Principle of a ruling during the joint sitting on 22 November 2016; Commencement of the Review of the Joint Rules

Meeting report

Opening remarks

The Chairperson said that the Joint Subcommittee on Joint Rules had no decision-making power.

Referring to the consideration of the principle of a ruling during the Joint Sitting of 22 November 2016, he said that Members would need to decide on how to proceed. He asked the secretary to state all names of members of the subcommittee for the purpose of confirmation. After the names had been read out, he repeated that the subcommittee was merely a task team that could not take a decision.

The Chairperson recorded apologies from Mr N Kwankwa (UDM), Mr C Mulder (FF+) and Mr N Singh (IFP), and commented that he could not understand why Members would not attend the first meeting at which they would decide how to work. However, their apologies would be accepted because they might be attending to other commitments, and he hoped they would be present at the next sitting.

Principle of ruling: Consideration

Mr Mkhuseli Mbebe, Secretary to the Chairperson, said that the meeting had been convened with regard to the principle of a ruling given during the Joint Sitting on Tuesday, 22 November 2016, and that there were certain issues that needed clarity. During the deliberations, the subcommittee had observed that there was confusion regarding what exactly the Speaker was ruling unparliamentary, and consequently what exactly the Member had been requested to withdraw. This confusion might have contributed to the situation in the joint sitting.

He took the Members through the principles that had been affirmed by the subcommittee. He finally noted that there were two comments that had been made:

• Clarity was required in the application of Joint Rule 14P in future Joint Sittings; and
• The review of the Joint Rules should be prioritised, especially in relation to the Joint Rules on Order in Public Meetings and Rules of Debates.

Discussion

Ms J Kilian (ANC) felt that the principles were not introducing anything new. It was important for Members to have a general understanding that they could adopt principles that would guide the Joint Sitting. The Constitution gave specific powers and functions to the Houses, and those powers should be taken into consideration. She agreed with the Chairperson that the subcommittee could not take a decision.

Ms Kilian said that she believed that the presiding officer in a Joint Sitting could enforce discipline. However, it was important that Members recognised the independence of each House. The Speaker of Parliament should impose discipline on any Member, taking into consideration the fundamental principles guiding both Houses.

Mr Mbebe referred to rule 12, which he said was applicable in the case of the Joint Sittings. However, there was a problem with the interpretation of the rule. Some would argue that the rule did not apply. He said that there were rather no rules of debate in the Joint Sitting.

The Chairperson said the meeting was not restricted to Members only. Staff and legal advisors present were welcome to express their views and make comments.

Ms Kilian said that when Members did the review, they should take into consideration the way in which Parliament was structured and therefore formulate rules and principles in line with the fact that there were two Houses. Rules should be established to regulate specific Members.

The Chairperson remarked that Members should be careful and guard against making rules that would make it difficult for Members to express themselves.

Mr Mbebe said that the review was going to be on the order in public meetings, and the rules of debate in the Joint Sittings. It could be unfair to dismiss a Member without compensation. He also said that the rules of debate in Joint Sittings were still new, and the presiding officer should rely on the rules of the National Assembly.

Review of the Joint Rules: Consideration

Mr Mbebe said that there was a draft/proposed amendment to Chapter 1 to 2A of the Joint Rules of Parliament. Chapter 1 dealt with the interpretation and application, whereas Chapter 2 dealt with the order in Joint Sittings and rules of debate. Members needed to prioritise these chapters, because the rules were not clear and there had been a problem of interpretation.

Discussion

Ms Killian appreciated that there was a proposed amendment, and said that the subcommittee should start at particular point and that the two chapters should be prioritised. Members should scrutinise the rules of the National Assembly and see whether they were in line with the constitution. They should do the same with the Joint Rules. Her concern was that more rules could be added without reviewing the operation of the existing rules.

Mr M Booi (ANC) said that the subcommittee should be sensitive to the system and be mindful of how Members in the NCOP should be treated.

Mr S Mohai (ANC) sought clarity about the process, and asked whether Members should start with Chapter 1 and then prioritise other aspects.

Ms Killian seconded Mr Booi. She reiterated that the constitution should specify how the NCOP would take the decision. The subcommittee should take that into consideration. It should also consider the independence of both Houses and guard against creating another institution of law that would frustrate the work of the two Houses. The subcommittee should not rush into making rules. Rather, the subcommittee should receive legal advice while they went along with consideration of the rules of the Joint Sittings.

The Chairperson said that the State Law Advisor had been invited, and that the Parliamentary Legal Advisor was there to assist.

Adv Frank Jenkins, Senior Legal Advisor: Parliament, said that he agreed with the sentiments expressed at the meeting, and said that there was a ruling of the court which provided guidance on how the rules of the Joint Sitting could be discussed. He added that section 75 of the Constitution might provide further guidance on how to go about it.

The Chairperson agreed with Ms Kilian that there were rules of procedure for the NCOP. The rules under consideration would be sent out to the parties for approval. He suggested that the subcommittee’s meeting should be convened in the following week.

The Chairperson took Members through the draft/proposed amendment document page by page. Chapter One was from page one to seven. There were many proposals in Chapter Two, which started on page eight of the amendment document. He commented that Members should go and consult their parties.

Ms Kilian sought clarity on 14T rule, and said that the provision should be deliberated on at the next meeting. She could not understand how section 75 of the Constitution would assist. It should be noted that there were distinct processes: one process applied to the NCOP, whereas another process applied to the National Assembly. The subcommittee was therefore not following what the Constitution said. Adv Jenkins should convince the Committee why section 75 applied, and his argument should be confirmed by the State Law Advisor, because sometimes they provided contradictory advice.

The Chairperson said that the argument made by Adv Jenkins was relevant, and asked him to draft something that would assist the Committee to take matter forward. He said he wanted to use the two weeks during which Parliament was in recess, to finalise the draft.

The meeting was adjourned.