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

Meeting report

Consideration of Principles

Mr Masibulele Xaso, National Assembly Secretary: Parliament, took the Members through the document, page by page.

Principle 1

Mr Xaso said Principles 1 - 6 sought to clarify the issue of expression and Members refraining from using unparliamentary language.

Ms J Kilian (ANC) asked the legal advisors to make a reference to Section 58 and 71 of the Constitution, in addition to Section 6 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004.

The Committee agreed with the principle, with minor amendments.

Principle 2

Ms N Mazzone (DA) said this principle dealt with a subjective issue, because what she found offensive or insulting might not be insulting or offensive to the presiding officer. It was important to have participation from presiding officers. Members should not be the only ones coming up with principles. Most decisions from the National Assembly (NA) Table made the presiding officers look foolish. There was too much subjectivity used in the House. The role of presiding officers had to come in, and they should learn that a robust debate needed leniency. For instance, the President of the country was a public figure, and when he came to Parliament, the debate was going to be robust.

Mr M Booi (ANC) said what Ms Mazzone had said was raising the complexity of the issue. There were times when people used certain words, but the Committee had not determined where those words fell under. He supported the idea of a contribution from the presiding officers.

Ms Kilian remarked the problem with this principle lay in its practical implementation. Some Members debated in their second language, and both sides of the Houses were very sensitive. Even if the Committee could draft a list of unacceptable names, it would still not work. She said the principle was fine, and suggested it should be looked at again.

The Chairperson commented that the Rules of the NA were clear. Members should avoid putting up a list of offensive words. Non-native speakers would never understand the nuances of the English language. For example, ‘shut up’ was offensive to some, but was not to others. The principle must not be prescriptive. The debate must just flow. The context, culture and background should be taken into consideration.

The State Law Advisor, on unparliamentary language and conduct, said the debate in the House should continue to be robust, and the list of insulting or offensive words should not be broadened. Tone and manner would determine how the presiding officer would rule.

Mr Booi said this principle came from an instance that happened in the House. The President had been ridiculed all the time. He had been called ‘Baba kaDuduzane’ and ‘JZ 783’. The problem was how to deal with such name calling.

Mr K Mileham (DA) commented that people used clever words to describe their political opponents. ‘Baba kaDuduzane’ was not insulting. The President was the father of Duduzane. That was a fact. It was a clever reference to him. The presiding officers should use discretion and exercise leniency. The Committee could not make a rule to outlaw a clever reference.

Ms Kilian said the debate should continue to be robust in the House. Members should try not to offend the dignity of a person during the debate. The NA Rules were clear about referring to Members.

Mr Booi wanted to know how the presiding officers were going to deal with the issue of ridiculing a person who was not in the House, especially the President, because that was being disrespectful.

Mr Mileham said the word ‘disrespectful’ was being used loosely. He said respect was earned. The word ‘disrespectful’ was broad and should be discussed carefully.

The Chairperson said Members should have a general understanding of what the principle was all about. It was important not to have a different interpretation of the principle. The presiding officers should be given space to maneouvre matters, and not be restricted by the rules.

The Committee agreed to the principle, with no amendments.

Principle 3

The Committee agreed with the principle, with a minor amendment

Principle 4

The Committee agreed with the principle, with no amendment.

Principle 5

The Committee agreed with the principle, with no amendment.

Principle 6

The Committee agreed with the principle, with a minor amendment.

Principle 7

Ms Mazzone remarked this principle made use of literary devices which were subjective. Members were free to use quotations, as long as they were going to acknowledge the quotes.

Mr Booi wanted to know if making a reference to ‘apartheid’ or ‘Verwoerd’ was not going to create a problem to the person it was directed at, while referring to the history of the country and at the same time demeaning the opposition party.

The Chairperson remarked people should be allowed to use quotes to advance the logic of their arguments. The use of quotes should not be ruled out. Presiding officers were not robots. because they were also engaged on the matter.

The Committee agreed with the principle, with no amendment.

Principle 8

This principle provided clarity on what should be withdrawn.

Ms Mazzone wanted to know if the uttered words which had to be withdrawn could not be stated, or be given to the Members during the debate, if she said something in the House and the Chairperson decided she must withdraw her statement or uttered words.

Mr Xaso replied it was the Hansard that had the details of the statement that needed to be withdrawn. Giving Members the statement was not done inside the House during the debate.

Mr Booi asked at which stage a Member had to withdraw a statement. He asked if it was possible to do the withdrawal immediately, or after two weeks.

Ms Kilian said that Members were no angels. Sometimes statements were uttered to get a shock reaction. It must be remembered a joint sitting was there for a specific purpose. The presiding officer should state immediately if a statement had to be withdrawn. In most cases, there was no confusion. She said this was not a crucial principle.

Ms Mazzone said the principle should be retained because there were instances when the presiding officer did not hear what was being said because the House was rowdy. Sometimes things got lost in interpretation. The principle should be used when clarity was needed.

The state legal advisor explained that before clarification was given, there must be a request. The presiding officer should state what was unparliamentary, and the statement to be withdrawn.

The Chairperson said a Member had the right to know what needed to be withdrawn and be given an explanation.

Mr Perran Hahndiek, Committee Secretary, said the person taking the point of order should identify what was unparliamentary.

The Committee agreed with the principle, with no amendments.

Principle 9

This principle dealt with an instance where a Chief Whip of a party, or a party representative, wished to address the presiding officer regarding a point of order involving his/her Member.

Ms Kilian said the same debating principles should be retained, even if it was a joint sitting.

Mr Booi said this principle would not be able to stand its ground for a joint ruling. The Chief Whips of the NA were different from those of the NCOP.

Adv Benny Nonyane, NCOP Undersecretary, agreed with Mr Booi. He said when the point of order was raised against the Member, it was because of what the Member had said. It should not be against the party the Member represented.

Ms Mazzone remarked that some presiding officers were fair while others were unfair. The Chief Whip of the NA was the only one who had a microphone. The NCOP Chief Whip did not have access to a microphone.

Mr Hahndiek commented that it would be difficult for an NCOP Member to raise a point of order when he/she did not have the microphone. This matter should be corrected in the Rules.

The Chairperson indicated that to be given a platform, one must raise one’s hand and be recognised. Then one would be given a chance to speak. There were roving microphones that could be used. The joint sittings were few, and he did not remember a presiding officer not giving a Member a chance to speak, if the presiding officer had recognised that Member.

Ms Kilian said the presiding officer had to use his/her discretion when taking a point of order. When the presiding officer had made a ruling, that door could not be opened again. Principle 9 already existed and should be removed.

Mr Booi said it appeared the NCOP was not being taken seriously. The Chief Whip of the NCOP was not the same as that of the NA. The NCOP was facing its own challenges.

The Chairperson said that during a joint sitting, everyone had the right to state one's viewpoint. He observed that when a Chief Whip raised a hand, the Chief Whip was given more precedence than their Members. He said the concerns of the sub-committee would be given to the Joint Rules Committee.

The Committee agreed with the principle, with minor amendments.

Proposed amendments to Chapters 1 and 2A of Joint Rules

Mr Xaso took the Members through the document, page by page.

Chapter 1

Sources of authority of Parliament

Clauses 1A and 1B provided sources of authority of the joint business of the Houses, and the basis of joint rules.

Ms Kilian, on Clause 1A, suggested retention of the reference to sources, and recognise Houses that formed Parliament and their rules. Regarding Clause 1A (h), she suggested it was better to say the ‘conventions or practices have been established on Constitutional practices’.

Members agreed with the clauses, with minor amendments.

2. Unforeseen eventualities

Mr Booi remarked there could not be unforeseen circumstances in a democratic process. The principle gave the Speaker too much power when it came to rulings. Rulings had to be done in the presence of Members of Parliament.

The Chairperson said there could be no rules that would meet all the eventualities or circumstances.

Ms Mazzone indicated there had been unforeseen circumstances, where Mr Steenhuizen had been removed from the House, and had had to be recalled or brought back to the House. She suggested there should be a line that talked about inclusion of political parties.

Mr Xaso said the presiding officer should have the views of the political parties.

The legal advisor defined the meaning of 'in consultation' and 'after consultation'; and defined the difference between 'rules' and 'a ruling'.

Members agreed with the principle, with minor amendments.

2A. Directives and guidelines of Joint Rules Committee

Ms Kilian pointed out there had been long debates in the NA, that rules had to be captured in the Guide Book, and that they would be honoured as a Rule.

Ms Mazzone said she was concerned with the use of the word 'rule'. It should be ‘a ruling.’ A ruling would be a rule if it was framed by the Speaker.

Members agreed with the principle, with minor amendments.

2B. Rulings

Members agreed with the principle, with no amendments.

2C. Conventions and practices

Ms Mazzone said this principle gave Members of both Houses a lot of power. She said it was good to change the conventions to make Parliament relevant.

Members agreed with the principle, with no amendment.

2D. Contempt

The legal advisor suggested there should be an alignment of the rules, because there was a disjuncture between the NA and NCOP rules. The NCOP rules applied only to the NCOP, and not to the NA. The same applied with the NA rules. What applied to one group, did not apply to the other.

Members agreed with the principle, with minor amendments.

3 & 4. Suspension and non-diminution or non-limitation of Rules

Members agreed with the principles, with no amendments

5. Application of Joint Rules

Mr K Mileham (DA) pointed out there was a need to identify situations where local government officials should participate in the joint sitting debates. These debates did not affect them directly. It was not necessary for them to be in these debates. What was important was to identify areas they could participate in during the joint sittings. They must be invited when it was necessary.

Mr Booi suggested it was possible the former NCOP chairperson, Mr M Mahlangu, had not read the rules when he allowed local government officials to participate in the joint sittings.

The Chairperson said that the South African Local Government Association (SALGA) was invited when it was needed to share information and experiences with Parliament, because it represented a local sphere of government.

The state legal advisor said Section 67 of the Constitution dealt with the NCOP. SALGA was envisaged to participate in Parliament when it was needed, but the NCOP remained the main component.

Mr Mileham said rules should apply equally to everybody who participated in the joint sittings. The representatives of local government represented a sphere of government, and the Constitution made provision for their participation in the NCOP. The NCOP had to decide on the reason for the invitation, as this had a bearing on the budget.

Mr C de Beer (ANC, Northern Cape) pointed out that SALGA paid its own expenses when dealing with the NCOP. The NCOP was the only House that dealt with provinces and the local sphere of government.

Mr Hahndiek said that whoever participated in a joint sitting, the rules would apply to them.

Members agreed with the principle, with minor amendments.

6. Public participation

Members agreed with the principle, with no amendment.

Chapter 2

7. Calling of joint sittings

Ms Mazzone, on Clause 2, suggested the Speaker and the Chairperson of the Council had to act with the programme committee. Joint sittings sometimes happened when they were not necessary, because the purpose of the joint sitting had been lost to a certain extent.

Mr Hahndiek said the joint sittings had to be approved by both Houses of Parliament.

The state legal advisor pointed out when the Constitution was drafted, the rules of Parliament were not in place yet. The joint sitting had been extraordinary because it had happened during a recess. A request for a joint sitting had to be approved within seven working days.

Members agreed with the principle, with minor amendments.

7A. Opening of Parliament

Members agreed with the principle, with no amendments.

7B. President's State of the Nation Address

Members agreed with the principle, with no amendments.

8 & 9. Venue; and day and time

Members agreed with the principles, with no amendments.

10. Presiding officer

Members agreed with the principle, with a minor amendment.

11. Relief of presiding officer

Members agreed with the principle, with no amendments.

12 & 13. Discipline; and procedure

Members agreed with the principles, with no amendments.

14. Public access

Mr Hahndiek indicated the Houses may not exclude the media and public, except where there was a reason not to give them access.

Ms Kilian said there was a need to further elaborate on the definition of public access, admission and conduct. It was important to incorporate some of the NA rules for the joint sitting.

Mr Xaso agreed that clause 2, under Public Access, needed to be reformulated.

Members agreed with the principle, with amendments.

The meeting was adjourned.