Public Participation Model; Joint Sitting rulings; Review of Joint Rules progress report; Speaker's conduct 22 November 2016

Joint Rules

23 November 2016
Chairperson: Mr L Tsenoli (ANC, NA) and Mr A Nyambi (ANC, Mpumalanga, NCOP)
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Meeting Summary

The Committee met to engage on the proposed Public Participation Model, joint sitting rulings, to receive a progress report on the review of the Joint Rules of Parliament, and to discuss the conduct of the Speaker of the National Assembly.

The draft Public Participation Model was circulated but Members complained that they could not do justice to it, having seen it for the first time only late on the previous day. It was decided that a brief summary introduction would be given and Members would then have more time to deliberate on it, and another meeting to capture the comments.

The NCOP Secretary noted that this Model was first developed in the Fourth Parliament and the task team was reconstituted to continue the work in the Fifth Parliament. The staff had consulted the chairpersons of Committees of the NA and the NCOP; the chief whips of the different parties, political party caucuses, and had briefed Committee Section and Table staff. This was a Parliamentary model, predicated on the Constitution, and was designed to  facilitate public participation in both legislatures' processes and the process of Committees. It codified current practice and amended some points to comply with the Constitutional requirements. Public views were sought to enrich the decision-making processes and in addition the Model would set out the institutional arrangements, clarify roles and administrative procedures and provide monitoring indicators. The Court decisions in the Doctors for Life case was outlined, and it was stressed that these cases had pronounced on the legislature's measure of discretion, the need to act reasonable and to allow effective participation. It was also noted that the duty to facilitate public involvement could be achieved in many different ways, which might include submission of commentary and oral representations, but providing information could equally amount to involvement. It was not only one aspect that would determine whether or not the obligation was fulfilled. It was confirmed that there was a two-pronged approach that would inform both the citizens and the MPs who would benefit from the input. It was noted that “involvement” and “participation” were used interchangeably. The Model intended to set some minimum standards and guidelines, which would thus include informing, education and creating opportunities to participate. The actual participation stages covered consultation, involvement and feedback. It was hoped that the Model could be adopted and implemented as soon as possible, since the Joint Rules Committee usually only met once a year.

Members indicated that they needed time to discuss this. The EFF suggested that the Joint Rules Committee might not be the appropriate structure to debate on the model; the two Houses could consider this separately. The DA was prepared to meet in the first week of the new year's session, to ensure that comments were received before Parliament's budget was tabled. The suggestion for a trial implementation was not supported and it was agreed that the matter would return for discussion before April 2017.

 

The Committee was informed that the Subcommittee on the Review of Joint Rules was still processing the work given to it by the Joint Rules Committee. Members would have the terms of reference and membership clarified

The Committee then considered the question of which rules would apply to joint sittings. The Speaker had made a ruling, with which the opposition parties did not agree, in the House, during a joint sitting on 22 November 2016. The DA believed that sections 58 (1) and 71 (1) of the Constitution allowed freedom of speech in both Houses of Parliament. They cited the court judgments, particularly the matter of Lekota where the court had emphasised that the Speaker must “ jealously guard and protect a member’s rights of political expression entrenched in the Constitution”. Although it was accepted that there were rules of procedure, they must have due regard for representative and participatory democracy, accountability, transparency and public involvement. The Speaker was not empowered to make rules herself. The DA believed that the Speaker had erred on 22 November 2016 in her application of rule 14(p) when she asked a DA Member to leave, despite the fact that her utterances had not been offensive or unbecoming, but had merely contributed to robust debate. The DA feared that both Houses were reaching a situation where freedom of speech was being curtailed, and was effectively protected more outside Parliament than inside. The point was made that respect was a two-way street and respect had to be shown to all MPs, including the chief whips. The Speaker was perceived as protecting the executive only, and not all Members of the House. The fact that the Speaker had then gone on to prevent a DA Member from raising a point of order, relying on rules 84 and 85 of the NA Rules, rather than on Rule 14(p) of the Joint Rules, was seen as incorrect. The MP, Mr Steenhuisen, apologised if his voice was raised, but said that he was merely trying to get his point across whilst being shouted down by other Members from the ANC. The Committee debated at length whether this was the proper platform to raise this item.

Linked to this was a discussion on the conduct, generally, of the Speaker, as raised by the EFF. It was felt that the Speaker was no longer according due recognition to the EFF as a political party in Parliament. She occupied the seat by virtue of the Constitution and laws of Parliament, and should relinquish all prejudices and differences. The distinction was drawn between other presiding officers, who managed the sittings in a way that business progressed robustly, whereas the Speaker, who should have been trusted to drive robust debate, was stifling it. It was requested that chief whips be granted a session with presiding officers to engage on all the mattes raised in the meeting before the next joint sitting. The points of concern raised by the DA would be referred to the Subcommittee on the Review of the Joint Rules for further debate and consideration.

The minutes of the previous meeting were adopted, subject to minor technical amendments.  

 

Meeting report

Opening Remarks

Co-chairperson Tsenoli noted the apology of the Chairperson of the National Council of Provinces (NCOP) and other Members.

Mr F Shivambu (EFF) requested that the agenda be amended to reflect that the Joint Rules Committee needed to discuss the conduct of the Speaker of the NA, and he would lead that discussion.

Mr J Steenhuisen (DA) seconded the proposal by Mr Shivambu.

Mr J Mthembu (ANC) said the proposal by Mr Shivambu was quite broad and asked for more specifics so that Members could make input on how it should be dealt with.

Mr C Frolick (ANC) pointed out that the agenda already had an item on joint sittings and he asked if this was referring to something specific.

Ms T Mokwele (EFF: North West) suggested that Mr Shivambu could go into details when he led discussions.

Mr M Waters (DA) said item 7 on the agenda had been a specific request to discuss the ruling made by the Speaker regarding the statements of Ms D Robinson (DA) in the House the previous day, during the joint sitting. The EFF proposal was broader and certainly also could be discussed.

Co-Chairperson Tsenoli noted the Committee's agreement to add that item.

Draft Public Participation Model

Mr Tsenoli asked whether there were any comments on the document that had been circulated earlier.

Ms C Labuschagne (DA: Western Cape) said she had only received the document whilst she was in plenary the previous day, and that prevented her from making a full input today. She asked that even if this Committee were to sit once a year, the documents must be sent out well in time, not one day before the meeting.

She said that Parliament was doing quite well in education, outreach and information dissemination around the concept of public participation, but it was not doing so well on this in terms of legislation. Often the NCOP and even the Provincial Legislature of the Western Cape (WC), when undertaking public hearings on legislation, found that citizens would raise daily-life challenges that fell within the mandate of a provincial standing committees or portfolio and select committees at national level, and she suggested that during Taking Parliament to the People  education of citizens on current legislation had to be included in the  programme.

Mr Tsenoli noted that there was a recommendation that this Committee receive a brief summary presentation of the Public Participation model (the Model) model, and he suggested that the Committee should not engage on it today but would be given time to prepare further before another meeting.

Mr Steenhuisen welcomed that proposal but said that the Model would need to be included in Parliament's budget process for 2017, and so there should be a timeline given for when the Model would be needed back with Members' input into the budget process.

Mr Nyambi agreed with both points.

Adv Modibedi Phindela, Acting Deputy Secretary: Core Branch, Secretary to NCOP, Project Sponsor, said he would give a broad history. Development of the Model began in the Fourth Parliament and the multiparty task team led by House Chairpersons Mr C Frolick and Mr A Nyambi was resuscitated in the Fifth Parliament under the same leadership. Throughout the process there was consultation with the chairpersons of committees of the NA and the NCOP; the chief whips of the different parties, and political party caucuses at their request. The ANC party caucus had invited the task team to brief it on the model. The Committee Section staff from both Houses, and the Table staff had also been briefed. There were several meetings of the multiparty task team, who had also called for comments on the model.

He noted that this was a Parliamentary model predicated on constitutional provisions, to facilitate public participation in he legislative processes, and it would apply to the NA and the NCOP.

Goal and Objectives of the Public Participation Model 

The model basically codified current practices on public participation and also amended some practices in use to comply with the constitutional requirement for public involvement in the processes of Parliament and its Committees. It outlined the procedure to be followed to obtain the views of the public on policy, legislation and other matters before Parliament, in order to enrich the decision-making processes and to determine the timelines within which this could be achieved. It provided for methods to obtain information from the public experience, about service delivery and government actions, in order that the institutions could then take the necessary action to bring about change. It would detail the required institutional arrangements and clarify the roles and responsibilities for administration and offices within Parliament responsible for the implementation of the Model. It would provide monitoring indicators for the implementation of the Model.

Definitions
Adv Phindela set out the legal landscape, as stated in the Doctors for Life cases, where the Court had said that legislatures have a significant measure of discretion in determining how best to fulfil their duty to facilitate public involvement in their processes. Although the measures required by the constitutional obligation may vary from case to case, a legislature must act reasonably. The most important point is that it should have taken steps to afford the public a reasonable opportunity to participate effectively in the law-making process.

The Supreme Court of Appeal had also commented on the nature of Parliament's obligation to facilitate public engagement. In the case of King and others v Attorneys Fidelity Fund Board of Control and another the applicants complained that when passing the Attorneys Amendment Bill, the NA failed to comply with a constitutional obligation, which rendered the legislation invalid. He quoted the judgment, at paragraph 22, which said:

 “‘Public involvement’” is necessarily an inexact concept, with many possible facets, and the duty to facilitate it can be fulfilled not in one, but in many different ways. Public involvement might include public participation through the submission of commentary and representations: but that is neither definitive nor exhaustive of its content. The public may become involved in the business of the National Assembly as much by understanding and being informed of what it is doing as by participating directly in those processes. It is plain that by imposing on Parliament the obligation to facilitate public involvement in its processes the Constitution sets a base standard, but then leaves Parliament significant leeway in fulfilling it. Whether or not the National Assembly has fulfilled its obligation cannot be assessed by examining only one aspect of public involvement in isolation of others, as the applicants have sought to do here. Nor are the various obligations section 59(1) imposes to be viewed as if they are independent of one another, with the result that the failure of one necessarily divests the National Assembly of its legislative authority.”

Judge Sachs said:

“All parties interested in legislation should feel that they have been given a real opportunity to have their say, that they are taken seriously as citizens and that their views matter and will receive due consideration and could possibly influence decisions in a meaningful fashion. The objective is both symbolical and practical: the persons concerned must be manifestly shown the respect due to them as concerned citizens, and the legislators must have the benefit of all inputs that will enable them to produce the best possible laws. An appropriate degree of principled yet flexible give-and-take will therefore enrich the quality of our democracy, help sustain its robust deliberative character and, by promoting a sense of inclusion in the national polity, promote the achievement of the goals of transformation.”

Adv Phindela said that sections 59(1)(a) and 72(1)(a) of the Constitution refer to “facilitation of involvement”. It seems, however, to be generally accepted that “involvement” and “participation” are used interchangeably, and the Model would treat them in this way.

Model overview
The Model intends to provide a shared understanding on and alignment of processes. It sets minimum requirements and guidelines for the involvement of the public in the legislative and other processes of Parliament and its committees. This Model also attempts, although not exhaustively, to set out goals and objectives, outline public participation mechanisms, determine a best Model that would fit Parliament, and explain the role of public education and information dissemination, meaningful public participation opportunity, institutional co-ordination of public participation programmes and reporting on the outcomes.

Minimum Standards for Effective Public Participation

Minimum standards for effective public participation are sets of guidelines for meaningful public involvement in decision-making processes by those affected by the decisions. These standards in line with the legal and constitutional requirements, will include  informing, educating and creating meaningful opportunity for the public to participate in the decision-making on  issues that affect their lives.

The Model recognises informing, consulting, involving and collaborating as stages of effective public participation. Informing and educating are undertaken under the informing stage of public participation. Meaningful opportunity to participate is provided for under the consulting, involving and feedback stages of public participation. Although the informing stage is a prerequisite for public participation, the other stages can be deployed based on the context and the public interest according to the context.

The Model emanated from the decision of the Speakers Forum which had decided to establish a framework within which public participation would take place.
 

Discussion

The Speakers Forum was invited to add to the presentation.

Mr C Frolick (ANC, House Chair) said that the implementation of the Model had been the subject of exhaustive discussions in the multiparty Task Team that had dealt with the matter in the Fourth and Fifth Parliament. The Task Team was strongly recommending that the model be finalised as soon as possible. He highlighted pages 47 to 50 (see attached presentation). There were unfolding public participation processes, but the Task Team was recommending realignment according to the model presented, so that when the different programmes of public participation were engaged between the two Houses of Parliament the recommendations would be followed and implemented.

Co-chairperson Nyambi said that there was room, annually, for improvement of the model through assessing its implementation.

Mr Mthembu agreed that the document should be finalised quickly, certainly sooner than November 2017. He asked what timelines might be appropriate to start implementing, although he appealed again that his caucus be given a second chance to process the document. The mechanisms must speak to the synergies of the two Houses of Parliament, so that a uniform and measured approach was followed.

Mr Tsenoli said he envisaged one week should be enough for the Committee to process the Model, and as Mr Nyambi had said, it would be improved as it was being implemented.

Ms T Didiza (ANC) proposed that parties be given two weeks to consult on the Model, before the Committee reconvened to take a final decision. She asked if this was supposed to be approved by the Joint Rules Committee. She would have thought that it needed executive authority (EA) approval.

Mr R Mdakane (ANC) agreed with Ms Didiza, and said that if that was not an option, then he suggested the Joint Rules Committee be given until April 2017 to consider and adopt this model.

Mr Tsenoli said that public participation was a cross-cutting matter between the NA and the NCOP, and if there was a potential for rules to emerge around that matter, the Joint Rules Committee would be the correct vehicle to process that Model. He recommended that this Committee approve a trial implementation of the Model. Members who wanted to submit inputs from the day of the meeting could submit them so that they could be incorporated into the implementation strategy.

Mr M Ndlozi (EFF) did not support Mr Tsenoli’s suggestion to approve a trial implementation. He thought that the point of departure would be for all parties to listen to the presentation, then reconvene to consider the Model. He also did not think the Joint Rules Committee was the appropriate structure to decide on the Model. The two Houses could decide separately. The Committee would not have to wait for the next meeting, in November 2017. The Rules Committee of the NA could surely process the Model. He cautioned that Parliament should not rush into implementing.

Mr Tsenoli said there was no rush, and the presentation had alluded to the fact that parties had been given an opportunity to comment but the EFF had not responded yet.

Ms Mokwele said that it was untrue that the EFF had engaged with the document; this was the first time her party was seeing it.

Mr Tsenoli proposed that the Committee deal with timeframes, as the model impacted on the processes of doing work by Parliament. He agreed with Mrs Didiza's proposal of two weeks for processing of the document by political parties. He asked for any other views.

Mr Mthembu said that public participation was embedded in SA's constitution anyway, but he agreed with Mr Mdakane's proposal to finalise the Model by April 2017. There were numerous other matters before Parliament. The EA also still had an opportunity to see what else could be done to add value to the work already done.

Mr Tsenoli protested on behalf of the leaders of the public participation Model, saying that the leaders were told that the document was sent to all political parties. If Members felt that more time was needed to process the document, he said that agreement should be then made that the Model would be the first item on the agenda for the Joint Rules Committee in early 2017.

Mr Shivambu maintained that the EFF had not been sent the document; he would provide his address.

Mr Steenhuisen said the DA accepted that proposal on condition that the proposed meeting would be in the first week of 2017 since the budget for Parliament would have to be tabled in March 2017. He pointed out that officials in Parliament were sometimes still using out-of-use emails and he proposed that all Members should add their names to a list to be sent round now, with their current email address.
 

Review of Joint rules by Subcommittee: Progress Report

Mr Masibulele Xaso, Secretary, National Assembly,reported that the Subcommittee was still undertaking the review of the Joint Rules.

Mr Shivambu asked which Subcommittee this was, and who sat on it.

Mr Xaso replied that it was the Subcommittee on Joint Rules which was constituted by the NA and an NCOP component respectively.

Mr Matiase asked that its composition and membership should be explained.

Mr Tsenoli said that the Committee section staff would give that information to all parties.

Joint Sitting rulings

Mr Steenhuisen thanked Mr Tsenoli for the opportunity for him to lead the discussion on joint sitting rulings. The matter had arisen from a ruling that the Speaker had made in the House on 23 November 2016 during the joint sitting of the two Houses of Parliament.

A point of order had been made by a Member of Parliament during that sitting, in terms of rule 14 (p) of the Joint Rules governing joint sittings and there was a subsequent ruling by the Speaker. He believed that Sections 58 (1) and 71 (1) of the Constitution allowed freedom of speech in both Houses of Parliament. There had been several court judgements around freedom of speech in the House, the most significant being  Lekota and Another v Speaker, National Assembly and Another (14641/12) [2012] ZAWCHC 385; 2015 (4) SA 133 (WCC) (11 December 2012), where the court had said:’ the Speaker had to jealously guard and protect member’s rights of political expression entrenched in the Constitution’.

He added that the Speaker had to recognise the primacy of MPs' rights to freedom of speech in the House as a fundamental and crucial right. That then would ensure that the tenets of any Rule or ruling must conform to all other provisions of constitutional relevance to the conduct of proceedings in Parliament. Whilst there were rules of proceedings of Parliament these rules had to have due regard for representative and participatory democracy, accountability, transparency and public involvement.

There were other judgments also that indicated what the Speaker could and could not do in making rulings interpreting the rules. The Speaker was not empowered to make rules herself, as that right vested in the two Rules Committees in the NA and NCOP. He believed that the Speaker had erred in her application of rule 14(p), because Ms Robinson's words were neither offensive nor unbecoming in a robust Parliamentary environment. He suggested that the Speaker had materially misconstrued the power afforded to her and had acted irrationally and outside her powers.

He therefore requested that this Committee should apply its mind to that incident. Parliament was fast reaching a situation, in both Houses, and by extension also in joint sittings, where freedom of speech was protected more outside of Parliament than it was in Parliament.

He pointed out that if respect was to be afforded to office bearers in Parliament, the same applied, by extension to all other MPs, including chief whips of parties. The Speaker’s refusal to allow him to make a point of order on the previous day in the joint sitting was, he believed, incorrect, since the Speaker had been relying on rules 84 and 85 of the NA rules rather than rule 14(p). He was sorry if he had been regarded as shouting at the Speaker, but the reality was that it was very difficult to take a point of order whilst others from the majority party were shouting at him across the floor.

He said that there was a dangerous precedent unfolding and it had to be addressed, because the NA could not continue to have a situation where the perception and reality in the House was that the Speaker was protecting members of the executive instead of also extending that protection to all MPs, including members of the opposition and the chief whips. 


Discussion

Mr Mthembu said that it might be helpful if Mr Shivambu was afforded an opportunity to lead his submission now, so that if the issues were interlinked, they could be dealt with together.

Mr Waters disagreed, saying that Mr Steenhuisen's matter was in relation to a specific ruling which the Committee now had to process. Mr Shivambu's submission related to the overall conduct of the Speaker.

Mr Ndlozi said that the only Committee which could deal with Mr Steenhuisen's matter was the Joint Rules Committee. The Speaker should be allowed to respond, if she so wished, on Mr Steenhuisen’s assertion that the ruling was wrong. 

 

Mr Nyambi said the Committee had to avoid turning this discussion into a hearing.  It was commendable that Mr Steenhuisen had apologised for what had been perceived as shouting. He felt that there was merit in asking Mr Shivambu to table his submission, so that the Committee could engage on the two issues at once.

Mr Mdakane said it could not be correct that the Speaker had to come to the Joint Rules Committee meeting to account. The rules prescribed a procedure to be followed by an aggrieved MP in relation to a ruling made by a presiding officer. He rather proposed that the NA Rules procedure should be used as a platform to process Mr Steenhuisen's matter, although this happened during a joint sitting.

Ms J Kilian (ANC) supported Mr Mdakane’s proposal. She agreed that the reference to the Lekota judgment was important. She cited paragraph 45 of that judgment, which referred to “the sanction imposed by second respondent. National Assembly rule 51 expressly provides that, where a member disregards the authority of the Chair, he or she may be ordered to withdraw from the Chamber for the remainder of the day’s sitting”. The fact was that Lekota court appeal had been unsuccessful. The Court had ruled that it was justifiable for Mr Lekota to be asked to leave the Chamber, having disregarded the authority of the Speaker after having been requested to vacate the Chamber.

She said that in terms of the Constitution, the function of the Joint Rules Committee was to compile joint rules for joint proceedings. Nowhere in the joint rules was there a provision to deal with this. In fact, the only provision in the Joint Rules that related to any discipline of any nature said that NA members would be dealt with under the NA Rules, and NCOP members under the NCOP Rules.  It was provided that an NA or NCOP member, other than the presiding officer at a sitting, could not speak unless invited to do so by the presiding officer. She had mentioned all this because the joint rules were so sparse on the point. They were there to facilitate debate. Matters of discipline were better dealt with in each of the two Houses of Parliament separately. She agreed that the Committee could not change proceedings into a hearing, and the aggrieved MP had to approach the relevant presiding officer, which was the Speaker.

Mr Mthembu said the reason he had proposed that Mr Shivambu table his matter was that in the NA there had been other rulings that had been referred to the Subcommittee on NA Rules. Mr Tsenoli, in his capacity as Deputy Speaker of the NA, had actually ruled on one. There was a precedent of how rulings were processed. The Joint Rules also provided for a  joint subcommittee to review the Joint Rules, and it was specifically set out that this subcommittee could make recommendations to the Committee on Joint Rules regarding proceedings, procedures, rules, orders and practise of Parliament. Therefore the matter as presented by Mr Steenhuisen would not be concluded in the Joint Rules Committee.

Mr Mthembu noted that a matter had been referred to the Subcommittee on the NA rules, and the Hansard was accessed to check the events as they occurred in the NA. He thought this was a useful precedent and the Hansard would be needed again. He suggested that sufficient time and a structure would be needed to process this. In his view, the right structure was the Subcommittee on the Review of the Joint Rules.

Mr Tsenoli pleaded with the Committee to continue to show respect for each other, even if they disagreed, and not use offensive language in the Committee.

Mr Steenhuisen suggested that  Ms Kilian needed to familiarise herself with exactly what the Lekota judgement said. She was wrong about the joint rules.  Section 45(1)  of the SA Constitution stated that:

“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”.

The two Houses had then chosen to make rules around the conduct of Members in the House. It was these rules that had to be applied. Mr Steenhuisen was starting to get concerned about “the schizophrenia that was apparent”, and earlier that morning of the 23 November 2016, at the Chief Whips Forum, he had been told that he had done the right thing by raising rule 14 (p) at the Joint Rules Committee, although at the sitting of the Joint Rules Committee he was told this was the wrong platform.
 

Mr Mthembu interjected on a point of order. He agreed that the joint sitting  was the correct platform but the tone used by the chief whip of the opposition was unnecessary and denigrating to other Members. .

Mr Steenhuisen continued that if Ms Kilian’s proposal was to be extended to its eventual conclusion, it would mean that the front part of the Constitution could simply be ignored.

It was noted that the disciplinary mechanisms were not being applied consistently and fairly to all.  The NCOP chairperson could not discipline a member of the NA, in terms of the disciplinary process around fining, suspending and docking of salaries. However it had not been said that rulings could not be made in terms of the Joint Rules. In his view the only place where this matter could be dealt with and reviewed was the Joint Rules Committee. The Subcommittee on the review of the Joint Rules was not well placed to deal with this matter.

He added that the matter he had raised should not be conflated with Mr Shivambu’s item, which had the potential to descend to a personalised attack and continue the invective across the floor between the parties.
Mr Steenhuisen made the point that the Speaker may well stand by her ruling. At least it would give Mr Steenhuisen the opportunity to exhaust the internal processes  of Parliament.  If there was any finding of about errors made from both sides in the House during the joint sitting of the 22 November 2016 then those had to be corrected and the matter should be resolved at that particular sitting of the Joint Rules Committee. He did not think that it would be appropriate to refer the matter to some subcommittee that would probably meet in 2017 and was not even empowered to address itself to that particular issue.

Mr Shivambu began to comment that Ms Kilian was from the National Party (NP), and was quoting all sorts of documents....

Mr Mthembu interjected, raising a point of order that Ms Kilian is an MP and currently there is no National Party in Parliament. Mr Shivambu could equally well be referred to as “a member of the ANC” as that was his background.

Mr Shivambu continued that Ms Kilian was making frivolous statements, using the Constitution.

Mr Tsenoli reprimanded Mr Shivambu that, as equals in Parliament, he had no cause to use the first name of Mr Tsenoli, and he asked him to stick to the customary form of address.

Mr Shivambu continued that “every time” senseless decisions were taken by presiding officers in the House, The EFF objected, but the continuing refrain was that the objection would be referred to a process, yet nobody had ever clarified what that process would be. It took at least 12 months to bring a matter to Court – based on his experience in the matter where the EFF had claimed that the ANC government had killed people at Marikana; there had been no platform to review the decision on that day. That was the point that Mr Steenhuisen's comment sought to address.

All opposition parties were objecting to a ruling made at the joint sitting on the previous day. The Speaker had ruled that members of the DA would be dismissed for using the reference “JZ 783” - although he believed it was not offensive nor unparliamentary; the reference was given for something existing outside of the rules of the NA and the NCOP. He suggested that the Speaker (who was in attendance) should be given an opportunity to clarify if she maintained her decision was correct - there being no other forum to engage with her. He proposed that the Speaker should apologise and withdraw her ruling to dismiss Members of the DA from the joint sitting.

Ms N Mazzone (DA) said she sat on both subcommittees, one on the review of the NA Rules, the other on the review of the Joint Rules. It was not the work of either of those subcommittees to analyse decisions taken in the House. They had only to analyse the Rules of Parliament as they stood to date, and to make the necessary changes. The last time the subcommittee on the Review of the Joint Rules met, there were no members of any opposition party, because the subcommittee was informed that everyone, including those from the ruling party, would be attending the International Parliamentary Conference in Geneva. It was unfortunate that every time Mr Steenhuisen made a comment, which was a fair and true reflection of events, indicating how something had breached the Rules, he would be chastised as being denigrating to a particular MP. However, when another MP spoke to Mr Steenhuisen using offensive language, they had not been chastised. At no point had Mr Steenhuisen been rude to anyone in the joint sitting; he had merely been diligent in his application and use of the Rules.

 

Mr P Mulder (FF+) said the Committee was complicating a simple matter. During a joint sitting, an MP had made a statement, an objection was raised and the Speaker made a ruling. That ruling could be reviewed under the Joint Rules, as it was made at a joint sitting. The fact that this had been tabled was not creating a hearing. Parties disagreed on the Speaker's ruling the previous day. The opportunity then was given for clarification on the principle that had informed the ruling. If the Speaker wanted to clarify that principle, then the matter could be dealt with here, and anyone still aggrieved could follow proper procedures beyond Parliament. He commented that whips could have been asked to express themselves further on the matter before a decision had been made to rule in the House on the previous day, but unfortunately that had not happened.

Mr Waters recalled that there had been a point earlier made that because Ms Robinson was from the NA, the matter could be referred to the subcommittee dealing with the NA Rules. By analogy, if Ms Robinson had been an NCOP Member, but the Speaker was chairing the proceedings and made the ruling, where would a review of that ruling be taken? The point was the Joint Rules Committee was the only body empowered to deal with this matter. Rule 56, on function and powers of the Joint Rules Committee, provided that it could develop, formulate and adopt policy concerning joint business of the House; in respect of management, administration and the functioning of Parliament.

He added that no additional rules had been developed to defer rulings to any other forum.

Mr Waters pointed out that from a practical viewpoint, the joint sitting to hear the State of the Nation Address (SoNA) would be in February 2017. The matter had to be resolved way before then. He thought it ludicrous to say that Members could not refer to “ JZ 783” in a debate in the House. He reiterated Mr Steenhuisen’s point that there seemed to be more freedom of speech outside Parliament rather than inside, which was telling. The Parliamentary arena was robust, and whilst this was not to suggest that offensive language be allowed, this robustness had to be accepted.

Mr Ndlozi emphasized that the premise that the Committee was conducting a hearing was completely wrong. This Joint Rules Committee was not a disciplinary committee. There was no inquiry into the Speaker. If the Members could agree on the spirit in which this was raised, that would be helpful.

He maintained that there was nothing simple about the matter because an MP had been deprived of her rights to participate in a joint sitting. This was even more serious since the MP, particularly since she is a female, should have been given her rights to make an input on a debate on the 16 days of Activism against Women and Children Abuse. If she had refused to leave the Chamber; the Speaker would have called Parliamentary Protection Services to come and assault her. The deprivation of this right was fundamental and since there would be no other sitting, the correct way to deal with this would be to approach the court.  Parliament could not always be corrected by courts of law. A request was being made for the Speaker to review her decision. Being overly sensitive would not help anyone. It could not be said that challenging the Speaker's ruling amounted to personalising the issue. Anyone could be held accountable in relation to the Rules, including the Speaker, and there was nothing personal about it. That was why Mr Ndlozi had proposed, earlier, that the Speaker be given an opportunity to ventilate her opinion on the matter. Everyone present was human, and “even” Mr Steenhuisen had apologised for the perception that he had been shouting, as that had not been his intention. “JZ 783” was not an insult because there was no such individual. Who was JZ and what was 783? The procedure was also problematic. The Speaker stopped taking points of order shortly before her ruling; so that her judgement would be given only on the submission of the complainant. He reiterated that in his view, the Joint Rules Committee was the only correct platform because if the review of that ruling was not done, then the court would be approached and that would be embarrassing.

Mr Mthembu said that arising out of his consultations, he could suggest that the Joint Rules Committee could order any Committee under its jurisdiction to handle any matter. He reiterated that the NA Rules Committee had precedent in referring matters to its subcommittee. Because Hansard was not before the Joint Rules Committee at that moment, and because it had consulted Mr Steenhuisen on the joint rules, this Committee also had the right to process the matter in a way as Mr Mthembu had alluded to earlier. The process had to be followed before a final decision was taken.

He summarised the content of Rule 69: Functions and Powers, and said that in the last week of November 2014 this subcommittee should have met, so that in the first week of December the Committee could reconvene to finalise the item.
 

Mr N Singh (IFP) said he felt it appropriate that the matter should be dealt with at the Joint Rules meeting as it had been serious and had received public coverage and scrutiny already. However, he pointed out that there was no provision for joint rulings. The Rules were as follows:
NA Rule 8: (3) Members must comply with rulings made by presiding officers.

(4) (a) A member may request that a ruling be referred to the Rules Committee for consideration and report.


Had the sitting on the previous day been held in the NA, he would have risen and asked for a referral to the Rules Committee. There was nothing in the Joint Rules to deal with such a matter. Proceedings were unfolding now and he remarked that although the Speaker had been in attendance at the meeting earlier, she was now absent. It was only appropriate that she be allowed to comment on the item before proceeding any further.

Ms Didiza said she would be in agreement should the Committee decide that the subcommittee on the Review of the Joint Rules must process the item and report by the first week of December. There were broader issues, in her view, than those raised by Mr Steenhuisen, which would include the issues of precedence of presiding officers, the context in which the matter had arisen, and subsequently the ruling.

Mr Steenhuisen said the subcommittee would “unnecessarily over-bake the egg”. He accepted that this would happen in the future. However, he agreed that it was quite simple; he had tabled an agenda item related to the principle of a ruling, to ask if the Speaker intended to abide by her ruling. This would save time; she could say she did not, and time would  be saved. Ms Didiza was proposing to establish an inquiry. However, the Rules did not provide for any inquiry into a presiding officer. The agenda item had said that he wanted to get clarity on the principle of the Speaker's ruling , not her conduct.

Mr Tsenoli noted that he had, earlier on, proposed that the matter be referred to the subcommittee. He explained that one of his own rulings had been challenged. He had been given the opportunity to tell the subcommittee of the NA what his thinking and view was around the ruling. He had done so, and the subcommittee prepared a report, which was then tabled to the NA Rules Committee. He had merely been proposing that a similar process follow now.

Mr Mulder clarified his earlier statement on simplicity, saying he was referring to the legalese of that matter, and not the events themselves.

Mr Mdakane agreed with Mr Mthembu and  Mr Mdakane.

Ms Mokwele asked what powers the Joint Rules Committee had, and if matters would be referred to the subcommittee and then back up again. She thought the Speaker was present and needed no protection.

Mr Ndlozi said e if that was how the item would be processed, he thought it unfortunate. He would like to hear the Speaker's comment if any. He suggested that what seemed to be unfolding was turning the person of the Speaker into someone that could not be directly held accountable.

Mr Mthembu interjected on a point of procedure. This Committee was to handle Joint Rules. The Speaker is a member of this Committee. The Committee is empowered to take decisions and does not depend on what the Speaker may or may not comment.

Mr Tsenoli said what was under discussion was the creation of precedents by both the Joint Rules and NA Rules Committees, insofar as how they were dealing with matters before them. Each step could, in future, be repeated consistently. The process being suggested should result in satisfactory resolutions after a process and report from the subcommittee.~

The matter was referred to the Subcommittee on the Review of the Joint Rules.

Conduct of the Speaker: EFF proposal
Mr Shivambu said the EFF was officially lodging its complaint against the Speaker and her disregard for the rules of the NA when she was dealing with its caucus. The rules allowed point of orders to be substantiated. However, it was felt that the Speaker was now consistently cultivating a hateful attitude towards the EFF so that she no longer recognised the EFF as political party in Parliament. The Speaker's position was not a personal position, but she occupied a seat established by the Constitution and the laws governing Parliament. Prejudices and differences with personalities had to be relinquished when assuming that seat, so that at all times the Speaker would act fairly in interactions with all MPs. When other presiding officers chaired a sitting of the House, Parliament's business progressed robustly. However, the Speaker who was the individual most trusted to drive robust debate was the one stifling it.

Mr Tsenoli said that the Speaker would be making rulings on some of the events that had transpired in the joint sitting of 23 November 2016.

Mr Steenhuisen was mindful that matters to do with the NA would be difficult to deal with in the Joint Rules Committee, but he expressed a concern about a perceived bias by the Speaker against members of the opposition. It was apparent that when points of orders came from the ANC during sittings they would be ruled on immediately. However, simple issues like switching off of microphones were not ruled upon directly if opposition members were involved. His most serious concern was the disregard and ignoring of chief whips by the Speaker. For Parliament to function, the whippery had to be allowed to function together with presiding officers, in terms of mutual respect of each others’ roles.

Mr Mthembu said the responsibility to get the House to work without disruption was upon all MPs. Therefore there was no need for there to be a division between presiding officers and the whippery. In the Chief Whips' Forum it was noted that for every complaint there could be several counter-complaints. Perhaps it would be important for chief whips to have an engagement with presiding officers. All whips were aware of the difficulties that presiding officers faced since all party members were guilty of rising without being recognised and speaking, calling presiding officers names and bringing disrepute to the House. It must be borne in mind also that presiding officers were human and certainly could commit errors from time to time, but errors could not be attributed to them only.

He added that if parties had identifiable complaints to make against presiding officer, the rules were clear that those could be submitted in written form to the relevant platform, as Mr Steenhuisen had done already.    

He added that matters relating to the NA had to be tabled to the NA, so that there would be no generalisation on matters. The ANC had not seen any bias from any presiding officer, including the Speaker, although it had had observed these officials being verbally abused on a number of occasions by the EFF. His proposal was for the EFF, as it was bringing its complaint to the NA Rules Committee. He thought that the complaint must be contextualised so that it captured all the events leading up to the grievance on the date.  Even the ANC had pointed out to the presiding officers when they had erred,and had not suggestion that such mistakes automatically spoke to bias in favour of the opposition.

Ms O Hlophe (EFF) said that this was not the first time that the EFF had to complain, in a Rules platform, and the EFF had hoped that there  would have been improvement in the Speaker's treatment of its caucus. The issue was that, whether the Speaker liked the EFF or not, it was an elected party of Parliament.

Mr M Khawula (IFP: KwaZulu Natal) said that though the Committee was not a hearing forum, he wanted to make the point that the IFP was not guilty of defying the Speaker at any time during joint sittings.

Mr Shivambu said that the notion that an MP had to be recognised if he or she wanted to raise a point of order was “pure nonsense”. The NA Rules said that an MP could rise on a point of order, so that they could be recognised afterwards.

He read out rule 92 as follows:

92. Points of order

(1) A member may raise a point of order at any time during the proceedings of the House, in terms of the procedure prescribed in Rule 66, by stating that he or she is rising on a point of order.

He also read out Joint Rule 14S: Points of order:

(1) When a point of order is raised, the member called to order shall resume his or her seat, and after the point of order has been stated to the presiding officer by the member raising it, the presiding officer shall give his or her ruling or decision thereon either forthwith or subsequently.

A point of order, by its nature, is disruptive to whoever would be speaking at a particular moment. For this reason he saw no sense in having to wait to be recognised, and said that this was at odds with proceedings as captured by the Rules. An MP could simply stand up on a point of order for recognition to then happen from the Speaker, who would allow the point of order to be stated.

He went on that the apparent culture of the presiding officer now to demand that MPs sit down and switch off microphones, when they had not said anything wrong, was not part of the Rules  - which the ANC itself had passed.

Mr Shivambu was in disagreement with Mr Mthembu’s proposal of taking collective responsibility for the conduct of a specific individual. He had raised with the Chief Whips Forum the issue of a difference in the conduct of presiding officers both in joint and NA sittings. He reiterated that all other presiding officers except the current Speaker were able to manage the Chamber without being biased, and without disruptions. He described her as “temperamental, dismissive and hateful.” She could not use this post as her personal post.

Mr Steenhuisen said that the rules of both Houses would gain credibility when they were seen to be applied equally to all MPs. That meant that presiding officers had to abide by the Rules in the same manner as they applied them to all MPs. Everyone would shy away from transgressing the Rules if they were applied equally and fairly across. Additionally the rulings had to be consistent and fair.

He felt sorry for the Speaker but felt that the job also came with requirements both  laid down rules and from  particular conventions in the House. There certainly were ways to defuse a situation in the House; former Speaker Mr Max Sisulu had a way of calming the most robust debates, through humour, gently chastising wayward MPs and other tools so that on very few occasions had MPs been dismissed from House sittings. There were enough tools for presiding officers without defaulting to dismissing MPs from proceedings. Mr Shivambu had emphasised that respect was a two way street which extended to conversations that people had with each other in private and need not be brought to Committees, as Mr Mthembu had done. The duty to maintain Parliament’s decorum did not mean there was to be no robust debating, but that responsibility rested with all MPs. 

Ms Didiza commented that indeed the rules of debate and how those were managed in the House by presiding officers had been raised. However there were some grey areas around the rules, including the point of order as raised by Mr Shivambu. The current Rules only dealt with raising a point of order, but not define whether one could do so whilst standing or sitting. That had to be attended to, so that there was a single understanding as to what “rising” meant in terms of the point of order.

The unequal application of the rules as had been ventilated by the opposition parties. In that discussion some personal issues were also raised. She thought  ways had to be found to deal with these matters that certainly would not help build the harmony that all MPs wanted in the House. It could not be that the House dealt with the individual who held a position and not the MP who raised a matter. By omission or commission, when the House reached that point, the lines got blurred between the office and the personality and the latter could be judged on. She appealed that, given the obvious concerns, MPs had to find the time and the way to deal with these.

Ms Mokwele reiterated Mr Shivambu's sentiments.

Mr Mthembu requested that the chief whips t be granted a session with presiding officers to engage on all the matters raised above, so that managing the events in both Houses could be a shared responsibility.

Mr Shivambu said the rules and laws establishing the Speaker broadly gave that office leadership of Parliament, and the ANC could consider delegating that role to people with “a far more sensible temperament”.

Mr Tsenoli summarised the points of agreement by the Committee:
- Reference to the Subcommittee on the review of joint rules on Mr Steenhuisen's item.
- He asked that the support staff inform all chief whips about the need for members from parties to be seconded to that Subcommittee, so it could be constituted and would sit that week, after which a report would be tabled to the Joint Rules Committee
- Members stressed that the Rules were applicable to all MPs; observing decorum would be the logical conclusion. Furthermore offences were explicitly stated, and so was the recourse.

Mr Steenhuisen asked about the procedure and whether, not being a member of the Subcommittee on the Review of Joint Rules, he would be required to submit a written complaint.

Mr Tsenoli said that if his submission had been in oral form only, then indeed he would have to submit a written complaint. 

Adoption of minutes of 11 November 2015
Mr Tsenoli lamented the misspelling of his initials, noting that it was not the first time he had raised the matter with support staff.

Ms Mokwele said that she had been present at the meeting, but her presence was not reflected .

Mr S Matiase (EFF) also asked that his initials be corrected.

The minutes were adopted, with technical amendments.

Mr Mthembu asked whether indeed the Committee met only once a year.

Mr Tsenoli replied that he had been informed that the Joint Rules Committee only met when the situation required that there should be a meeting.
The meeting was then adjourned.

 

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