Despite a late start and a lack of quorum, the Chairperson resolved the meeting continue in order to discuss the public submission on the draft Powers, Privileges and Immunities of Parliament and the Provincial Legislatures Amendment Bill. The Parliamentary Legal Advisor, noted several technical amendments which still had to be made to the Bill before it was approved. She addressed the concerns that Members had raised in a previous meeting and they were satisfied with the responses:
• One of the concerns had been that the Bill does not stipulate the exact amount of fines which can be imposed under the Act for a contravention of its provisions. The Legal Advisor stated this objection was unfounded for two reasons. First, drafting conventions provide it is generally not recommended to stipulate the exact amount of a fine in legislation as the amount will become outdated which undermines the deterrent effect of the fine. Second, the Adjustment of Fines Act provides a formula to guide the courts on how to determine the amount of a fine imposed under the Bill. Additionally, the Minister of Justice and Constitutional Development can make regulations to guide Magistrates how to exercise their discretion to impose fines under the Act.
• The second concern was that the Sections 14 to 17 of the Act – on serving summons and the examination of witnesses – is not made applicable to provinces. This objection was unfounded, as the Constitution gives provinces the authority to determine their own processes for the summons of witnesses. Additionally, many provinces already have their own provincial legislation governing the summons and examination of witnesses. For this reason the second objection was rejected as well.
Only one public submission on the Bill was received. The Chairperson questioned why the participation of the public in the processes of Parliament leaves so much to be desired. The EFF agreed saying the social space between Members of Parliament and the public needs to be bridged. An ANC member said that while there is room for improvement on public participation, the public tend to participate less in matters that do not affect them directly. Provided the public is given an adequate opportunity to participate in the processes of Parliament and Members of Parliament perform their work properly, then the Committee should be satisfied despite the lack of direct public participation on this particular Bill. Another ANC member agreed, saying the lack of public participation on this particular Bill was largely due to its subject matter which does not affect the everyday lives of the public. The Committee had engaged thoroughly with the Bill and the public had been afforded an opportunity to make submissions. The Chairperson recognised and appeared to agree with these comments. Parliament however should explore ways in which to expand and facilitate public participation in Parliament generally, especially through mediums such as the “In Session” publication. The NFP recommended the media play a greater role in facilitating public participation in Parliament. The Chairperson did not fully endorse this suggestion as, in his view, the media is primarily profit driven, which in turn means they are more interested in internal party squabbles as opposed to facilitating public participation for its own sake. Members noted however that the antics of EFF in the National Assembly had revived public interest in Parliament, but it was unfortunate that the public saw Parliament more as a form of “reality TV” than as the seat of democracy. However, in the last 18 months there has been a large amount of activity by MPs – largely through Committee work – in holding the Executive accountable for the exercise of their powers, which appears to satisfy most of the public.
The Legal Advisor stated that the public submission dealt primarily with footnotes in the principal Act. The submission recommended that where footnotes are used the legal status of those footnotes should be explicitly stated. The footnotes in question appeared in clause 6 and clause 14(2) of the Bill. However, there was no need to amend the status of those footnotes. Drafting conventions already permit the use of footnotes in legislation. Footnotes are not binding – unless explicitly stated otherwise – and act primarily as an external source to guide the interpretation of the Bill. The South African Law Reform Commission itself had stated that footnotes are permissible and are only binding when they expressly state they are binding. In any event, the footnotes simply repeat what is already provided for within the Constitution itself. The purpose of the footnotes is only to avoid excessive cross-referencing and to make the Bill more user friendly. She recommended the public submission therefore be disregarded.
The Committee agreed that the person who made the submission should be thanked in the Committee’s final report which would ultimately be submitted to Parliament. In this way the person's public participation would form part of the official record and would serve to educate the public about the value and importance of public participation in Parliament.
On the way forward, the Legal Advisor explained that the consequential amendments and grammatical errors would be fixed. A “clean” version of the Bill would then be submitted to the Committee who should then go through the Bill – clause by clause – before the Bill would then be submitted to the Joint Tagging Mechanism (JTM). Once that processes was finalised, the Bill could be submitted to Parliament.
It was agreed that the Bill should be finalised as soon as reasonably possible before Parliament rises in June. The Chairperson requested the Members communicate with their respective party chief whips to finalise the process. It was agreed the Committee meet the following week to finalise the remaining matters.
Despite a late start and a lack of quorum, the Chairperson resolved the meeting continue in order to discuss the public submission on the draft Powers, Privileges and Immunities of Parliament and the Provincial Legislatures Amendment Bill.
Public Comments on the Bill
Ms Daksha Kassen, Parliamentary Legal Advisor, first dealt with Members' concerns which had been raised on the Bill at previous ad hoc Committee meetings.
• A Member had questioned whether section 27 of the Act – which deals with fines and penalties – should not be amended to stipulate the exact amount of the fine which can be imposed under the Act. Research indicated legislation is often intentionally drafted to exclude the exact amount of any fine which may be imposed. The reason the amount is often excluded, is because the fine amount can often become outdated. For example, if legislation stipulates a fine of R1000 that amount may be appropriate presently, but in ten years’ time that same amount would be insufficient, which in turn would undermine the deterrent effect of the legislation itself. Therefore, the drafting convention is generally not to include the exact amount of the fine. This does not mean the courts are left without any guidance as to the fine amount. The Adjustment of Fines Act provides a formula which guides the courts in determining what the amount of such a fine should be. The Justice Minister can, under the Adjustment of Fines Act, stipulate for example that a Magistrates Court cannot impose a fine of more than R120 000 and a period of imprisonment exceeding four years. In such a case the formula under the Adjustment of Fines Act would provide that if a person is sentenced to one-year imprisonment, then they could alternatively be subject to a R40 000 fine. Therefore, it was deemed unnecessary for the Act to expressly provide the exact amount of any fine imposed under the Bill.
• The second concern raised by Dr Lotriet was that section 14(2) of the principal Act is not made applicable to the provincial legislatures. Section 14(2) of the principal Act governs the way summons are issued. The section provides that summons must be issued on the authority of the Secretary of Parliament, the Speaker or Chairperson or the Committee concerned following a resolution to that effect. The principal Act provides the entire section about witnesses is not applicable to provinces. The reason for this is that in terms of section 166 of the Constitution, provinces are entitled to develop their own rules and procedures on issuing summons and about witnesses. The rules of various provinces do already provide for the examination and summons of witnesses and provinces have their own provincial legislation dealing with witnesses and summons. This, in her view, was most likely the reason sections 14 to 17 of the principal Act, was not made applicable to provinces.
The Committee was satisfied with these responses.
The Chairperson noted only one public submission had been received on the Bill. Do members have any comments on the fact that only one public submission was received? Is it the fault of Parliament that public participation in the processes of Parliament leaves so much to be desired? Is this due to a lack of proper communication on the processes and work of Parliament? How, out of a country of 55 million people, only one submission was received on the important matter of the powers and privileges of Parliament?
Mr M Matiase (EFF) stated that – in a previous private conversation with Ms Kilian – they had both agreed it was concerning that there was not more public participation in the processes of Parliament. It appears the public is not as interested in Parliament as one would hope. The public is more interested in seeing concrete results, as opposed to the technical issues which Parliament deals with on a day to day basis. Parliament is often viewed as a sacred place by the public, in much the same manner as they view the courts. There are three holy places or institutions: the church, the courts and Parliament. It is important to change the public mindset and perception about Parliament about that. There is a huge distance between Parliament and the South African people, who do not appear to be that interested in, for example, the drafting of regulations. The view of Parliament as a holy place should therefore be changed to encourage more public participation. The decorum of Parliament however must be maintained but at the same time the social distance between Parliament and the people must be addressed. Parliament should be turned into a centre place of community activism and engagement. This current perception of Parliament as a place which is not as conducive to public engagement as it should be, should be changed to facilitate greater participation in parliament’s processes.
Ms J Kilian (ANC) shared the sentiments of Mr Matiase. The public, largely because of the EFF’s actions in the National Assembly (NA), have to a large extent become more interested in Parliament. However, the public still perceive Parliament as a form of entertainment or reality TV. Generally, most of the public are not that interested in the finer details of legislative drafting, deliberations on legislation and the bulk of the work which Parliament does. Provided MPs actively and properly do their work, most of the public is satisfied. In the last 18 months there has been a large amount of activity by MPs – largely through Committee work – in holding the Executive accountable for the exercise of their powers, which appears to satisfy most of the public. It is only when such legislation directly affects people’s lives, and this is communicated to the public, that one find there is greater public participation on those issues. In this case, the Draft Bill only really affects MP’s and the not the public in a direct manner. The Committee should feel comfortable that an adequate opportunity was afforded to the public to comment on the draft Bill. While it is a pity that only one public submission was received, this matter should be concluded given the large amount of legislation which other Committee’s still need to consider.
Dr A Lotriet (DA) agreed with the sentiments of Ms Kilian and Mr Matiase. The Committee should not conclude that simply because only one public submission was received on this piece of legislation, that it follows the public is not interested in the work of Parliament. In her view, the lack of public participation on this draft Bill is largely because of the subject matter of the Bill. Other Bills dealing with issues such as indigenous knowledge have attracted a huge amount of public interest and submissions. Even though only one submission was received, the Committee had properly and adequately done its work on this Bill and therefore there is no real issue in so far as only one public submission been received is concerned.
The Chairperson stated that Parliament as a whole has been seriously considering the issue of public participation. Public offices contain a document called “In Session”. It may be important for Parliament to review how it communicates with the Public. Currently “In Session”, does not appear to provide for detailed information about the work of Parliament Committees. Maybe that vehicle should be revised and expanded to ensure the public is properly educated on the work of Parliament and to encourage the public generally to participate in its processes. Parliament should examine more ways to get the public interested in the processes of Parliament. At the same time the comments raised by the Members thus far are convincing, and the meeting should continue as planned.
Mr M Shelembe (NFP) agreed with the Chairperson that Parliament should investigate additional processes to encourage public participation in Parliament. What role is currently been played by the media in educating the public about Parliament? The media does appear to show a deep interest in the work of Parliament in so far as the facilitation of the public in Parliament’s processes are concerned. The public expect Members to represent their interests in a proper and fair manner. However, at the same time it can be difficult for Members to properly act in the interests of the public, if they are not properly aware of what the public expects, especially as far as legislation is concerned.
The Chairperson agreed with most of the comments of Mr Shelembe. However, in the Chairperson’s view, the media is primarily concerned with profits and therefore tend to focus on political squabbles as opposed to the work of Parliament in a more general sense. At the same time the media cannot be expected to do the work of Parliament in encouraging the public to participate in its processes. Community activism can play a role in encouraging public participation and this issue would be raised in the appropriate forum.
Ms Kassen then dealt with the content of the public submission received. The submission primarily takes issue with the footnotes which appear in the principal Act. There are two footnotes in the Act.
• The first footnote appears in section 6 of the Act which provides that the President and MPs enjoy the same privileges in a joint sitting of the NA and NCOP, as they have before the Assembly or Council. The footnote only explains what those privileges are in relation to the NA, the NCOP, joint Committees and the immunities which are provided for in those sections. That footnote then essentially repeats what the Constitution provides for in that respect.
• The second footnote appears in section 14(2) of the Act. It provides that a summons issued in terms of section14(1) – which is a summons issued by a Joint Committee, the NA or National Council of provinces (NCOP) to appear before the house or give evidence – must be issued by the secretary on the instructions of the Speaker, the Chairperson or the Chairperson of the Committee concerned. Again, as with the first footnote, this merely repeats what is already provided for sections 56(a) and 69 of the Constitution.
Both footnotes therefore are just a restatement of what the Constitution provides. In recent law, footnotes are often provided to make a document more user friendly by preventing excessive cross-referencing. Both footnotes therefore simply provide the applicable provisions of the Constitution. Additionally, the footnotes provide an external source to guide the interpretation of the Act. The South African Law Reform Commission (SALRC) has recently stated that for a footnote to constitute a binding part of legislation, that footnote must expressly state that it is binding and not merely a source to be used to interpreting the legislation in question. Therefore footnotes are generally only external aids to interpretation unless they expressly state otherwise. An example of an exception is where an Act states a provision must be interpreted according to a formula. In such a case the footnote containing the formula must expressly state it forms part of the applicable legislation. For this reason, it is generally advised to not include substantive issues in a footnote.
The public submission dealt with three principal issues and recommended three amendments:
• Footnote 1 repeats what is provided for in sections 45, 58 and 71 of the Constitution. The submission recommends removing the footnote and providing for a consequential amendment, to reflect the amendment to section 58 of the Constitution which occurred under the Sixth Constitutional Amendment.
In Ms Kassen’s view, the proposed consequential amendment is unnecessary as the footnote already incorporates the amendment to section 58 of the Constitution under the Sixth Constitutional Amendment. The Powers and Privileges Act came into operation on 7 June 2004. The Sixth Constitutional Amendment was made in 2001 and came into force on 21 November 2001. The Act already incorporates the constitutional amendment and therefore the consequential amendment proposed is unnecessary.
• It argued that the legal status of the footnotes should be expressly dealt with in the Act itself. As SALRC has already stated footnotes do not have binding force in legislation, unless the footnote or the Act, expressly states it is legally binding as part of the Act. In this case, the footnote does not provide that it is legally binding but merely restates what appears in the Constitution for the purpose of avoiding excessive cross-referencing.
In Ms Kassen’s view, that proposal is unnecessary as the footnote is merely intended to aid the interpretation of the Act and prevent excessive cross-referencing.
• It recommended the word “legislatures” which appears in clause 10 of the Bill, be amended to spell “Legislatures” with a capital L. Drafting convention currently provides that – when drafting an Amendment Bill – one must follow the spelling style of the Principal Act. In this case the Powers and Privileges Act spells legislatures and Provincial legislatures with a lower case L. The Constitution also spells legislature with a lower-case L.
In Ms Kassen’s view, it is therefore unnecessary to amend the Bill to spell legislatures with a capital L. However, on page six of the Bill, the word legislatures is written in small caps but the apostrophe is after the s and should be before the s. A consequential amendment should be made to move the apostrophe to before the s in legislatures.
Ms Kilian said the clear explanation and suggestions of Ms Kassen meant that the Committee could actually disregard the public submission’s recommendations. What however is the norm going forward? Should the Committee reply to the person who made the submission, inform them they have considered the submission and the reasons the Committee had decided to not follow the recommendations in the submission?
The Chairperson shared Ms Kilian’s concerns. The Committee should acknowledge the person who made the submission when the Bill is presented in the NA. This is only fair and courteous given the fact the submitter made the time and effort to study the Bill and make a public submission to the Committee. During the presentation of the Bill in the NA, the Committee could inform the NA and the public generally, of the content of the submission, the issues it had raised and why those recommendations were not adopted. This would also serve the additional objective of educating the public about public participation in the processes of Parliament generally. This process should be followed both to acknowledge the time and effort of the person who made the submission, as well to acknowledge her effort in a public forum, otherwise her submission would simply amount to a private communication between Committee and the person who made the submission. This suggestion was accepted by the Committee.
The Chairperson asked Ms Kassen to comment on the process going forward for the passage of the Bill.
Ms Kassen replied that as the public submission’s recommendations were rejected, no amendments as a result of the submission would be required. However, a few technical amendments still need to be made. The Committee should adopt a resolution that the Draft Bill, in its current form, is satisfactory. Then the Bill would then be made into a cleaner version which would be circulated amongst the Committee. The Committee should then go through the Bill clause by clause. If the Committee adopted the clean Bill – after the clause by clause analysis – then Ms Kassen could provide a classification on the Bill to the Joint Tagging Mechanism (JTM).
Ms Kassen outlined five proposed technical amendments which needed to be made to the Draft Bill:
• The word “draft” would need to be removed from the Bill.
• The Preamble refers to the Constitutional Court decision in Democratic Alliance v Speaker of the National Assembly and contains the reference number of that case. The reference number would have to removed and the official citation inserted.
• Line four of the preamble should be amended so that the word “only” appears after the word “subject” so that the revised sentence would read “is subject only to the relevant House’s respective rules and orders and the Constitution”.
• Clause 9(b) on page five should be amended to expressly state the word “member” includes a member of the NA and a permanent provincial delegate to the NCOP. This amendment is necessary because section 117 of the Constitution, states the privilege of freedom of speech is extended to Members of the provincial legislature and the permanent provincial delegates to the NCOP. The principal Act defines “member” as a member of the NA or a permanent delegate and therefore should be amended to be more explicit.
• Clause 28A should be amended to move the apostrophe in legislatures to before the s and not after it.
The final Memorandum of the Objects on the Bill would reflect these changes and the paragraph dealing with departments, bodies or persons consulted - would be amended to include the fact Bill was published for comment on the applicable date to prove that public participation on the Bill did occur.
Ms Kilian said there is a minor error on page two of the Bill which provides the purpose of the amendment Bill is to amend the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act of 2003. That sentence should be amended to read to amendment to the Act of 2006.
Ms Kassen replied that the Principal Act in section 32, provides for 2003. However, the Act was actually published in 2004. That has been corrected and the short title was used to amend the Act’s date to 2004 which is the correct date.
The Chairperson stated the Committee had worked together well as a team and thanked Ms Kassen for her good work. Ms Kassen’s work and commitment should be captured in the final report to the Parliament. The final report before the National Assembly is a presentation to the public and the public should be informed how the Committee arrived at its final conclusions. The Chairperson asked Ms Kassen if a further meeting would be required to take the process further?
Ms Kassen replied a further meeting would be required once the technical amendments had been made. The clean version of the Draft Bill would be presented to the Committee, inclusive of the Committee Report, to take the process on the Bill to its conclusion.
The Chairperson asked if the Committee agreed the Bill should be finalised in the National Assembly before Parliament rises.
Ms Kilian agreed in principle to the Chairperson’s suggestion. A specific date should be set for the Committee to present the Bill to the plenary. The budget vote and a number of other issues are upcoming in the National Assembly, and the Bill should be finalised before that occurs.
The Chairperson asked if the Committee would be open to meeting after hours to finalise the Draft Bill. He requested Members talk to their party chief whips to facilitate that as he does not have the authority to schedule an after-hours meeting.
Ms Kilian agreed in principle to a meeting after hours. However, there could be a quorum challenge after hours due to the transport needs for some members. It may be preferable to schedule the meeting during the lunch hour. The Committee appeared to agree with Ms Kilian’s suggestion.
The Chairperson proposed the Committee meet the following week during a lunch hour to finalise the amendments. He requested Members engage their political parties to ensure the process can be finalised.
Dr Lotriet stated her only concern was ensuring the clean version of the Bill was given to Committee members before next week.
Mr M Ntombela (ANC) was doubtful if the clean version of the Bill could be given to the Committee before the following week. It said it may be necessary to speak to the respective Committees of each Member to facilitate a process to finalise the Bill.
The Chairperson responded there is already a large backlog of legislation which has been raised with the Office of the Speaker. Provided there is proper communication then there should be no problem. Overall, the Committee has performed its work well and provided there is proper accommodation for a final meeting of the ad hoc Committee, there should be no problem in finalising the Bill. If problems do arise, the respective party chief whips or the Speaker could be approached to address those problems. Despite the Committee not having a quorum, it was an advantage that most of the work had already been considered which would facilitate the finalisation of the Bill at a later date.
Mr Shelembe stated the lack of quorum at the presenting meeting would not affect the final passage of the Bill. This is because the present meeting was competent – despite not been quorate – to discuss the Bill but not necessarily to vote upon it.
The minutes of the 24 January 2018 meeting were considered and amended. Due to the lack of a quorum – the Committee could not adopt the minutes which was held over until the next meeting.
The Chairperson responded it was good to see that the ad hoc Committee was working as a collective in the spirit of good team work.
The meeting was adjourned.
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