The Subcommittee on Rules of the National Assembly met to discuss three items referred to it by the Rules Committee.
The Subcommittee found itself in a similar situation to that encountered in the Fifth Parliament. The Constitution provided for the appointment of heads of certain institutions but there were no rules for the removal of those heads of institutions. The Subcommittee would consider the rules for a section 194 inquiry.
Rule 88 indicated that the Speaker had to be the one to determine whether there was prima facie evidence before Parliament could consider a motion to institute an inquiry into whether such a person should be removed. The Subcmmittee was presented with suggestions of how the Speaker could be assisted in making that determination by appointing an independent panel of appropriate experts. It was not possible to predetermine a specific Committee to engage in such an inquiry because the appropriate Committee would depend on the particular Chapter Nine institution headed by the individual. Critical to the process would be the fact that the person under inquiry had the right to make representation to the Committee. A legal advisor could not engage with the Committee but could offer advice to the person who was the subject of the inquiry.
The DA’s proposal concurred that the process should commence with a substantive motion in the House as was required in terms of Rule 88. It was important that the panel could advise that there was a prima facie case to be answered before there was any discussion of the person in the House. That would eliminate a frivolous attempt to remove someone from a Chapter Nine institution.
The House then had to apply its mind, regardless of the decision of the panel or the Committee, and to express itself on a motion to remove. That would be a fair, transparent and open process. It mirrored closely the processes for the removal of a President because, similarly, it was not a process to be carried out lightly.
The legal services provided a roadmap showing the procedure necessary to develop a rule in respect of section 194 of the Constitution.
The NA Table staff was requested to draft definitions of the conditions under which a Head of Chapter Nine institution could be removed as well as a proposal for a rule based on the principles discussed.
The second item was the possible amendment relating to Members’ Statement. Members’ Statements needed to be moved up the agenda so that Ministers were in attendance when the Members made statements about issues in their constituencies and Ministers could respond to those statements. There was consensus in the Subcommittee that the change in order was necessary.
The Subcommittee was informed that Members were abusing the parliamentary tool of Motions without Notice. Such statements were intended for cases of immediate events which would unite the National Assembly, such as congratulating a South African sport team on its success. The number and inaccuracy of such statements had to be drastically contained if the privilege of making statements without notice was to be retained and it was decided that it was the function of the parties themselves to ensure that such abuses were curbed.
The NA table staff was asked to submit proposals to the Subcommittee on all these matters at its next meeting schduled for 11 October 2019.
The Chairperson requested that everyone stand for a minute of silence or meditation.
The Chairperson welcomed everyone to the Subcommittee and reminded the Members that it was not a decision-making meeting. She proposed the Subcommittee meet again in the Committee week of the 7th of October and should thereafter schedule a third meeting so that the rules could be processed without delay.
The Subcommittee found itself in a similar situation to that encountered in the Fifth Parliament. The Constitution provided for the appointment of heads of certain institutions but there were no provisions for the removal of those heads of institutions. The Subcommittee would consider the rules for a section 194 inquiry.
Proposals had been referred from the Rules Committee.
The second item was the possible amendment of certain rules. Members’ statements needed to be moved up the agenda so that Ministers were in attendance when the Members made their statements and Ministers could respond to those statements. There were many rules that needed amendment but she would appreciate it if the Subcommittee limited its comments to the items on the agenda.
The Chairperson referred Members to the discussion document on The Removal of Office-Bearers: Institutions Supporting Constitutional Democracy. She reminded Members that the Subcommittee would be dealing with rules and that it was not about individual persons. The rules had to stand the test of time. There were definitions to guide members, a roadmap from the Legal Advisor and a document proposing a Draft Rule to Remove the Public Protector, the Auditor-General or a Member of a Commission established by Chapter Nine of the Constitution from Office in terms of Section 194 of the Constitution.
Consideration of Proposals for a Rule for a Section 194 Inquiry
Mr Masibulele Xaso, Secretary to th National Assembly, indicated that he would refer to the discussion document on the matter of a section 194 inquiry. Mr Steenhuisen would speak to a document that he had prepared with a proposed rule and the Legal Advisor had provided a road map or flow chart that allowed Members to engage with the process.
Mr Xaso read Section 194 of the Constitution:
Section 194: Removal from office (1) The Public Protector, the Auditor-General or a member of a Commission established by this Chapter may be removed from office only on- (a) the ground of misconduct, incapacity or incompetence; (b) a finding to that effect by a committee of the National Assembly; and (c) the adoption by the Assembly of a resolution calling for that person's removal from office.
(2) A resolution of the National Assembly concerning the removal from office of- (a) the Public Protector or the Auditor-General must be adopted with a supporting vote of at least two thirds of the members of the Assembly; or (b) a member of a Commission must be adopted with a supporting vote of a majority of the members of the Assembly.
(3) The President- (a) may suspend a person from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person; and (b) must remove a person from office upon adoption by the Assembly of the resolution calling for that person's removal.
Mr Xaso asked Members to note that the majorities required were not the same for the removal of heads of different institutions.
He explained that a request had been submitted to the Speaker by the Portfolio Committee on Justice and Correctional Services. He had presented a discussion document to the Committee on the matter. In his discussion with parliamentary Legal Services, it was agreed that the grounds for dismissal had to be clearly defined: misconduct, incapacity and incompetence.
Mr Xaso presented the discussion document, noting that in respect of point 4, Members could give consideration to having only one means to introduce the first stage of the process and that a substantive motion in the House might be the most appropriate approach. Rule 88 determines that the Speaker had to be the one to determine whether there was prima facie evidence before Parliament to consider a motion. The document contained suggestions of how the Speaker could be assisted in making that determination. Then the Rules Committee had to consider the role of the House. Would the House have the power to agree or disagree or would the House merely be informed?
Mr Xaso discussed the options in respect of the choice of Committees to conduct the inquiry and the fact that the person under inquiry had the right to make representation to the relevant Committee. During an inquiry a legal advisor could not engage with the Committee but could offer advice to the person who was the subject of the inquiry.
Mr Xaso stated that the Table staff was not putting forward proposals but were raising issues. Once the Committee was clear about the details, a proposal would be prepared.
The Chairperson thanked Mr Xaso and called on Mr J Steenhuisen (DA) to present his proposal
Briefing by Mr Steenhuisen
Mr Steenhuisen agreed with the roadmap from the legal advisor. He began with the point that it should not be an easy process to remove the head of a Chapter Nine institution, particularly the decisions those heads took and the type of work that they undertook to support the House and to support democracy, it could often bring them into conflict with political parties and with executives. In that case, the person should be jealously protected, however section 194 required a procedure should one of the grounds for dismissal be met. He referred to the proposal he had submitted, which contained definitions of the three grounds for removal of a person and that there be only those three reasons for dismissing a person. These individuals were human and it was important to differentiate between honest mistakes with conduct in good faith and mistakes that were made in bad faith or the result of malicious intent.
Mr Steenhuisen concurred that the process should commence with a substantive motion in the House as that was required in terms of Rule 88. To remove the partisan sting, given that such things did become political by their very nature, the Speaker, as granted her by Rule 26 of National Assembly (NA) Rules, had the right to appoint the panel, which would be independent. The Speaker would have to appoint people who had the experience and expertise to be able to advise properly. It would be important that the panel could advise that there was a prima facie case to be answered before there was any discussion of the person in the House. That would eliminate a frivolous attempt to remove someone from a Chapter Nine institution.
He agreed with the Table staff that the President, who made the ultimate decision to remove a head of a Chapter Nine institution, had to be notified the moment that such a motion was tabled. The President might, as Head of the Executive, want to make inputs into the process. If the panel decided that there was a prima facie case was to be answered, then a Committee to deal with a section 194 inquiry would be established. There was room for discussion but he would suggest that the Members of that Committee be appointed on an ad hoc basis as they had to have some experience in the appropriate field. For example, with the Auditor-General, financial expertise might be necessary. The Committee had to act in an open, transparent and accountable manner which afforded the head of the Chapter Nine institution an opportunity to robustly defend his or her position, and to call witnesses and so on.
After the Committee report, the House had to apply its mind, regardless of the decision of the panel or the Committee, and to express itself. That would be a fair, transparent and open process. It mirrored closely the processes for the removal of a President because, similarly, it was not a process to be carried out lightly.
Mr Steenhuisen informed the Sub-Committee that the details were in the document that he had submitted.
The Chairperson thanked Mr Steenhuisen for his presentation. She asked whether any other parties wished to make a presentation.
Mr N Matiase (EFF) stated that section 89 of the Constitution dealt with the removal of the President and had no relevance in the case of the removal of the head of a Chapter 9 institution. He did not know if it was relevant in the case of the Public Protector. It would require an amendment of the Constitution and he would be very hesitant to allow that section to be invoked in a discussion about the removal of the head of a Chapter Nine institution .
The Chairperson explained that Mr Steenhuisen had been referring to the court judgement against the NA in the previous term because the NA had not had rules to deal with the removal of the President. It was not that section 89 was to be used. Mr Steenhuisen had referred to the fact that there had been no NA rule for section 89. The Court had found in a judgement against the NA that there was no rule and the NA had had to develop a rule for the process.
Ms T Marawu (ATM) stated that the Subcommittee was dealing with a very serious matter and she suggested that political parties needed time to consult lawyers. She did not want to bring Parliament into disrepute. She was worried about the roadmap for Parliament to remove a Chapter 9 Head, the Public Protector or the Auditor-General. She was not happy with naming a specific head. The heading was wrong to identify individuals as it cast aspersions. She proposed that the platform should not be used as a “ forum shopping platform”. However, she supported the appointment of a Committee to determine whether there were allegations of misconduct, incompetence or incapacity. She supported incapacity but there had to be experts on the Committee and the person had to have a medical certificate to show that he or she had undergone some interviews and was found to be incapacitated.
The Chairperson informed Ms Marawu that she was giving political parties an opportunity to present their views. The Subcommittee was not yet into the nitty-gritties.
Ms Marawu understood that she had to wait. The point that she was making was that there had to be a medical doctor. In addition to having a medical doctor in the Committee, the Committee had to show that the person had underperformed by not meeting those key performance areas that he or she had been given and was expected to meet. A court of law would have to agree that he or she had engaged in misconduct. Those were the proposals being presented by the African Transformation Movement.
Prof C Msimang (IFP) said that he did not have a contribution to make but he thought that he should inform the Committee of a possible conflict of interest. People said to him that he was the one that had nominated the Public Protector when he was a member of the Ad Hoc Committee. She had not been a candidate of the IFP of which he was a member. She had been nominated by a member of the public. He had based his nomination on her CV and on the views of parties, except one, that she was a fit candidate to be interviewed. After the interview, everyone had supported the candidate. He was informing the Committee of that situation.
Mr Q Dyantyi (ANC) thanked Mr Xaso and the DA for the proposals. He noted that the Subcommittee had to look into developing a rule. The rules were being drafted to fill a vacuum. The documents from the Table staff and the DA, as well as the roadmap, all referred to the Heads of Chapter 9, the Public Protector or the Attorney-General. The Subcommittee needed to be clear that the starting point was not related to an individual. The Subcommittee was obliged to compile the rule. The thing in the public about the Public Protector had nothing to do with the process being discussed.
Mr Dyantyi added a second point. Speaking for the ANC, he noted that the NA Table staff had not yet submitted the definitions in relation to the three reasons for dismissal. The DA had done that but the Table staff needed to draft definitions of the three points that related to the removal of a person. The Table staff had to provide definitions at the next meeting.
Thirdly, he was happy that members were finding themselves agreeing on the need for a panel to find whether there was prima facie evidence and that it had to be established by the Speaker. If anyone had to go to court, it was the Speaker who would go to court. The ANC trusted that the Speaker would request advice on who to appoint but ultimately, it was her responsibility. It was also important that the panel be given a timeframe for unearthing those things that it needed to consider in order to make a recommendation. He did not want to prescribe to the Speaker but he would urge that in her consideration of the matter, she looked into timeframes.
Mr Dynatyi was in support of the substantive motion. On the issue of the inquiring committee, the ANC favoured 6a or 6b. Either of those were doable but in the commission of those, issues of professionality should not be lost. He supported the suggestion that the person who was the subject of the inquiry could bring lawyers and whoever might be needed to support him or her in his or her response to the allegations.
He asked that the proposal be completed and ready for the next Subcommittee meeting.
The Chairperson thanked everyone for inputs and thanked Mr Dyantyi for reminding Members that whatever was agreed upon or not, it would still go to the Rules Committee for agreement. She was sure that the Table staff and the legal team would prepare the definitions for the meeting of 11 October. Mr Xaso and the legal team should craft the definitions.
The Chairperson stated that Subcommittee had agreed that the Speaker would constitute a panel. The panel to be appointed by the Speaker had to have members with appropriate expertise. The panel had to determine the existence of evidence before there could be any talk of removing a person. The panel’s role was to assess whether there was prima facie evidence or not of one of the three reasons for dismissal. It was not an inquiry. The panel would report to the Speaker and the Speaker would take that report to the NA. The issue of an inquiry was then taken to Parliament. Parliament was empowered and equipped to handle inquiries and that was why a parliamentary Committee, with the necessary support, was the right vehicle to handle an inquiry.
She confirmed that all Members of the Subcommittee were in support of the process to be followed. The Subcommittee would not proceed further with that matter that day as it had been referred to the legal team and the NA Table staff.
Possible rule amendment: Members Statements
Mr Xaso made a proposal. His proposal was that Member Statements could be made after the Statements by Chief Whips or after Statements by the Executive. Previously, Member Statement had been taken before Statements by the Executive but he suggested that perhaps Member Statements should be taken before orders of the day.
Ms Tanya Lyons, Procedural Advisor, NA Table Staff, referred to the challenges that Table staff encountered in respect of Motions Without Notice. Motions Without Notice should be something that the House could agree on but the motions were sometimes more like Statements than Motions Without Notice. It was not only the volume but there were factual inaccuracies and so the motions could not go into the minutes without a check being done as those motions were ultimately conveyed by the Speaker under her signature. The Table staff had to ensure that something the Speaker conveyed had to be 100% correct. There could not be any inaccuracies.
Ms Lyons informed the Subcommittee that the volume was a huge issue as there were sometimes 17 or 18 Motions Without Notice in an evening.
The Chairperson addressed the issues before the Committee. In the old rules, Member Statements were before Executive Statements or Orders of the Day and the proposal was to move Member Statement back to its old slot. The second issue was Motions Without Notice that were inaccurate, causing staff members to work overtime and there were too many such motions.
Mr Steenhuisen stated that the DA was in complete support of the first proposal. The problem had arisen in the Fifth Parliament in response to the concept of filibustering and that was why it had been moved down. In Parliament, Members’ business had traditionally come before executive business. That was done intentionally because it was the Members who represented the public whose business should take priority in the Order Paper. Tradition aside, there had become a practical manifestation of the problem. It was part of the accountability model and was one of the ways in which Members could bring the ordinary constituency issues to the attention of the House and to the attention of the Executive. Now, with Members’ Statements at the end of a session, there was a practical problem because it was very difficult to tell when a session in the House would end. Ministers were not always available because they had to balance their executive business with their attendance in the House and so they were not always there at the end of a session.
Mr Steenhuisen assured the Chairperson that it would be a healthy move because Members’ Statements would then be able to catch the eye of the relevant Minister. More Ministers would be available to respond.
He added that, unfortunately, the Motions Without Notice had lost the original intention which had been to raise those items that were uncontroversial and that the House could be united on, such as congratulating the Springboks. He admitted that all parties had been guilty of abusing the Motions Without Notice. He had to admit that there were no angels in the room. Those Motions had lost their original purpose. However, it was one of the few ways that Members could get an opportunity to raise issues and one did not want to deprive Members of that opportunity to use the tools of Parliament to bring issues to the attentions of the House. However, the staff were correct and there were better tools to use in some cases, such as Member Statements, etc. The Motions without Notices should be reserved for those big issues that brought Parliament together. However, he was aware that the matter had been discussed at length by the Fifth Parliament without any resolution.
Ms Marawu concurred with the prioritisation of Members’ Statements. The Ministers needed to be there.
Mr J Julius (DA) asked for greater clarity on the need for the Speaker to check the veracity of fact. Was it not the responsibility of the Members who proposed the motion to check the facts? If the Speaker could sign for the receipt of the motion but add that it had come from a Member, would that resolve the issue as it was impossible to check every night?
Mr Xaso explained that once the House had supported the motion, it became the House’s decision and it could be conveyed to another country or individual and sometimes the date of birth, etc. was wrong and so the Table staff had to ensure that all facts were correct before publishing.
The Chairperson agreed that the Parliament of the RSA could not be bound to something that was not correct. The Table staff worked on the Notices without Motions after the House had adjourned and so worked until extremely late at night correcting those Notices. When some of the Members left their offices very late at night, the Table staff were still working and the following day they had to be in their offices.
Mr Dyantyi agreed on the proposed change to the Members’ Statements. He asked how one distinguished between the Motions with Notice and the Motions Without Notice. Members were using the Motions Without Notice to push their agenda. The Motion Without Notice was being thoroughly abused because it should be about something that had just happened, e.g. he had proposed a Motion Without Notice regarding the appointment of two judges. The problem arose when Members conflated that motion with an attack on another party, etc. They smuggled things into motions. Parties had to agree to reduce the number of motions. They should observe the decorum of the House. One could not create rules for everything and parties should be more reasonable. If parties could not be reasonable and responsible, Motions Without Notice would have to be taken away and that would be taking away the opportunity to congratulate citizens.
The Chairperson concluded that Members’ Statement would come after formal notices and before Statements by the Executive so that Members of the Executive could respond to constituency issues.
She referred the issue of Motions Without Notice to Mr Xaso for proposals. Members had to reduce the volume. Members had to make sure that whatever was tabled was correct and could not expect Table staff to be their researchers.
The Chairperson noted that the next item was the Subcommittee programme. She would refer that to the Table staff but noted that the Members had agreed that the Subcommittee would meet in the week of 7 October 2019.
A Table staff member suggested Friday 11 October 2019 as there would be Committee meetings during the week, and the Rules Committee had permission to meet on Fridays. There would be a draft of the Rule for the Removal of Chapter Nine Heads. The Subcommittee would have to meet once after that to finalise its proposal for the full Committee.
The Chairperson noted that there was agreement to the proposal.
The Chairperson thanked Members for their participation, and thanked the legal team and the Table staff, so ably led by Mr Xaso, for their work.
The meeting was adjourned.
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