Deliberations

Meeting report

NATIONAL ASSEMBLY RULES COMMITTEE
5 February 2002
DELIBERATIONS

These minutes were provided by the National Assembly Table Staff

Chairperson: The Speaker, Dr F Ginwala

MINUTES
1. Adoption of minutes of 16 October 2001

The minutes of 16 October 2001 were noted with the following corrections:
- Ms Rajbally and Mr Andrew apologies were noted.
- On page 4, the Speaker said that she would "get in touch with" the traditional leaders and not "meet" them. She said that. she would report back on the matter.

2. Auditor-General's Report on Financial Support to Political Parties.

2.1 Basic principle

Mr De Lange reported that the ANC did not have an opportunity to look at the details of the matter, but looked at the principle. He said that the main principle I, that Constituents' Offices are the responsibility of parties and not of individual members, the ANC was comfortable with that. He proposed that details as contained in the draft rules should be discussed by the parties who in turn should submit their input to the Chief Whips' Forum. He further proposed that the Chief Whips' Forum should table a joint report of all the parties to the next National Assembly Rules Committee meeting.

The Speaker said that some members alleged that they did not have constituency funds because parties are using the funds for general party work. She drew the attention of parties to the document on draft rules that state ideas about a Constituents' office System and asked parties to look at the matter.

The Deputy Speaker drew the attention of the parties to page 2, paragraph 6 and 8, and said that the two paragraphs may create confusion about the role of the party. Paragraph 6 distinguishes between political party offices and constituents' offices, but paragraph 8 states that the political party is responsible for employment and management of its constituents' offices staff She asked for clarity on what the management entails.

The Speaker asked the parties to discuss the principle first before they discuss the details. She said that there are a number of problems that may come up.

Mr Frolick said that the UDM supports and endorses the principle as stated in the document because it would be beneficial to smaller parties as it provides them with more room to manoeuvre and spread out to reach their constituents. He also said that there could be some problems on practicalities of implementation as the constituents' offices are supposed to serve the entire constituency irrespective of political party.

Mr Selfe said that the DP supports the principle, but the principle could not be separated from how it would be implemented.

Mr Van der Merwe asked where the principles were that the members referred to because the document referred to rules.

In response the Speaker said that the basic principle is that constituents' office is the responsibility of a political party and not of an individual. She also explained that the legal position is that an individual member could not manage a particular constituents' office, but there could be a private arrangement with the party.

It was agreed that in principle, a Constituents' Office is the responsibility of a political parry and not of an individual.

2.2 Formula for calculating constituents' allowances payable to political parties [paragraph 1]

Mr De Lange reported that the A~NC had looked at the broad principles and not the details. He suggested that the matter should be referred to the Chief Whips' Forum to discuss the details and report back to the Rules Committee.

The Speaker said that members should nevertheless be given an opportunity to raise questions or concerns.

Mr Selfe said that the general approach that each member of Parliament, whether that member is a Deputy Minister, Minister or Presiding Officer, also has constituency responsibility is an issue in question. He asked whether that would apply to Executive Members who might be appointed, but who were not members of Parliament He said that such Executive Members do not have the same constituency responsibility as other elected members of Parliament.

The Speaker asked members to note Mr Selfe's view and take it into account when discussing the details of the matter.

Mr De Lange said that the ANC disagrees with Mr Selfe's view.

2.3 Timing of payments [paragraph 4 &5]

The Speaker raised a concern about paragraph 5. There is the possibility of parties breaking up as Parliament is in a process of introducing legislation allowing crossing of floor by members She said that it would not be good financial practice for Parliament to pay over the entire sum to the party for the whole year. Parties should consider quarterly payments, or payments every two months.

It was agreed that the details as contained in the draft rules would be discussed by parties who should refer their input to the Chief Whips' Forum which should then submit a document to the next meeting.

2.4 Constituents' offices and staffing [paragraph 6 & 8]

Mr Van der Merwe asked whether a Constituent office and a political party office could be adjacent to each other.

Mr Andrew raised a concern about paragraph 6.3 and asked for further discussion of the matter. His concern was whether practically Members would be able to separate constituent responsibility and party responsibility.

Ms De Lillie asked how the system would be monitored and implemented and how Parliament would deal with a party that violated the rules.

In response the Speaker said that the Constituents' System comes out of a Constituency Electoral System and Parliament has a Proportional Representation Electoral System. She also said Parliament should look at having simple party political offices. She said that Parliamentary offices that will provide services to the public could be phased in and that Members could visit those offices. She further said that Members have to consider what it means when saying Members are accountable to those who elected them in a Proportional Representation Electoral System. She asked parties to consider the matter and take into account how constituency systems work.

Ms Rajbally asked how monitoring would be done effectively if additional Parliamentary offices would be opened because parties already have Constituents' offices.

The Deputy Speaker said that members were just raising different options on how the system of Constituents' offices should be fine tuned. She said that paragraph 6(3) stated that there must be a distinction between Constituents' Office and party office. She also said that a Constituents' Office should be accessible to any member of the public to discuss issues with a Member of Parliament, but that should not imply that Members would hide their political parties. The question is then where to draw a line between management and the role of a political party in the operation of the Constituents' Office.

Mr Selfe said that there is a need to unpack the meaning of Constituency and the service to a Constituent He was not sure whether a politically neutral service could be offered. He also referred Members to paragraph 6.2 to consider whether to limit the number of Members that would operate in one registered office.

Mr Bakker supported the proposal made by the Speaker and raised a concern about the practicality that Constituents' office should not perform party work, but it should be managed by a political party.

In response to Ms Raibally's question, the Speaker said that all the matters raised should be explored. She said that Parliament needs a vision of the Institution. Having Parliamentary offices would mean additional offices. Parliament should take responsibility for serving the electorate, but that would not absolve Members. Parliament can work out a system where Members will visit those offices at a particular time. That would however require more resources. What were now called Constituents' offices would then be for a political party serving the people. She asked parties to consider the matter as it may meet the needs She said that Parliament has a Proportional Representation Electoral System. What kind of Constituency System does Parliament then have and how does one match the two?

Mr Cassim asked how the political offices would be distinguished from non-political offices. He proposed that the Constituents' offices should have common signage to indicate that they are Constituents' offices. Such offices could uniformly provide certain documentation as well as Internet access.

Ms De Lille asked about the role of the national Member of Parliament in relation to the Member of Provincial Legislature and the Local Councilor within a Constituency. She said that national Members of Parliament have a tendency of ignoring the other spheres of Government and they complain about that. For example when Members visit local schools in some areas they have to get permission from the MBC.

In response to Ms De Lille's question, the Speaker said that members of Parliament do not need the permission of an MEC to visit a publicly funded institution.

Ms Taljaard said that the underlying assumption was that Parliament would have an Electoral System based on Proportionality Representation in perpetuity and that there would be no debate on a change to the Electoral System that would accommodate a hybrid system between Constituencies and Proportional Representation. The whole exercise was therefore slightly premature. The matter should be looked at in a broader context.

Dr Benjamin referred to paragraph 8 and asked whether the staff would be accountable to the party or a member. She also referred to paragraph 6.1 and proposed that a member should be consulted. She said that members have difficulty in getting the co-operation from state departments. The departments claimed that they do not work with political parties. She asked whether state departments are obliged to work with political parties.

In response, the Speaker said that it is not in the Constitution, but it is implicit in the function of a national Member of Parliament. if there is a clash, an educating process could be undertaken.

2.5 Expenditure to be defrayed from constituents' allowance [paragraph 9]

The Speaker said that parties had complained in the past about what is covered and what is not. She asked parties to look at the matter.

2.6 Submission of audited financial statement

The Speaker said that parties could look at the matter once the principles were agreed. It would be necessary to ensure that the auditing system matches the Parliamentary Finance Management legislation which was in preparation.


3. Report of the Ad hoc Committee on Report 13 of the Public Protector

The Speaker referred the Members to the specific proposals [page 157 of annexure "B"] that were made by the Auditor-General in the Report. She said that the question of accountability of Ministers and appropriate sanction and the recommendations from the report had been referred to the Rules Committee to consider whether there is a need to make amendments to the Rules or the Powers and Privileges of Parliament Act. She asked parties to consider the matter.

Mr De Lange said that the matter was being considered by the Ad hoc Committee or Powers and Privileges.

The Speaker said that Justice Mohammed indicated in his judgement that Parliament has powers to sanction provided it is in the Rules. She asked that the copy of the judgement should be circulated to members.

4. Substantive Motions

The Speaker said that when the system of notices of motions was developed, Rule 105 that allows Members to make statements had not been implemented. She asked Members to consider the implementation of Rule 105 and how to deal with notices of motion that need to indicate support. She said that notices of motion usually are not considered in the House and fall away.

The Secretary to the National Assembly brought to the attention of members the requirements in respect of substantive motions that criticise or make allegations against Members.

Mr van der Merwe said that currently notices of motion are merely statements. Rule 105 should therefore be implemented. Then notices of motion should be taken as seriously intended for consideration by the House.

Mr K Andrew supported Mr van der Merwe.

Mr De Lange said that Parliament should follow the international practice on notices of motion because they were intended to obtain a distinct opinion by Parliament or to take a decision. He supported the idea that notices of motion should be given their correct status. Statements could be used for expressing views or opinions by Members, for instance on Constituency issues.
Ms Seaton supported the proposal in the document that members, or parties, could add their names to indicate support for a notice of motion.

The Speaker asked the Secretary to National Assembly to look at how Rule 10:5 could be activated, and suggested that the Chief Whips' Forum should look at what should be done with notices of motion and come up with proposals. if no Rule changes were required, the Programme Committee could make changes to current practice.

It was agreed that:

- Members would try out member's statement [Rule 105] and to use notices of motion only when a distinct opinion was required from the House.
- Secretary should look at how to activate Rule 105
- Chief Whips' Forum to look at how notices of motion to be dealt with, including members/parties adding their names to notices of motion to indicate support
- Necessary changes could be effected in Programme Committee, unless Rules amendments required in which case the matter would be referred to the Rules Subcommittee.


5. Scope of amendments to Bills

The Secretary to National Assembly explained that according to the Rules when a bill is introduced the subject of the bill is referred to a committee and the committee may amend the bill within the scope of the subject of the bill. The subject of a bill has been published in the Government Gazette for public comment. Therefore the committee is limited to introducing amendments that will fall within the subject of a bill as specified in the long title. if they introduce amendments that fall outside the subject of a bill that may mean that the committee introduces a new subject and the public will not have had an opportunity to make comment on it.

Mr De Lange said that Parliament is the only legislative authority according to the Constitution and any limitation placed on it will be unconstitutional. He said that if there is any Rule that imposes limitations on Parliament's legislative authority, such rule is wrong and needs to be amended. He also said that in practice committees make recommendations to Parliament and Parliament may amend a bill and the Constitution is absolutely clear on the issue. The way Parliament deals with money bills is unconstitutional. Any restrictions placed on Parliament that it cannot amend money bills is unconstitutional.

Ms De Lille supported Mr De Lange and said that sometimes department officials come with a fixed position and members of a committee have to convince the official to change his view. No limitations should be placed on members.

The Speaker said that the issue of unconstitutionality of the budget process should be discussed later but the relevant rule for scope for amendment of a bill is Rule 249(3)(a) and (b). The Speaker said that the question raised by the Secretary to National Assembly concerns when the amendments totally change the subject of a bill. In that event, the committee has to obtain an instruction from the House. That is not a prohibition. She also said that if a committee amended a bill, whatever was published in the Government Gazette could be amended as well. Therefore committees cannot be restricted to stick to what had been published, but they should then come to the House. She said that this is in line with the provision that committees can introduce legislation because Parliament has the power to introduce legislation. She said that committees must report to the Assembly for approval of their amendments for issues not covered in a bill or that fail outside the subject of a bill. She asked the Parliamentary Law Adviser's Office to provide Committee Chairpersons with information on the applicable procedures.

Mr Andrew raised a concern about Rule 249(3)(b) Parliament is not always sitting in plenary and committees are sitting most of the time and that may cause a problem if a committee has to seek Parliament's permission to amend a bill beyond its subject. He said that a committee could propose a second amendment bill to add some clauses that are not covered by the subject of a bill. That would not need permission of Parliament Therefore he was not sure of the practicality of the rule.

In response the Speaker said that committees need the permission of the Assembly to proceed with legislation that they initiated. if the House is not sitting, the committee can continue with its work and apply to the House for permission just before it tables its report.

Mr Jeffrey said that if a committee wants to initiate a bill or amend an Act, there should be some kind of publication for public comment He asked that members should review the process and consider in what circumstances new amendments should be published.

The Speaker raised the following questions:

- Whether Parliament should publish a bill initiated by a committee or amendments that fall outside the subject of a bill, and how
- What kind of change would be published, and is it possible to draw a line?

Mr De Lange said that it would be difficult in practice, to publish committee amendments. The rule is clear that when a new bill is introduced, it should be published in a Government Gazette, but the problem is the issues that arise during public hearings. if consequent amendments are to be published the process will go on forever. He asked in what format would the publication be done. He suggested that members should look at how the rules stand currently.

Ms De Lille asked about the role of Parliament in regard to regulations. Can Parliament amend regulations or not?

The Speaker supported Mr de Lange in terms of the current rules and said that at the moment three days have to elapse between a committee report and adoption of such report by the Assembly. She said that in the event of fundamental changes Parliament might consider a longer period, but there is a need to clarify rules for the benefit of the Committee Section, Committee Chairs and parties by way of documentation on procedures. She asked the Subcommittee on Review of Rules to look at whether any additional time is needed between reporting by a committee and adoption of such report by the Assembly.

Mr Jeffrey said that if a new topic is introduced, notice needs to be given. The issue of an entirely new and unrelated topic being tagged on needed to be looked at

Mr Masutha said that there is perception that if a bill is introduced it would automatically be changed. Sometimes a bill would be referred back to the Executive because of disagreement between the Executive and Parliament He asked whether the matter should be left between a committee and the Executive or whether there should be a rule on the matter.

In response the Speaker said that the issue had been managed so far. She said that ii:
should be the Minister who withdraws a bill and not a committee and this is a matter of practice and not for the rules.

Responding to Ms De Lille's question on the role of Parliament on regulations, the Speaker said that that issue was before the Subcommittee on Delegated Legislation. She said that in theory committees should set the parameters in legislation within which regulations should fall and not give the Executive blank a cheque to draft them. The question is how to exercise oversight over regulations.

Mr De Lange said that on regulations:

Parliaments handed over its legislative power to the Executive
- Parliament cannot take that power back and say that it should approve all the regulations.
- Most Commonwealth Parliaments created a subcommittee in Parliament with a dedicated person, to look at the regulations to ensure that they fall within the parameters of the law and are not ultra vires.
- Other Parliaments created a further committee to see whether Parliament has not handed too much power to the Executive.
- South Africa does not have such a structure. Some committees deal with regulations by asking the department to table them before they are proclaimed but that does not give Parliament a right to change them, but at least to look at them and if there are problems to discuss them with the Minister.

Mr Masutha invited Ms De Lille to attend the meetings of the Subcommittee on Delegated Legislations. He said that there is a wrong perception that the concept is limited to regulations. That is wrong because there are also statutory bodies that make rules that have status in law and are not mere guidelines. He said that the subcommittee is investigating the whole aspect of subordinate legislation. He said that there would be a workshop which would include statutory bodies administering this type of legislation to get their insight.

The Speaker drew the attention of members to a ruling by the Constitutional Court that Parliament cannot delegate original legislative authority. She appealed to parties to take an active interest in the work of the Subcommittee on Delegated Legislation. She asked the Subcommittee to expedite consideration of an interim mechanism to monitor regulations.

It was agreed that:

- Law advisers should do a document on current Rules {Rule 249] and practices for distribution to ail committee chairpersons, parties and Committee Section
- Subcommittee on Review of Rules to consider.
- Longer period of time between submission of committee report and debate in the House at the event of a committee introducing fundamental changes to a bill
Notice period when entirely new topic introduced in a bill
- Subcommittee on delegated legislation to expedite separate proposal on mechanisms to review Ministerial regulations; parties to take increase interest in the work of subcommittee


6. Request from the Public Protector for appointment of a special committee

The Speaker said that the Public Protector had submitted a memorandum and asked that Parliament should consider appointing a special committee for consideration of matters referred to it in terms of the Public Protector Act, 1994. She said that Chapter 9 institutions feel aggrieved that Parliament does not pay enough attention to them. The practice had been refer to the reports of the institutions to committees that deal with them. The functioning of these structures is not being debated, but that does not mean that a special committee has to be created.

Mr De Lange said the issue is not that they are not given enough attention, but it is how much they want to submit themselves to Parliament. He said that if the Committee on Justice and Constitutional Development tries to engage with the Human Rights Commission on their programme and how they spend money, they tell the committee not to interfere. The issue is how they interact with Parliament Me said that Parliament needs to ensure that members serving in ad hoc committees understand the issues such committees would be dealing with.

Mr Jeffrey said that the Memorandum made reference to the Corder Report on Oversight and Accountability and proposed urgent implementation of one of the recommendations of that report. He also said that that report is being considered by the Joint Subcommittee on Oversight and Accountability and proposed that the Rules Committee should wait for the report of that subcommittee.

Ms Taljaard said that the Joint Subcommittee on Oversight and Accountability should bear in mind that these institutions were created with a degree of sensitivity to the respective roles of all relevant parties. She hoped that the oversight mechanism would also recognise the role to be played by the parties.

Mr Green said that the Justice Committee was successfully performing its oversight role. The current practices should continue.

The Speaker said that there is a conflict in the way the Chapter 9 institutions interpret the concept of independent and accountable. Sometimes they ask why they cannot get their budget from Parliament. She asked the Joint Subcommittee to expedite its work and to report on any issue it finalises. She said that Parliament is publishing in the ATC responses from Ministers on why their reports are late. She suggested that the Assembly should debate at least one or two reports from these institutions every year and she said that she is not in favour of establishing another committee unless there is strong motivation to do that She further said that in the interim the Rules Committee should wait for the report of the Subcommittee on Oversight and Accountability.

Mr Masutha said that these institutions produced two kinds of reports: that is, the annual report required in terms of the Constitution and a report resulting from the substantive work they have done in respect of a particular issue. Therefore in dealing with their relationship with Parliament, Parliament should deal with those reports separately. Parliament does not reinvestigate what those bodies had investigated, but clearly when presenting their annual report the role of Parliament becomes more explicit to question the extent to which they have been able to fulfil their mandate in terms of the Constitution.

In response the Speaker said that in practice Parliament does distinguish between the two kinds of reports. When there is a report on a particular subject, it is referred to the relevant committee.

It was agreed that:

- The Rules Committee should wait for the report of the Subcommittee on Oversight and Accountability
Parties were requested to assist the Subcommittee on Oversight to expedite its
work. It should separately report on any issue it finalises for possible adoption
- Debate to be prioritised on the functioning of some of the Chapter 9 Institutions, based on reports of institutions or committee reports thereon.

7. Subcommittee on Review of Rules

Mr De Lange presented the recommendations of the Subcommittee on three issues which are the quorum, certification of bills and questions.

I) Discussion - Quorum

Mr Andrew said that the DP did not have an opportunity to discuss the recommendations and said that he thought that parties would be given an opportunity to discuss the recommendations He raised a concern about removing a quorum for debate in the House, and at the fact that there is no rule at present relating to attendance of members

Mr Bakker supported Mr Andrew.

The Speaker said that three meetings ago she requested parties to consider the reintroduction of fines for non-attendance of sittings by the members . She said that that is permitted in terms of Justice Mohammed's judgement and it was the Rules Committee that decided to defer the issue until such time as the Powers and Privileges legislation is finalised. She appealed to parties to urgently consider the questions of fines for non-attendance.

Mr Green supported the recommendation on relaxing the quorum for debate and proposed that when parties discuss the matter, they should look at international models. Smaller parties had difficulty participating in all debates.

It was agreed that

- Parties should consider the draft rules for finalisation at the next Rules Committee meeting
- Parties also to consider imposition of fines, which was permissible in terms of Justice Mohammed's judgement.

ii) Discussion - Certification of Bills

The Speaker said that the issue was discussed in the previous meeting and asked parties whether they still want an opportunity to consider the recommendations..- -Mr De Lange said that the Chief State Law Adviser had indicated that he fully supported
the proposed rule.

It was agreed that:

- Parties should consider
- Speaker would draw to the attention of the NCOP that the Rule change was being considered.

iii) Discussion Questions

Mr Green said that ACDP support the first option and he proposed that parties should be given an opportunity to discuss the second option.

Mr Bakker supported Mr Green and said that some DP proposals may improve die system and disagreed with the principle of drawing questions from a box. He strongly opposed the rotation of Ministers within a cluster [Rule 109(2)(a)] because that will mean that Members will not be able to ask questions to any Minister in a cluster, but to a specific Minister.

Ms Rajbally said that the Minority Front support the first option.

Ms Seaton said that the 'PP had a number of concerns and would discuss the proposal.

The Speaker asked the staff to make reports more user friendly. The different options should not have been presented separately. She drew the attention of Members to the following issues:

- Rule 109(1) "in consultation with the Leader of the Business". She said that questions are always Parliament's business and proposed to alter the wording to "alter consultation"
- Question of rotation of Ministers. She said that an option would be to group number of Ministers from each cluster instead of individual Ministers. Questions for President: May be four times at a minimum, so that it could be done more often if there was agreement
- Questions that are not answered by Ministers eventually fell away - members should look at this carefully.

Mr Andrew asked whether a comparative study could be done of the time allowed in other Parliaments between the date of tabling of a question and when it was replied to. He said that Parliament has an extra long waiting time for answers to questions submitted and by the time some questions are answered, they are stale.

In response the Speaker said that Parliament will look at that, but she warned that the issue of relevance of international practices is very important in that some may not be useful. She asked parties to look at how responses to questions can be given while questions are still relevant.

It was agreed that parties should consider the draft rules and submit any further changes by Friday, 22 February 2002.

The meeting adjourned at 11:40.