Institutions Supporting Democracy office-bearers: procedure for removal; Subcommittee Report on Physical removal of Members from Chamber; Sub Judice Rule review

Rules of the National Assembly

10 September 2019
Chairperson: Ms T Modise (ANC) (Speaker of the NA)
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Meeting Summary

NA Rules

The Committee met to discuss a number of rule amendments but, primarily, to determine a procedure for the removal of office-bearers of Institutions Supporting Democracy.

The Committee determined that a process to remove an office-bearer should not be entered into lightly and it could not be because such an office-bearer had made a ruling against the majority party or a Minister. Rules developed over time and, previously, Parliament had not foreseen a need for such a rule.

The proposed process was very much in the lines of the removal of the President that the Committee in the Fifth Parliament had deliberated on extensively when it had dealt with section 89 of the rules. Four steps had to be considered: the initiation of a process; the preliminary assessment of evidence (prima facie); an inquiry by a Committee; a decision by the House. The Committee was in full agreement that the Subcommittee should draft a rule to determine a procedure for the removal of office-bearers of Institutions Supporting Democracy. The Subcommittee was to report back as soon as was possible.

The Committee determined that the Government Communication and Information System and the Media Development & Diversity Agency would report to the Portfolio Committee on Communications. The two entities were the responsibility of the Minister in the Presidency.

The Subcommittee reported back on an investigation into the physical removal of Members from the Chamber following the movement of EFF Members onto the floor space of the Chamber to prevent a Minister from delivering his speech and/or to intimidate him. Using video footage, all the Members involved in the incident had been identified. The Subcommittee found that the presiding officer had acted appropriately and recommended that the matter be referred to the Powers and Privileges Committee. The Committee resolved that the Report on the Physical Removal of Members from the Chamber to be referred to the Powers and Privileges Committee.

The Subcommittee was also directed to make a determination on the validity or application of the sub judice rule in the House and to make proposals regarding matters of order of proceedings.

Meeting report

Opening remarks
The Chairperson welcomed everyone to the meeting.

The draft agenda was accepted and the Committee Secretary was requested to present the minutes.

The minutes of the meeting of 5 June 2019 were adopted with a correction to “Dyantyi” on page 5.

Under matters arising and relating to point 4.3, the Secretary to the National Assembly, Masibulele Xaso, proposed that the order for Member Statements be aligned to the sequence for Questions because when it came to Members’ Statements, FF+ came after Group 1, which was the smaller parties, and yet in the sequence for questions, the FF+ came after  theIFP and the secretariat thought it correct that the  FF+ should come after the IFP for Members’ Statements as well as the party had strengthened. That order would also apply to Motions without Notice. He requested that the order be aligned to reflect the parties’ strength.

The Chairperson noted that it was agreed.

Procedure for removal of office-bearers of Institutions Supporting Democracy
The Chairperson requested the Secretary to brief the Committee on the Procedure for removal of office-bearers of Institutions Supporting Democracy.

The Secretary stated that, for want of a better word, the document circulated to Members was called a discussion document and it related to the removal of office-bearers in Institutions Supporting Constitutional Democracy. It had been prepared by the National Assembly Table.

Point 1 of the document highlighted the grounds for the removal of an office-bearer which were: misconduct, incapacity or incompetence; a finding to that effect by a committee of the National Assembly; and the adoption by the Assembly of a resolution calling for that person’s removal from office. The document related to all Chapter Nine institutions.

In section 3 of the document, the Table proposed that four stages should be considered when the procedures were drafted:
1. the initiation of a process;
2. the preliminary assessment of evidence (prima facie);
3. an inquiry by a Committee;
4. a decision by the House.

The Secretary explained the initiation process and proposed that initiation be by way of a substantive motion.

In terms of the second stage, the Table proposed a preliminary assessment of evidence because currently Rule 88 provided that the Speaker of the NA had the responsibility for determining whether there was prima facie evidence before Parliament and must proceed to consider a motion. In the case in the section 89 procedure, the responsibility for determining whether prima facie evidence existed lay with a panel. The Rules Committee should take a decision on how to deal with stage.

The Secretary stated that, should the preliminary assessment conclude that the Assembly must proceed with an inquiry, the risk was that the House could decide either way. It was possible that the preliminary findings be provided to the House for information only so that the House could not vote against taking the matter forward. The Committee should consider the best structure to carry out the inquiry. The Table presented three options, that is, a special Committee, and ad hoc Committee or the relevant Portfolio Committee, in the current case, the Justice and Correctional Services Portfolio Committee.

The Secretary informed the Committee that Mr J Steenhuisen (DA) had also made a proposal regarding procedures to be followed and that should also be considered.

The Chairperson called for Members’ inputs.

Mr Steenhuisen thanked Mr Xaso for the background to the discussion document which encapsulated the proposal which he had placed before the Committee as a starting for some sort of consideration of the matter. He thought there needed to be a process because the removal of a head of a Chapter Nine Institution, in that particular instance of the Public Protector, should not be a process entered into lightly, particularly given the history of that Office in South Africa. That Office would, from time to time, make rulings, findings, consequences that would have serious impact on government and could well be negative for government. So, it could not be easy to simply remove the Public Protector from Office by a majority vote because it could be a double-edged sword.

A malevolent government, and he was not saying that this one is, could remove a Public Protector who was simply doing the job well in terms of the Constitution.  But even so, as the Constitution envisaged, should the Head of a Chapter Nine Institution behave in a manner that constituted one of the grounds indicated in the Constitution, the House had to have a process that allowed that person to answer the charges, allow a full and robust deliberation, and a process that was a deliberative process, with a number of checks and balances to prevent a party with a majority from simply removing somebody because it did not like the reports, or whatever. On the other hand, the House had to be able to remove somebody and to move confidently, as the National Assembly, in terms of a set procedure that, at the end of the day, was an unimpeachable process that would be very difficult to be indicted, interdicted or overturned by any form of application.

He added that the House had to be fair and had to be seen to be fair. He believed that the process which he had tabled as an initial input followed very much in the lines of the removal of the President that the Committee had deliberated on extensively when it had dealt with section 89 of the rules. To remove a President from office was not something that should be entered into lightly as it was someone who been democratically elected but if the grounds were met, there had to be a process.

Mr Steenhuisen pointed out that in the Fifth Parliament, the Committee had done extensive work in evolving that process. Much like that process, the current process was unchartered territory. It was not something that the Committee had had to deal with before, and it was a natural evolution of the rules. He knew that there were some commentators who had been very critical of Parliament because it had not had a process in place already. It was unfair and misplaced criticism because the rules, like the Constitution, were living documents which evolved over time to meet the circumstances and requirements. The rules as they currently existed in their ninth iteration were very different to the rules that existed in their first iteration. It was a natural process and there should be no negativity directed at Parliament because it had not had rules in place. Parliament had recognised that was a lacuna and, in order to ensure that the Legislature was not compromised, it had to create the processes necessary before taking the matter forward.

Mr Steenhuisen said that the Rules placed before the Committee that day were comprehensive, passed muster in terms of what was required, and he would like them to be a starting point for some form of discussion about how the Committee proceeded. However, he would be most concerned if the Committee was still deliberating three or six months down the line.

He noted that the House had a problem: there was an issue in the Office of the Public Protector with the current incumbent and what Parliament could not do was not sit by for six months while the process continued as Members argued about the rules.  Whatever the Committee decided upon, he hoped that it would move with the necessary speed required for Parliament to deal with the current situation that existed in the Office of the Public Protector in a fair, honest and open manner and in a way that was fair to all parties concerned.

Ms D Dlakude (ANC) thanked the Secretary for his presentation. The ANC agreed that the House rules did not say anything about the process for removing the Head of a Chapter Nine establishment and so the party agreed that such rules should be established as the courts had ordered with regard to section 89 of the Constitution. After the rules had been established, the ANC wanted a fair process that would stand the test of time. It knew that a lot of work would be done in the Subcommittee but it proposed that the assessment of evidence be done by an independent panel, which, according to the Constitution could be a retired judge or people with legal minds. The ANC believed that if it were done that way, the process would be fair. There was no problem with the openness of the process.

Ms Dlakude reiterated that the ANC wanted a fair process that would stand the test of time. The Committee was not there only to deal with an incumbent or an individual. It should be a process that would also be binding on other Chapter Nine institutions. There was no need to waste time debating the details as that process would take place in the Subcommittee.

Mr Q Dyantyi (ANC) required clarity of the four stages outlined. Stage 3(c) was an inquiry by a committee. That inquiry had to be properly defined because removal was the outcome before it so there had to be an inquiry on the fitness to hold office. It could not just be an open enquiry. He found that a step was missing so it had to be further clarified. The question of what the inquiry was for, had to be answered. That was the starting point, no matter who the inquiry related to. A process had to be started with the end point in mind or it would be a very litigious process.

Ms P Majodina (ANC) reminded Members that the Committee was not discussing the “nitty gritties” of removal or non-removal, but the process. The Committee was not yet at the point of saying that a Chapter Nine person should be removed. They were just putting processes in place. The Speaker had referred a matter to the Justice and Correctional Services Portfolio Committee and that Committee had come back to the Speaker saying that it was unable to move forward because there were no clear mechanisms. As Mr Dyantyi had said, removal was the very last part. There were certain processes that had to come first, whether one was fit to hold office or not. Members should allow the processes to unfold before they discussed the matter and she hoped that ‘Mr T’ (Mr Steenhuisen) was together with her on that point. 

The Chairperson assured her that both the Members were together on that one.

Mr S Tsenoli (ANC), and Deputy Speaker of the NA, referred to the draft rules under General: numbers one and two on the last page of the document. He suggested that something like “after thorough consideration of the report of the panel, then the National Assembly would make a final decision”.  There should be no discussion as to whether the report of the panel was binding. It was the National Assembly that would make the final decision after thorough consideration of the report.

The Chairperson stated that that was one decision on which the National Assembly would have to exercise its constitutionally given powers as the panel was simply the enabler to ensure that the processes were as open, fair and thorough as possible. It brought the question of whether or not, at the initial stages, of identifying and interviewing candidates, the National Assembly was doing what it should be doing. However, if there had to be a test of competency when Parliament removed a person, that consideration had to be put in the initial stages so the sifting process, even before the first interview, had to be more thorough.

She added that Mr Steenhuisen was correct that the criticism against Parliament was not fair because, firstly, the lack of a rule told them where the country was when it had put up the Chapter Nine institutions. It had been a country that was looking at honesty, integrity and all the traits of a good leader. The country had been putting in the men and women of SA who were going to serve. The fact that it took 25 years to put in mechanisms to remove a person tells one how positive SA had been about its capacity and its stance on good leadership.  

Mr Steenhuisen agreed wholeheartedly with the Chairperson. He also agreed with Mr Dyantyi because there had to be a number of steps and a panel to remove the possibility of petty party sting out of it. After that the NA would form a Committee that would have to find that one of the three steps had to be met. He suggested that he meet with Mr Dyantyi outside of the Committee as the Deputy Chief Whip did not want Members to go into the nitty gritty of the process in that meeting.

Mr Steenhuisen added that it had to be a step-by-step process with an independent panel to ensure that the process was fair and to remove any partisanship from the Speaker but Parliament had to guard against the panel becoming a full inquiry. The panel had to report to the Speaker. He did not know where the Chief Whip had come up with the nomenclature ‘Mr T’ when he had always been known as ‘Bricks” but he would find out. He hoped it came from his “dotting the i’s and crossing the t’s” because that was what made good rules in Parliament. He agreed that the process had to look dispassionately at an incumbent or a person because the rules had to pass the test of time as the process would outlive those Members and would outlive the current incumbents of Chapter Nine Institutions. However, the Committee had a current crisis and could not sit on its hands while the Committee deliberated the process endlessly.

Ms Dlakude agreed with the Speaker but the first step was to establish the rule for the removal of anyone from any Chapter Nine institution. The second step would be by a substantive motion. Third step would be the independent assessment of the evidence by an independent panel because everyone wanted that process to be fair. It would also remove any partisanship from the Speaker. She agreed that the panel could not enter into an inquiry. After the panel had reported to the Speaker, there would be an inquiry by Parliament which had the means to do that, for example via a Portfolio Committee.

Dr G Koornhof (ANC) stated that there was general agreement that it was about the process and not the detail. Looking at the Constitution, he suggested that the Committee should perhaps also factor in the process of the removal of other independent persons not mentioned in Chapter Nine institutions. Section 194(1) of the Constitution made a distinction between the Public Protector, the Auditor-General and a member of any other Commission. Should the Committee not also factor in that distinction when looking at the process? Section 193(6) of the Constitution allowed for the involvement of civil society in the appointment of a person, so should civil society not also have a role to play in the removal of that person, even if it were just an opportunity to make a representation

The Secretary stated that most of the issues had been addressed except to say that a motion would have to comply with section 194(1)(a) that stated the grounds for removal: misconduct, incapacity, incompetence. The detail raised in the meeting would be captured in the actual rules once they had been drafted.

Mr Tsenoli appreciated the inputs from Members but, he made an appeal that, however thorough the process, it should not delay the matter as uncertainty increased public anxiety. Processes should not operate at the pace of the village cow. They should not delay unnecessarily. All opportunities for completing the rule should be taken, including opportunities for including others where possible, although others could be done naturally when the need arose. Parliament had to be seen to be responsive. The Committee should not make mistakes but the matter was urgent.

The Chairperson thanked Mr Tsenoli for his input, noting that he had insulted village cows in the process. She agreed that there was a need to refer the draft that had been tabled, and the one that had come from Mr Steenhuisen, to the Subcommittee. The issue was urgent but there was a need for thoroughness so that the process could not be faulted.

Resolution: The Committee agreed to refer the matter of drafting a rule to determine a procedure for the removal of office-bearers of Institutions Supporting Democracy to the Subcommittee.

Relocation of the portfolio for CIS & MDDA
Mr C Frolick (ANC) put it to the Committee that the Government Communication and Information System (GCIS) and the Media Development & Diversity Agency (MDDA) report to the Portfolio Committee on Communications. After the recent General Elections, the President had given the responsibility for those two entities, amongst others, to the Minister in the Presidency. Generally, the responsibilities of the Ministry in the Presidency included the Department for Planning, Monitoring and Evaluation, the Planning Commission and Statistics SA as well as the two entities. For alignment and guiding the 6th Parliament, he requested that GCIS and MDDA be moved to the Portfolio Committee on Communication. That had also been done in the Fifth Parliament.

Resolution: The Committee agreed that CIS and MDDA should report to the Portfolio Committee on Communications.

Consider of the Report of the Subcommittee on the Physical Removal of Members from the Chamber
Mr Tsenoli indicated that he had forwarded a copy of the report to Members. The members of the Subcommittee had watched the video as captured by Hansard. Members were satisfied that the security officers had acted appropriately in the circumstances. The presiding officer had acted appropriately by ordering the removal of the Members from the Chamber.

Mr Tsenoli turned to the recommendations as that was the important part of the report. Recommendation 3 was the most significant: the movement of the EFF members onto the floor space of the Chamber to prevent the Minister from delivering his speech and/or to intimidate him, constituted a breach of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004, and the Speaker should refer the matter to the Powers and Privileges Committee as it  had amounted to a violation of parliamentary privileges.

The other recommendations referred to the cleaning up the rules and that technology had to be installed so that the presiding officer could act appropriately in the Chamber. The protection services team had to be dressed appropriately so that they were clearly identifiable from Members at all times. Another recommendation was that Members, including large groups, who had to be removed from a Chamber had to be escorted off the precincts of Parliament in line with Assembly Rule 73(9). That had not happened and could cause problems in future if it was not done.

The Subcommittee confirmed, as the Rules required, that the removal was appropriate as there were grounds for the presiding officer to call for the removal of Members.

Ms Majodina welcomed the report and recommendation 3 that the matter be referred to the Powers and Privileges Committee. She did not want to dwell on what had happened that day but it had been an embarrassment to Parliament and she agreed with item no. 3.

Mr Dyantyi said that, except for recommendation 3, the report was a bit soft for what had happened. Members had crossed the line and they had been named. There were limitations to the recommendations, even number three. He thought that there should be more than just cleaning up the rules otherwise every time something was done, it would be about whether the rules were clear or not. Whether someone was wearing a particular tag or not, that incident went beyond that and maybe he was underestimating what Recommendation 3 could do, but the kind of actions put in place should be congruent to what had happened. Maybe it was his learning curve but he did not think that the recommendations were going as far as he thought they should.

Ms E Ntlangwini (EFF) said that obviously the EFF rejected the recommendations with the contempt that they deserved. What the Committee was saying was that it was charging all Members with the same fault. They looked at what Ms T Mtsane and Ms N Sonti was doing and they were charging them as a group with the same charge. That, on its own, was problematic for the EFF.

Referring to recommendation 6, she stated that the parliamentary security services changed. The previous time the police had come in and men had severely beaten up women. Was that allowed?

Mr J Julius (ANC) referred to recommendation 1 which stated that the rules should ‘touch the pockets of Members”. Dr Mulder had made the recommendation and he understood exactly what it meant but the words “touch the pockets” needed to be clarified or it could be open to misinterpretation.

Mr Steenhuisen said the Committee should not over-egg the report and had to remember that it had got itself into some legal problems the last time that it had started to embark on the process. The Powers and Privileges Committee, in terms of chapter 4 of the Powers and Privileges Act, had the power to touch Members in their pockets and it was the equivalent of one month’s salary and there was a variety of sanctions there so it was very difficult for the Subcommittee to do more than look at the rules. As the Subcommittee had rightly recommended, the report had to go to the Committee on Powers and Privileges, which could examine the video footage and take evidence and they could make a decision whether some or all of those Members were guilty of contempt of Parliament and there were a number of sanctions in chapter 4 of the Act that the Committee could impose. It was not legally possible for the Committee or Subcommittee to determine sanctions. The Subcommittee had fulfilled its task and what was required of the Speaker was to submit the report to the Powers and Privileges Committee.

Mr Steenhuisen added that the Committee could look into the history of assault of female Members but he had to say that he had witnessed a female security officer being severely assaulted and kicked by male Members of Parliament. That had been in the Fifth Parliament and Members were now in the Sixth Parliament. It was important to establish the ground rules right up front so that Members knew what was expected of them for the duration of that Parliament.

Mr Frolick drew the Committee’s attention to recommendation 4 that dealt with the facilities available in the plenaries. They lacked the basic facilities to conduct a session of Parliament properly. The matter had been raised since the Fourth Parliament and facilities had not been improved. Since mini plenaries would be starting soon, that was a matter that should be prioritised so that the presiding officers had at least some power to enforce discipline in the sittings.

The Chairperson took it that the Committee agreed to refer the matter to the Powers and Privileges Committee which had been established and that Committee would operate along the lines that Mr Steenhuisen was explaining. It was not the Rules Committee or the Subcommittee which would pronounce on whether people were guilty or not. She hoped, with all parties represented in the Powers and Privileges Committee, for openness and would not pre-judge that Committee.

Addressing Ms Ntlangwini, the Chairperson said that it was unfortunate that she rejected the recommendations with contempt because the offence committed that day was grievous and did not happen in any Parliament and it could not be left unchecked. It had to be dealt with as speedily as possible so that Parliament could move on.

Mr Tsenoli pointed out that the second paragraph in the section on Background essentially explained the constraints for Mr Dyantyi, which resulted in his exasperation. “Ons kon nie verder gaan nie” (We could not go further.) He assured Mr Dyantyi that the job would be done by him in his other capacity as a Member of the Powers and Privileges Committee.

Resolution: The Report on the Physical Removal of Members from the Chamber to be referred to the Committee on Powers and Privileges

Review of the sub judice rule
The Secretary said the point related to the challenge to the sub judice rule when the Deputy President had appeared before the House for questions. The matter to be considered is whether the sub judice rule was still applicable or whether the manner in which it was being applied currently was correct. He recommended that the matter be referred to the Subcommittee on the Review of Rules and that the Subcommittee report back to the Committee.

Mr Steenhuisen agreed but requested that what governed the House in the interim was the Ginwala ruling that determined that the sub judice rule be applied in the narrowest sense possible while the matter was being debated.

The Chairperson said that it could be agreed to use the Ginwala ruling in the interim but the Subcommittee had to prioritise the matter as people would interpret the concept of “narrowest” differently so the review would really help the House.  It was good to have privilege but it was another matter to use the privilege to do other things. She did not want the Subcommittee talking about waiting for court decisions. A decision could be made on the interpretation in Parliament before the court presented its judgement on the matter.

Resolution: The sub judice rule be sent to the Subcommittee for a recommendation to the Committee as soon as possible.

Further Possible Rule Amendments and Guidelines
The Secretary stated that the matter related to Member statements and where they were located on the agenda of the House. There had been proposals made previously that the sequence of proceedings needed to be re-arranged so that Members’ statements could be taken before Orders of the Day. To give effect to that, the House would need a rule amendment.

The Secretary added that, in terms of the guidelines, the time allocations for declarations of vote were not reviewed at the start of the Sixth Parliament and the Committee might want to consider the time allocations for parties. The second point was the number of ministerial responses to statements. It had always been six and that was also not reviewed at the start of the Sixth Parliament. Did Members want to review the number of responses? He was proposing that there should be proposals in that regard.

The Chairperson requested that parties go and consider whether they wanted to keep things as they were or whether they wanted to amend. She asked if there was agreement.

Ms Dlakude agreed with the Speaker but also asked the removal of notices of motions in the House. Members could go back to parties and decide on whether they wanted notices of motion.

The Chairperson explained that once there was a notice of a motion, if a Member did not take it up at the next sitting, the motion was then discarded.

Mr Steenhuisen agreed to a discussion but he did not want it to be assumed that there was a tacit agreement. Members had little opportunity to raise matters in the House. He added that the motion that they were discussing had been moved in the House the previous week.

The Chairperson replied that there had been a motion in the House but she had not received an indication on whether the ANC would continue with the motion in the House so other parties had been able to engage and to move on the motion. The discussion that afternoon came as result of a process that the ANC and the IFP had agreed on and which came to the House. The Committee needed to deal with how to address a motion that came from the floor during a session and one that came via a written note to her Office. Those were two processes and that needed to be cleaned up. Mr Steenhuisen was right that it had given Members a foot in the door to raise a matter in the House and maybe it should be debated how to introduce such motions. But Members had to follow up.

Ms Dlakude agreed. The ANC had written to the Speaker about the motion but had dragged its feet and had been beaten to the motion by the IFP.

Dr C Mulder (FF+) said that while the Committee was cleaning up, motions without notice had to be revisited. He suggested that proposals be made as the intention of what it should be and what it had become were very different.
Mr Steenhuisen suggested that Members were talking at cross purposes. He was talking about a motion put by Mr G Hill-Lewis and his understanding was that one could only bring a motion above the line if such motion had been moved in the House or submitted in writing to the Speaker’s Office. That had always been his understanding of how a motion got onto the order paper but he was happy to discuss streamlining the process.

The Chairperson apologised for her lapse in understanding but she was not feeling well that day and in her mind the discussion had been about the Singh snap debate. In the name of the whip, Ms Dlakude would have led that snap debate on behalf of the party.

Resolution: It was agreed that the possible amendments to the rules and the clean-ups be referred to the Subcommittee.

The Chairperson noted that the Subcommittee had a lot of work to do. As there were no further matters, the Chairperson bid everyone goodbye.

The meeting was adjourned.

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