Proposed Amendments to Joint Rules; Public Participation Model; Proposals by Leader of Government Business

Joint Rules

15 November 2017
Chairperson: Ms B Mbete (ANC) (Speaker of the National Assembly) and Ms T Modise (Chairperson of NCOP)
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Meeting Summary

The Committee met to consider a report from the Parliamentary Group on International Relations (PGIR) on proposed amendments to the Joint Rules of Parliament, following a review by a joint sub-committee.

The proposals covered a wide range of issues. These included the meanings of “point of order” and “point of privilege;” the procedures and processes to be followed when Members were aggrieved by a ruling of the Speaker; what constituted contempt, and gross disorderly conduct of Members; the authority and responsibilities of presiding officers during joint sittings; issues of discipline; access to Parliament by members of the public; and unparliamentary language and gestures. The role of the Leader of Government Business (LOGB), as covered in the joint rules, was explained.

During discussion, concern was expressed by the DA over how presiding officers would be held accountable in terms of the proposed amendments. Where rulings were wrong, there was no way for Members to obtain justice for those rulings, other than approaching the courts. There was no real justice for Members of parties who had been removed from Parliament or given rulings that were incorrect. The rule which addressed the control of microphones, was abused. It was used to shut down people’s right to talk in the House, especially when the presiding officer simply disagreed with the point. The House needed to start giving time frames for rulings to be made. An example was given of where a Member had made a rude gesture to the presiding officer, but the matter had had no ruling for almost a year. It was suggested that every six months, outstanding rulings be made. Presiding officers needed to be rational. An EFF Member said it was going to be difficult for these rules to be adopted by the EFF, as they were reactionary -- reacting to what happened in the House.

The Chairperson said the Committee should consider a postponement. A rule was not always oppressive, and the Members needed to look at the intention of rules. She proposed that the Committee agree on a postponement, and the secretariat should find a date to reconvene. She also suggested that rulings be published periodically, especially to ensure consistency in rulings. 

Meeting report

The Speaker of the National Assembly welcomed the Members, and asked for a motion to propose the adoption of the agenda.

Ms H Mkhaliphi (EFF) said the delegation of Parliament to go overseas was not on the agenda, and asked if it could be tabled for the next meeting by the Committee. She also said the current format being used was an old one, when the EFF was not in Parliament. She suggested that presiding officers should look at the matter.

Ms Mbete responded that on the agenda for the meeting today, there was a report from the Parliamentary Group on International Relations (PGIR). To this, the Committee might find space for the discussion raised by Ms Mkalipi. She said, however, that she was not aware of the issues that were going to be tabled under that item on the agenda for the day. However, she said that such a discussion would not be lost under that item.

Ms N Mente (EFF) asked for clarification if the issue of attendance of Ministers in the House was before the Committee today, before adoption of the agenda.

Ms Mbete responded that the matter would belong in the Rules Committee of a specific House, like the National Assembly, as opposed to today’s ‘Joint Rules Committee’. It thus belonged to the Rules Committee of the National Assembly.

The Leader of the Office of Government Business (LOGB) was bringing an item that would include the matter raised by Ms Mente. There was a proposal coming from the LOGB, which covered the area of attendance of Ministers as an issue requiring attention.

The Committee Secretary said the LOGB was making a submission on Chapter 3 of the Joint Rules. The question was whether the Committee here wished to deal with that in this meeting or if it should be referred to the Joint Sub-committee so that it could be dealt with. He added that this was the case, since today the Committee would be dealing with Chapters 1 and 2 of the Joint Rules.

Ms Mbete suggested allowing Mr G Koornhof (ANC) to briefly present the substance of what the submission was about in order for the Committee to agree to refer it. Since today’s meeting was not going to deal with Chapter 3, it would be beneficial for the Committee to refer it to the sub-committee. Once this was done, by the time the matter came back to this Committee, the sub-committee would have taken time to look at it, process it, and come up with the necessary recommendations that would be considered.

Ms Mente was agreeable to the above.

The agenda was adopted.

 

Adoption of Minutes

The minutes of the Committee’s meeting on 23 October 2017 were adopted with no corrections or amendments.

Ms Mkapili referred Members to page 7, where it spoke to rule 92 and lack of procedure on how to raise a point of order. She asked the Committee if the appropriate structure had taken the matter up with regard to rule 92.

The Committee Secretary clarified that the matter referred to rule 92 of the Rules of the National Assembly, which dealt with points of order. In the Joint Rules, the point of order had been clarified. The rule had been expanded to be comprehensive for now. The appropriate structure to deal with the National Assembly rules would be the National Assembly Rules Committee.

Mr J Steenhuisen (DA) referred Members to page 5, item 8 of the minutes. He indicated that the matter was still not resolved, with no principle of the ruling. The matter was supposed to be concluded by December 2016, but there was still no ruling. He was part of the process, and it had not been finalised. He had exchanged memorandums with Mr Booi, but there had been no ruling.

The Chairperson responded by proposing that they should be allowed to look at the matter again. He said parties had been given sufficient time to go and look at the matter and reconvene. However, the matter had not been finalised. He asked for more time to finalise the ruling.

The Committee Secretary said the report of the sub-committee dealt with two issues. The first was the reviewed rules, and the ruling made at the sitting of November 2016. The sub-committee had had an extensive discussion on the matter. There was an impression that it had been concluded.

Ms Mbete suggested that this be addressed later. She acknowledged that it had been raised in the context of minutes, but suggested it be addressed later.

 

Draft Public Participation Model

The Committee Secretary said at a meeting of the Joint Rules Committee in 2016, a presentation had been made on the Public Participation Model. The agreement was that the model must be referred to the parties. This had been done. There had been a call for comments from the parties, but to date, no comments had been received. It was therefore assumed that the parties did not have anything further to add to the model. He proposed that the Joint Rules Committee should adopt the model as presented.

Ms Thoko Didiza, the House Chairperson, said there had been enough time to consult and reflect on the model. Although there had been encouragement for public participation, there was never a clear framework that guided Committees among other stakeholders. There may be a need to strengthen the model over time. It would be wise to adopt the model. She supported its adoption.

Mr Steenhuisen raised concerns over the model. The first concern related to a report of the High Level Panel, which looked at how Parliament’s legislation had an effect on society. It would be premature to adopt the model without looking at how to incorporate some of the findings made by the High Level Panel. Several reports got tabled at Parliament and nothing much was done with those reports. Since there was no deadline to pass the model, it would be more meaningful to incorporate the findings of the High Level Panel.

He also said there had been something done about the role of Chapter 9 institutions, and their supplementary role to Parliament, which should also be incorporated. In correspondence with the Joint Standing Committee on the Financial Management of Parliament, there had been the revelation that there were significant budget constraints into the next financial year. He had heard that when the new budget was passed, there was not going to be much good news for the institution in terms of what could be rolled out. He suggested that the new financial reality be taken into consideration when looking at some of the events Parliament wanted to do. He gave an example of ‘Taking Parliament to the People’ and ‘Parliament to the Community’. There could be financial implications for some of these events. The budget allocated to Parliament must be ploughed into the core business of Parliament.

Mr M Booi (ANC) said he supported Ms Didiza in adopting the model. The mandate of the Committee had been fulfilled. Mr Steenhuisen was raising a lot of new issues that were not subjects of the meeting. He suggested that the model be adopted and the new suggestions be incorporated later. The model had been in Parliament for a long time, and had to move forward. There would always be new issues.

Mr Lechesa Tsenoli, Deputy Speaker of the National Assembly, said he supported the idea of adopting the model. The point which Mr Steenhuisen had raised was a crucial one. If there were outcomes from the High Level Panel that may have an impact on the model, then they must be incorporated into the model. He suggested that the Committee consider incorporating the findings of the High Level Panel, if there were any. The financial implications were crucial, but the model must be adopted. Improvements could always be included in the model.

Ms Mbete said the report from the High Level Panel would be finalised next week. She doubted there was going to be much done to the document, except expressing what was being expressed in today’s meeting. The model must be formally adopted. The Committee should seek to do what Mr Steenhuisen had suggested about incorporating some of the findings. The High Level Panel had been involved in a thorough process and their findings would be essential to consider. She suggested the adoption of the model, and further incorporation of the findings of the High Level Panel where necessary.

Mr Steenhuisen said he had a problem with that, as this had happened before when the Rules were rushed. It would be highly disrespectful to the work of the High Level Panel. He asked if the model had had any public participation, and what public engagement processes had been employed in that regard.

The Committee Secretary said there was a presentation on processes before the Committee. There had been extensive consultation on the model. The public had been consulted, and it had been put on Parliament’s website. There had been public hearings in all the provinces and the website of Parliament had also been used to source input from members of the public. There had been interaction with civil society, and ample time had been given for their inputs to be submitted. The documents could be made available to Members to show the extent of public participation.

Mr Tsenoli said if there were to be any amendments, those would be brought before the Committee to formally adopt them.

Mr Steenhuisen said he accepted that the model needed to have something in the interim. He suggested that this Committee could reconvene in three months to consider the High Level Panel’s report, and what could be adjusted and incorporated into the model. The Committee could not sit for a year without amending the model to incorporate the findings of the High Level Panel. He would be agreeable to adopting the model provided there was a timeline in place to review the model for the incorporation of the findings by the High Level Panel.

Ms Mbete said the Committee was agreeing in principle to adopt the model, and in no more than three months’ time to incorporate the findings of the High Level Panel. In three months, the Committee could reconvene to see how incorporation had taken place.

The Members of the Committee agreed.

 

Joint Sub-Committee on Review of Joint Rules

Mr R Mdakane (ANC), Chairperson of the Joint Sub-committee on the Review of the Joint Rules, asked the leadership of the meeting to look at the proposed amendment to Chapter 1 and 2A of the Joint Rules. The sub-committee had tried its level best to apply its mind on the issues and the rules that had been proposed. The presentation was divided into two sections dealing with areas from Chapter 1 and 2A.

Chapter One

In Chapter 1, part one of it was not a big issue. He said perhaps language issues would be pertinent in order to assist the sub-committee to develop it further. He drew attention to what was critical. The ‘point of order’ was one such issue. The sub-committee had defined what was meant by a point of order to make it easier for Members of Parliament to understand what it was.

Another issue that the sub-committee saw as pertinent was that of ‘privilege’. There had been a definition that had been put forward on what was privileged, and what a point of privilege could be. With regard to Chapter 1, part one, some of the areas in the document were general issues that did not pose a problem.

Mr Mkadane presented Chapter 1, part two, of the report which addressed the sources of authority of Parliament. It highlighted what the sub-committee considered to be the sources, the mandate of Parliament and the general work of Parliament. He had underlined parts of the text that were the proposed amendments. The bold type indicated what was proposed to be deleted.

The sub-committee had also improved the language with the assistance of the state legal team and research teams.

The proposals of 2A dealt with the directives and guidelines of the rules of the Committee. There would always be guidelines for the proper functioning and implementation of the rules. There would be assistance to clarify issues debated on many occasions.

With regard to 2B, which addressed rulings, there had been a lot of discussion around this. The sub-committee had had general agreement on the principles. What was left was formal adoption by the sub-committee. This could be done as soon as possible. Parties had been allowed time to look at it. There was a proposal for an amendment around rulings by the Speaker, what could be done when aggrieved and what the procedures and processes were under rule 2B (4). There was also general agreement in this area.

In terms of conventions and practices, there had been discussion around this that Parliamentary democracy had started a long time ago, with practices that were conventions Parliamentarians should adhere to. This was what formed the bulk of 2C.

An area that was sometimes difficult to deal with was the contempt of Members, and this was articulated under rule 2D. There had been an attempt to expand the provision, offering a definition of contempt.

Another critical area was on the suspension or supplementing of the rules in rule 3 of the National Assembly Rules. A point had been made that the rules of Parliament should not just be suspended. Suspension or supplementing should be done only if there was a need to do so.

The application of joint rules to non-Members was provided for under rule 5. There had been an expansion in terms of the Constitution. This was also to assist in clarifying who were non-Members and how rules would be applied to them.

There had been agreement on public participation as per the model earlier discussed, and essentially that was what rule 6 was about.

Chapter Two

Mr Mdakane proceeded to present Chapter 2 of the proposed amendments to the rules.

In rule 7, there was an explanation of what a joint sitting was, and the rules thereafter. There was also a reference to the Constitution on clauses that allowed for the calling of Joint Sittings. He drew particular attention to rule 7 (3), which stated that no other business would be considered during a joint sitting other than the specified business for which that joint sitting had been called. This was a critical provision, to ensure that the Joint Sitting would address the subject matter, avoiding too many points of order and points of privilege which took away the main purpose of the sitting.

Moving to rule 7A and 7B, he said it was essential to separate ‘Opening of a Parliament’ and the ‘President’s State of the Nation Address’, defining clearly what each was.

Another issue which was critical was that of ‘Presiding Officers’ under rule 10. The proposal under sub-section 2 was that the Deputy Speaker, the Deputy Chairperson of the Council, or another presiding officer, may preside during a joint sitting whenever requested to do so by the Speaker or the Chairperson. Following this, an essential area that had been proposed for amendments was that of the general authority and responsibility of presiding officers during joint sittings. Accordingly, presiding officers must:

  • Maintain and preserve the order of and the proper decorum in a joint sitting, and uphold the dignity and good name of Parliament;
  • Ensure strict observance of the Joint Rules in the joint sitting; and
  • Act fairly and impartially and apply the Joint Rules with due regard to ensuring the participation of Members of all political parties in a manner consistent with democracy.

These were important as a guide for the presiding officer when presiding over different kinds of debates.

Rule 12 dealt with the issue of discipline. The separation between the National Assembly and the National Council of Provinces was essential, as it was apparent that the Houses could deal with the issue of discipline on their own. There was a proposal that at the start of proceedings of a joint sitting, the presiding officer must afford Members an opportunity for silent prayer or meditation. In addition to this, the presiding officer may interrupt, suspend or adjourn the proceedings of the joint sitting. Finally, a no vote or decision may be taken by or in a joint sitting except for those provided for in section 203 of the Constitution.

The terms of public access under rule 13 had been elaborated upon. The provisions provided in the rule were to ensure there was a clear process and procedure. He commented that the people were free to come.

Chapter 2A dealt mainly with issues of order in Joint Sittings and rules of debate. There had been due consideration of freedom of speech, where the President, Cabinet members, Deputy Ministers, Members of the Assembly, delegates to the Council, officials in the national executive or a provincial executive referred to in section 66(2) of the Constitution, and the local government representatives referred to in section 67 of the Constitution, had freedom of speech in a Joint Sitting or in joint committees, subject to the Joint Rules and orders.

The conduct of Members was another area where an amendment was proposed. The idea was to avoid being too descriptive or vague to allow Members to be creative. The major point raised was that Members must at all times accord the presiding officers and other Members due respect; conduct themselves with dignity and in accordance with the decorum of Joint Sittings. There were other proposals included.

Mr Mdakane said rule 13C, which stated that Members should not converse loudly, was a rule that would not cause harm. Further to this, no Member may interrupt another Member while speaking, except to call attention to a point of order, subject to Joint Rule 13S, or a question of privilege, subject to Joint Rule 13SA, or at the discretion of the presiding officer and with the consent of the Member speaking, put a question to that Member. The discretion of presiding officers was a critical area. Presiding officers should not be forced to give platforms where he/she did not want to.

13E was a matter of precedence of the Presiding Officer. Whenever the presiding officer addressed Members during a joint sitting, any Member then speaking or offering to speak must resume his or her seat and the presiding officer must be heard without interruption.

Irrelevance or repetition under 14F had always been there, but there was a new proposal. The presiding officer may order a Member addressing a Joint Sitting to stop speaking if that Member, despite warnings from the Chair, persists in irrelevant or repetitive arguments.

Grossly disorderly conduct under 14FA had been elaborated upon and expanded. It provided that Members may not engage in grossly disorderly conduct at a Joint Sitting.  This included:

  • Deliberately creating serious disorder or disruption;
  • Any manner whatsoever of physically intervening, preventing, obstructing or hindering the removal of a Member from the Chamber who had been ordered to leave the Chamber;
  • Repeatedly undermining the authority of the presiding officer or repeatedly refusing to obey rulings of the presiding officer
  • Repeatedly disrespecting and interrupting the presiding officer while the latter was addressing the Joint Sitting.

Other areas of the proposed amendments involved a matter of language improvement. For example, ‘shall’ had been replaced by ‘must’ in several provisions. He said ‘shall’ was used in Victorian times.

With regard to removal of a Member under rule 13GA, there was a process underlined, as well as a procedure. In view of Members having the right to freedom of speech and were protected by immunities and privilege, the provision had attempted to be detailed. Removal of a Member of Parliament had to be done in exceptional circumstances. This was largely due to the fact that MPs represented a community. Thus, from subsections 1 to 12, there were proposals for procedure.

Under 13I, for expressions of regret, there was proposal that if the Speaker or the Chairperson approved such expression of regret, the Speaker or the Chairperson must inform the Joint Sitting or the Houses accordingly.

Under 13L, how Members address the chair was addressed. Of note, every Member must, if possible, stand while addressing the Chair.

Recognition of Members to speak was subject to Joint Rule 13L, and in accordance with Joint Rule 13U, a member may speak only when recognised by the presiding officer. There was proposal that in a debate, the presiding officer must recognise Members in accordance with a list of Members who were to speak in the debate.

With regard to 13MA, which addresses control of microphones in the Chamber, there were two proposed provisions. In instances where a Member was not showing due respect to the authority of or not obeying an order or ruling or direction of the presiding officer, or acting in a disruptive or grossly disorderly manner, the presiding officer may disable or switch off the microphone being used by such Member, or may order that it be disabled or switched off. However, before proceeding to switch off the microphone in terms of sub-rule (1), the presiding officer must inform the member of his or her intention to do so.

Under 13O, where reference to a Member was made, the proposal was for Members refer to one another in a respectful manner. As such, no Member may refer to any other Member by his or her name only. No name to impugn the dignity of any Member may be used.

Subsequently, 13P dealt with unparliamentary or unacceptable language and gestures. A few language changes had been proposed. Thus the provision speaks to Members avoiding unparliamentary, offensive, abusive, insulting, disrespectful, unbecoming language or sounds, or offensive, threatening gestures.

With regard to ‘point of order,’ an explanation had been provided. This was also the case with a ‘point of privilege.’ He concluded that these were the proposals that had been tabled before the Committee for consideration.

 

Proposals by Leader of Government Business (LOGB)

Dr G Koornhof (ANC) presented on the proposals from the LOGB.

First he touched on rule 150 of the Joint Rules which addressed the role of the LOGB. The proposals were in the context of Constitution, legal provisions and practicalities.

In the Joint rules, rules 149 and 150 provided for the establishment and role of the LOGB respectively. Other instances where the LOGB was mentioned were in rule 91, rule 159 (3) and rule 216 of the Joint Rules.

Section 91 (4) stated that the President must appoint a member of the Cabinet to be leader of Government business in the National Assembly. The Constitution also defined Parliament as consisting of two Houses -- the National Assembly and the National Council of Provinces. This must be kept in mind when constructing a role of the LOGB. Furthermore, the Constitution did not define the role of the LOGB, neither did the LOGB have its own Act of parliament. It was a post that had evolved through custom and practice. The precise parameters were dealt with in rule 150. The role of the LOGB must be seen in the context of an overlap between members of the executive and members of the legislature. The Constitution under section 92 (2) referred to the role of Cabinet, and stipulated that they were accountable to Parliament both individually and collectively. The proposal was that rule 150 must be amended to reflect the Constitutional position regarding the LOGB, as well as reiterating that the Executive remained accountable to Parliament.

On a practical level, there was an office of the LOGB in Parliament. This office accounted to the Secretary of Parliament. This office also made arrangements regarding the attendance of Ministers in the House.

There had been international comparative research from countries like the United Kingdom, Australia, Canada, Zimbabwe and Singapore, to compare what the LOGB was like in those jurisdictions.

Dr Koornhof referred Members to the details of the amendments being proposed. He said that the definitions needed to be clear, with a distinction between the LOBG and the office of LOGB. It was proposed that LOGB meant a member of Cabinet whom the President appointed in terms of section 91 (4) of the Constitution. It need not be the Deputy President.

In addition to this, there was a proposal that there be a Cabinet Liaison Office, established in terms of rule 150A. Under rule 150A, the proposed amendment was that the Cabinet Liaison Office report to Cabinet regarding attendance of Cabinet members, as appropriate in respect to parliamentary business generally.

In conclusion, the amendment clarified the role of the LOGB and the Cabinet Liaison Office. The amendments better reflected the Constitutional provisions relating to the LOGB, and the accountability of Cabinet. Finally, it aligned the rules with current parliamentary practice and aligned the structure in line with international best practice.

Discussion

Ms T Modise, Chairperson of the NCOP, said there were time constraints, and suggested that the presentation by Dr Koornhof be referred to the sub-committee, but that this Committee read up on it to deal with the contents. Members were free to have a discussion, however, although it was imperative to note the time constrains. Another meeting could always be conducted to deal with the issues more comprehensively.

Mr Steenhuisen proposed that the document be circulated. He added that there may be constitutional overreach which needed attention. Draft 3 had been put in line with the National Assembly rules. With 2B, there was a problem on how presiding officers were held accountable. He argued that Members of Parliament were accountable to the rules with regard to the presiding officers, and therefore presiding officers must also be accountable. Where rulings were wrong, there was no way for Members to obtain justice for those rulings, other than approaching the courts. There was no real justice for Members of parties who had been removed from Parliament or given rulings that were incorrect. Some Members’ rights that were enshrined in the Constitution, were infringed on and there was a need to hold presiding officers accountable.

Mr Steenhuisen said 13MA, which addressed the control of microphones, was abused,. He was unhappy that this was part of the rules. It was used to shut down people’s right to talk in the House, especially when the presiding officer simply disagreed with the point. He moved to strike out rule 13MA.

He referred Members to rule 13S (10), where it read: ‘the presiding officer may give his or her ruling or decision on the point of order immediately, or defer the decision to the earliest opportunity thereafter.’ He said the House needed to start giving time frames for rulings to be made. He gave an example of where a Member had made a rude gesture to the presiding officer, but the matter had had no ruling for almost a year. Justice delayed was justice denied. He suggested that every six months, outstanding rulings be made. Presiding officers needed to be rational.

Ms Mente said it was going to be difficult for these rules to be adopted by the EFF, as they were reactionary -- reacting to what happened in the House. She said that if 7A and 7B were read together, then these rules must apply to the debate as well. There could not be segregation. When the President delivered the State of the Nation Address (SONA), he must speak without interruption, and similarly when Members debated the same SONA, there must be no interruptions. The rules themselves were not compliant with the rights in the Constitution. It would require the courts to decide for Parliament on issues that appeared simple. On 13R, which dealt with explanations, she was not sure it had been given the attention it needed.

Ms Mkalipi suggested that the discussion be deferred to another date, as there was a need for a lot of engagement. The situation in Zimbabwe had to enlighten South Africa. Each time something happened in the House, rules were proposed. She made reference to “Pay back the money”, stating that the rules were reactionary to that. Now that the SONA was approaching, there was a push for these rules. There needed to be more time for Members to reconvene on the matter.  She referred Members to rule 2B, saying the ruling of the presiding officer must not always be final. She said presiding officers did not always rule correctly.

On 2B (4), which stated that a Member may request that a ruling be referred to the Joint Rules Committee for consideration and report, she asked when and where would this happen. It was important to find common ground and a solution. Some of the rules sought to oppress Members. Only under apartheid did this happen. Mr Mugabe in Zimbabwe had been ruling in apartheid style, but today he was confined to his home, and South Africa did not want something similar. The Committee could engage before the SONA.

Ms Modise said the Committee should consider a postponement. She said a rule was not always oppressive, and the Members needed to look at the intention of rules. She suggested that the Committee agree on a postponement, and the secretariat should find a date. The document of Dr Koornhoof was referred to the sub-committee. She also suggested that rulings be published periodically, especially to ensure consistency in rulings.

The meeting was adjourned.

 

 

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