The Subcommittee on the review of National Assembly Rules received a briefing from the National Assembly Table and Parliamentary Legal Services on the draft rules for the removal of a holder of public office in terms of Chapter Nine of the Constitution.
The presentation covered the procedure to be followed, the establishment of a panel and a committee to review a removal motion as well as their composition.
Legal Services highlighted that the rules could not be based on labour law as it was not applicable in this case. The rules had to be a living document that adapted.
Members were largely in agreement, and discussion revolved chiefly around the need for stricter definitions of misconduct, incapacity or incompetence, as well as whether the inquiry panel should be obliged to have a judge on it or not.
The subcommittee also received submissions on technical amendments to the rules, agreeing to a reduction in motions without notice and an increase in ministerial responses.
The Chairperson welcomed the members and observers.
The agenda was moved by Mr J Steenhuisen (DA) and seconded by Mr Q Dyantyi (ANC).
No apologies were received.
The second agenda item was the minutes of the previous meeting. Adoption of the minutes was moved by Mr Dyantyi, seconded by Mr Steenhuisen. No matters arose from the minutes.
Consideration of proposals concerning a Section 194 enquiry
The Chairperson noted after the previous meeting, proposals were referred to the National Assembly staff table and legal advisers.
Mr Masibulele Xaso, Secretary to the National Assembly, began presenting the first draft version of the rules for removing a holder of public office. The issue of how a motion came about was settled by draft Rule 129R – this would be through a notice of substantive motion by a member in the House or in writing. At point of notice, nothing was expected of the House. The notice had to speak to the grounds for removal: charging that the person involved had committed misconduct, was incapacitated, or was incompetent. The charge had to be ascribed to the holder of the office, not the office itself. For the purposes of Section 195, “charge” had to be understood as the grounds for removal, not as a criminal charge. If the motion did not comply with these rules, the Speaker would interact with the sponsor of the motion to ensure compliance. The motion would be submitted and immediately referred to an independent panel by the Speaker. It seemed there was broad agreement for a panel established by the Speaker to conduct a preliminary assessment of the conduct claimed in the charge. The Speaker would inform the House and President. When the inquiry began, the President had the authority to suspend the office holder. R129 dealt with the establishment of the panel.
The panel was to be comprised of 3 fit and proper South Africans, and could include a judge. The panel needed to have legal and other necessary competences. The Speaker had to appoint the panel after giving reasonable opportunity to parties in the House to put forward candidates. If a judge was appointed, the Chief Justice had to be informed. The Speaker would appoint the chair of the panel. The panel had to report within 30 days of its appointment determining whether there was prima facie evidence for the charge. The inquiry itself would be conducted by a multiparty committee of Parliament. The panel could afford opportunities to parties to make submissions. The holder of office had to have an opportunity for input. The panel could not hold oral hearings. The panel would only be quorate with the full panel present.
Once the panel had made recommendations, the Speaker had to table these and refer them to the inquiry committee as well as to the President. There was the question of whether the report should go before the house or not: with a section 89 enquiry, the panel report went to the house – this approach followed court judgments.
The issue of the establishment of the Section 194 enquiry committee was settled – the inquiry would not be carried out by the Portfolio Committee on Justice & Correctional Services or any other committee.
The S194 Committee would consist of members assigned by speaker in line with Rule 154 on proportionality. There was the option to represent all parliamentary parties in the committee.
The functions of the committee would be to establish the veracity of the charges and report to Parliament. The inquiry had to be held in a reasonable and fair manner, and had to afford the holder of the office an opportunity to speak to the committee with legal support. The committee would have all the powers of other established parliamentary committees. A quorate majority vote would pass committee votes, but all minority views had to be considered and included in documentation.
The S194 Committee Report would go to the House, and the House had to decide what happens. It was possible the Committee recommended removal and the House disagreed.
Legal services briefing
Dr Barbara Loots, Legal Adviser, Parliament, noted the rules were very broadly phrased. This was purposeful, as the courts developed definitions – making the rules too narrow could have unintended consequences. The rules could not be based on labour law as it was not applicable in this case. The rules had to be a living document that adapted. Inevitably, there was a confusion between incompetence and misconduct – Legal Services had tried to make this distinction clear. Incapacity was generally medical, but this was not necessarily the case - it could also be legal.
Mr Michael Prince, Legal Adviser, Parliament clarified that, from a drafting point of view, the formulation to draft a definition using the word “includes” was normal practice. This was part of an attempt to draft an inclusive definition rather than a narrow one. The definition should include everything the courts decide defines “incapacity” or “incompetence”. If definitions changed in the future, Parliament would not need to change rules. The definition of misconduct had to be related to a breach of the Constitution or an empowering act, or the policies of the office. “Holder of a public office” was an inclusive way of referring to Chapter 9 appointees.
Mr Steenhuisen stated his broad agreement with the document, but offered some alterations. In terms of the presentation of evidence to the panel – he proposed the Sub-Committee includes a provision that the motion had to include all prima facie evidence involved in the charge. He proposed the Sub-Committee consider broadening the mandate of the panel to determine any preliminary matter or fact of law other than prima facie evidence of incompetence, incapacity or misconduct. In Rule 129R, he proposed inserting a clause as follows: “all evidence relied upon in support of motion must be attached to the motion, with the understanding that if any additional evidence becomes available at any time after the motion is moved, that before the S194 Committee finishes its business, such evidence may be filed with the Office of the Speaker”.
In terms of Rule 129V, Mr Steenhuisen supported using the Speaker rather than a committee to make panel appointments. Regarding Rule 129W, he submitted that panel members had to appoint a chairperson rather than the Speaker. This would bring the panel rule in line with committee rules. He proposed a small amendment to Paragraph B of Rule 129X:
“must, within 30 days of its appointment, conduct and finalise a preliminary assessment relating to the motion proposing an S194 inquiry to determine
whether there is prima facie evidence to show that the holder of public office:
AA Committed misconduct
CC Was incompetent
Any other question of fact or law specifically referred to it by the Assembly.”
He supported the second option in Rule 129AD as it reduced the wiggle room given to the Committee to investigate or not. Where the panel found that there was not prima facie evidence and the Assembly passed a resolution to this effect, the S194 Committee did not need to sit. He argued that the rules should not be too broad as to invite vagueness or legal uncertainty. Case law showed courts were reluctant to deviate from existing definitions. He believed the incapacity definition should read: “permanent or temporary mental or physical condition or a legal impediment that renders the office-bearer unable to execute his or her duties of office efficiently or effectively”, incompetence: “a demonstrated and sustained failure by the office-holder to fulfil his or her duties efficiently or effectively” and misconduct: “unlawful conduct arising from bad faith/gross negligence, dishonest or unlawful conduct”.
Ms N Mente-Nqweniso (EFF) noted that seeking to change a law was complex, and asked whether she would be allowed to make submissions in writing.
The Chairperson replied she was allowed, but corrected her, clarifying that the Sub-Committee was not changing any laws.
Ms Mente-Nqweniso continued on Rule 129V, proposing there had to be a judge on the panel. She noted her dissatisfaction that all powers were given to the Speaker to appoint the panel, arguing the House should be afforded the opportunity to agree on the panel, as the panel’s legitimacy would be challenged if it did not have the faith of the House. The House would be more at ease with the findings of its own panel. It would be problematic to waste money on an investigation that saw no outcomes.
Mr Dyantyi agreed with the draft definition of misconduct, but noted his dissatisfaction with the incapacity and incompetence definitions, which had to be much clearer to avoid the work of the panel being called into question. In both cases, the term “includes” was used – the legal phraseology “not limited to” would be helpful in this case. On Rule 129R 1A – he wanted to use the term “the holder of the office” rather than the name of specific offices for uniformity. On Rule 129Y on quorum: he understood Mr Xaso’s motivation, but thought it might be problematic to say the panel may only proceed with business with all panellists present. He proposed a simple majority of the panel would be better. In Rule 129W, he wanted to stick with the Speaker’s appointment of the chair rather than an election from within the panel, noting time constraints. The Speaker should bring the panel report to the House. Rule 129AC had to be clear that the holder of public office cannot let the legal advisor give input to committee for them. Finally, he noted that discretion to choose a judge or not was preferable to forcing Parliament to rely on another arm of state (the judiciary) for approval.
Mr Steenhuisen agreed with Mr Dyantyi. He preferred a 50/50 representation on the S194 Committee of the opposition, but understood the reasons behind proportionality. The original reason for the panel and the Speaker to appoint it was that the House did not want to be accused of prejudging the matter. Given the Speaker was bound to act independently and in a non-partisan manner, he thought this was appropriate. The Rules Committee was making rules for the removal of a holder of public office in perpetuity so it could not consider current incumbents and situations. The Speaker’s appointment would take politics and partisanship out of the issue to an extent. Ultimate power would always rest with the House. He argued for the need to be careful of tying hands of the panel. Parties would be involved but the appointment itself should be non-partisan and hence delegated to the Speaker. He stressed that the urgency required meant he would not insist on smaller issues, but proposed that the draft did still need some work.
The Chairperson stated the composition of committees being proportional was in line with the current rules of Parliament. The appointment of the panel would be done with consultation but the reality was, there were 14 parties and only 3 members of the panel.
Ms Mente-Nqweniso reiterated her opinion on the necessity of a judge. Other required expertise could be accommodated in the other two members. Given the likelihood of legal challenges in the matter, ensuring a good legal capacity was essential. Having a judge on the committee would protect the panel rom making legal missteps. Rule 129 refers to whatever the panel is doing as a “recommendation”. This became legally problematic as recommendations were not binding - should it not be a “finding” rather than a recommendation? She agreed with Mr Steenhuisen on the need for a revised misconduct definition.
The Chairperson noted that, in the Sub-Committee’s first meeting, which Ms Mente- Nqweniso was not present at, the issues she had brought up had been discussed. She proposed it would be appreciated if the EFF was consistent across the meetings. The panel’s job was to assess the existence or otherwise of evidence, not make an actual investigation, which was the responsibility of the S194 Committee. She proposed that Legal Services should tighten everything and close loopholes, and come back to the Sub-Committee with tightened definitions that would stand the test of time.
Mr Xaso acknowledged that the drafts were a joint effort between the National Assembly Table and Legal Services. The judge and panel clauses were drawn from the section 89 rules on removal of a president. He noted two views on the issue of what was to be done with the panel report. One was that the House could decide what to do with the report, the other was to give it to the House purely for informational purposes.
The Chairperson proposed committee members make their submissions to the draft, which would be taken to the Rules Committee.
Technical proposals for consideration
Mr Xaso introduced a number of technical proposals. On declarations of vote, the rules required the Rules Committee to make this determination as and when required. Until then, the Assembly had continued with the time allocation from the 5th Parliament. In the 6th Parliament, the Table had proposed a new balance to reflect the different balance of power. He noted the concern that Declarations of Vote had become mini-plenaries and take too long.
The Rules Committee was also required to make a determination on the number of ministerial responses. The Table proposed an increase to 7 from 6.
The Table proposed an amendment to the rules on Motions without Notice, allowing them unless 5 parties, including the majority party and official opposition, are not in favour.
The Chairperson opened the floor to members.
Ms Mente-Nqweniso noted that the issue would go to caucuses but that the Sub-Committee included all the chief whips anyway. She agreed to an increased number of ministerial responses. She proposed a decreased allocation of motions without notice in favour of members’ statements.
Mr C Frolick (ANC) proposed the discussion document had to go back to parties. A motion without notice was not a statement but it was often treated that way. They were supposed to be serious motions that dealt with national or international issues. This was not being respected. It was the case before the switch to the new system of 23 motions without notice. Aside from staff having to transcribe the motions, the presiding officer had to write to anybody concerned in a motion without notice. The House had reached a level of maturity where whips could agree on matters and bring down the number of motions without notice. There was also a need to look at the time allocated at notice of motion. Notices of motion were treated as minute long statements. The business of the House could be made to flow much faster.
Mr Steenhuisen agreed that the reason for motions without notice was when the House wanted to come together and express itself. There was a duty on parties to rein back politics in motions without notice. He agreed with the increase in ministerial responses. There was a need for increased cooperation between the House and executive. He agreed with Ms Mente-Nqweniso’s point on increasing members statements and decreasing motions, but noted motions were an important way of bringing important matters to the fore. Motions were only useful with the executive present.
The Chairperson noted the agreement on ministerial responses increasing by 1. The issue of motions without notice would be discussed in caucuses.
Friday 1 November was the recommended date for the Subcommittee’s next meeting.
Mr Steenhuisen proposed that parties should have written submissions in by close of business on Monday, and the 2nd draft rules could be circulated electronically, so that when the committee met on the 1st, it was close to finalisation.
The Chairperson agreed.
The meeting was adjourned.