The Committee discussed the practical implications of the establishment of a Subcommittee to Monitor Executive Responses to Unanswered Questions. Each quarter this Subcommittee would engage the relevant Ministers on the reasons for the questions being unanswered. The Subcommittee would report its findings to the Rules Committee and any recommendations to address identified challenges or concerns. These would be reported to the National Assembly which could lead to censure of the Minister.
The ANC Chief Whip said that it will be the first time that Parliament creates a committee to be a watchdog over Ministers who do not play their part which is an achievement.
It also discussed the guidelines for mini-plenaries to facilitate debate amongst Members for which there is insufficient time during ordinary plenaries..
The Committee was prompted to deal with oversight of the Office of the President. This was raised in a letter to the Speaker by the IFP following the judgement delivered by Chief Justice Mogoeng in UDM v The Speaker of the National Assembly and Others in which parliamentary oversight over the executive was given paramountcy in holding the Presidency and Cabinet accountable. The Secretary of the National Assembly requested that he be given an opportunity to deal with this matter separately from the Committee setting and report back.
The Constitutional and Legal Services Office (CLSO) of Parliament had identified Acts enacted prior to 1994 which are still on the statute book. The purpose of this was to identify legislation that is potentially offensive or that contains discriminatory language, for repeal or amendment.
It was reported that over 1 000 pieces of legislation had been found. It was agreed that each piece of legislation be referred to the relevant portfolio committee and its support staff will liaise with the departments affected to ensure the legislation is repealed or amended.
Unanswered Questions by the Executive: Report by Subcommittee on Review of Assembly Rules
Mr M Mdakane (ANC), Chairperson of Sub-Committee on Rules, introduced the Subcommittee on Rules Report. He explained that after amended Assembly Rules were adopted by the National Assembly on 26 May 2016 there were some matters outstanding. In the meeting of the Sub-Committee on Rules on 6 October 2016 it considered the draft decision to create a Subcommittee to Monitor Executive Responses to Unanswered Questions and also the proposed guidelines for Mini-Plenary Debates.
The Sub-Committee on Rules agreed to a system to monitor questions which have been endorsed as “unanswered” in the Question Paper in terms of Rules 143(2), 144(5) and 146(3).
It was agreed that the Rules Committee would establish a permanent Subcommittee to Monitor Executive Responses to Unanswered Questions which would consist of a number of Members with party representation as determined by the Rules Committee. It would function in terms of National Assembly Rule 172(1). The subcommittee would be chaired by the Deputy Speaker. Each quarter this Subcommittee would engage the relevant Ministers on the reasons for the questions being unanswered. The Subcommittee would report its findings to the Rules Committee and any recommendations to address identified challenges or concerns.
The Rules Committee would subsequently consider the Subcommittee Report and report its considerations, findings and the recommendations and outcomes of the monitoring process to the House.
Mr Steenhuisen asked what would happen once the Rules Committee has expressed itself on the unanswered questions by the Executive. There has to be consequences and that this would either have to be done by way of resolution or acknowledgement by the relevant Ministers. This monitoring process extends the National Assembly Rules which already provide for the way in which unanswered questions should be dealt with and it is therefore necessary that consequence is attached to the way in which these unanswered questions are eventually answered. He is comfortable with the process but wanted to know what would happen after Ministers make use of the process. In any case Ministers should endeavour to avoid even getting to this stage in the first place.
Mr N Singh (IFP) said, first and foremost, he would like there to be particular focus on the composition of the subcommittee. He and members of his party have written to Ministries on numerous occasions and have often times not even received acknowledgement from those Ministries, let alone a response. This needs to be addressed otherwise it forces Members to put them in Written Questions so that those questions are at least dealt with through this monitoring system. They could eventually thwart the system.
Mr J Mthembu (Chief Whip of ANC) said that it will be the first time that Parliament creates a committee to be a watchdog on Ministers who do not play their part which is an achievement which should be acknowledged on its own. He added that the National Assembly Rules do provide for censure.
Mr Masibulele Xaso (Secretary of the National Assembly) said that no Minister will really be able to avoid answering a question if this monitoring system is implemented. This is really a way of holding Executive Members to account.
Subcommittees do not have the power to take decisions and therefore a subcommittee does not have to have equal representation or large numbers. Big subcommittees do not work and cause more problems than solutions. He proposed, as a first option, a subcommittee of ten (10) members and as a second option, a bigger subcommittee of eighteen (18) members.
Ms J Kilian (ANC) said that the consequences raised by Mr Steenhuisen is accommodated for in the monitoring process. The consequence comes into effect as the Subcommittee findings would be considered by Rules Committee and then expressed to the National Assembly which then allows for the potential of a motion of censure. The Committee should not be prescriptive but rather create a mechanism for improving Executive accountability to the National Assembly.
Mr Steenhuisen said that the Rules Committee could refer this matter to the Powers and Privileges Committee as an act of contempt according to NA Rule 10. That Committee would pass a resolution and which would subsequently conduct an investigation into whether the conduct constitutes contempt of House Rules and they would then proceed against the offending minister. It is not necessary to reinvent the wheel in this instance because we have existing legislation.
The Speaker agreed that Mr Steenhuisen raised a valid option because that Committee is already constituted in terms of the Rules. As for composition, she does not think it viable that the Leader of Government Business is part of the Subcommittee because that Office will always be represented in some or other capacity.
Mr Xaso suggested that it could then be limited to the Counsellor of the Deputy President which would be Dr Gerhard Koornhof (ANC) instead the Deputy President. He asked whether it would be allowed for the subcommittee to be named in alignment with National Assembly Rule 136 and be called the Committee to Monitor and Report on Questions Endorsed and Unanswered because that is what the Rule expressly provides. He asked that the establishment of this Subcommittee be taken to the House as opposed to being independently established by this Rules Committee.
The Speaker agreed to this.
Ms Kilian asked if it would be necessary to include the very lengthy name of the subcommittee in NA Rule 197(1) because there are listed the names of the permanent subcommittees in that provision but there is provision in 197(1)(c) for any other subcommittee.
Mr Mdakane replied that it was thought that the Rules Committee establish this subcommittee for the duration of the Fifth Parliament and assess it before making it permanent. It would then later became a permanent subcommittee should it be resolved as such. However, for now it will remain an order of the House.
The ANC Chief Whip said the composition is not a question of numbers at this point but rather just to get the monitoring process going.
Mini-Plenaries: Report by Subcommittee on Review of Assembly Rules
Mr Mdakane reported that mini-plenaries were included in the NA Rules to allow more opportunities for the House to discuss business and well as promote debate and exchange between Members. Any matters so referred by the Speaker after due consideration of the views and directions of the Programme Committee may be debated as a mini-plenary.
A mini-plenary does not make use of a speaker list but the Speaker must determine the time for each debate as well as the reasonable time for each party to participate in the debate. These are similar to the debates had in portfolio committees. There can also be multiple plenaries at the same time and Members can accordingly spend their time between the mini-plenaries in session as some Members have been known to do in portfolio committee meetings.
Chairpersons of mini-plenaries will be elected by the Speaker or any other presiding office or Member appointed by the speaker. The names and duration of these appointments will be published in Announcements, Tablings and Committee Reports. Also, no decisions may be taken at a mini-plenaries and must be referred to the House.
Mr Singh asked that since we are forward thinking and looking at 2019 and beyond, would there be potential for the chairpersons of mini-plenaries to come from other parties as opposed to the ruling party as training ground for the future.
Mr Steenhuisen said that there are practical problems which must be considered. He said you cannot use proportional representation in an environment where chairpersons are being chosen by the Speaker. It will not be fair in this instance for the Speaker to take into account proportional representation. One will be put in a tough position because every chairperson will be accused of favouritism. He added that speakers lists make proceedings so much easier because smaller parties are able to allocate Members to debates. In absence of a speakers list, perhaps the suggestion of Mr Singh becomes viable because then you cannot say that a specific chairperson only recognises Members of the ANC or parties that are sympathetic to the ANC. By differing the chair it swings the roundabout because you may be winning in one plenary but losing in another. Either way, training of chairpersons for mini-plenaries will be crucial. He suggested that there rather be a trial period rather than the adoption of hard and fast rule in respect of mini-plenaries.
Parliamentary Oversight Committee to Be Established for Vote 1: The Presidency
Mr N Singh (IFP) had written a letter to the Speaker about the need for a parliamentary committee to be tasked with oversight of Presidency. Mr Singh said that this matter is not being raised for the first time and that it was particularly pertinent since the Chief Justice Mogoeng ruling in UDM v Speaker of National Assembly and Others (CCT89/17)  ZACC 21; 2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC).
He quoted the judgment:
“It thus falls on Parliament to oversee the performance of the President and the rest of Cabinet and hold them accountable for the use of State power and the resources entrusted to them. And sight must never be lost that all constitutional obligations must be performed diligently and without delay”.
Mr Singh said that it is a constitutional imperative for Parliament to oversee the Executive and part of that is the Office of the President. For many years since 1994 there has been no oversight committee that interrogates the budget of the Office of the President. In the past this has been misconstrued as the President being called to account but it is rather a call to the accounting officer to come forward and account to Parliament. Further, there is provision in the National Assembly Rules for accounting before a parliamentary committee and this therefore needs to be put into motion.
Mr Xaso requested that he be given an opportunity to deal with this matter separately from this Committee setting and report back in due course.
The National Assembly Programme Committee had requested the Constitutional and Legal Services Office (CLSO) of Parliament to assist in identifying Acts enacted prior to 1994 which are still on the statute book. The purpose of this was to identify legislation that is potentially offensive or that contains discriminatory language, for repeal or amendment.
It was reported that over 1 000 pieces of legislation had been found and this list is ready for presentation before the Rules Committee. However, it was suggested that the list can be referred to an ad hoc committee who can liaise with each department identified or to the respective portfolio committee which may be more effective as these committees have their own support staff to liaise with those departments.
Mr Xaso agreed that the report should be referred to the relevant committees. He proposed that the Rules Committee agrees this process.
The proposal was met with unanimous agreement.
The Committee adopted the minutes of proceedings of 6 November 2016 with changes.
The Chairperson adjourned the meeting.
- Minutes of Proceedings 6 November 2016;
- Letter to Speaker on Parliamentary Oversight Committee to Be Established on The Presidency
- Confidential Memorandum on Pre-1994 Legislation
- List of Pre-1994 Legislation Still on the Statute Book
- Report to Subcommittee on the Review of the National Assembly Rules