In a virtual meeting, the Committee discussed a mechanism to monitor delayed replies to parliamentary questions; the implications of a recent court order regarding the rules for a Section 194 process to remove a Chapter 9 head; the rules for the election of office bearers such as the Speaker, and how they might be adjusted during the COVID-19 pandemic; and the establishment of a new Portfolio Committee on Water and Sanitation.
The Committee received a report on delayed replies to parliamentary questions, which, according to National Assembly rules, should receive answers within ten days. In June, the former Speaker had written to 24 ministers to alert them to, and request explanations for, a total of 271 delayed replies from their offices. The Speaker’s letter had received responses from only four ministers, and had received no response from those with the most delayed replies: the Minister of Cooperative Governance and Traditional Affairs (29 outstanding questions), the Minister of Public Enterprises (28 outstanding questions), and the Minister of Police (26 outstanding questions). As of 6 August, and out of a total of 1 767 parliamentary questions, 58 remained unanswered and 1 223 had been answered late. The ministers who had most frequently failed to comply with the deadlines were the Acting Minister in the Presidency and the Minister of Small Business Development, both of whom had replied to 100% of questions late, and the Ministers of Social Development (89%), Police (88%), and State Security (88%).
The Committee then received a report from the Subcommittee on the Review of the National Assembly Rules on its deliberations regarding a mechanism for monitoring delayed replies to parliamentary questions. The Subcommittee generally supported the mechanism as proposed by the former Speaker, though it had recommended two amendments. Under the amended mechanism, the Speaker would write on a quarterly basis to affected Cabinet members and to the Leader of Government Business. Ministers would be expected to provide reasons for the delays, and their responses would be published. If further escalation was required, the Speaker would be able to issue a reprimand in the plenary sitting and to make a formal complaint to the Leader of Government Business.
The Committee adopted the proposal. Members supported the proposal, agreeing that parliamentary questions were central to executive accountability, and pointing out that respect for the institution of Parliament had waned in recent years. However, the DA worried that a reprimand would provide insufficient incentive for some ministers, and suggested imposing financial penalties for persistent non-compliance. The ANC disagreed with this suggestion but agreed to have the Subcommittee consider what steps should be taken if a reprimand and formal complaint failed to elicit compliance. The Acting Speaker suggested that Members should wait to see whether the proposed sanctions had a demonstrable effect on non-compliance before judging them insufficiently severe. The Committee also agreed that other measures should be implemented in parallel, especially measures to strengthen cooperation between Parliament and the executive.
Parliamentary legal services briefed the Committee on the implications of the Western Cape High Court’s recent judgment about the new National Assembly rules for the removal from office of a Chapter 9 office bearer. Those rules formed the basis of Parliament’s ongoing Section 194 inquiry into the removal of the Public Protector, who had challenged their constitutionality. The court had found the rules to be generally constitutionally sound, with two caveats. First, the court had ruled that the Chapter 9 head’s legal practitioner had to be allowed to participate in the committee proceedings. Second, the court had objected to the provision that allowed a judge to serve on the independent panel which preceded a Section 194 inquiry.
The ANC, DA, and FF+ all thought the ruling mistaken on these two points, and agreed that it should be appealed. Members thought that the ruling might even constitute undue judicial interference in the legislature. However, Members differed on whether and how the ruling should affect the progress of the ongoing Section 194 inquiry into the removal of the Public Protector. The ANC argued that the inquiry should be suspended pending the outcome of the appeal, given that a judge had served on the independent panel whose report had initiated the inquiry, and given the importance of getting clarity on the issue of legal representation. On the other hand, the DA, the FF+, and the Acting Speaker argued in favour of proceeding with the inquiry while the appeal was in court. They pointed out that Justice Bess Nkabinde was a retired judge, no longer on the bench, and that the court had not sought to nullify the panel’s report or to halt the inquiry. The Acting Speaker decided to consult legal advisors, with an eye to registering an appeal, and to update the Committee in a later meeting.
The Committee discussed a proposal, emanating from the National Assembly Programme Committee, to seek the Chief Justice’s permission to elicit nominations for the Speaker and other office bearers in advance of elections. The proposal was primarily intended to address COVID-19 risks. Especially because ballot papers could not be drawn up until nominations had been received, this would reduce the logistical pressure on Parliament, and would therefore reduce the amount of time for which Members of Parliament had remain gathered on the day of elections. It was suggested that this approach should be considered for future elections – not for the election of the Speaker anticipated next week – and only for elections arising from casual vacancies.
The DA said that the election of a new Speaker next week would definitely be contested by more than one nominee. The FF+ cautioned that the Constitution required nominations to be called for during the meeting at which votes were cast. It was therefore suggested that political parties could submit in advance the names of people whom they intended to nominate, but that nominations should still be called for during the meeting and that Members of Parliament should still be allowed to submit additional nominations from the floor. The Acting Speaker decided that Parliament should engage the Chief Justice, who would have to assent to any changes in electoral procedure.
Finally, the Committee unanimously agreed to establish a new Portfolio Committee on Water and Sanitation, to align with the separation of that portfolio from the human settlements portfolio, as announced by the President on 5 August.
The opening of the meeting was not broadcasted.
Adoption of Committee minutes and matters arising
The Committee considered and adopted its minutes dated 25 May 2021.
In matters arising, Mr Masibulele Xaso, Secretary to the NA, said that the composition of the Section 194 Committee had been discussed at the 25 May meeting. The relevant decision had since been implemented. The Section 194 Committee now consisted of 36 members representing all parties which wished to participate. The ATM had opted not to participate, though provision had been made for it to do so.
Report on delayed replies to parliamentary questions
Mr Xaso presented a report on delayed replies to parliamentary questions to the executive. He said that parliamentary questions were an important mechanism for executive accountability and oversight. NA rules 145 and 146 required ministers to answer parliamentary questions within ten working days, although rule 145 also allowed them to request a ten-day extension from the Speaker.
Communication with Ministers
Mr Xaso reported that on 14 June, the Speaker had written to 24 ministers to inform them of the number of outstanding questions sent to their offices, and to request explanations for the delays. At that time, the largest number of delayed responses had emanated from the Minister of Cooperative Governance and Traditional Affairs (29), the Minister of Public Enterprises (28), the Minister of Police (26), and the Minister of Human Settlements, Water and Sanitation (23).
As of 6 August, only Minister Mmamoloko Kubayi, Minister Lindiwe Sisulu, Minister Nosiviwe Mapisa-Nqakula, and Minister Thoko Didiza had responded to the Speaker. Those ministers had expressed regret for the delay, had provided explanations (see report), and had committed to implementing measures to ensure compliance with the NA rules. Though the other ministers had not responded to the Speaker’s letter, most had since replied to the outstanding parliamentary questions.
Current status of outstanding questions
Mr Xaso provided an update on the status of parliamentary questions, based on a recent questions report to Cabinet (see report). As of 6 August, the largest number of outstanding questions sat with the Minister of Public Enterprises (11), the Minister of Police (9), and the Minister of Public Service and Administration (7). Those whose replies had most frequently been late were the Acting Minister in the Presidency (100% of replies), the Minister of Small Business Development (100%), the Minister of Social Development (89%), and the Ministers of Police and State Security (88% each). Out of a total of 1 767 questions, 58 remained outstanding and 1 223 had been answered late.
Subcommittee report on mechanism to monitor delayed replies to parliamentary questions
The Acting Speaker said that the Committee should consider the next presentation in light of Mr Xaso’s report on delayed replies. The Subcommittee on the Review of the NA Rules would report on a proposed mechanism to monitor delayed replies. This mechanism would tackle the problem so that it did not reoccur, and would lay out the steps that should be taken if the problem did reoccur.
Ms D Dlakude (ANC), ANC Deputy Chief Whip, had planned to make the presentation as Chairperson of the Subcommittee. However, she was interrupted by connectivity problems and was disconnected from the platform.
The Acting Speaker said that it was a “dramatic example” of poor network connectivity disrupting a parliamentary meeting, and that the ministers responsible for infrastructure should handle the problem. He invited Mr Xaso to make the presentation on Ms Dlakude’s behalf.
Mr Xaso reported that NA rule 136 required the Speaker, in consultation with the Committee, to establish a system to monitor questions to the executive endorsed as unanswered. The Rules Committee of the previous Parliament had in its 18 October 2017 meeting agreed to establish a subcommittee to monitor and report on unanswered questions. However, the proposal had not been considered by the House and had lapsed. In the 9 March 2021 meeting of the Committee, the matter had been revived and referred to the Subcommittee, which had met on 6 August. The Subcommittee had discussed a new system proposed by the former Speaker.
Subcommittee recommendation on the Speaker’s proposal
Mr Xaso reported on the Subcommittee’s deliberations and recommendations (see report). The Subcommittee had largely supported the Speaker’s proposal. It recommended adoption of the following mechanism:
(i) The Speaker would write quarterly to affected Cabinet members, requesting reasons for their failure to meet the deadlines;
(ii) The Speaker would write quarterly to the Leader of Government Business (LGB), informing him of the late replies;
(iii) A report on ministers’ responses would be submitted to the Committee and published in the Announcements, Tablings and Committee Reports (ATC);
(iv) In the event of continuous non-compliance, the Speaker should consider a reprimand in the plenary sitting, to be published in the minutes; and
(v) As a last resort, the Speaker could escalate the matter through a formal complaint directed to the LGB.
This proposal incorporated two amendments to the Speaker’s proposal. First, the Subcommittee had strengthened the wording of point (iv), to obligate – rather than merely allow – the Speaker to consider a reprimand. Second, the Subcommittee had amended point (v), which had previously allowed as a last resort a formal complaint directed to the President, rather than to the LGB. Members had argued that the President delegated the relevant authority to the LGB.
Other Subcommittee recommendations
The Subcommittee also recommended that:
- The formal complaint to the LGB should be accompanied by interactions between the LGB and the presiding officers;
- Other appropriate measures could be taken over and above those required by the proposed mechanism; and
- There was a need to strengthen liaisons between Parliament and the executive, and particularly with the LGB’s office.
Ms P Majodina (ANC), Chief Whip, said that she welcomed the report and fully agreed that parliamentary questions were important to executive accountability and oversight. However, she disagreed with the formulation of point (v) of the proposal, insofar as it allowed the Speaker to make a formal complaint to the President. The LGB dealt with all issues that arose between the executive and legislative branches of government. Point (v) should instead allow for the Speaker, as a last resort, to call the LGB in the House to ask the LGB to explain what action he was going to take to address ministers’ non-compliance.
The Acting Speaker said that Ms Majodina was addressing the version of point (v) that had been amended by the Subcommittee.
Mr Xaso explained that bold text in the report had been added by the Subcommittee, and bracketed text had been deleted by the Subcommittee. Both point (iv) and point (v) had been amended. Point (v) as amended by the Subcommittee now stipulated a formal complaint to the LGB.
Ms N Mazzone (DA) said that Mr G Hill-Lewis (DA), the DA Whip in charge of parliamentary questions, had already made several submissions during the Subcommittee meeting. However, the DA was concerned about the use of the word “reprimand” in point (iv). What did a reprimand actually entail? The Acting Speaker had reprimanded her in the House once, and, because of the mutual respect between them, she had found the reprimand greatly embarrassing. She would certainly do anything she could to avoid another reprimand. However, that was her way of thinking, and the Committee had to be honest about how the “serial offenders” thought. For the ministers who continuously failed to abide by parliamentary rules, a reprimand was, frankly, “nothing.” Yes, they had to stand up in the House, and were told that they had been “very naughty” and asked not to do it again. But the relevant ministers – those who would allow themselves to get into such a position in the first place – would not respond to a reprimand the way that Members hoped.
Ms Mazzone said that she firmly believed in giving people a second chance, but, once a matter had escalated to the point that Parliament was considering involving the LGB, she thought that Parliament should begin considering a “financial reprimand.” Parliament had learnt that those who continuously broke parliamentary rules only really responded to financial penalties. The country put an immense amount of confidence in ministers, and parliamentary rules were an important way of holding ministers to account. Moreover, accountability had emerged as crucial during the Zondo Commission. Parliament was being blamed for the lack of executive accountability, even though Members of Parliament (MPs) did their job – it was ministers who failed to do their jobs, by ignoring parliamentary questions. Given all this, she thought the Committee should consider adding that the reprimand should be accompanied by a financial deduction or fine. For example, if it was a minister’s third offence and the questions had been outstanding for three months, the minister could be docked R1 000 for each month that he had been behind on his questions. This was a “radical” measure, but it was time for MPs to realise that radical measures were needed if they wanted Parliament to function. The only way to hurt serial offenders was to “hurt them in their pockets.”
Mr Hill-Lewis said that he belonged to the Subcommittee, in which these issues had already been debated, so he had already expressed most of his views. However, he agreed with both Mrs Majodina and Ms Mazzone.
Ms Majodina interrupted to correct Mr Hill-Lewis – he had called her Mrs Majodina, but her title was Ms. She joked that she was single and “still looking.”
The Acting Speaker jokingly cautioned Members that the virtual platform was not Tinder.
Mr Hill-Lewis said that he agreed with Ms Majodina that the LGB should explain in the House what he would do about the Speaker’s complaint. That would escalate the matter and make it much more serious. He also agreed with Ms Mazzone about the need for financial sanctions.
The Acting Speaker suggested that in future Mr Hill-Lewis should refer to Ms Majodina as the Chief Whip; that way he would not “get in trouble.”
Mr Q Dyantyi (ANC) said that as another Member of the Subcommittee, he wanted to endorse the report as an accurate reflection of the Subcommittee’s deliberations, including its recommended amendments to point (iv) and (v). However, the Subcommittee had made other recommendations, some which would be once-off measures. Although these were mentioned in the report, they were not included in the five points of the central proposal, and he did not want them to get “lost” in the Committee’s processes. One of the key recommendations was the recommendation that the LGB should interact with the presiding officers, so that the Deputy Speaker and others would be involved in the process. The Subcommittee had established that there were certain “failures” even within ministries, including among ministry staff, and had recommended that a workshop or some similar interaction would be helpful.
Mr Dyantyi said that he disagreed with Ms Mazzone’s suggestion that financial sanctions should be imposed. Ministers were also MPs, and Parliament should be “allergic” to seeing them only as members of the executive. The relevant issue was non-compliance with the rules. There might be some other MPs who continuously failed to comply with the rules – always making noise in the House, and so on – but financial sanctions were not imposed in such cases. There were existing mechanisms in the NA rules which could be used to severely penalise wrongdoing, and financial sanctions would create a “wrong perception.” The process had to be looked at holistically. The reprimand was the fourth of five steps in the proposal. There was a fifth step envisaged that would be taken if someone failed to comply after being reprimanded – in the fifth step, as a last resort, the Speaker could formally escalate the matter to the LGB. So it would be “premature” to invoke financial penalties in point (iv).
Mr Dyantyi said that he wanted to return to Mr Xaso’s earlier report about the status quo in regard to parliamentary questions. According to that report, out of 1 767 questions, 1 701 had been answered, and 1 223 had been answered late. This was “not a good picture.” The former Speaker had written to 24 ministers, regarding a total of over 200 unanswered questions, and most had not replied to her at all, even if they had ultimately answered the outstanding questions. The proposed mechanism would really help with this. Looking at the reasons that ministers had provided for the delay (see report), some were reasonable. Parliament should accept the explanation that the relevant matter was under investigation – for a minister to discuss such a matter would be for him to potentially compromise the investigation – but that explanation needed to be provided upfront. He also understood the explanation that accessing apartheid-era information took a long time. On the other hand, it was not helpful for ministers to say that they could not reply timeously to a question because the relevant matter involved provinces or municipalities.
Mr Dyantyi concluded that he thought the Acting Speaker would want to begin implementing some of the Subcommittee’s recommendations immediately after the meeting. He suggested that, with some of the steps, the Acting Speaker should “get onto it immediately.” It was not encouraging that only four ministers, out of the total 24, had responded to the Speaker’s letter in June. It did not reflect well on ministers’ respect for the institution of Parliament. The historical situation was not good, but the Speaker’s proposal, as amended by the Committee, provided a way to correct it. Clearly, Parliament would have to be very firm and very consistent in doing so.
The Acting Speaker said that he wanted to elicit broader input into the process, and encouraged Members from other political parties to contribute to the discussion.
Mr Dyantyi added that only two parties, the ANC and the DA, had attended the Subcommittee meeting.
The Acting Speaker replied that Mr Dyantyi’s observation told “an important story.” He did not understand why other parties had not attended. He invited Dr C Mulder (FF+) to contribute, because he appeared to be in the meeting, but there was no response.
Ms Mazzone said that there were a few House Chairpersons who had done a good job, and she thought Mr Dyantyi was one of them. She liked the “stern discipline” that Mr Dyantyi brought to the House. Each Chairperson had his own way of doing things – the Acting Speaker diffused a situation with his good humour and his knowledge of each MP’s quirks, for example, and Mr Dyantyi was “a disciplinarian.” Sometimes discipline was absolutely needed. She did not think that she and Mr Dyantyi differed drastically in how they viewed discipline – although she did not think that either of them were disciplinarians in their personal lives, in the professional sphere they both believed in adhering to the rules.
Ms Mazzone acknowledged Mr Dyantyi’s point that non-compliant MPs did not currently face financial sanctions – but this only implied that financial sanctions should be extended, so that they affected not only members of the executive but also all MPs who were “serial offenders.” She agreed with this. In fact, in the past, MPs had been thrown out of the House and had rightly had their salaries docked. Frankly, she had always held that once an MP’s conduct had reached the stage where he had to be thrown out of the House, there should be a financial sanction – if he was thrown out of the House, he was not doing the job that he was paid to do, so he should suffer financially for it. It was the same for the relevant ministers. It was necessary to dispense of the “absolute disdain for Parliament” that had “crept in” over the years. She knew that it frustrated those present, as well as the former Speaker and the chairpersons. It required “radical action.” She asked Mr Dyantyi to think about her suggestion, because she did not think that their views on the matter were too far apart.
Ms Majodina said that the whips participating in the Committee wanted to assure the presiding officers that they understood and embraced their responsibility to ensure that the decorum of the House was respected at all times. In response to Ms Mazzone’s suggestion, she requested that the Committee refer the reprimand issue to the Subcommittee. If someone continued not to comply after receiving a verbal reprimand, what was the next step? The Subcommittee could deliberate and report back at the Committee’s next meeting.
The Acting Speaker said that the Committee was trying to do – in terms of increasing the level of focused attention on non-compliance with the rules for questions – might not have been done before. To his knowledge, a member of the executive had never really been reprimanded in the House for failing to answer questions. Therefore the Committee did not have a basis for assuming that such a reprimand would not be effective in eliciting compliance. To Ms Mazzone he said that issuing a reprimand would be an “important step.” MPs had repeatedly complained about delayed responses, but presiding officers had not called on the relevant members of the executive. The only reprimands he had issued in the House were to the President and Mr J Steenhuisen (DA). He had complained because the President had offered Mr Steeinhuisen a cigar in the House – though, on reflection, he had not even reprimanded the President firmly enough. Members should give the proposed mechanism a chance. It highlighted the significance and strategic value of questions to the executive, as a critical aspect of oversight and accountability. If Parliament was being told that it had not acted firmly enough to demand accountability, the proposed approach moved significantly in that direction. This was based on the urging not only of MPs, but also of people outside Parliament who were watching what Parliament was doing.
The Acting Speaker said that, on those grounds, he suggested that the Committee should accept the proposal and work with it. As Mr Dyantyi had said, and in addition to the proposed mechanism, assistant presiding officers would be active in interacting with the LGB. They would regularly point out which ministers were “threatening to go over the line,” and would speak to those ministers, so that issues could be “nipped in the bud” before they became problems. That way, Parliament would take pro-active steps to forestall the need for an escalation – if an escalation became necessary, that case should be “an extreme example.” He believed the proposal would now be taken for adoption by the House. He thanked the Subcommittee for its work and asked Members whether they had any objection to his summary of the Committee’s deliberations.
Ms M Boroto (ANC) said that she agreed with Ms Majodina that the issue should be referred back to the Subcommittee. If point (v) of the mechanism failed to elicit compliance, what should be done? At the same time, Members should not forget that members of the executive were MPs, and any measures had to be in line with existing rules.
The Acting Speaker agreed. Mr Dyantyi had said that he would rather not impose financial sanctions on members of the executive, thus treating them differently to other MPs – though Ms Mazzone had acted as though he was suggesting that financial sanctions should be extended to all MPs.
The Acting Speaker concluded that the Committee should continue to assess and evaluate the efficacy of the mechanism. The recommendation for a proactive system of interaction, between Parliament and ministries and their support staff, would make an important contribution to “cleaning up” the process. Parliament should examine its linkages with ministries, and should support the staff who worked at that interface on behalf of ministers. Parliament had to continually observe where gaps were emerging, so that it could reinforce its response.
Mr Dyantyi said that he agreed with the Acting Speaker’s summary. Importantly, the Acting Speaker had not portrayed the proposed mechanism as negating the other issues that had been raised. The Acting Speaker had suggested that the proposed mechanism opened “a new chapter,” and that it should be tested going forward. He did not think it was mutually exclusive – as Parliament implemented the proposed mechanism, it could also investigate and test other measures.
Dr Gerhardus Koornhof, Parliamentary Counsellor to the President, said that he fully agreed with the Acting Speaker’s summary. However, the Committee had to formally accept and adopt the report of the Subcommittee, especially the recommendations for the proposed mechanism as contained in points 5(c)(i)-(v) of the report.
The recommendations were adopted.
Legal briefing: Implications of court order on Section 194 process
Dr Barbara Loots, Parliamentary Legal Adviser, presented on behalf of the Constitutional and Legal Services Office (CLSO). She said that there were two relevant matters, Public Protector v Speaker and DIA v Speaker, which had been heard together in the Western Cape High Court. In both cases, the applicants had challenged the constitutionality of the NA’s new rules for the removal from office of a holder of a public office in a state institution supporting constitutional democracy (that is, a Chapter 9 institution). Those rules gave effect to Section 194 of the Constitution.
The court’s combined judgment, which had been delivered on 28 July, found the new rules to be generally constitutionally sound. The Public Protector’s application had been successful in respect of two points:
- The court severed the proviso which prevented a legal practitioner assisting the Chapter 9 head from participating in the Section 194 committee; and
- The court severed the reference to a judge as a possible member of the independent panel.
Judgement: legal representation
Rule 129AD(3) provided that the public office holder had the right to be heard and assisted by a legal practitioner or expert, but that the legal practitioner or expert could not participate in the committee. However, the court held that the public office holder should be allowed full legal representation, especially since other Chapter 9 incumbents would be subject to the same procedure but – unlike the Public Protector – might not have legal qualifications.
Judgement: independent panel
The complainant had initially objected to the inclusion of a judge in the three-person independent panel tasked with establishing whether there was prima facie merit to a motion calling for removal. However, her complaint had later been broadened to a general objection to the panel. The court held that the NA was at liberty to seek advice, since it retained its discretion and the independent panel was at no stage given the power to decide the process. However, the court took issue with the fact that the new rules provided for a judge to serve on the panel. It judged it undesirable, and potentially offensive of the separation of powers, for a judge to participate in a political process.
Dr Loots also surveyed the points in which the court had found in Parliament’s favour, discussing the court’s reasoning on each point (see slides). These other complaints concerned the audi alteram partem principle, unreasonableness, retrospectivity, grounds for removal, double jeopardy, conflict recusal, and institutional independence.
The Acting Speaker said that, in his view as a layperson, the court in its decision should have anticipated the consequences of its ruling. As Dr Loots had said, the court had “severed” – though he did not know why CLSO had chosen that word – the provision allowing a judge to participate in the independent panel. Yet, in this case, a judge had already participated in the panel. What was the court’s view on the implications of that? Why leave that issue unattended? The court was now “eating our time.” Parliament had to go back and seek clarity on that issue.
Dr Mulder thanked the CLSO for an excellent presentation, which he completely agreed with. As Dr Loots had correctly pointed out, the judgment confirmed that the NA rules, and the processes that had been followed thus far, were “basically in order.” The court took issue with only two aspects – first, the participation of the Chapter 9 heads’ legal practitioners, and, second, the involvement of a judge in the independent panel. He believed that the court was wrong and had made a mistake on both points.
First, Dr Mulder said that he interpreted the court as saying that a judge should not be involved in the independent panel. In the first place, he thought this decision was wrong, and that Parliament should even consider appealing it. It was not unheard of to involve the judiciary, or judges, or retired judges in different processes as needed. For example, the Electoral Commission had recently appointed retired Deputy Chief Justice Dikgang Moseneke to an inquiry. Judge Ian Farlam, also retired, had been asked to head the Marikana inquiry. It was normal to use judges for such things – they had legal expertise and experience. In the second place, and even if the court’s ruling against the participation of judges did stand, the Section 194 inquiry had appointed not a judge but a retired judge. Therefore the ruling should not affect the process followed so far.
Second, Dr Mulder said that the court had decided that the Public Protector’s legal practitioner should be allowed not only to advise but also to participate in the proceedings. Again, he thought this judgment was wrong. The court talked about branches of government interfering in each other’s processes – he thought this ruling would constitute interference into the legislative arm of government. The Constitution stipulated the way in which Parliament should set up its committees. The Section 194 inquiry was not a court process but a parliamentary process. If anyone involved was unhappy with the outcome, he could take administrative action and take the matter to court. But if the court’s ruling in this regard was taken seriously, it would change the nature of all parliamentary processes from now on. Legal practitioners would be able to participate in all parliamentary committees. The court’s decision was wrong and he thought it had no effect on the work the Section 194 Committee had done so far. The Section 194 Committee should continue with its work, and Parliament should consider appealing the court’s findings.
Ms Mazzone said that, like the Acting Speaker, she was a layperson when it came to issues like this one. However, she had studied the judgment very closely, and she had made the initial motion, so she was intimately involved and intimately familiar with the content of the motion. She had been cited many times in the court case. She had learned over her career, and thought it important to keep in mind, that it was not necessarily appropriate to say that the courts were wrong, per se. However, the courts interpreted the political sphere and the role of politicians differently than the politicians themselves did. That was normal. As the legal maxim went, judges said the law, but they did not make the law. So judges erred on the side of caution – and that was preferable to “wild cowboy” judges.
However, Ms Mazzone fully agreed with Dr Mulder that it would not be acceptable for legal practitioners to represent board members, Deputy Director Generals, or ministers when they appeared before parliamentary committees. It was clear that although Parliament had the power to summons, it was not a judicial body. Instead, it made referrals. For example, Parliament had referred the findings of the Eskom inquiry to the Zondo Commission. Moreover, Parliament bringing in experts – whether medical doctors or retired judges – did not undermine the separation of powers. A retired judge was no longer on the bench; that stage of his career was finished. South Africa was very lucky that it had many retired judicial officers whom it could call on and whom it had called on many times.
Ms Mazzone suggested that an appeal should be submitted immediately. She had said this from the start. CLSO should work with the NA Table and with those involved in the case, to explain the way that parliamentary committees functioned and were established, in line with parliamentary rules and the Constitution. At the same time, the ruling should not be allowed to hinder the work of the Section 194 inquiry going forward. This was the second or third court case concerning the process, and none had been allowed to disrupt the work. Dr Loots’s summary of the findings was absolutely correct. In fact, she thought the court had been very fair. The court had not demanded that anything be changed or brought to an end, because it knew that Parliament was itself an arm of government and had its own work to do.
Ms Majodina said that she appreciated CLSO’s good work. The ANC fully agreed that Parliament, through the presiding officers, should appeal both the court’s findings. Parliament was the legislative arm of state, and the courts should respect the separation of powers when there were potential impingements on the legislature, not only when there were potential impingements on the judiciary. Allowing a legal representative to participate in the Section 194 inquiry would, in a way, turn the inquiry into a trial. It was also imperative that, through the appeal and in a declaration order, the judiciary should provide clarity on when Parliament could use judges. This linked to the points made by Dr Mulder and Ms Mazzone. Was Parliament not allowed to use the services of retired judges? If it was not, why not? If it was, when?
Ms Majodina said that the report of the independent panel – which served as the inquiry’s terms of reference – had not been nullified, and neither had the NA rules. Therefore, the only thing that Parliament could do was “put on hold” the work of the Section 194 Committee, until the appeals process was complete. If Parliament used the independent panel report as the terms of reference for the inquiry, without knowing what the outcome of the appeal would be, it might appear that Parliament was undermining the appeals process. In the meantime, the appeal had to seek “clarity on all fronts.”
The Acting Speaker said that the High Court’s decision would be suspended once the appeal was registered. He was tempted to use a political reference to say that the work had to continue – Members would know what he was referring to. As soon as the appeal was registered, Parliament would proceed with its work – because, effectively, nobody had stopped it from doing so. This was critical in understanding what Parliament’s next steps should be. As Ms Majodina had said, none of the work done so far had been nullified by the judgment. He asked Mr Xaso and CLSO for their comments on the legality of proceeding with the inquiry under this understanding.
Mr Xaso said that the CLSO could speak to the risks of continuing with the process while there were still two issues that the courts needed to clarify.
Adv Siviwe Njikela, Senior Parliamentary Legal Adviser, CLSO, said that the CLSO had, of course, analysed the judgment. That analysis had been communicated to the relevant authorities and had just been shared with the Committee by Dr Loots. Parliament had made very strong arguments on both points – that is, both about the appointment of a judge to the panel, and about the participation of legal participants. In its court papers, it had explained fully why it was inappropriate to allow legal representation in a parliamentary process – not just in the Public Protector’s case, but in all such processes. The court, of course, had disagreed with that argument, and Parliament could decide how to proceed.
On the appointment of a judge to the panel, Adv Njikela said that Parliament had made an argument about the status of the judge. The NA rules provided for the possibility of appointing a judge – because the rules referred to fit and proper persons with the necessary legal competence, a group that clearly might include a judge. However, the rules did not require that a judge had to be appointed. In fact, a judge had not been appointed to the panel when the court process began – the judge had only been appointed midway through the process. By the time the court had laid down its judgment, the independent panel had submitted its report. The court might well have taken notice of that report, but it had not decided to set the report aside. The report’s status had important implications, because it had been the basis for Parliament’s decision to establish the inquiry. There were two different approaches that could be adopted, and those options were open to Parliament.
Adv Njikela said that in consultation with its legal representatives in court, Parliament had decided that its prospects might be better on the issue of the judge’s appointment than on the issue of legal representation. There was a simple reason for this: on the legal representation issue, nothing had “materialised,” because the inquiry had not yet begun, so the Public Protector had not yet appeared before the Section 194 Committee either with or without legal representation. In its decision, the court had removed the proviso which denied the Public Protector legal representation before the inquiry, but it had left it at that. It therefore seemed to CLSO that if Parliament decided to proceed with the inquiry, it could still decide to allow the Public Protector to appear with representation.
Mr Xaso suggested that after the meeting, the CLSO could be asked to provide the Acting Speaker’s office with specific advice about the implications of continuing with the inquiry before the two issues had been clarified. He did not think that question had been answered.
The Acting Speaker agreed. The risks had to be assessed from all sides – not just the risks of continuing with the inquiry, but also the risks of not continuing with it.
On the issue of the appointment of judges, Dr Mulder said that the wording of the relevant NA rule could be amended to refer to an “ex-judge” instead of a “judge.” This would address the court’s complaint – if its complaint was about the word “judge” – and the independent panel had in fact used an ex-judge, not a judge.
Dr Mulder said that he wanted to warn against not continuing with the inquiry. The appeals process might move from one court to another, all the way up to the Constitutional Court, and therefore might be drawn out for the next four or five years – beyond the expiry of the current Public Protector’s term.
Mr G Magwanishe (ANC) agreed with Ms Majodina that the issue of legal representation was “very weighty.” If that issue was appealed, the inquiry could not proceed until clarity had been obtained. Parliament had to get certainty about legal representation before proceeding, and should therefore wait for the appeal.
Mr Magwanishe said that he disagreed with Dr Mulder – the independent panel had not used a retired judge, but a judge who had been discharged from active service. There were three categories of judges: judges in active service; judges who had been discharged from active service; and retired judges, who were over the age of 75. Judge Bess Nkabinde fell into the second category.
The Acting Speaker said that Members were raising important points and arguments. His office would seek advice about how to frame the appeal such that its content could be handled expeditiously. Expediency was critical, in his view. How could Parliament persuade the courts, leveraging the respect that they had for each other’s functions, that it was necessary for this matter to be dealt with expeditiously? The Committee would discuss the matter again in a later meeting, and his office would keep Members updated every step of the way.
Ms Majodina agreed.
Rules regarding the election of office bearers
Mr Xaso said that the next item on the agenda had arisen the day before at the NA Programme Committee meeting. The question was: at what point could nominations be made for the election of the Speaker, and of other office bearers whose election was regulated by the Constitution?
The Chairperson asked Mr Xaso to clarify why he used the term “office bearer” alongside that of “Speaker.” Although Members were “part of the shop,” the Committee should not take for granted that other observers of the meeting were familiar with parliamentary procedure.
Mr Xaso explained that the office bearers he was referring to were the President, the premiers, and the speakers and deputy speakers of the legislatures. The same set of rules was applicable for elections to all those offices.
Mr Xaso said that the suggestion of the Programme Committee had been to make a submission to the Office of the Chief Justice, recommending that nominations could be submitted beforehand rather than during the sitting. That way, Parliament – or whichever structure was administrating the election – would not have to get into the logistics of preparing for a secret ballot that might not even take place. This submission to the Chief Justice would be made with the collaboration of CLSO and the Speaker’s office.
However, there were two caveats to the Programme Committee’s suggestion. First, the submission would be made with respect to future elections – not the election of the Speaker anticipated for next week. Second, the proposal would be made with respect to casual vacancies – vacancies that arose over time during Parliament’s term, like the current vacancy in the Speaker’s office. This was because eliciting nominations beforehand would not work for the elections that took place at the start of a Parliament. In those elections, only people who had been sworn in as MPs could be elected, so nominations could not be submitted until everyone had been sworn in. Everything therefore had to happen on the same day at the start of Parliament: the swearing in, the nominations, and the election of the office bearers.
The Acting Speaker asked whether the relevant rules had to be approved by the Chief Justice.
Mr Xaso replied that they did.
The Acting Speaker said that, depending on the Chief Justice’s decision, the proposal might apply to other parts of the legislative sector, and might have implications for future elections, not only for the election taking place next week. That was important to keep in mind, since the proposal had arisen because of complications created by the COVID-19 pandemic.
Ms Majodina confirmed that the proposal had arisen as Mr Xaso had reported. The Programme Committee had decided to look into recommending that nominations should be made in advance, so that Parliament could make the necessary logistical preparations ahead of the election. Members were aware that, because of the pandemic, Parliament was not operating under normal circumstances. It might be unfair to keep MPs gathered in the House for hours at a time. Parliament also knew, from experience, that it took a long time to prepare for the ballot when nominations were made on the same day. So the proposal aimed to shorten the process without compromising the rules.
Ms Majodina said that she therefore was not convinced that the new approach should be taken in other elections when other vacancies arose in the future. She felt that the new approach should be explored in this particular period. In all other matters, Parliament would plan to hold a secret ballot with physical attendance, as normal. The point was to mitigate the “logistical and administrative nightmare” that Parliament faced in preparing ballot papers – because, according to the NA rules, ballot papers could not be printed until nominations had been made. The Programme Committee had made the proposal – to approach the Chief Justice – yesterday. However, today, the NA Table staff had been saying that Parliament should not implement the new approach – without even trying it.
Dr Mulder said that he understood the problem that Parliament was dealing with, and he understood that Members wanted to find a solution. However, he did not think that Parliament should begin to amend its electoral procedures too hastily. He thought that there was about a 110% chance that the election of the Speaker next week would be contested – that there would not only be one nomination. From his point of view, the staff should prepare for an election, because there would definitely be one.
Dr Mulder said that the proposal might have to be referred to the Subcommittee, so that the whole process could be examined. According to Section 52(3) of the Constitution, the election of the Speaker was governed by the procedure set out in Part A of Schedule 3 of the Constitution. Part A2 of Schedule 3 said clearly that the person presiding at the meeting had to “call for the nomination of candidates at the meeting.” So his concern was that, even if parties came to some kind of agreement, there would still have to be a call for nominations at the meeting, and parties would have to have the right to make nominations at that time.
Ms Mazzone agreed with Dr Mulder. She could confirm that there would definitely be contestation for the position of Speaker. Parliament would be naïve not to realise that.
Ms Mazzone said that the courts were too frequently used to solve problems within Parliament – often problems that Parliament had itself caused. The COVID-19 pandemic was a reality, and it would be much easier to call for nominations beforehand, so that ballots could be printed in advance. However, that approach would take away people’s rights – the right to decide, while sitting in Parliament, that one might actually, and unexpectedly, wish to contest the election. The Acting Speaker himself might, while sitting in Parliament, decide that he was actually very good at the job and wished to nominate himself. She was certain that such a nomination would be seconded.
Ms Mazzone said that her biggest concern was that the matter would find its way to the courts, because Parliament had deviated at such short notice from the NA rules and the constitutional schedule. The guidelines also clearly required that nominations had to be called for from the floor. The proposal should be considered for the future. No MP had ever expected to live through a pandemic, and Parliament was learning as it went along. However, Parliament had to avoid any possible court case. It was regrettable that Mr Xaso would have to prepare the ballots at short notice, but Parliament was blessed with wonderful NA Table staff and she was confident that they would be up to the task.
The Acting Speaker said that the proposal to engage the Chief Justice should go forward, and the Chief Justice would tell Parliament which measures he agreed with or objected to. Whatever the outcome of that engagement, Parliament’s work had to continue. As the Committee had said on an earlier occasion, the Subcommittee had to continuously consider the various scenarios that Parliament might have to deal with, and continuously consider what rules could be applied if the need arose. Parliament would see what came out of the interaction with the Chief Justice, remaining mindful of the risks at stake – both the COVID-19 risks of continuing with the normal procedure, and any legal or procedural risks of adjusting that procedure.
Mr Xaso asked for confirmation about the way forward. In his understanding, the election of the Speaker next week would proceed as normal, as the Constitution required, with nominations being called for at the meeting. So no submission would be made to the Chief Justice about next week’s election. Should a submission be made about future elections?
The Acting Speaker said that he had spoken under the impression that there was an existing proposal to engage the Chief Justice. Was that correct?
Mr Xaso said that there was such a proposal. However, that proposal had been made without the benefit of the contributions that Members had made in the current meeting – especially Dr Mulder’s point that Schedule 3 of the Constitution required the person presiding at the meeting to call for nominations during the meeting.
The Acting Speaker said that, unfortunately, neither Parliament nor the Chief Justice could change the requirements of the Constitution. The procedure had to go forward as set out in Schedule 3. He did not know how any proposal to elicit nominations in advance could comply with those constitutional requirements.
Ms Boroto said that, in her understanding, the proposal would not seek to prevent the call for nominations from taking place during the sitting, as required by the Constitution. Instead, the point was to allow Parliament to prepare for the election, so that MPs did not have to be gathered for a long time. The same approach was taken when schedules were drawn up for individual meetings, with parties sending the names of the people who were going to ask questions or call for a division. It was done all the time. Parliament would not flout the rules, and the nominations would formally be submitted during the sitting. The difference was that Parliament would have prepared the documents ahead of time. She thought that this option should be considered, given the COVID-19 pandemic.
Ms Mazzone said that she agreed with Ms Boroto. She thought that perhaps political parties should be asked to send to Mr Xaso any nominations they planned to submit. Mr Xaso could then prepare the documents in advance. However, that should not prevent anyone on the floor from making a new nomination during the sitting. If a new nomination did come from the floor, the papers would have to be adjusted, so Mr Xaso might have to leave space to add more names if necessary. She did not see any reason that MPs could not tell the NA Table, in advance, who they intended to nominate, and that should make things easier. Of course, Mr Xaso should still consult the Chief Justice, just to “be on the safe side” and to ensure that such an approach was legal.
The Acting Speaker said that the consultation with the Chief Justice went without saying. Such a consultation had to happen, and the Chief Justice had to approve of any measures taken. He asked Mr Xaso to take the proposal forward to the Chief Justice.
Mr Xaso agreed.
Proposal to establish new portfolio committee
Mr Xaso said that one of the implications of the recent Cabinet reshuffle, announced by the President on 5 August, was the separation of the human settlements portfolio from the water and sanitation portfolio. Thus far in the sixth Parliament, those portfolios had been handled under one portfolio committee for oversight purposes, in keeping with the executive dispensation in 2019 at the start of the sixth Parliament. The portfolios now had to be split into two distinct portfolio committees.
It was therefore proposed that a new Portfolio Committee on Water and Sanitation be established, as this would enable the NA to carry out effective oversight over the new portfolio and the executive. According to the NA rules, the Rules Committee was responsible for the establishment of portfolio committees (see memo).
Ms Mazzone said that she agreed completely with the proposal. She hoped that one day soon the Committee would be establishing a committee to oversee the Presidency, too.
Ms Majodina objected light-heartedly to Ms Mazzone raising that suggestion in the current discussion.
The Chairperson joked that there was a separate forum in which the Chief Whips, Ms Majodina and Ms Mazzone, could debate.
Ms Majodina said that the ANC fully agreed with the proposal.
The Chairperson said that since no Members had raised objections, the proposal would be taken as agreed upon by the Committee. The new committee would be formed as expected and as others had been in the past.
The meeting was adjourned.
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.