament of the Republic of South Africa and Another (A 3236/15)  ZAWCHC 140) judgment of 7 October 2015 had said that Parliament could, by itself, determine whether to use a secret ballot or not. He therefore wanted further discussion on this point.
Ms Dlakude said that the review of rules was based on a comparison of rules of Parliaments from other provinces within South Africa (SA). On prohibiting criticism of the decisions of the Houses of Parliament, the Subcommittee had compared it wording with the Western Cape Provincial Legislature (WCPL) which she quoted:
Reflections upon decisions
58. No member may reflect upon any decision of the House taken less than six months previously, except for the purpose of moving that the decision be amended or rescinded”. She pointed out that if the WCPL had such a rule, she saw no reason why the NA should not have something similar.
Mr Mdakane said that motions without notice presented difficult challenges and that parties had to get pre-approval before reading out such motions in the House. This mechanism had been created as a response to the present circumstances of House sittings. He added that the party which had not agreed with that had not even attended the meeting. Even if the rule could be done away with, the issue was that parties wanted the opportunity to express themselves using motions without notice.
He added that the main reasoning behind the notion that decisions of the Houses could not be criticised was based on the fact that a majority would have voted in favour of the decision. However; substantive motions could be used to challenge those decisions.
Mr Masibulele Xaso, Secretary to the National Assembly, added, in relation to the previous comment about criticism of decisions in the House, that members might also find it useful to consider rule 87:
Reflections upon the House and its proceedings and decisions, which said that no member may reflect in a disrespectful manner upon the House or its forums and Committees or upon their proceedings and decisions.
He added that up until the time motions without notice had been suspended; political parties would submit their motions (prior to 11:00am) to the Table staff, and the NA would vet those motions against the rules. The vetting was only procedural and did not include political elements, therefore a motion could qualify procedurally but there could be issues remaining politically. Motions complying with rules would be circulated thereafter to the rest of the parties. In the past, it had happened that a motion might change between 11:00 and 14:00; in that case, what was then be read in the House would be different to what had been circulated after editing.
The Chairperson said that members of this Committee were clearly having some difficulty with the challenges around motions without notice. She added that members had to insist on their right to bring non-controversial issues to the House if sufficient consensus existed. She also asked what the Committee's feeling was about the proposals from the report of the Subcommittee.
Mr Xaso explained that the standing order on motions without notice would require a House decision. After that there was a need for a political decision as to whether the House decision would be implemented in 2016, or from 2017.
The Committee agreed to the proposed standing order on motions without notice.
The Committee further agreed that the wording of Rule 115 would be incorporated into the guidelines dealing with electronic voting.
Correspondence from Chief Whip of the Majority Party regarding application of Rules
The Chairperson said that the correspondence from the Chief Whip of the Majority Party related to the unbecoming and offensive exchanges in the House when the President of the Republic was answering questions. She asked whether the Committee had any input in that regard.
Mr Steenhuisen said that although politics was a robust process, respect had to be shown for other members, as prescribed in rules 84 and 85. He said, however, that robustness also could not be construed automatically as disrespect. He asked that members’ freedom of speech be respected while ensuring that they followed the rulings of the presiding officers.
Ms T Didiza (ANC) agreed that the existing rules were sufficient to maintain order in the House and must be applied by the presiding officers. She added that the spirit of Ubuntu had to prevail and that, while members could disagree, they had to do so in a respectful manner and not demean each other.
Ms Dlakude said that dignified criticism of the President was in order when he answered questions in the House, but that insulting behaviour could lead to the President electing not to answer questions in the House in future.
Mr Mdakane said that the party which caused the challenges was not present in this meeting and that it could be expected that they would again engage in disrespectful acts when the President next answered questions in the House. He added that the rules had to be implemented, and that misbehaving members should be evicted from the House if needed.
Mr Mdakane said that the party that caused the challenges had not even attended the meeting of the Subcommittee, and agreed that it might be expected that it would again engage in disrespectful acts when the President next answered questions in the House. He added that the rules had to be implemented and agreed that misbehaving members had to be evicted from the House if necessary. A bigger issue that presiding officers or the whippery had to address with all parties was what the national interests were.
Mr Singh said that he had no doubt in his mind that the scuffle outside the Chamber on 15 November 2016, during the debate on the motion of no confidence, had been a result of what had taken place inside the House and the way MPs had been conducting themselves. The presiding officers had to apply the rules consistently, not selectively, whoever happened to be in Parliament, and their rulings in the House had to be final and binding.
Mr Waters said that the President was obliged by the Constitution to answer questions in the House, and that while he was a controversial figure, insulting language had to be curtailed.
Mr Steenhuisen concurred with Mr Singh that the rules had to be applied consistently for all parties. Robust engagement had to be allowed without personal mud-slinging.
Mr N Khubisa (NFP) proposed that the forum where party leaders met with presiding officers could be extended to include party whips so that the business discussed at those meetings could be communicated to a wider audience of MPs and citizens, because what was happening in the House unintentionally fuelled political disagreements in communities to the extent that ordinary South Africans ended-up killing one another.
The Chairperson said that the concerns emerging at that meeting had been valuable but that it had to be recognised that there was a difference between robust engagement and offensive and insulting language and behaviour.
She proposed that the two remaining items stand-over for a future meeting.
Mr Steenhuisen said that indeed the discussion on mini-plenaries could be devolved to the Subcommittee on Review of Assembly Rules to consider how mini-plenaries would be conducted. However; the order of proceedings (Members’ Statements) had been hampering the ability of Parliament to conduct its business and he had an input to make in that regard.
Discussion on order of proceedings (Members’ Statements)
Mr Steenhuisen said that because Members’ Statements had been moved to the end of proceedings, by the time the House got around to them there were not enough members of the Executive in the House, and as a result members were not getting adequate responses to their statements. He requested that consideration be given to moving Members’ Statements to the start of proceedings.
The Chairperson requested that the Subcommittee on Review of Assembly Rules also consider that matter as well.
The minutes of the Committee for 6 September 2015 were tabled.
Mr Singh (IFP) said that he had tendered his apology , but that was not captured.
The Committee Secretary pointed out the portion of the minutes where it had been captured.
The meeting was adjourned.
Mbete, Ms B
Bhengu, Mr F
Booi, Mr MS
Boroto, Ms MG
Didiza, Ms AT
Dlakude, Ms DE
Khubisa, Mr NM
Kilian, Ms JD
Koornhof, Mr NC
Mahlalela, Mr AF
Martins, Mr BA
Mazzone, Ms NW
Mdakane, Mr MR
Mthembu, Mr JM
Singh, Mr N
Steenhuisen, Mr JH
Waters, Mr M
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