Deliberations

DRAFT MINUTES OF THE NCOP RULES COMMITTEE MEETING HELD ON 10 MAY 2002 IN ROOM S 35


PRESENT:

G N M Pandor (Chairperson)
M L Mushwana
C Ackermann
J L Kgoali
Z S Kolweni
L Lever
M I Mokoela
M V Moosa
S N Ntlabati
T Ralane
T S Setona
M A Sulliman
M E Surty

Staff in attendance: L L Matyolo (Secretary to the NCOP), B Momoti, B Nonyane, J Borien, Z Adhikarie, F Jenkins, E van der Horst

Apologies: E N Lubidla, M J Bhengu


Opening:

The Chairperson opened the meeting at 10h10.

The Chairperson indicated that the format of the meeting was slightly different since it would be focussed on the issues of the NCOP Rules. All other issues such as international relations, internal arrangements, the budget, and so forth would be dealt with at a future meeting.

The Chairperson said that matters would be looked at fairly systematically so that the time was used effectively. Members were encouraged to participate as fully as possible.

Report on a review of the NCOP rules as at (as amended on 17 April 2002)

The Deputy Chairperson chaired the discussion and called upon the Secretary to the NCOP to present the report.




Rule 5(1)(b):

The Secretary referred to the proposal regarding petitions.

Mr Lever enquired whether it would be possible to have a provision allowing for the waiver of the prescribed requirements for signing petitions in certain circumstances.

Ms Adhikarie (Parliamentary Law Office) said that the phrase "unless the Chairperson decides otherwise" means that provision has been made for waiver.

Agreed that:

The proposal (as adapted from the NA Rules) be accepted.

The provisions in the Gauteng Rules relating to "Appearance before committee" and " Petitioner and others to be informed" to be included.

A provisions relating to time-periods for tabling to be considered and included, if necessary.

A provision requiring the committee which considered the petition to report to the House, to be included

Subcommittee on Review of NCOP Rules to formulate rules accordingly.


Rule 5(3):

The Secretary to the NCOP said that the proposal relates to the issue of the public's right to information.

The Chief Whip of the Council said that although it was a useful proposal, he was concerned that it would be impacted upon by legislation such as the Access to Information Act and the Powers and Privileges Act. He suggested that the measures to regulate access should be consistent with national legislation.

Mr Lever said that since it deal with rights protected by the Constitution, it would be important to be specific in the provision. It should not be "open-ended".

The Chairperson said that the phrase "subject to reasonable measures" meant that which is contained within the law. The Chairperson was concerned about a reference to national legislation because that was something that could be repealed. The Chairperson said that her preference was that the phrase "subject to reasonable measures" be retained, since that was the wording used in the Constitution.

The Chief Whip said that the reasonable measures needed to be taken in terms of the applicable laws. The Presiding Officer would exercise his or her discretion in terms of the Constitution and applicable legislation.

The Chairperson said that the Chief Whip had raised an important point.

Agreed that:

(i) the "reasonable measures" referred to in the rule, must be taken in terms of applicable legislation.

(ii) Subcommittee on Review to consider adding a qualification to the rule and to formulate the rule accordingly.


Rule 10:

The Secretary indicated that the issue was whether the functions given to the Chairperson should also apply to other Presiding Officers. She gave the example of the rotating Deputy Chairperson participating in the Joint Tagging Mechanism (JTM).

Mr Lever asked whether the issue was one that could be addressed in the NCOP Rules or whether it shouldn't be dealt with in the Joint Rules, since those provide for the JTM. The person acting in the place of the Presiding Officer would have to act with those powers.

The Deputy Chairperson said that the question was whether the powers of the rotating Deputy Chairperson can be the same as the permanent Deputy Chairperson and Presiding Officers, even before joining the JTM.

Mr Ralane asked whether the acting Chairperson has less powers or responsibilities in cases where the Chairperson and the permanent Deputy Chairperson were absent. Should the acting Chairperson not have the same powers.

The Secretary said that the rationale behind the question is that that should be the case, but that in practice we would accept that there could be an acting President, but that the acting President would not reshuffle the Cabinet. In other words, the powers that help facilitate the work in the absence of the President will be exercised, but certain functions are not exercised.

The Chairperson said that it was a question that required debate. The Constitution provided for the additional presiding officers to assist the Chairperson, not to replace the Chairperson. Since the provision in the Rules was much wider, it was a matter which the Subcommittee on Review of the Rules should consider and report to the Rules Committee.

The Chief Whip said that he agreed with the Chairperson. There was a difference between assignment and delegation of powers.

Mr Ralane said that in the Free State they had experienced a situation where the Speaker and Deputy Speaker were absent and the Chair of Chairs took a decision. The decision was found to be invalid because it had financial implications attached to.

Mr Ackermann said that he was uncomfortable with what was being suggested, since the Constitution-makers had envisaged that the rotating Deputy Chairperson would be included in the processes in the NCOP.

The Chairperson said that there were particular powers, in legislation such as the Powers and Privileges Act, which makes the Chairperson and the Speaker the accounting officers for the Treasury. Given that legislation, as Mr Ralane, had indicated, if the Chairperson of Committees was to make a decision which impacted on the budget of Parliament, the question would arise as to whether that decision had legal standing.

Agreed that:

the provision is much wider than that which is contained in section 64(7) of the Constitution. The rule envisages additional presiding officers whereas section 64(7) only contains the phrase "to assist" the Chairperson and Deputy Chairpersons.

(ii) matter be referred to the Subcommittee on Review for consideration and report.


Rule 15

The Secretary to the NCOP indicated that the problem was with the implementation of the rule because there were often times when Members were voting on behalf of their provinces, without the Presiding Officer and the Table being sure that they were legally mandated to do so.

The Deputy Chairperson said that the provinces did not forward a written confirmation of the designation.

Mr Ralane said that linked to the matter was the issue of mandates because at the moment only two or three provinces were providing written mandates.
The Chairperson said that the rule relating to designation of delegation heads and the rule relating to mandates needed to be implemented. At the moment the Chairperson only received copies of written mandates from the province of Gauteng.

The Chairperson said that a clear procedure was needed in terms of which we could write to provinces prior to each sitting at which section 76 matters will be considered, indicating that they have to provide written confirmation as to who will be the leader of the delegation at the sitting.

Agreed that:

(i) the rule be implemented.

(ii) a procedure was needed so that letters are written to each province prior to each sitting at which section 76 matters will be considered, indicating that they must provide written confirmation of who will be the leader of the delegation.


Rule 17

Mr B Momoti (Procedural Services Office) indicated that the issue elated to the fact that the definition of the word "sitting" did not include committees. There was therefore no sanction if a Member failed to attend committees meetings. The Canadian and British systems also define "sitting" as only being a sitting of the House. He said that it was unlikely that a Member of the NCOP would ever be absent for 15 or more consecutive sittings.

Mr Ralane asked whether a Member could be said to have been present at a sitting, if they only stayed for 10 minutes and then left.

The Deputy Chairperson said that the matter posed a great challenge to the Whips.

The Chairperson of Committees said that it was an operational matter which was the responsibility of the duty whips. She said that since committees were the engine rooms of Parliament, there had to be a formulation which includes absence from committees.

The Chief Whip said that there was merit in the proposal given that the NCOP did not sit in plenary very often. He said that the Subcommittee on Review of the Rules should be tasked with considering the details of the matter.

Ms Kgoali said that whether a Member was attending a plenary or was attending a committee meeting, the Member would still be in Parliament. She said that "sittings" should be defined as including committee meetings.

The Chairperson said that there was some complexity to the matter and that the Subcommittee on Review of the Rules should consider it and also the matter of sanctions for non-attendance. In a judgement by Justice Mohammed it was said that one of the weaknesses of Parliament, was the absence of sanctions.

The Chairperson said that the Subcommittee on Review of the Rules should urgently address the matters that have been referred to it and that it should report to the Rules Committee within four weeks time.

Agreed that:

(i) the matter be referred to the Subcommittee on Review for consideration and report.

(ii) the Subcommittee on Review also to consider the matter of sanctions for absenteeism.

(iii) the Subcommittee on Review to urgently address all matters refereed to it and to report to the Rules Committee within 4 weeks time.


Rule 28

Mr Momoti said that problem related to the position of the Usher of the Black Rod, since it was referred to in the Rule, but that the NCOP had done way with the post of the Usher.

The Chief Whip said that he was aware that a Joint Subcommittee was considering the issue of the symbols of Parliament and that they could possibly look at this aspect as well.

Ms Adhikarie said that some of the issues were being considered by the committee drafting the Powers and Immunities legislation.

The Chairperson said that we needed to have someone to escort persons from the House. We may not necessarily want to refer to the "Usher of the Black Rod" and may simply refer to the "Usher".

Agreed that:

the matter be referred to the Subcommittee on Review for consideration and report.

the Subcommittee must confer with other relevant committees such as the Committee on Powers and Immunities, and the Committee on Internal Arrangements
Rule 43

Mr Nonyane (Procedural Services Office) said that the issue arose from the fact that when Members are speaking in the House, they will occasionally also address persons who are seated in the public gallery. Since these persons are strangers in the House, they should not be addressed.

Mr Moosa said that in his opinion the inclusion of a provision to cater for those situations would be inappropriate and could be seen as matters being regulated to death. He said that the officer presiding was responsible for regulating proceedings in the House.

The Chairperson said that the Rule be maintained as it currently stood, but suggested that the officer presiding should remind those Members who are addressing persons in the gallery, that they should be addressing the Chair.

Agreed that the provision in the rules was sufficient. The officer presiding should however remind Members of the rule on those occasions when they have transgressed it.


Rule 47(2)

The Secretary to the NCOP said that the issue was that Members when speaking in the House often referred to public servants or public office-bearers by name. The danger was that these persons did not have access to the same platform to defend themselves or to state their case.

Mr Moosa said that it was important to look at the constitutional dispensation. There were three arms of democracy, the Legislature, the Executive and the Judiciary. The Judiciary have to regulate the Executive and the Legislature, therefore the judiciary needed to be addressed with respect.
But the relationship between Parliament and the Executive was very different. The Executive was accountable to Parliament, and that included the Director-General and civil servants.

The Chairperson said that in a committee the public servants would be able to respond. Nevertheless the Chairperson did not believe that the proposal could be accepted because it would impose a prohibition on Members. The Chairperson suggested that where Members feel that a reference was unfair, they could call for a committee to investigate the accuracy of the comments that were made.

Mr Moosa said that Members could comment on the merits of a judgement, but could not attack the integrity or impartiality of the judge.

The Chairperson said that it was a very fine line to criticise a judgement, without criticising the judge.
Me Lever said that it was an issue that needed further consideration and debate.

Agreed that:

(i) the proposal could not be accepted because it would pose a prohibition on the freedom of speech which Members have.

(ii) the matter required further debate.


Rule 61

Ms Borien (Procedural Services Office) explained that for purposes of a quorum when voting on section 75 Bills, the rules and the Constitution would seem to indicate that it would be one third of all members (i.e. both special and permanent delegates).

Mr Moosa said that he was of the view that the Constitution should be amended so that only permanent members were included for purposes of a quorum.

The Chairperson said that there was a distinction between voting on section 76 and section 75 Bills and that the matter should be referred to the Constitutional Review Committee.

Agreed that the matter be referred to the Constitutional Review Committee.


Rule 72(2)

Ms Borien explained that the votes of the provinces are not individually recorded in the Minutes of Proceedings where applicable.

The Chairperson said that it would be useful for record purposes if the individual votes were recorded.

The Chairperson added that there were a number of resolutions that were put to the House by the Chief Whip that required decision in terms of section 65 of the Constitution. In the majority of cases the provinces were not aware that the matter was being considered in Cape Town. The Subcommittee on Review should consider the matter and report back to the NCOP.

Agreed that:

(i) the Minutes of Proceedings must include the way in which each of the provinces voted.

(ii) the matter be referred to the Subcommittee on Review. Subcommittee to also consider the issue of section 65 being used for decision on "internal" matters such as sitting times etc, where provinces are not directly involved.


Rule 102(2)(b)

The Secretary to the NCOP explained that although the rules required that committees report to the Council on its activities at least once per year, the rule was generally not being adhered to.

The Chairperson said that the Secretary had to ensure that the rule was implemented by writing to committees to alert them of their obligation.

Agreed that:

(i) the Rule be implemented

(ii) the Secretary to the NCOP was responsible for alerting committees towards the end of each year to the requirement of reporting on its activities.


Rule 103

Ms Borien indicated that the issue was that in terms of its current formulation the rules only required that the Chairperson be consulted in those instances where a committee wanted to sit at a venue beyond Parliament or on a day that was not a working day. The Chairperson's permission was not required if the committee wanted to sit a time when the Council was sitting or during recess.

Agreed that

(i) the Chairperson of the NCOP was to be consulted in all four instances as set out in Rule 103(2).

(ii) the matter be referred to the Subcommittee on Review for rule to be formulated


Rule 154

The Secretary to the NCOP explained the concern regarding the requirement I the rules that the provinces would appoint members to NCOP committees, when these committees were accountable to the House.

Mr Moosa said that whilst the Council could determine the composition so that there was a uniform practice, the allocation should be the responsibility of the provinces or parties.

The Chairperson said that the Constitution provided that each House could determine its own internal arrangements and proceedings, therefore it is unlikely that provinces would object to having to nominate members of committees, and that Council would appoint members of committees.

The Secretary said that in constitutional states, the practice is that parties nominate and the House appoints.

Agreed that:

(i) the provinces should nominate and not appoint the members to committees.

(ii) the matter be referred to Subcommittee on Review for rule to be formulated


Rule 166

Ms Borien explained that although the rules provide that Bills which are to be considered by the NCOP, should be sent to the Speaker of each provincial legislature, the current practice is that these are published on NCOPOnline.

Agreed that:
(i) the rule should be amended to provide for electronic referral of Bills

(ii) the matter be referred to Subcommittee on Review for rule to be
formulated


Rule 167

Ms Borien explained that the concern was that although the Constitution did provide for the establishment of joint committees to consider section 74 Bills and 75 Bills, it did not refer to section 76 Bills. The Joint Rules did however allow for joint committees to be established to consider section 76 Bills, and this had happened on a few occasions.

The recommendation was that, if necessary, committees of the two Houses should confer when considering section 76 Bills, rather than to establish joint committees in such instances.

Mr Moosa said that even in respect of section 75 Bills, the committees should confer, rather than to have joint committees considering the matter.
Agreed that:

(i) section 76 Bills not be referred to joint committees, but that committees confer instead.

(ii) the matter be referred to the Subcommittee on Review. The Subcommittee to also look at the issue of referral of section 75 Bills.


Rule 230

Mr Nonyane explained that the rule as it currently stands doe not distinguish between Bills introduced in the NCOP and Bills which had been passed by the NA and transmitted to the NCOP for concurrence.

Agreed that:

(i) the rule needs to be amended.

(ii) the matter be referred to the Subcommittee on Review to formulate
rule accordingly.


Rule 241

Mr Nonyane indicated that the concern was that Members were not informed as to the process which follows after their motion has been adopted by the House.

The Secretary to the NCOP said that the matter could be dealt with administratively and that it did not have to be provided for in the rules. The office responsible for forwarding the resolution to the Executive, should sned a copy of that correspondence to the Member concerned.

Agreed that:

the matter should be dealt with administratively. The relevant office in Parliament to be informed accordingly.


The Chairperson said that given that Members had other commitments to attend to, the meeting should come to an end at that point. The remainder of the matters raised in the report, should be referred to the Subcommittee on Review for consideration and report.

On the request of Mr Moosa, the Chairperson said that Members were urged to attend the meetings of the Subcommittee.

The meeting adjourned at 12h30.





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G N M Pandor, MP
CHAIRPERSON: NCOP