Composition of Section 194 Committee: feedback
Rules of the National Assembly
25 May 2021
Chairperson: Ms D Dlakude (ANC)
Video: NA Rules Committee meeting
05 May 2021
Composition of Section 194 Committee and proposal for a weighted voting system
In a virtual meeting, the Committee received a summary on the issue regarding the composition of the section 194 Committee for the purpose of the removal of the Public Protector from her office. The matter was under debate as smaller parties took issue with the voting system. After consideration, the Speaker agreed to a weighted voting system where all parties would have proportional voting rights. There would be no non-voting Members and the composition of the 36-Member section 194 Committee would be broken down as follows: The ANC having 19 voting Members; the DA having 4 voting Members, the EFF having 2 voting Members, and all other parties having 1 voting Member. The Rules Committee accepted the Speakers determination and the Speaker referred the principles upon which the decision was based to the Sub-committee on Rules.:
19 Members –ANC
4 Members – DA
2 Members – EFF
1 Member each – IFP, ACDP, NFP, FF+, UDM, GOOD, AIC, COPE, PAC, Al Jama-ah
The Committee resolved also to allocate the African Transformation Movement a seat with voting rights, even though it formerly expressed its decision not to participate in the Section 194 committee’s proceedings.
The Rules Committee has referred the Speaker's determination to the Sub-Committee on the Review of Rules to be effected in the Rules of the Assembly.
The Speaker of the National Assembly (NA), Ms Thandi Modise, opened the meeting and greeted the Members. She asked if there were any apologies.
NA Secretary, Mr Masibulele Xaso, said that he was aware that he was aware that the Chief Whip of the majority party is at the Pan African Parliament (PAP), but other than that, there were no apologies.
The Speaker said that the Chief Whip of the ANC had indicated yesterday that she might not be able to log on for this meeting and she thought that this must be considered as an apology. If this was the case, she asked for item number two, being the agenda, to be displayed and asked if there was anyone to second the agenda.
Mr N Singh (IFP) said that he would second the agenda but that the further business items of the agenda need to be dealt with sooner rather than later.
The Speaker asked if there was a seconder of the agenda.
Mr M Ntombela (ANC) said that he would second the agenda.
Consideration of draft Minutes of 5 May 2021
The Speaker asked if there were any corrections to the minutes.
As there were no corrections, the minutes were adopted.
Matters arising: Section 194 Committee voting system
The Speaker proceeded to the next agenda item dealing with matters arising from the meeting on 5 May 2021. She asked if there were any such matters.
Feedback on the composition of the section 194 committee
The Speaker said she was not in this meeting and asked Mr Xaso to explain what happened.
Mr Xaso explained that the Speaker made a determination in terms of NA Rule 129A(b) on the section 194 committee. The rules say that the Committee consists of a number of Assembly Members that the Speaker may determine, subject to Rule 154. Rule 154 deals with, among other things, the principle of proportionality. The Speaker made a determination that there would be 11 voting Members and a number of other non-voting Members to constitute the 26-Member Committee.
There was then a query regarding the Speaker's determination – this was effectively an objection raised by the UDM. The party indicated that it believes that in a matter of this nature, all parties should be able to participate fully and express their votes in the Committee. There was also correspondence from Mr Singh, representing the other smaller parties, raising similar questions about the role of the two representatives from the other parties who sit on the Committee and what their role is. He asked for clarity as to the represented mandate of the other parties or whether they were on their own. The Speaker clarified that the two participating parties would be representing themselves and their own mandates and not the mandates of the broader group of other parties. In view of what the Speaker had received from these parties, the Speaker decided to solicit the views of the Rules Committee on the matter. The Committee met and consider the issue. Parties that expressed themselves, such as the ANC and DA, were of the view that what the Speaker had decided should not be reviewed as it followed established practice as it relates to NA committees, including ad-hoc committees. It also borrowed from recent practice, where there are voting Members and non-voting Members, as is the case with the section 25 Committee. The EFF was of the view that the principle of proportionality should always be maintained, but was sympathetic to the idea that smaller parties should be able to have meaningful voice in the Committee by being able to vote. Other parties were of the view that they needed to be represented in the Committee and participate fully. This is the feedback given to the Speaker on the matter, which led to the current meeting where the Speaker would make a determination. He asked the Speaker for guidance as to whether he should continue or wait for her to continue.
The Speaker asked for him to continue, asking him if he recalled that after receiving the Rules Committee's feedback, advise was sought.
Mr Xaso confirmed that after receiving the feedback, advice was sought and a few principles were looked into. One of these was section 194(1)(b) of the Constitution. He read the section which states. "(1) The Public Protector, the Auditor-General or a member of a Commission established by this Chapter may be removed from office only on—
(a) the ground of misconduct, incapacity or incompetence;
(b) a finding to that effect by a committee of the National Assembly; and
(c) the adoption by the Assembly of a resolution calling for that person’s removal from office."
Subsection (b) was instructive as it signifies the important role played by the Committee, as it is the one that makes the finding and then the NA adopts a resolution, presumably based on the finding made by the Committee. The Speaker also considered the current rule in respect of section 89, which contemplates the removal of the President through impeachment. When this rule was formulated, the Members of Parliament were of the view that all parties should participate in the committee and this is what the rule provides for. The other point she wanted to make is that the principle of the membership of the committee is contained in the Rules. Lastly, he said the rules do not specify the composition of committees except for those committees dealing with House business. In respect of Portfolio Committees, the rules say that the Speaker, with the concurrence of the Rules Committee, determines the composition of committees. Therefore, the Rules Committee is the one that made a determination. For ad-hoc committees, the Rules say that the resolution of the House must specify the numbers of Members on the committee. In view of that, the Speaker advised him that she decided to review the membership of the committee. He paused and asked if he could answer any specifics.
The Speaker agreed and told the Committee that if Members looked at the sum-total of impeachment and one looks at the weight of the institutions supporting democracy, and when one goes back to the subsection that says that the Committee should determine whether a person is to be; to borrow the term: impeached; it became obvious that if this Committee is treated like any other committee, it would face problems later. It is also important that when looking at certain matters, all constituencies are given the right to vocalise what they want to say. It is well and good that there are two parties representing the other parties; however, she asked what would happen if a Member of a party that only has one Member in the House is called before his caucus or a caucus to respond. She asked what is to happen when there is a disagreement on emphasis or direction on the matter before the Committee between the two parties. From then, she then considered the reasons why the two big parties argue for sticking with what already exists. For her, nothing changes as the quorum is still determined by the two parties [ANC and DA] as they still have a lot of votes and can still direct whatever way things go. What she can do is to enable each and every party, in this particular section of the Constitution, to have a direct voice and a direct vote so that it does not end up in litigation one day. She did not think it would change much except for entrenching and strengthening the democratic practices of Parliament. This is why she approached the Rules Committee, so that it can re-look at the rules and the composition of this part in particular. She said she would now like to hear what the Members had to say on the matter.
Mr Singh thanked the Speaker and the Mr Xaso for his clarity and asked if the suggestion was that all of the 26 Members, irrespective of which parties they come from, will now have a single vote. This was his current understanding; being that 26 Members of the Committee would vote on whatever matter is on the table at that stage whilst still allowing majority parties to have more votes than smaller parties.
The Speaker asked Mr Xaso how many parties are represented.
Mr Xaso said that the National Assembly has 14 parties. Implementing the determination of the Speaker would mean that the number of parties constituting the committee would have to increase to 35 Members as the most conservative number. He explained that this would allow the ANC to be in the majority, so as to maintain the principle of proportionality. The membership per party would be as follows:
DA: 4 Members
EFF: 2 Members
All others: 1 Member each, except the ATM, which has expressed its unwillingness to participate in this process formally and officially. Therefore, it is excluded from the 35. If it was included, there would be 36 Members.
The Speaker asked Mr Singh if he was answered.
Mr Singh said the response answered the methodology for now.
Mr A Shaik-Emam (NFP) welcomed the Speaker back and thanked her for the suggestion made. He thought it was important to understand that although the NFP may be a smaller political party, it gets a mandate from its supporters. Very often, the smaller parties differ from one another and this is why people chose to vote for different political parties. Hence, all smaller parties should all be given an opportunity to participate in these processes. Like the Speaker said; the fact that there is a weighted system of voting will not impact parties that have greater numbers in the NA. It is clear that this would strengthen democracy and give smaller parties a greater opportunity to participate. He was still unsatisfied about smaller parties being represented by other parties as they still carry the mandate of their part. By virtue of the fact that one person represents five smaller parties, these five parties should be caucusing and the mandate that should be taken is what the majority in that caucus or sub-caucus can take. Otherwise, this means that it is serving absolutely no purpose. However, he was satisfied and would support this change based on proportional representation.
The Speaker said that this was one of the issues considered as smaller parties sometimes are represented and when the parties are honestly looked at one by one, one picks up that there are different mandates and sometimes, different ideologies. It is important to note that not all parties are part of those caucuses, so they do not know when votes are cast, whether it is exactly what was agreed to. She was also not saying that this rule would apply for everything, but was saying that in this particular matter, when removing a head; a head of state or the head of the institution; it might want to listen to all the constituencies of South Africa and take it on a vote thereafter. As presiding officers, there cannot be an interest of personal likes and dislikes. She knew this was very difficult as Members belong to parties, however, officers must preside over decisions that have been correctly taken. This is what gives presiding officers peace; whether the decision is seen positively or negatively by the public; the question is whether the process is fair to every constituency and whether the people can say that they live by it because they had a chance to deliberate via their representatives in the matter. This is precisely what was being put forward. She asked if there was any other comment.
Mr N Kwankwa (UDM) said his hand was up but he had the General on the line and he would like him to say something instead of himself.
Dr B Holomisa (UDM) said Mr Kwankwa should say something on behalf of the UDM as he was not in a good area for network.
Mr Kwankwa thanked the Speaker for her and her office’s leadership on this question. It was an important matter, as already highlighted in the correspondence sent to her. The UDM was happy to hear that Parliament and the Speaker was happy to accommodate smaller parties and that it understood the plight of smaller parties in the responsibility to represent their constituencies fully in all the decision-making processes of Parliament. Th UDM appreciated this important stem and looked forward to participating fully in the committee as it is going to be established under the new composition. He thanked his colleagues in the Rules Committee for understanding its plight and trying to meet it halfway.
The Speaker thanked Mr Kwankwa and asked if there were any other Members.
Mr Xaso noted the Deputy Chief Whip of the majority party and the House Chairperson,
Ms D Dlakude (ANC) thanked the Speaker for making the determination. [she was cut off due to poor signal.]
The Speaker asked if anybody else wanted to speak
Mr M Nxumalo (IFP) said he remembered that previously, there were voting and non-voting Members and asked if it had already been explained, before he joined the platform, how this would work now that there are 35 Members. Of the 35 Members he asked how many would now be voting and non-voting Members.
The Speaker asked Mr Xaso to explain.
Mr Xaso said that all 35 Members would be voting Members and there would be no non-voting Members.
The Speaker asked if this made it clear.
Mr Nxumalo confirmed that it did.
Mr Singh had one more question and said he agreed with the principle but when considering the issue of the ATM, he thought that Parliament might be on slippery ground to simply exclude them. In committees, parties generally choose whether to attend or not to attend. He suggested that the principle be that every party has a voting Member and if they choose not to put a Member on the Committee, that is their business at that time. He thought that the principle of including them is something to be considered.
The Speaker said that she thought Mr Singh was correct. The fact that the ATM has written to formally exclude themselves is something else. She told Mr Xaso that it might consider having the Committee be composed of 36 parties so that if continues to choose to exclude themselves, they are free to do so. This would cover everyone so that in the future Parliament is not be accused of excluding them [ATM]. At the time that this matter was being discussed, the ATM had a particular view and was in the midst of a particular process. She thought that what Mr Singh said should be considered and done accordingly.
Mr Xaso confirmed that this would be done and it would not change the composition of the other parties. The Committee would now be made up of 36 Members and the ANC would still maintain its majority. He wanted to check whether the Rules Committee would not want to refer this principle to the Subcommittee on the Review of Rules to look at reviewing that particular Rule on the section 194 Committee and formalise what has been said here.
The Speaker agreed that this matter would formally be referred to the Sub-committee for processing. She asked if there was any other issue as it was now at the close of the meeting.
Mr Xaso wanted to be clear that matter would be referred to the Sub-committee, and in the meantime, the determination of the Speaker will be implemented, in other words; the committee can function. He asked if this was the correct understanding.
The Speaker said this was the correct understanding.
Mr Kwankwa seconded this motion.
The Speaker thanked the Members for their time and adjourned the meeting.
Modise, Ms T
Boroto, Ms MG
Dlakude, Ms DE
Holomisa, Dr BH
Kwankwa, Mr NL
Ntombela, Mr MLD
Nxumalo, Mr MN
Shaik Emam, Mr AM
Singh, Mr N
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