DA Rules Proposal
Parliament Media Statement
Rules for Removal of Office-Bearers
Draft rules regarding removal of Chap 9 institution
Discussion document in terms of determinations and rule amendments
A copy of OUTA's additional submission to Parliament on 13 September 2019
The Subcommittee received a follow-up briefing from Parliamentary Legal Services and the National Assembly Table on the draft rules for removal of a holder of public office in terms of Chapter Nine of the Constitution. Definitional issues on misconduct, incapacity and incompetence were resolved through discussion. Members noted divergent views on the constitution of the Section 194 Committee, but finally reached consensus on proportionality. Discussion also considered the necessity or otherwise of the appointment of a judge to the preliminary inquiry panel, as well as what to do with the findings of the panel. It was agreed that the proposals would be referred to the full committee for consideration.
The Subcommittee referred technical amendments to the National Assembly’s rules in terms of ministerial responses, notices of motion, and determinations of declaration of vote to the Rules Committee, but withheld judgment on the matter of notices without motion.
The Chairperson welcomed the Committee and noted apologies from two Members.
Ms N Mazzone (DA) informed the Committee that Mr Julius was ill.
The Chairperson tabled the minutes of the previous meeting dated 18 October 2019.
Mr Q Dyantyi (ANC) proposed adopting the minutes and this was seconded by Mr J Steenhuisen (DA).
The minutes were approved with no changes.
NA rules: Proposals on definitions for removal of Chapter 9 office-bearers
The Chairperson recalled that in the previous meeting, the subcommittee had noted the need for the tightening of definitions of misconduct, incapacity or incompetence.
Mr Masibulele Xaso, Secretary to the National Assembly, suggested starting with these definitions, ceding to Legal Services.
Adv Michael Prince, Legal Adviser, Parliament Constitutional and Legal Services Office, recalled the request of the last meeting to tighten definitions. Legal Services had incorporated elements that it felt had to be included under each ground (incapacity, incompetence, misconduct).
Mr Xaso noted there was a request to define “preliminary assessment”.
Adv Prince replied that normally definitions were only introduced where there was a possible divergence from the ordinary meaning. Legal services did not see any necessary legal addition to the definition of “preliminary assessment”.
Mr Xaso noted that the term “serious misconduct” was not included in the rules, as this applied to the President, not office bearers.
Ms N Mente-Nqweniso (EFF) accepted the lack of need to define preliminary assessment if the dictionary definition was sufficient. She asked whether the definition for “serious misconduct” was a departure from that of “misconduct”. The “serious misconduct” definition sounded more solid to her than that of “misconduct”. Elements of unlawful/dishonest/illegal behaviour were essential to misconduct.
Mr Steenhuisen agreed with the new definitions and thanked Legal Services.
Ms R Lesoma (ANC) thought that what was proposed in terms of “misconduct” was sufficient, proposing that being explicit in terms of actual conduct was an incorrect approach.
Mr Dyantyi agreed that the definitions were largely improved. He did not think they need to be tightened any further, as this would run the risk of being too prescriptive.
Dr Barbara Loots, Legal Adviser, Parliament Constitutional and Legal Services Office, noted that when one defines anything, not all the possible variations of the crime are included. When defining misconduct, Legal Services looked at South Africa and elsewhere. Abuse of trust constitutes misconduct. The rules were working with more than one Chapter Nine office, so standards and expectations were different. The definitions had to be strict but flexible.
Ms Mente-Nqweniso appreciated that all Chapter Nine institutions were intended to be covered, but stressed that Parliament could not fall short in defining the moral principle that is meant to bind Chapter Nince institutions, irrespective of their specific duties.
Dr Loots understood her concerns but recalled that jurisprudence and practice allow the definitions to be constituted as such. If the committee felt Legal Services had to revise it would
Mr Steenhuisen argued that the Subcommittee should not overdo the rules. If the rules got into issues of testing morality, it would enter into a subjective grey area that would make the regulations controversial.
Ms Mazzone agreed with Mr Steenhuisen, noting that the regulations had to be subject to the Constitution, and that many of the issues brought up by the committee were already covered by the system of legal practice in South Africa.
The Chairperson thanked the members for their input, noting that the committee would leave aside issues on definitions.
Mr Xaso stressed the use of “holder of public office” instead of specific titles in Rule 129R. The draft rules had persisted with the use of “may” in terms of the appointment of a judge to the preliminary inquiry panel. The NA Table had also given options for the committee to decide in terms of appointment of the chair of the preliminary inquiry.
OUTA made a submission, proposing civil society be allowed to give input to the preliminary inquiry panel. Members were of the view that this procedure would be executed by Parliament alone.
The question of what should happen with the report was also key: contrasting views were that the report must either be considered (voted) by the house, or just noted (i.e. received).
If the panel says there was no basis for an S194 inquiry, the process would end there – but perhaps the House should still note or consider this.
On the constitution of the committee, the sense was that the committee ought to be proportional to the constitution of the National Assembly.
This was the extent of what the NA Table was asked to work on. Everything else seemed to be accepted.
Mr Steenhuisen noted that all the issues he had were not significant enough that they were worth obstructing passage of the draft rules. He recalled his preference for the panel to appoint its own chair, and for the committee to be composed half by the opposition, but accepted the principle that when in doubt, proportionality reigns.
Ms Mente-Nqweniso accepted the utilisation of the word “recommendation” in terms of the panel’s findings, if that was legally sufficient for the context. She stated that the Subcommittee was not making decisions as the rules were going to the Rules Committee. Would the draft document with options go to the Committee, or would it have the Subcommittee’s suggested changes? She noted possible problems in terms of not requiring a judge on the preliminary panel. If, for instance, the panel was assessing the AG and it was filled with accountants, there would not be the legal capacity to evaluate the legal architecture that governs the specific professional practice of accountancy. Only a judge could give this kind of capacity. She was adamant there should be a judge on the panel. On the chairperson appointment, she proposed that the first thing the 3 appointees would do if the panel decided its own chairperson would be to lobby and play politics. The Speaker had to decide. She recommended that the report of the panel had to be considered by the House. If the panel concluded that there were no grounds for a further investigation, there was no need for this to be considered by the house. She agreed with Mr Steenhuisen on the composition of the committee.
Ms Lesoma noted that Mr Steenhuisen had covered most of her issues. In terms of Rule 129V, she noted that legal assistance would likely be available to the panel so there was no need to lock the panel in to having a judge. She agreed with the appointment of the panel chair by the speaker. She agreed with Rule 129Y on quorum. She agreed that proportionality had to be the rule for the appointment of the S194 Committee.
Mr Dyantyi stated that the Subcommittee could not make this process elastic. He sensed that from where the rules were, it had done enough work. He would not support another meeting of the Subcommittee as this would be doing the work of the Rules Committee. He had 3 issues for discussion: Firstly, in relation to the issue of proportionality - one never wanted, in the making of rules, to modify the strength of a party. This principle had to be sacrosanct as it was essential to the functioning of Parliament. His second point was on the question of requiring a judge for the panel. The reason for this panel was to eliminate partisan issues. This panel could not have the prerogative to hold power over the elected national assembly. It could have a judge, but it did not need to be explicitly required. Maintaining flexibility in this matter was preferable. The final issue was on the recommendations brought to the Assembly. Recommendations may say that there should an S194 Inquiry. At that point, there was nothing to debate. The Committee would make the investigation, and ultimately the National Assembly would maintain sovereignty in discussing the final report. He did not want a situation where the Subcommittee on Rules went to the Rules Committee without a cleaned-up document. The document could record minority views.
Ms Mazzone noted that there was a wide range of possible relevant expertise, so insisting on a judge may be excessively prescriptive.
The Chairperson noted this discussion arose in the previous meeting. She thought that the Subcommittee was close to agreement. If anyone was completely opposed to parts of the current document, the document would take options to the Rules Committee.
Ms Mente-Nqweniso replied that she did not want to make the meeting drag on, but did not want to produce rules that could be thrown out by a court. Given that the National Assembly appointed Chapter Nine bodies, it had to maintain input on the process of their removal continuously, and not delegate this authority entirely to the Speaker – hence her preference for the panel report going to the Assembly for a decision. She did not want a situation where the S194 Committee report came to the House and it questioned why the committee was constituted in the first place.
The Chairperson noted she wanted the Subcommittee to explore the issue of what to do with the panel recommendations. What if the panel said there was evidence, and the House decides that there wasn’t – what would happen? Alternatively, if the panel found no evidence, but the House said there was?
Mr Steenhuisen argued that he did not think the role of the Assembly could ever be usurped. The role of the NA was to vote on the removal of the office holder. The panel could only make a recommendation, but he did agree that the recommendations had to come to the House. If the panel’s findings were rejected by the National Assembly, this could be subject to review as it would be against the rational and reasonable principles of administrative action. He did not, however, want the House to pre-judge the following stage of the procedure.
Ms Mente-Nqweniso recalled the investigations on Nkandla and SABC, which were decisions of the House. If, hypothetically, Parliament successfully removed a Chapter Nine holder through this process and the holder argued in court that the decision for removal was not initiated by the employer itself, this could be an issue. She similarly did not think the House could vote down solid prima facie evidence.
Mr Dyantyi emphasised that the Subcommittee was creating rules. The Speaker had certain obligations and rules governing them. Committees of parliament were an extension of the House. He emphasised the important point raised by Ms Mente-Nqweniso: there needed to be something beyond “noting” the findings even if it did not involve deciding on the report. The House should not be silent on the matter. He echoed Mr Steenhuisen’s point on avoiding pre-empting the work of the Committee. It would, however, boggle his mind that an inquiry for fitness for office based on solid evidence would be obstructed by the House.
The Chairperson agreed that people appointed by the House had be investigated by the House. The House had to have a say in the matter. She proposed the Subcommittee agreed on the matter.
Ms Mente-Nqweniso stressed that the Subcommittee had to produce a document that made sense to everyone, and would be legally solid. She did not want a situation like in the previous Parliament, where Parliament failed to prove its case many times when it was taken to court.
The Chairperson took the opportunity to appreciate the spirit with which the Subcommittee had conducted itself.
Mr Xaso proposed sticking with “consideration” of recommendations. The National Assembly could do two things with the motion for investigation: reading out in the House, or writing to the speaker.
Adv Prince noted Rule 129X missing a conjunction, “or”, after point 129X 1 (b) (ii). On Rule 129Y on quorum: if the Subcommittee wanted, it could change the quorum to be the chairperson and one other.
Ms Mente-Nqweniso said if the substantive motion was read by the member in the House, was it not correct when the report comes (whether there was evidence or not), that the report had to come back to the house floor?
The Chairperson proposed the Subcommittee had done its job with the draft rules, which would be taken to the Rules Committee. She moved on to the next item.
Technical Proposals on Determinations and Rule Amendments
The report highlighted technical amendments to the National Assembly’s rules in terms of ministerial responses, notices of motion, notices without motion and determinations of declaration of vote.
Ms Mente-Nqweniso thought members had all received the positions of their caucuses, the Subcommittee ought to wait until the rules had been tested before making decisions on them.
Mr Xaso noted there were certain issues that had already been agreed on (ministers’ responses, declarations of vote and notices of motion). One issue that needed consideration was that of motions without notice.
Mr Steenhuisen agreed that the Subcommittee could take the three agreed items to the Rules Committee. Motions without notice had to be further discussed.
The Chairperson agreed, and clarified that there would not be any more subcommittee meetings on these matters. The final draft rules would be circulated.
The meeting was adjourned.