First Report of National Assembly Rules Committee

Meeting report

Ms Thandi Modise, the Speaker of the National Assembly (the Speaker), chaired the meeting following an apology tendered by the Chairperson, Ms D Dlakude (ANC). She welcomed the Members present, as well as Mr L Tsenoli, the Deputy Speaker of the National Assembly, and Mr Perran Hahndiek, National Assembly table, and Mr Masibulele Xaso, Secretary to the National Assembly, who were also in attendance.

The purpose of this virtual meeting was for the Rules Committee of the National Assembly to present its first report for 2021. The agenda was outlined as follows:

• The first item on the agenda was for the Rules Committee to consider and adopt its outstanding minutes for the meetings held on 26 November 2019, and 19 May 2020.
• The second item on the agenda was for the Rules Committee to deliberate on Rule 6, as framed by the Speaker of the National Assembly (the Speaker), which relates to unforeseen eventualities.
• The third item on the agenda was the consideration of the Report by the Subcommittee on the Review of Assembly Rules, referring to the Draft Report of 22 February 2021.
• The last item on the agenda was for the Rules Committee to consider the Report of the Fifth Parliament on Monitoring Replies to Questions.

She noted the apologies from Ms D Dlakude (ANC) and Mr M Nxumalo (IFP).

Ms P Majodina (ANC) said that Mr Nxumalo has not attended any of the meetings of the Rules Committee, and that Members have not even had the chance to welcome him to the Committee.

Mr N Singh (IFP) noted Mr Nxumalo was in another meeting.

The meeting’s agenda was adopted.

Consideration and adoption of the Rules Committee’s outstanding minutes

The Committee adopted its outstanding minutes for the meetings held on 26 November 2019, and 19 May 2020.

Deliberations on Rule 6 (National Assembly Rules)

The second item on the agenda was for the Rules Committee to deliberate on Rule 6, as framed by the Speaker of the National Assembly (the Speaker), which relates to unforeseen eventualities.

Background and the provisions relating to unforeseen eventualities

Mr Xaso, the Secretary to the National Assembly, stated that this agenda item related to Rule 6 of the National Assembly Rules. He stated that Rule 6 provides that the Speaker may give a ruling, or frame a rule, in respect of any eventuality for which the rules or orders of the National Assembly do not provide, having due regard to the procedures, precedents, practices, and conventions developed by the National Assembly and on the basis of constitutional values and principles underpinning an open, accountable, and democratic society. A Rule framed by the Speaker remains in force until the National Assembly, based on a recommendation of the Rules Committee, has decided thereon.

He stated that the Speaker announced Rule 129(X)(3) in November 2020, thus applying Rule 6 of the National Assembly Rules in light of the Rule that the appointed independent panel had 30 days to complete its business. After engagements with the Speaker, the independent panel indicated that, in light of the requirements laid down and the nature of the matter, it requires additional time to complete its assessment. It was requested that the 30-day period provided for in Rule 129(X)(1)(b) be extended to 90 days.

There was the need to allocate more time to the independent panel to complete its business. Subsequently, the Speaker announced Rule 129(X)(3), that was framed in light of the limitations in the application of Rule 129(X)(1). This sub-Rule provided that the Speaker may, at the request of the independent panel and on good cause shown, extend the time period referred to in that rule to such later period as the Speaker may determine, which extended period may not exceed 90 days from the date of appointment of the panel. In the event that the independent panel requests a further extension beyond the period contemplated, the National Assembly may, on good cause shown, determine such an extended period.

The task is for the Rules Committee to express its support to determine whether the Rule, as framed by the Speaker, remains in force.

Discussion

Ms P Majodina (ANC), the Chief Whip of the Majority Party, stated that it is a procedural matter, and recommended that the Rules Committee approve the Rules and the matter.

Deputy Speaker Tsenoli agreed.

Dr C Mulder (FF+) agreed that the Rules Committee should approve the Rules as was announced by the Speaker, and subsequently implemented.

Mr Xaso recommended that the Rules Committee should decide, at a later date, whether the intervention made by the Speaker should be made a permanent feature of the Rule in question should there be another panel.

Consideration of the Report by the Subcommittee on the Review of Assembly Rules

The third item on the agenda was the consideration of the Report by the Subcommittee on the Review of Assembly Rules, referring to the Draft Report of 22 February 2021.

Mr Xaso led the briefing. He reminded Members that the Subcommittee on the Review of Assembly Rules is tasked with making recommendations to the Rules Committee regarding matters pertaining to the National Assembly Rules.

The Speaker, after consultation with the Members, stated that the Rules Committee would hear the briefing first, and that discussions by the Members would follow at the end of the meeting.

Composition of the Chief Whip’s Forum

Rule 257 of the National Assembly Rules provides for the composition of the Chief Whips’ Forum. This Forum provides a platform for parties to discuss and coordinate matters for which the Whips are responsible, and which the Speaker may consult when appropriate. Mr Xaso stated that concerns had been raised that Members who are not specifically designated by the Rules had been attending Forum meetings, that different Members attended from week to week, and that some parties sent a number of representatives to the meetings. Moreover, some parties did not qualify to have a Whip as agreed to by the Rules Committee and were not able to participate in its meetings. This matter needs to be regulated, and the issue was referred by the Speaker for consideration to the Subcommittee on the Review of Assembly Rules.

The recommendation from the Subcommittee on the Review of Assembly Rules was that Rule 257 be amended to expand the composition of the Chief Whips’ Forum to include the following: the House Chairpersons, the Chief Whip and the Deputy Chief Whip of the Majority Party and the Whip of the Majority Party responsible for programming, the parliamentary counsellors to the President and Deputy President, the Chief Whip of the largest opposition party and one other Whip from that party; and one Whip or Member from each of the other parties represented in the National Assembly. The Subcommittee on the Review of Assembly Rules further recommended that the Speaker and the Deputy Speaker may attend the meetings of the Chief Whip’s Forum or designate someone to attend on their behalf.

In addition, it was recommended that a Member referred to in sub-Rules (1)(b), (d), and (e) who is unable to attend a meeting of the Forum, may designate another Member to attend the meeting, provided that the number of party representatives in attendance may not exceed those provided for in the relevant rules. In other words, if a political party is entitled to have one Member in attendance, only one Member of that party may attend the meetings or proceedings of the Chief Whip’s Forum. Rule 156, dealing with the appointment of alternate Members, will not be applicable to the Chief Whip’s Forum.

Consideration of the ruling by a Presiding Officer (in terms of Rule 92(12))

Rule 92(12) provides that a Member who is aggrieved by a ruling may subsequently request that the principle or subject matter of a ruling be referred to the Rules Committees. The Rules Committee must confine its consideration to the principle underlying, or the subject matter of, the ruling, and may not review the ruling itself, which is binding. The specific ruling may not be reviewed.

This consideration relates to the complaint received by Ms H Mkhaliphi (EFF) from 29 July 2020. This complaint followed the ruling of the Acting-Chairperson, Mr Q Dyantyi (ANC), who ordered her removal from the hybrid virtual sitting of the National Assembly. The Speaker subsequently referred the principle of the ruling to the Subcommittee on Review of Assembly Rules in terms of Rules 158(2)(b) and 92(12).

The Subcommittee on the Review of Assembly Rules followed the predetermined procedure and invited Mr Dyantyi and Ms Mkhaliphi to make representations. Subsequently, deliberations ensued, and the Members agreed on the need for Presiding Officers to maintain order in sittings but differed on the application of the rules on the day in question. The EFF maintained that Members had a right to speak and should not be unduly dismissed. The EFF and IFP expressed dissenting views on the matter and did not agree with other parties that Mr Dyantyi fairly applied the ruling.

There was no unanimity on the issue. The view of the majority of the Members of the Subcommittee on the Review of Assembly Rules was that it is imperative that Presiding Officers and Members maintain order during sittings of the National Assembly, and that the principle underlying the ruling of the removal of the EFF Member was correctly and fairly applied by the Presiding Officer.

Determination of time for the declaration of vote (in terms of Rule 108(2))

Rule 108(2) states that the time allocated to a Member from each party for making a declaration of vote must be determined by the Rules Committee and must take into account the proportional strength of the party in the National Assembly. In the Fifth Parliament, the time allocation was as follows: the ANC was allocated seven minutes, the DA was allocated five minutes, the EFF was allocated four minutes, and all other political parties were each allocated three minutes.

The task of the Rules Committee is to determine the time allocation in this regard. In the context of Rule 108(2), the Subcommittee on the Review of Assembly Rules recommended that the time allocated to parties for declaration of vote, as determined by the Fifth Parliament, be retained.

Questions to the Deputy President (in terms of Rule 139(1))

Rule 139(1) states that questions to the Deputy President must be scheduled by the Programme Committee once per month during session in accordance with the programme of the National Assembly, provided that the Programme Committee must determine which months qualify during session. On each question day, the Deputy President must answer six questions that relate to his/her functions, as designated by the President. To ensure clarity and facilitate planning, a proposal was made during the deliberations of the Subcommittee on the Review of Assembly Rules that, the Deputy President answer questions at least once per quarter instead of every month. The DA then expressed its objection to the reduction in opportunities for questions to the Deputy President.

The Subcommittee on the Review of Assembly Rules recommended that Rule 139(1) of the National Assembly Rules be amended so that the Deputy President answer questions at least once per quarter instead of every month, that questions may not be scheduled for any week in which questions to the President are scheduled and must be scheduled outside of the questioning time for Ministers.

Questions for debates for smaller parties

The National Assembly Rules provide that Members can table motions for debate, which are then subsequently scheduled by the Programme Committee of Parliament. The practice has developed that Members be provided an opportunity to have their motions debated, based on the proportional strength of parties in the National Assembly. Smaller parties have expressed concern that they have very few opportunities to sponsor debates. A proposal was put forward, in the Subcommittee on the Review of Assembly Rules, that additional opportunities be provided for smaller parties to have their motions debated. In this regard, it was agreed that, as an interim measure, the Programme Committee should increase the number of party motions debated in mini-plenaries, subject to confirmation.

The Subcommittee on the Review of Assembly Rules recommended that the Rules Committee endorse the view that more opportunities be created for debates in mini plenaries, especially for smaller parties.

Consideration of the Report on monitoring replies to questions

The last item on the agenda was for the Rules Committee to consider the Report of the Fifth Parliament on Monitoring Replies to Questions.

The Rules Committee must consider the report of its predecessor of the Fifth Parliament on Monitoring Replies to Questions. Rule 136 provides that the Speaker must, in consultation with the Rules Committee, establish a system to monitor and report regularly to the House on questions that have been endorsed as unanswered on the Question Paper in terms of the National Assembly Rules 143(2), 144(5), and 146(3), concerning unanswered oral and written questions.

Overall discussion

The Speaker thanked Mr Xaso for the information presented to the Rules Committee. She asked Members to start with rendering input regarding the confirmation of Rule 6, as outlined during the meeting. The task is for the Rules Committee to determine whether the Rule as framed by the Speaker remains in force.

Mr Xaso reminded the Speaker that the Rules Committee has already agreed to the confirmation of Rule 6. He stated that the remainder of the recommendations made by the Subcommittee on the Review of Assembly Rules must still be discussed and considered by the Members.

Discussion on the composition of the Chief Whips’ Forum

The Speaker stated that the Rules Committee should then discuss the issues raised by the Subcommittee on the Review of Assembly Rules’ Report regarding the composition of the Chief Whips’ Forum.

Mr N Singh (IFP) respected the recommendations made in the Report by the Subcommittee on the Review of Assembly Rules. He stated that the duly recognised Whips, as confirmed by the National Assembly Rules or the Office of the Speaker, be made the centre of the composition of the Chief Whips’ Forum. It is important that those Members must be given recognition in the National Assembly Rules, in a given pecking order, as recognised by the Speaker.

Ms Majodina welcomed the Report from the Subcommittee on the Review of Assembly Rules. Regarding the composition of the Chief Whips’ Forum, she agreed with the proposals as tabled. All parties must be represented in the Chief Whips’ Forum by one representative in attendance. She expressed her support that there are no alternates for the Chief Whips’ Forum. The Chief Whips’ Forum should no longer be flooded by too many people present. She also agreed with Mr Singh that the duly recognised Whips, as confirmed by the National Assembly Rules or the Office of the Speaker, be made the centre of the composition of the Chief Whips’ Forum, in the proposed pecking order.

Ms G Boroto (ANC) stated that the political parties must have specifications regarding the number of representatives that can attend the meetings and proceedings of the Chief Whip’s Forum.

Dr G Koornhof (ANC) stated that he was a Member of the Subcommittee on the Review of Assembly Rules. The matters that have been discussed by the Members of the Rules Committee were also under consideration by the Subcommittee on the Review of Assembly Rules. The conclusion was to make the Chief Whips’ Forum representative of all political parties in the country. Arguments are repeated that have already been dealt with by the Subcommittee on the Review of Assembly Rules. He proposed that the Rules Committee approves and endorses the recommendations made by the Subcommittee on the Review of Assembly Rules, regarding the composition of the Chief Whips’ Forum.

Dr Mulder said the Subcommittee on the Review of Assembly Rules’ proposals regarding the composition of the Chief Whips’ Forum are clear. Rule 257(1)(e) must be drafted more clearly, as various political parties would already have a Whip in attendance, as the representative of that party. It must be clear that Rule 257(1)(e) is intended to allow only one representative of each party.

The Speaker stated that all parties will be represented in the Chief Whips’ Forum. Parties that do not have a recognised Chief Whip or Deputy Chief Whip will be allowed to delegate a Member to attend the meetings or proceedings. She asked that political parties be invited to weigh in on this issue.

Mr Xaso said the only parties currently represented by more than one person are the ANC and the DA. The rule would say the representative should be either a Whip or Member. It would not be advisable to be prescriptive on the numbers in the rules as parliamentary compositions change – the numbers would be reflected in the attendance registers.  

The Speaker asked whether the Members of the Chief Whips’ Forum must be those people who are recognised by section 1 of the proposal. All the other people listed ‘may’ ask to approach or be invited to the proceedings of the Chief Whips’ Forum. She asked the Members to indicate whether they agree with the proposals made by the Subcommittee on the Review of Assembly Rules.

Mr Singh stated his support for the proposal by Dr Mulder that Rule 257(1)(e) must be drafted more clearly i.e. a Whip or another Member from that party, in the case of the official opposition. This is paramount as Whips are elected and carry higher salary expectations. It is important that a distinction be drawn between a Whip and a Member in terms of Rule 257.

The Speaker asked Mr Xaso whether the Subcommittee on the Review of Assembly Rules addressed the issue as raised by Dr Mulder and Mr Singh.

Mr Xaso responded that the issue was not specifically addressed, and the intervention raised by Dr Mulder must be considered by the Rules Committee.

Dr Mulder stated that the only thing that needs to be amended is Rule 257(1)(e) to state that a political party will be entitled to have a representative that is either a Whip or a Member. It will remain one representative per political party, which will either be a Whip or a Member as a representative.

The Speaker, after consultation with the Members, stated that the Rules Committee agreed that consideration be given to expanding the composition of the Forum. The above amendment to Rule 257 was recommended.

Discussion regarding the Presiding Officer’s ruling

The Speaker then asked the Members to render input regarding the ruling made in the National Assembly and the complaint lodged against Mr Dyantyi.

Ms Boroto stated that the word ‘principle’ is problematic. It should rather refer to the Rule underlying the ruling that speaking on a virtual platform is only allowed when a Member wants to raise a point of order, and not for the purposes of causing a disruption.

The Speaker stated that the rules that are framed for virtual settings and there were anticipations for disruptions - when a Member is in the House and Members interject, it does not disrupt the National Assembly’s sitting as it does in a virtual platform. Disruptions on a virtual platform have the effect of completely drowning out whoever is speaking at that moment.

Mr Xaso stated that the rules for virtual settings endorse the existing rules and practices of the National Assembly that interjections must not create disruptions during the sitting of the House. It is the task of the Presiding Officer to make a ruling on when conduct constitutes a disruption.

The Speaker stated that the Rules of the National Assembly places more responsibility on the Presiding Officer to determine whether conduct amounts to disruption of the meeting or sitting. This requires the Rules Committee to listen to what the Presiding Officer deemed as a disruption. She agreed that the wording of ‘principle’ must be reconsidered, without imposing a complete ban on interjections on the virtual platform.

Ms Majodina stated that Presiding Officers must take points of order to avoid discomfort to those using the virtual platform. Members must not simply interject but should ask to raise a point of order and only elaborate when the Presiding Officers grant the hearing of the point of order instead of dismissing out of hand automatically. Perhaps when Parliament returns in the next term, an overflow, such as E249, should be looked into to ensure there are more Members physically present.

The Speaker stated that points of order must be taken and ruled on before the meeting or sitting in question proceeds. The Presiding Officer does not have a choice whether to take or rule on the point of order. Not all interjections by Members are political or bad and so cannot be completely banned as some may be necessary. However, disruptions should be avoided at all times.

Mr Singh agreed with the Speaker. The Rules of the National Assembly must apply to Ministers as well, who are regularly interjecting during proceedings. The Ministers should have the same consequence management as is applied against the Members.

Deputy Speaker Tsenoli said that the Speaker read his mind when she summarised the issue regarding disruptions and interjections. There are Members who show utmost respect for the rulings of the Presiding Officers in the National Assembly, but there are others who repeatedly contest the rulings made, which is out of order. He agreed with Mr Singh that the Ministers should have the same consequence management as is applied against the Members, particularly those who repeatedly cause disruptions.

The Speaker stated that the people who Mr Singh and Deputy Speaker Tsenoli referred to have been taken on. Everyone who is in the National Assembly is subject to the same standards and Rules. She confirmed that the Rules Committee agreed that it is imperative that Presiding Officers and Members maintain order during sittings of the National Assembly. The Rules Committee agreed that the rule underlying the ruling of the removal of the EFF Member was correctly and fairly applied by the Presiding Officer.

Ms Boroto said there should be a warning for Members that if they are disrupting the sitting, they will be removed. The problem with this case was that there was no warning.

Discussion on the declaration of vote

Ms Majodina stated her support for the Subcommittee on the Review of Assembly Rules’ recommendation that the time allocated to parties for declaration of vote, as determined and implemented previously by the Fifth Parliament, be retained going forward.

The Speaker stated that there was no dissenting view. In the context of Rule 108(2), the Rules Committee resolved that the time allocated to parties, as determined by the Fifth Parliament, be retained.

Discussion on the questions to the Deputy President:

The Speaker reminded the Members that this item was about the recommendation from the Subcommittee on the Review of Assembly Rules that Rule 139(1) be amended so that the Deputy President answer questions at least once per quarter instead of every month, that questions may not be scheduled for any week in which questions to the President are scheduled and must be scheduled outside of the questioning time for Ministers.

Dr Mulder asked for clarity on the implication that if there is more than one question session for the Deputy President in the same quarter that the Programme Committee would schedule all sessions.

The Speaker agreed it is implied. There will be consultation on the diaries.

Mr G Hill-Lewis (DA) stated that the minutes of the Subcommittee on the Review of Assembly Rules reflect that the DA does not support the proposal regarding the questions to the Deputy President. The proposal will undermine the ability of the National Assembly to hold the Executive accountable.

Ms Majodina stated that she agrees with the proposal that the Deputy President answer questions at least once per quarter instead of every month.

The Speaker stated that the Rules Committee agreed to the recommendation by the Subcommittee on the Review of Assembly Rules that Rule 139(1) be amended so that the Deputy President answer questions at least once per quarter instead of every month. She noted the objections of the DA.

Discussion on the questions for debates for smaller parties

The Speaker moved on to the recommendations for opportunities for debates for smaller parties. She asked the Members to render their input in this regard. With no dissenting views, she confirmed that the Rules Committee endorsed the view that more opportunities should be created for debates and the sponsoring of debates by smaller parties during plenaries.

Discussion on the Report of the Fifth Parliament on Monitoring Replies to Questions:

The Speaker stated that this recommendation pertained to the Rules Committee considering the report of its predecessor of the Fifth Parliament on Monitoring Replies to Questions. Rule 136 provides that the Speaker must, in consultation with the Rules Committee, establish a system to monitor and report regularly to the House on questions that have been endorsed as unanswered. This involves placing this issue on the agenda of the Rules Committee to be considered.  

Deputy Speaker Tsenoli noted he has already been engaging some Ministers on this.

Mr Singh added that the subcommittee on this matter now needed to be constituted.

Mr Hill-Lewis proposed that the hand of the Speaker also be strengthened in the rule 136 by not only creating the subcommittee but also to expect a written explanation from Ministers who do not reply to written questions. He offered to draft something in this regard – he would take it to the Subcommittee on the Rules.

Mr Xaso clarified the report referred to was of the Fifth Parliament, not the current one. This report lapsed before it went to the House – it was proposed the report now be revived as the subject matter was important. The report does not speak to subcommittee but rather of the Speaker creating a mechanism, in consultation with the Rules Committee, on questions endorsed as unanswered. The sense of the Fifth Parliament that simply writing to the Leader of Government Business on outstanding questions was simply not good enough. The then Rules Committee proposed a subcommittee be created but this did not make it to the House to be endorsed.

Dr Mulder said his understanding was that the Rules committee needed to recommend the Subcommittee on Rules look into this to develop proposals on what such mechanism should be.

Deputy Speaker Tsenoli suggested the mechanism be constituted as proposed i.e. that the Rules Committee agree with the idea which, in principle, addressed the problem identified. He emphasised the constitutional imperative of working cooperatively and in good faith before embarking on harsher mechanisms. He suggested using the current mechanisms of reporting, and monitoring it, before rushing to drastic measures.

Mr Hill-Lewis agreed with this as long as the matter of looking into alternative mechanisms be placed on the agenda of the Subcommittee on Rules.

Mr Xaso said there were now three proposals on the table – one, that the work of the Fifth Parliament, on the proposal of the subcommittee, be activated. Two, that the Speaker look into the matter and three, that the matter be referred to the Rules Subcommittee to develop proposals.

Dr Koornhof supported the Deputy Speaker that the House be regularly reported to and for the Speaker to implement the system, as it currently stands in rule 136.

The Speaker stated that the Rules Committee resolved that the report be revived and referred to the Subcommittee on Review of Assembly Rules for consideration and proposals. The Office of the Speaker would continue to monitor replies to questions from the Executive to ensure that questions posed by Members of the National Assembly were answered. This was a middle of the road approach while emphasising timeous responses.

Mr Xaso clarified that a subcommittee would not be established at this stage – the Rules Subcommittee will look into this.

The Speaker thanked the Members for the engagements during the meeting.

The meeting was adjourned.