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

Meeting report

Review of Updated Principles

Ms Ayesha Johaar, Deputy Chief: State Law Advisor took the sub-committee through the revised/updated principles. She said that the principles were aligned with sections 58 and 71 of the Constitution and that the Principle One was revised in order to make reference to these sections, which provided privileges to Members of the National Assembly and the National Council of Provinces (NCOP). Such privileges were, among other things, the freedom of speech. She further said that section 6 of the Powers, Privileges, and Immunities of Parliament and Provincial Legislature Act 4 of 2004 conferred the right of freedom of speech to the President and Members of both Houses in a joint sitting. In the Principle One, reference was made to the Constitution as the starting point from which all principles and rules would flow.

Ms Johaar said that the Principle Two had been revised and, as a result, combined the previous Principles Two and Five. The Principle Three combined the previous Principles Six and Seven and moved closer to the discussion regarding unparliamentary expressions and conduct contained in the revised Principle Two. The Principle Five retained old Principle Four, whereas the Principle Six retained the old Principle Eight.

Mr Mkhuseli Mbebe, Secretary to the Chairperson, said that the old Principle Nine, which dealt with a Chief Whip of a party or party representative, had been removed.

Discussion

Ms J Kilian (ANC) said that section 58 of the Constitution did not restrict the privilege of the freedom of speech to Members. Therefore the Principle One should be revised to include Ministers and Deputy Ministers. Members should bear in mind that there were Deputy Ministers who were not Members of the National Assembly and that the Principle One should comprehensively cover all Ministers and Deputy Ministers.

Ms N Mazzone (DA), referring to Principle Two, said that the last paragraph should be revised to read as follows: “These include words and conduct that are offensive, abusive, insulting, disrespectful and threatening gestures and sounds.” She had added the word “sounds” in the paragraph in order to cover conducts such as hissing and barking, which she found to be embarrassing.

Mr M Booi (ANC) asked whether the word “conduct” was not enough to cover the conduct of hissing and barking. He agreed with the proposal of Ms Kilian that the Principle One should be extended to cover provincial Executive Members as well as members of the South African Local Government Association (SALGA). He sought clarity from the legal team whether section 71 of the Constitution would not cover SALGA.

The Chairperson reminded Members that the principles being established should aim at assisting the joint sittings in the future, and this should be taken into consideration.

Ms Kilian felt that SALGA should not be included in the principles, but should rather be elaborated on in the rules of joint sittings. Of the essence was that the right to freedom of speech was reflected in the Principle One.

Ms Booi said that he seconded Ms Mazzone’s proposal.

Ms Kilian, referring to Principle Three, proposed that the phrase “their integrity as Members” should be revised to state “their integrity.”

The Chairperson said that the whole paragraph looked fine to him.

Ms Kilian, referring to Principle Four, proposed that the term “charge” should be qualified. It should be specified whether it was a judicial or criminal charge.

The Chairperson said that the term “charge” was used to refer to any charge.

The Chairperson asked whether there was any problem with Principles Five and Six.

Members said that there was no problem with the wording.

Proposed amendments to Chapter 1 to 2A of the Joint Rules of Parliament

Mr Mbebe took the sub-committee through proposed amendments to Chapter 1 to 2A, clause by clause.

He said that Chapter 1 dealt with the sources of authority and their application, and Chapter 2A dealt with order in joint sittings and rules of debate. The freedom of speech for Members of the National Assembly and the NCOP, as well as Ministers, Deputy Ministers and provincial delegates, was covered by the Constitution. It was incumbent on Members to conduct themselves with dignity in accordance with the rules and decorum of joint sittings. The sub-committee would be picking up from where it left off in the previous meeting.

The sub-committee started with consideration of Chapter 2, dealing with order in joint sittings and the rules of debate.

Mr Mbebe read out clauses 14AA and 14A.

Ms Mazzone, referring to subclause 2(d), said that the provision should be amended to take into consideration medical circumstances, where a Member might not be able to sit and thus had to stand in the aisle. However, standing in the aisle should be permitted by the presiding officer. She reminded Members that they were making hard rules that would be followed to bring order to joint sittings.

Mr Booi expressed his concern over an effort to regulate the conduct of Members, saying that it would be difficult to regulate certain conducts. He alluded to an example where a Member might be sitting on a bench where there was no microphone, and had to stand up and cross aisles in order to speak.

Ms Kilian asked whether the official in the national or provincial executive, under clause 14AA, included Directors General and other officials holding senior positions, and sought clarity as to who those officials were. She stressed that section 58 of the Constitution referred to Cabinet Members and Deputy Ministers’ participation in the National Assembly, whereas section 66 of the Constitution prescribed their participation in the NCOP. There was a need for legal advice with regard to what “national” and “provincial” executive meant, to avoid misinterpretation of the term.

Ms D Dlakude (ANC), referring to sub-clause 2(e), said that some cultural objects were very dangerous, and asked how these objects could be barred or prevented from being used when it got hot in the Chamber. She said that there were some Members of provincial councils who attended sittings in traditional/cultural attire – with even spears and shields in their hands.

Mr Perran Hahndiek, National Assembly: Table Staff, said that section 6 of the Powers, Privileges, and Immunities of Parliament and Provincial Legislature Act provided for freedom of speech to Members of both Houses, and not to executives. There was inconsistency between section 6 of the Privileges Act and sections 58, 66, and 71 of the Constitution.

Adv Frank Jenkins, Senior Legal Advisor: Parliament, agreed. He further commented that members of SALGA were not executives. They could sit in the NCOP, but when it came to joint sittings, they could not be allowed to speak because they had no freedom of speech in terms of the Constitution. He agreed that although SALGA had a role to play in the NCOP, there was no rule in the Constitution that gave SALGA a role in joint sittings. This was a policy problem. If they were allowed to speak in the joint sittings, this would lead to amendment of the Privileges Act.

Ms Razia Thinda, Support Staff, said that there were privileges in terms of the Privileges Act enjoyed by people who came to brief Parliament, but who were not Members of Parliament.

Ms Kilian felt that there was confusion between privileges and freedom of speech. There should be engagement on these concepts, to ensure that they were constitutionally on the same page.

Ms Mazzone felt that section 71(1) dealt with privileges which were not covered by the Privileges Act.

The Chairperson said that the legal team should help to clarify the matter and see how it could be reduced in writing to legal terms.

Ms Dlakude said that there were issues that needed to be clarified. Helmets were being thrown in Parliament and no action had been taken. Something should be done if Members were not prepared to see blood on the floor. Helmets should not be brought into the Houses. Members were using glasses. They were using bottles. They were using helmets. If helmets were being used, what about spears and shields?

Ms Mezzane felt that the politics was being taken too far. It was not politically correct to allow a person to bring a spear into Parliament, and for her to be concerned whether it would be used against her. She should not have to fear when she was in her work place. The work place should be safe and secure.  Accordingly, people should be allowed to put on their cultural attire, but refrain from bringing dangerous objects of any kind. It was constitutionally sound to encourage Members to attend in their culture attire in order to show South Africa’s cultural diversity.

The Chairperson said that Members should bear in mind that there were Members of Parliament who were sangomas. As Members, they were allowed to come into Parliament to attend in their cultural attire. No one could prevent them from attending sittings in their traditional gear, as this would create constitutional problems.

Ms Dlakude said that the Chairperson should note that those Members who were sangomas, were not attending sittings to practice as sangomas.

Mr Booi said that the problem was that human behaviour was unpredictable. If sangomas were allowed to attend with their objects, they might misuse them and threaten the rights of others. If sangomas were allowed to come in with their dangerous objects, then Members would not be protected.

The Chairperson said that the discussion on sangomas should be put to rest. He referred to a cultural object called the makaraba (the artfully created headgear of South African soccer fans), which all political parties agreed could not be brought into Parliament.

Ms Kilian said that it was essential to follow the rules and decorum of Parliament. Before, Members had been able follow these rules, and there had been no vandalisation of Parliament, but now there was a high level of violence and disorder. Rules were being created to ensure the safety and security of Members.
 
The Chairperson said that there were objects that were harmless, and the important thing was that the sub-committee was modernising Parliament. Whatever rules were created, sangomas should not be denied their cultural rights. He agreed with the exclusion of the makaraba, and said that a makaraba was not cultural object.

Ms Mazzone said that the makaraba was a cultural object.

The Chairperson said it was not, and furthermore, it was very dangerous.

Ms Mazzone argued that one could not allow a sangoma to come with crockery and disallow others to come with a makaraba. Did cultural rights apply to sangomas but not to others?

The Chairperson responded that South Africa had a multicultural society, and rules should not exclude anyone because there was a lot of law that protected people in the cultural context. He asked Ms Mazzone should point out one community which used makaraba as a cultural symbol. In his view, there was none. He asked the legal team to look at the matter and advise the sub-committee accordingly.

The Members agreed.

Mr Mbebe took the sub-committee through clauses 14B, 14C, 14D, 14E and 14F

Ms Kilian said that the provisions under clause 14D were already covered by clause 14A(2)(h). She suggested the deletion of clause 14D. Commenting on clause 14C, she said that it had become a norm to interrupt Members who were speaking in the Chamber, and such conduct was annoying. She sought clarity on what constituted a point of order, a question of privilege and a point of clarity. What should be done, because these points were being abused by members?

The Chairperson responded that they were being abused because there were no rules.

Mr Mbebe took the sub-committee through clause 14FA

Mr Booi raised concern with 14FA(c), and commented that the authority undermined was not only that of the presiding officer. A Member could not stand up and attack or undermine another Member who was speaking. Members should learn to apologise. The presiding officer should be protected.

Ms Dlakude said that the presiding officer was protected by a number of rules. She said that the EFF Members undermined chief whips in their attempts to protect them, therefore rules should apply. 

Mr Mbebe took the sub-committee through clause 14G. He said that there was a ruling of the court on automatic suspension which should also be taken into consideration. Ordering a Member to leave the Chamber was a punitive measure.

Mr Booi asked for clarification on the matter of punitive measures.

Ms Kilian remarked that ordering a Member to leave was not a punitive measure, as it had been there before and such an order was universal, as it was applied by other parliaments when there was gross misconduct. What constituted a punitive measure in terms of case law? If the court ruled that ordering a Member to leave was a punitive measure, this implied that the similar rule of the National Assembly should be revised. However, she needed to be convinced.

The Chairperson felt that the court ruling was about withdrawing a Member from the precincts of Parliament. He asked legal team to guide the sub-committee.

Adv Jenkins responded that there were two issues -- rules were created to restore and maintain order in the House, and to prevent gross misconduct. The question of gross misconduct was dealt with in terms of section 12 of the Privileges Act. Misbehaviour was included. The ruling of Judge Davis in 2014 dealt with disciplinary proceedings. He had alluded to two things: the removal of salaries and how it affected Members, and the removal of Members from office. Otherwise, logical thinking should be used to see whether the removal of a Member from the precincts would restore order in Parliament.

Mr Booi said that, drawing on experience, when Members were removed from the Chamber they were smashing the doors and windows of Parliament, or they would start addressing and mobilising people outside of Parliament, and this was very dangerous. Those Members who were ordered to leave should not be seen near or around Parliament because when they mobilised the population, they became unstoppable. It created instability outside of Parliament. If they were to be taken out of the precincts, it would be safe for all.

The Chairperson said that rules should be made for future purposes, and not rules that would be changed every month.

Ms Kilian said that more information was needed in order to create a rule on the issue in question.

Mr Mbebe took the Committee through clause 14GA, and referred Members to sub-clauses 3 and 4. These rules were similar to Assembly Rule 73(3), which the court had ruled to be unconstitutional in the case of EFF and Others v the Speaker of Parliament. These rules could also be challenged as unlawful.

Mr Mbebe referred Members to sub-clause 13 dealing with the physical removal of a Member from the Chamber, and asked whether there had been a proposal for an amendment from the NCOP.

Mr Booi asked what could happen when there were delegates from provinces.

Mr Mbebe took the Committee through clauses 14H, 14I, 14J, and 14K, and significant changes were made to clause 14J dealing with reflections upon judges and certain other holders of public office.

Ms Kilian asked the role of the NCOP in the dismissal and removal of judges and magistrates from office. Was this taking place in the concurrent function?

Mr Mbebe said that a judge could be removed by a resolution of National Assembly, and there was no involvement of the NCOP.

Mr Mbebe took the sub-committee through Clause 14L.

Ms Mazzone said that the Chairperson should be addressed as “Madam” or “Mr” Chair, or alternatively, “Chairman” or “Chairwoman”.

Ms Killian felt that there was contradiction between clauses 14L(a) and 14M.

The Chairperson said that the rules should be clear, and there should be no discretion.

Mr Mbebe took the sub-committee through clauses 14M, 14MA, 14N, 14O and 14P

Members agreed with these provisions as they were.

Mr Mbebe took the sub-committee through clause 14PAA

Ms Kilian commented that decisions taken by a majority should not be reflected on in a disrespectful manner. Any decision should be criticised respectfully, and not in a foolish manner.

Ms Mazzone felt that this provision deprived Members of their right to criticise a decision.

Ms Kilian said that she should look at the intention of the provision, which was to maintain order in House. The provision should rather be amended, and not scrapped.
 
Mr Mbele took the sub-committee through clauses 14Q, 14R, 14S, 14SA, 14T, 14U, 14V and 14W.

With regard to clause 14S, the Chairperson said that Members did abuse the “point of order,” because they kept saying “point of order,” and “point of order.”

Ms Mazzone commented that the presiding officer should be allowed to rule on the first point of order before another point of order could be submitted.

The clauses were adopted as they were.

Closure

Mr Mbebe proposed that the final draft on the principles would be made available on Friday, whereas the final draft on the rules of joint sittings would be made available next week. The sub-committee should decide on whether it would accommodate the submissions. The adoption of the rules of joint sittings would take place at the end of the year. Thereafter, there might be the consideration of revisions to other chapters, especially those that might have been affected.

Mr Booi said that the draft would be sent to the respective parties, and wait for their views. He wondered why other political parties were not attending the meeting.

The Chairperson said that they had refused to come.

Ms Kilian seconded Mr Booi. She appreciated that, although other parties were not present, the rules of joint sittings had been drafted with the support and guidance of the state law advisor and Parliamentary legal advisors.

Ms Mazzone said that Members of ANC could not set out the rules alone

The Chairperson said that Members from other parties had been attending.

The meeting was adjourned.