(subcommittee)Consideration of draft rules on Ministerial Briefings; Budget process; Election of Committee Chairpersons; Motions

NCOP Rules of the National Council of Provinces

16 November 2021
Chairperson: Ms S Lucas (ANC)
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Meeting Summary

Outstanding Document: draft rules

The meeting gave Members a platform to give their inputs regarding the draft rules. Before the agenda was adopted, a Member raised issues which, it was decided, would be resolved by the Whippery.

Members questioned changes to the rules that recognised Ministerial Briefings. Members contended that Ministerial Briefings disrupt the programme of the National Council of Provinces and prevent the Council from focusing on more important aspects, such as legislation.

After discussions on all the issues, the Secretary to the Council agreed to assemble a proposal for consideration at the next meeting of the Subcommittee.


Meeting report

The Chairperson welcomed the Subcommittee Members back to the meeting [after a lengthy interval – the previous meeting had been in November 2019]. She said that it was good that Members were responding and were vigilant about the issues at hand. She said that the Ministerial Briefings were discussed particularly with regards to the new approach they have taken to expand their oversight responsibility. This would give the Sub-Committee an opportunity to respond to the expansion of the rules.

Mr L Nxelewa, Sub-Committee Secretariat, stated that he had not received any apologies.

Adoption of meeting agenda

The Chairperson stated that the agenda was sent to the Sub-Committee a week in advance. She said that the functions of the Deputy Chairperson (of the NCOP) have also been added to the agenda. The functions are relevant to the function of the Deputy Chairperson at any given time. At one stage or another it can be queried if the Subcommittee does not make provision for it within their own rules.

Ms M Mokause (EFF, Northern Cape) said that she would not move forward with the adoption of the agenda. She proposed an addition to the agenda to consider the allocation specifically relating to the EFF questions.

The Chairperson acknowledged the proposal. She said that before the Subcommittee reaches that point, the rules are general, and Ms Mokause was specifically referring to EFF. The Secretary to the National Council of Provinces (NCOP) was asked to advise the Subcommittee on how to deal with Ms Mokause’s point.

Adv Modibede Phindela, Secretary to the NCOP, welcomed the Subcommittee. He said that the rules were general indeed. If there was going to be [an additional] proposal it should be a general proposal.

The Chairperson agreed and said that this issue should be discussed on another platform. The provision of rules is to be general. Ms Mokause was asked to rephrase her proposal so that it was not specific to the EFF. A general discussion should be held regarding the questions.

Ms Mokause said that the norm currently in the NCOP is that the EFF was made to share a platform with smaller parties with regards to questions to the President and the Deputy President. The EFF was of the view that the ratio being used was from 2014 when the EFF representation was not as high as it is now. The EFF was no longer a smaller party in the Council and this includes nine representatives throughout the provinces. The EFF is the third largest party. The questions should not rotate with the smaller parties.

Mr S Mohai (ANC, Free State), the NCOP Chief Whip, said that the principle was that, for its internal arrangements, the NCOP must, among others, ensure the participation of all provinces in the proceedings and define it according to the constitutional guidelines in terms of how the system should operate.

The Chairperson said that she felt that this issue should be presented in the Whippery meeting. The Whippery should give the Subcommittee recommendations about how to deal with these issues. She said that her view was that the rules are provided, and the implementation should be dealt with by the Whippery. Secondly, she said that the way questions and follow-up questions in the NCOP were being dealt with was based on equity between all parties even small parties. She said that she had observed that when the EFF asked a question, the EFF got the first follow-up question. The other parties get one opportunity in the House, which does not reflect on the bigger parties giving the EFF a quarter of what they are supposed to be getting. There was much more equity in the way in which questions were raised and it had been spoken about before. It was requested that the Whippery comes with recommendations on how to deal with this issue. She acknowledged the concern of Ms Mokause.

Ms Mokause responded that the matter had been discussed, and the Whippery requested that it be brought up in the Subcommittee meeting. She said that since she started in the NCOP, this had been a continuous issue. She said that it had been a constant debate between herself, the secretariat, and the Chief Whip. She said they should discuss this issue when they reached the [agenda] point of questions to the President or the Deputy President, but this was the correct platform to raise this matter and resolve it. If this issue went back to the Whippery, it would not be looked at in that meeting because the EFF was constantly being referred to this platform. She asked that the issue be dealt with at this level. She said her view was that the EFF had grown and is the third largest party in the Council and they could not be equated with smaller parties.

Ms C Labuschagne (DA, Western Cape) said that she did not understand if the EFF question was the party wanting to get a Whip. She said that recognition as a Whip was a question that dealt with the structure of the NCOP. She did not think that the Subcommittee reviewing the rules was the right platform to discuss this issue. This was related to the way the NCOP was structured and was functioning. Provincial Whips are a part of the Whippery and that has been determined by which Party is the majority in each province. She said that their involvement in the NCOP, based on what the Constitution says about the Whippery, resulted in the Multi-Party Whips, a forum where all the parties are represented. There had been a lot of back and forth for a while because, if you talk about the Whips position, it goes with a salary and many other things. This issue was not something that could be decided by a Whips meeting. The structure of Parliament comes in to play. If the Whips meeting is the first step, the Subcommittee has to take it from there. In the previous Parliament there were long discussions regarding the asking of questions. She said she agreed with the Chairperson regarding the way in which questions were being raised in the NCOP. Over the last two years it was according to rules that have not been adopted yet. If questions were dealt with in the way they used to be, according to the old rules, then there would be no point for representation in the questions - because it determines that it is the Party whose questions comes in first at the Office who have to get the questions [first].

Mr Mohai said that, along with his colleagues, he agreed with the proposal that referred the issue to the Whippery. The Whippery had adequate time to look into the matter and to review the past and how the system had been shaped. The Whippery would look at these areas and formulate a view. There were specific proposals tabled [in the Subcommittee] “that we want to enhance in terms of management and the business of the House”. He guaranteed that the matters would be put on the agenda [of the Whippery] and discussed. During lockdown certain things had changed with regards to the way questions have been dealt with.

Ms Mokause said that the Subcommittee, in dealing with the proposed item, should not forget that the Subcommittee was still discussing a proposed agenda point and that her proposal could be dealt with when the Subcommittee dealt with the questions to the President and Deputy President. She said she did not agree that the issue being raised should be taken back and forth to the Whippery, because they have exhausted all the avenues. She said that the claim of equity in dealing with questions was incorrect. She said the EFF was getting a chance to make follow-up questions, but she did not feel that the EFF gets enough questions raised on the paper. She said this was “putting the EFF in disrepute”.

The Chairperson repeated that this was not the platform for this particular discussion. The agenda for the Subcommittee on rules [is restricted to] issues around rules. The implementation thereof is at a different level. She asked Members to adopt the agenda.

Ms Mokause asked the Chairperson how she was closing this point.

The Chairperson responded that she was closing the point by saying that this point will be referred to the correct platform where it should be discussed. The implementation of rules is not something that the Subcommittee deals with. She said she was requesting the Chief Whip of the Council, along with the EFF, to be advised by the Whippery so that the recommendation can be considered by the Full Rules Committee. This Subcommittee deals with the amendments of rules and not the implementation thereof.

Mr Mohai responded by saying that he would ensure that a meeting will be set-up regarding this issue. He said that the request had been received and this matter must be dealt with in the Whippery, who can consider how to resolve this issue. He said that he will propose that changes be made through the relevant channels. He proposed of the adoption of the agenda.

Ms Mokause seconded the adoption of the agenda. She acknowledged the Chief Whip’s decision on how to deal with this issue.

Consideration of the minutes from the meeting on 26 November 2019

The Chairperson stated that the minutes were “outdated” and that she hoped that the Members who were present could agree that the minutes are a true reflection of what transpired.

Members agreed.

Consideration of proposed draft rules on: Ministerial Briefings, Budget process, Election of the Chairpersons of Committees and Motions.

The Chairperson said that Members should have received documents via email on the proposed draft rules on Ministerial Briefings, the Budget Process, the election of the Chairpersons of Committees as well as the issue of Motions. She asked Members for their input.

Ms Labuschagne said that she had strongly opposed the Ministerial Briefings in the Programming Committee. It had started in the Whips Committee and she raised questions. Ministerial Briefings started when the State of Disaster was declared, and she asked under what part of the Constitution the Subcommittee was considering this. She acknowledged what the Chairperson said about this extending the oversight role. The oversight role that the NCOP has on other spheres of government [is different] because it is not a hierarchal system. She said that there are independent spheres of government. She said that the model has been used by any party that governs. Whether it is the ANC or the DA that governs, these rules have to be applicable to all of them. She asked how the Subcommittee can say that it does oversight on provinces and local government on every issue except the oversight that deals with following budgets and the way money is being spent, as well as to ensure that policies and legislation is being adhered to or whether it serves the people. The biggest role of the NCOP, for the founding Members of the Constitution, was the legislative role, which they were fulfilling to some extent. She said that the problem with Ministerial Briefings is that Ministers and provinces come to give account and they get asked a few questions. There is nothing that indicates that a commitment is being made and no right that anyone in the NCOP can ask any province to change their year plan. She questioned what exactly they were doing in the NCOP. The NCOP was giving provinces a platform to give information, which was a noble idea, but it was taking time away from the functions of the NCOP. The NCOP’s programme has been disrupted due to these briefings. She said that it takes time away from their meetings that deal with legislation which is important. She said the DA does not agree with the idea of including Ministerial Briefings in the rules. Time is made for Ministerial Declarations [already] and Ministers can still discuss policy issues as they would in the past. She said [the proposal to alter the rules] was an overreach from the NCOP and not oversight. There was no way that the facts being brought forward by a Minister could be checked and referenced. The oversight procedure was non-existent, and a rule should not be amended or added. She said Ministers can still come to the NCOP and give statements on policy issues or any serious issues that needs addressing. Ms Labuschagne said that she supported the rule on the Strategic Plans, the Annual Performance Plans, and the budgets of departments. She said that she would like the same seriousness to be given to the legislative process. She said she would have liked to put forward the same proposal for the way in which policy assessment [was undertaken] on these reports. This would give the NCOP a strong reference point on what they are giving oversight on. She suggested that it should state the financial breakdown relevant to certain criteria to state financial implications and the implementation plan of a Bill. The Bill was a framework, and the details were determined by regulations. Bills were implemented in phases and, once passed, the Bills require oversight from the NCOP, but it did not happen. If there is no framework stating the implementation phases, there is no framework on how to make sure that the Bill and the amendments are implemented.

Ms Mokause interrupted. She stated that the Subcommittee is dealing with too many issues from Ms Labuschagne’s side. She asked if the Subcommittee could deal with the Ministerial Briefings first, so that the Subcommittee could reach a point and agree. She said that Ms Labuschagne was jumping between issues.

The Chairperson responded by saying that she had granted Ms Labuschagne the opportunity to voice her issues on the platform. She said that each Member will get a chance to voice their opinions on all the four points in the interests of time.

Ms Labuschagne continued by commenting on the election of Chairpersons. She asked whether the rule would apply to a new Council after elections when it starts from the beginning. She said there was an issue in the beginning. The Committee must elect its [Chairperson], but the procedure on how they elect had been “a band of contention”. She said that the way it was written in the rules, each Committee Member has to vote for the Chairperson—which she agreed with. She needed clarity on whether the implementation of this would result in another story. She said that on the motions without notice she did not have a problem, but there were a few grey areas. It stated only on “one substantive matter”. She asked who determined this. If the motion was about local government which was considered to be one substantive matter [that was clear], however if there were both water and electrical issues in a particular municipality, somebody could turn around and say that the motion could not be accepted because it dealt with more than one substantive matter. This was open to interpretation, and it was written vaguely. It needed more clarification. She asked who decided on what was acceptable to be proposed.

Ms Mokause said that the issue of motions was that sometimes in the House there was sometimes a back and forth between parties, declining other parties’ motions. She said that currently she was of the view that the way the Council operates, and the way parties are given a chance, was in order.

The Chairperson asked Ms Mokause if she was of the view that the draft on the rules was in order according to her proposal.

Ms Mokause agreed.

Mr Mohai said that he agreed with the Strategic Plans, and he thinks that the Subcommittee can improve on certain areas after submission by Ministers and following applicable rules. The Subcommittee needed to ensure that these matters were dealt with. The recommendations needed to be tabled and needed to form part of the policy debates. The House must be able to debate this issue so that they can point out to the Executive and, being critical, they can engage in robust discussion. The Minister must have time to respond to the policy assessments and recommendations. This is an interphase between Members and the Executive. He raised the issue of the Chief Whip and said it must be addressed two fold. The Chief Whip should be able to designate any Member who can act in an event that the Chief Whip is not available. If the Chief Whip is incapacitated the Chairperson of the Council can instruct any Member to take the place of the Chief Whip in that situation. He said it was his responsibility to know when he will not be able to fulfil his responsibility.

The Chairperson agreed that the last point was very clear. She asked Adv. Phindela if he was aware that there was a broad agreement with the proposed issues. She said that the Subcommittee must not use the rules to address each and every specific issue. A general provision should be made with no contradictions. If Members stated that they have to do oversight, and it was being done through a Ministerial Briefing, she did not see that there was any contradiction. The issue raised by the Chief Whip was the issue of programming. The time allocation must be seen to so that not one of the functions of the Council must be inhibited by the other function. She asked if the committees [of the NCOP] could agree to give a fair share of time to Ministerial Briefings so that the Subcommittee can reconcile its responsibilities and not choose which one to do. The Ministerial Briefings ought to enhance the operation of the committees because it gives them more information. In its operations through this year the NCOP had been positioned so that all spheres of government had an opportunity to respond to issues at hand. That is why the Ministerial Briefings were not a contradiction.

Ms Mokause said that she was reminded by the Chief Whip of a proposal made by the EFF which agreed with the recognition of Party Whips and that they make provision with finalising the EFF Whip to be recognised accordingly because currently they were a “by-the-way” Whip.

The Deputy-Chair responded by saying this comment was taking the Subcommittee back to the point that the Whippery should give recommendations to the Full Rules Committee and not necessarily to the Subcommittee.

Mr Mohai said that if someone was listening to the discussion, they would think that the Subcommittee was not sensitive in how they relate to one another. In the system of the NCOP there were Provincial Whips in all nine provinces. A development in what Ms Mokause was saying was that the EFF was allocated a Party Whip. The Party Whip is recognised in a broader platform of the Whippery. She was raising issues about what the Party Whip is entitled to, but that may be a discussion for another day.

The Chairperson agreed.

Functions of the Deputy Chairperson

The Chairperson said the Deputy Chairperson’s Office will take responsibility in what is termed the “Sectoral Parliament” and it was the function of the Office of the Secretary to follow-up on the Executive undertakings. This point was stipulated in terms of coordination and provided that the Deputy Chairperson’s Office was to get involved. There were many issues “falling through the cracks” because there was no control in place that ensured follow-ups, including issues raised in Ministerial Briefings. She wanted to change the word “undertakings” into “commitments”. The issue of the oversight regarding the Advisory Committee included a section about a proposal regarding an Oversight Subcommittee. All three spheres need coordination in terms of oversight.

Mr Mohai agreed with the Deputy Chairperson. He raised a concern stating that the Subcommittee needed to make provision for programme, Whip, and functions. He said standard things should be expected when they are performing their responsibilities. A provision also needed to be made for Committee Whips and their role in Committees. A standard should be set so that Committees and Members knew what to expect.

Adv Phindela said that he would “put something together” and present it in the next meeting.

The Chairperson said that the proposal should be put on the agenda. The roles and responsibility should be clear, and individuals should understand their responsibilities. She said that the rules were basic, and provision needed to be made for better functioning of the House. 

Adv Phindela said that by the time the House rose this year, the rules would be put before the Rules Committee and before the House.

The Chairperson said that the Subcommittee could commit to that and there were few outstanding issues. If one were to look into the rule book of the NCOP and look at what is happening in the House, [it was clear that] modification needs to happen in order to achieve what needs to be achieved.

Closing remarks

The Chairperson thanked the Subcommittee and said that roles and responsibilities can easily be captured.

The meeting was adjourned. 


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