The National Assembly Rules Committee adopted draft rules to regulate the removal of office bearers and commissioners of Institutions Supporting Constitutional Democracy (ISDs) – the heads of Chapter Nine institutions. The draft rules had been produced by a sub-committee chaired by Ms DE Dlakude (ANC). The adoption of the draft rules by the Committee would be reported to the National Assembly for a decision.
Institutions included in the discussion were the Auditor General (AG), the Commission for Gender Equality, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Electoral Commission, the Public Protector, and the South African Human Rights Commission. It was determined that the existing rules of the National Assembly and Section 194 of the Constitution set broad parameters for the removal of office bearers or commissioners in these institutions. Section 194 provided for removal on the grounds of i) misconduct, incapacity or incompetence, ii) a finding to that effect by a committee of the National Assembly and iii) the adoption by the National Assembly of a resolution calling for the person’s removal from office.
The proposed draft rules would clarify issues of what constituted grounds of misconduct, incapacity or incompetence, required in order to establish an inquiry. The proposed draft rules also required a member of the National Assembly to initiate proceedings for a Section 194 inquiry through a substantive motion. The speaker of the National Assembly would have to check the motion for a preliminary assessment to determine a prima facie case, thereafter, referring it to an independent panel.
The independent panel, appointed by the Speaker, would consist of three fit and proper South African citizens with the requisite capacities, including sufficient legal knowledge, other competencies and experience in order to effectively conduct assessments. Membership appointments would be made as and when was necessary, the numbers of which would be determined by the Speaker. The panel needed to be independent and subject only to the Constitution, law and needed to act impartially and without fear, favour or prejudice.
These draft rules still needed to be adopted by the National Assembly before coming into effect. It was determined that this would only be possible in 2020.
The Committee also adopted rule amendments in respect of members’ statements and determination of the duration of ministerial responses.
The Chairperson said the Deputy Speaker had submitted apologies and indicated that Mr Frolick was abroad.
The Chief Whips of the ANC and DA submitted apologies on behalf of their members.
Consideration of draft agenda
The Chairperson asked Members to consider the draft agenda.
Ms N Mazzone (DA) moved for adoption of the draft agenda.
Ms P Majodina (ANC) seconded the motion.
The Chairperson said the Committee would move on to consider the draft minutes for the meeting of 10 September 2019.
Consideration of draft minutes of meeting dated 10 September 2019
On page two, Mr G Magwanishe (ANC) pointed out that there were highlighting issues in several paragraphs.
The Chairperson replied that Mr Magwanishe had received the unrevised version. She added that Members were in agreement that the minutes reflected the Committee’s deliberations.
Ms Majodina adopted the minutes.
Mr X Ngwezi (IFP) seconded it.
The Chairperson said the Committee would proceed to the next agenda item which was the report by the subcommittee on the review of National Assembly rules.
Report by Subcommittee on Review of National Assembly Rules
Ms D Dlakude (ANC and Chair of SubCommittee) said that the subcommittee had met on 20 September, 18 October, and 8 November 2019. Members’ attendance had been very consistent, and the subcommittee had always been reminded that it did not take any decisions, only deliberations.
Ms Dlakude reported back on various matters referred to the subcommittee for consideration and recommendation.
She said that Rule 132 provided an opportunity for members to raise issues in the House and for members of the Executive to respond. In terms of Rule 47, the sequence of proceedings was structured so that member statements followed Executive statements. The subcommittee proposed that member statements be before Executive statements.
The subcommittee had also dealt with the duration of Ministerial responses, which were currently set at six minutes each. The subcommittee proposed that an additional minute be added to these.
The subcommittee had also dealt with Section 194 of the Constitution regarding Chapter Nine institution office bearers and commissioners in Institutions Supporting Constitutional Democracy (ISDs) and their removal from office. The specific grounds on which office bearers could be removed were outlined, but the mechanisms to do so were not. The subcommittee had dealt with definitions used to determine grounds for removal – incapacity, misconduct, or incompetence.
A letter had been referred to the subcommittee from the Speaker’s office, submitted by the Organisation Undoing Tax Abuse (OUTA), which had wanted to be part of the parliamentary proceedings in the revision of the inquiry process. The subcommittee had rejected the proposal.
Ms Dlakude added that they could not “outsource the responsibility of members of parliament”.
The subcommittee further discussed draft rules that would clarify issues of what constituted grounds of misconduct, incapacity or incompetence, required in order to establish an inquiry into Chapter Nine institution office bearers. “Misconduct” was defined as the intentional or gross negligent failure to meet the standard of behaviour or conduct expected of a holder of a public office. “Incapacity” was defined as a permanent or temporary condition that impaired a public office holder’s ability to perform their work and any legal impediment to employment. “Incompetence” was defined as the demonstration and sustained lack of knowledge to carry out and ability or skill to perform their duties effectively and efficiently.
A member of the National Assembly was required to initiate proceedings for a Section 194 inquiry through a substantive motion. The motion needed to be accompanied by all supporting documents. The Speaker of the National Assembly would have to check the motion as well as supporting documents for preliminary assessment to determine a prima facie case for removal of the office bearer. Thereafter, the Speaker would refer it to an independent panel.
The independent panel, appointed by the Speaker, would consist of three fit and proper South African citizens with the requisite capacities. This included sufficient legal knowledge, other competencies and experience in order to effectively conduct assessments into the ability to hold office in Chapter Nine institutions. Appointment of a judge to the panel would need to be done by the Speaker in consultation with the Chief Justice. Political parties with National Assembly representation would also have to be given reasonable opportunity to propose nominees for the panel prior to the Speaker’s final appointment. The Speaker would appoint one of the panellists as chairperson.
Within 30 days of appointment, the panel needed to conduct and finalise a preliminary assessment on the motion that proposed a Section 194 inquiry and make a recommendation to the Speaker. The Speaker would then need to schedule the panel’s recommendation for decision by the National Assembly. If the National Assembly resolved that the inquiry should proceed, it would then be referred to a special Section 194 Committee for formal inquiry. The Speaker would determine the necessary number of members to serve on the Committee. The Committee would act with powers applicable to a regular Parliamentary committee in order to conduct the inquiry, establish the veracity of the charges, and report back to the National Assembly. The Committee’s report needed to contain the findings, recommendations and their reasons for them, and would be scheduled for consideration and debate in the National Assembly.
Should the report recommend that the public office bearer be removed, the question needed to be put directly to the National Assembly for a vote. If the required two thirds majority of National Assembly members supported the decision, it would be conveyed to the President, who would then have to suspend the office bearer concerned upon adoption by the National Assembly of the resolution. The President was also able to suspend an office bearer at any time subsequent to the beginning of the National Assembly committee proceedings for the removal of office bearers.
The Chairperson said that the subcommittee had suggested the Committee re-look at Rule 132 and amend the process of members’ statements. She asked whether the Committee was in agreement.
Mr Ngwezi agreed with way that the proposal had been put. He requested that as the requirements stipulated for the process, members had to postpone activities related to the process because Ministers had not been in the house. There needed to be enforcement to ensure that Ministers were in the House. It served no business to have items on the agenda that required Ministers who did not attend to engage. It was an embarrassment to Members and the House.
Ms Majodina seconded the proposal.
Ms Dlakude said she had forgotten to mention that the subcommittee had worked very well. She thanked the opposition members who had worked in the subcommittee.
Ms G Boroto (ANC) agreed with the proposals for amendment. She said the issue of clusters needed to be looked into.
The Chairperson said that the Committee had agreed to the first recommendation as well as the sequencing proposed on the second page. The Committee further agreed that the allocated time was no longer six but seven minutes.
Ms Majodina said she was still on page two of the presentation, point C. She agreed with the extension of presentations to seven minutes, but also proposed that one minute be added to responses. This would change response times from two minutes to three so as to ensure a complete response.
The Chairperson said that one minute would be added to the response. The Committee members agreed.
Dr P Dyantyi (ANC) asked about page three and further explanation of “incapacity”. Would there be any specification of what temporal conditions would be considered in the determination of incapacity? Would key performance indicators be given in order to assess the outcomes of incapacity? What would inform the determination of incapacity? She had the same issue regarding what would inform “incompetence”. She asked if her point was clear.
The Chairperson said it was clear.
Ms Mazzone said the subcommittee had looked extensively at what “incapacity” and “incompetence” could mean, with significant advice from the state law advisor. Each case would be looked at individually. For example, Incompetence – the knowledge to carry out – when someone made a complaint to the Speaker, part of their submission document would detail prima facie what the lack of knowledge was. Complainants would have to prove to the Speaker in their submissions.
Incapacity was more interesting because it was something that impaired someone. It meant they were unable to do their duties as a result of something not of their own accord. In many cases these were not necessarily legal in nature, which was why the subcommittee had resolved to say, “there may be a judge” rather than “there needed to be a judge”. For example, the person may have been involved in a car accident, requiring a medical expert to determine incapacity, rather than a judge. The legal definitions could be referred back to as a guide, but the Speaker needed to be provided with the evidence to support the claim.
Dr Dyantyi said that she understood that this meant the subcommittee had therefore decided not to put examples in the draft rules.
The Chairperson said this was correct.
One of the things that needed to be considered was those who were selected as office bearers needed to have their capacities for the role determined at the beginning. Committees of Parliament needed to determine capacity at the beginning by strengthening the entry screening process to ensure there would be competent people in the institutions. This was one of the first things that needed to be strengthened.
She said the Committee could proceed from page three’s definitions.
The Committee was in agreement with page four’s recommendations.
Dr Dyantyi asked for clarity on page six regarding point C(4). What was the reason for not holding oral hearings?
Ms Dlakude said the phrase was speaking about the members of the independent panel. Public hearings would be conducted by the Section 194 Committee. The panel was to assess the existence or non-existence of evidence.
Mr Ngwezi asked about page six regarding “a committee to consider motions initiated…” and whether it should read “there shall be a committee…”.
Mr Xaso said that once the rules were adopted, only then would the committee be constituted. The rules created the committee.
The Chairperson said they should assume the panel changed from term to term.
Ms Boroto commented on page seven which showed nothing in terms of the life span of the Committee. She thought it should be clear that the Committee would exist until its work was done.
Mr Masibulele Xaso, Secretary to the National Assembly, said there were two issues. The panel itself had 30 days to determine the grounds of claims and do its work. The Committee would last for the duration of the Parliament, but its membership would be on an ad hoc basis – when work was needed to be done, the members would be nominated.
The Chairperson asked if Ms Boroto was satisfied.
Ms Boroto said she thought it may be necessary for Mr Xaso’s explanation to be entered in the document.
Mr Ngwezi agreed with Ms Boroto. If the three members of the Committee were made permanent, there may be cases that touched those members. He wished it to be clear that the Committee was permanent, but the members were not.
The Chairperson said the Panel were independent people who were time bound. They would determine if there was a definite case or not. The full Committee would then be invoked. Its membership could change but the Committee itself remained permanent. Permanently lobbying members was not possible.
Ms Mazzone referred to Section 129 AB(2), which said that members of Committee needed to be appointed as and when necessary.
Mr Xaso explained the amendment on page eight. The current Rule 88 placed responsibility on the Speaker to deal with the issue of prima facie evidence. The proposed rule changed that. This function would be replaced with the panel. It was logical to amend Rule 88.
The Chairperson asked if the Committee was in agreement on the Rule 88 amendment and supported adoption of the subcommittee recommendations.
Ms Majodina supported the motion.
Ms Boroto seconded it.
The chairperson asked if there were any “thirders”.
Ms Mazzone thirded it.
The Chairperson joked that the “women had it”.
Ms Mazzone said the “ayes had it”.
The Chairperson said the Committee could return to the issue raised by Ms Majodina.
Ms Majodina said that every time the Committee was to engage the President on the amendment, it was on a monthly or bi-monthly basis or quarterly. She wished to make a firm proposal that such matters be referred to the subcommittee.
The Chairperson said the Committee was in agreement.
Dr C Mulder (FF+) could not believe the consensus in the meeting.
The Chairperson joked that December exhaustion dealt wonders to democracy.
Mr Xaso said that the rules would become effective only once agreed to by the House. There was only the following Tuesday and Wednesday available to do so.
The Chairperson asked to have the chief whips confer on the rules by the first week of Parliament in 2020 and that a date be agreed upon between them before closing the meeting.
Mr G Hill Lewis (DA) pointed out that point nine in the minutes said the subcommittee would consider the sub judice rules. Why was this not in the report?
Mr Xaso said there were a range of issues before the subcommittee.
Ms Dlakude ecplained that it had been referred to the party caucuses to deliberate further. The subcommittee had a lot on its plate. It would be deliberated at the next subcommittee meeting.
The meeting was adjourned.