National Council of Provinces 9th Edition
The NCOP Rules Committee considered and approved the Report by the Subcommittee on the Review of Rules. These included amendments dealt with by Fifth Parliament Subcommittee which had been finalised but failed to be adopted by the House by the end of the five year term. The Chairperson said the tabling of new NCOP Rules in the House would take place on 14 December 2021.
The Chairperson noted that the Committee was quorate.
NCOP Subcommittee Report on Review of Council Rules
Ms Sylvia Lucas, National Council of Provinces Deputy Chairperson, welcomed Adv Phindela and asked him to present the report of the Subcommittee on the Review of the Rules.
Adv Modibedi Phindela, Secretary to the NCOP, noted that the Subcommittee had agreed that the amendments dealt with by Fifth Parliament Subcommittee on the NCOP Rules should be agreed to. There were several other amendments that were considered by the Subcommittee. He went through the substantive amendments as dealt with in the report.
He preceded with the first amendment the Subcommittee dealt with on the functions of the Deputy Chairperson. It was agreed on that the functions should be included and were contained in the current rules.
Rule 15 on the functions of the Chief Whip was considered and it was agreed that the Chief Whip functions should be detailed in the NCOP Rules and the overarching provision should be drafted to allow flexibility.
There was also a proposal to include in the Rules for the appointment of an Acting Chief Whip. In certain circumstances it would be the Chief Whip who would appoint the Acting Chief whip however if the Chief Whip was incapacitated or absent, it would be the NCOP Chairperson to appoint the Acting Chief Whip.
In Rule 19 on Provincial Whips, the Subcommittee agreed that the system of appointment of Provincial Whips in consultation with Provincial Legislatures as it currently was should remain.
Rules 22 and 23 did not provide for the functions of the programming whip and it was agreed that the functions of the programming whip should be detailed.
In Rules 24 and 25 it was agreed that the functions of the committee whips must also be included in the NCOP Rules.
There was also discussion on rotating the Deputy Chairperson. This practice was found in the Provinces where the Premiers were rotating the position of the Deputy Chairperson. It was agreed that the matter would be dealt with as a matter of policy as it might require the amendment of the Constitution. The discussion had been that the position did not serve any purpose because the Premiers had never presided at any House proceedings and in most instances did not attend House proceedings unless it was the State of the Nation Address or debate. The discussion was that effectively it did not implicate the amendment of the Constitution.
In NCOP Rules 14A and 14B on the functions of the House Chairperson, it was agreed that those rules be amended in such a way that they provide for general functions of the House Chairperson. A consideration was that each National Council of Provinces may consider changing the functions of the house chairperson and thereby may detail these.
The NCOP Deputy Chairperson clarified the disagreement that was raised by the EFF in the report. The EFF had a notion that its party did not get enough time to also ask questions. The agreement was that, already with the six questions, there were almost 24 follow up questions as there were 4 follow up questions per primary question. It was merely a technical and practical arrangement. However, in the current arrangement every party was getting enough time to draft a follow up question on the primary question.
Ms Lucas noted that the existing functions in the House remain but include provision for the general functions mentioned by Adv Phindela to ensure there was a fair distribution of questions amongst the parties of the NCOP.
Ms W Ngwenya (ANC, Gauteng) said she preferred the way Adv Phindela allocated questions as it would prevent what had transpired in previous meetings. She referred to motion without notice and motion with notice. Members confused other members when they prolonged motions. There needed to be more workshops on the motion without notice and motion with notice amendments to understand them. She referred to Definitions in Chapter 1 of the Amended Rules which omitted the definition of ‘house chairperson’ and proposed that the definition be included as “a presiding officer of the NCOP elected in terms of s64(7) of the Constitution and Rule 9 of the Rules of the Council.”
Ms Ngwenya requested that the Chairperson check the timeline for ensuring that the Amendment Rules become effective without delay. She recommended that there be timelines to avoid what happened in the Fifth Parliament where the NCOP could not adopt its amendments as it ran out of time.
Mr J Nyambi (ANC, Mpumalanga) said he was ‘in line’ with the summary by Adv Phindela. He cautioned that the NCOP be mindful not to turn the Subcommittee Report adoption session into a discussion as had transpired in the Fifth Parliament Rules Committee. This process had been rigorous. He commended Adv Phindela and the Deputy Chairperson for leading the amendment process. They had correctly presented in line with what was agreed in the Subcommittee.
Ms C Labuschagne (DA, Western Cape) said she had been one of the members of the Fifth Parliament Rules Committee who was part of the process over the past few years and she was delighted that progress had been made. A lot of hard work went into the entire process.
Ms Labuschagne referred to Rule 11 which dealt with the functions of the Deputy Chairperson and asked what the functions were as Rules 4 and 5 had already stated the functions. She wondered if that was a 'performance target' rather than something that should be part of the NCOP Rules. She asked if the term ‘development’ had been used correctly as it meant something that was still in progress and suggested it be replaced with ‘utilised’. She had no problem with the content of the report.
She referred to Rule 30 on leave and said Adv Phindela had previously mentioned there had been a long discussion and research had been done on leave for more than 15 consecutive days in other parliaments of the world. It had been a ‘bone of contention’ between parties as political parties normally gave permission for leave but in the report it stipulated that leave should be applied for from the Council which was not agreed upon in Rule 32.
In the report it had to refer to s 62(4)(e) of the Constitution which made mention that those needed to be made according to the NCOP Rules that the Council itself determine. On page 41 where it stipulated in the Rules that notice of motion was to be replaced by statements by delegates, she asked if the notice of motion would be deleted and replaced by statements by delegates.
She read out Rule 93(4) “The number of members’ statements on any sitting day, the period of time within which such statements must be completed on that day and the sequence of party participation must be determined by the Chairperson in consultation with the Chief Whip”. She asked if "Chairperson in consultation with the Chief Whip" implied all the Whips. If it did not imply all Whips, she did not think that the amendment rule should be applied.
The same concern applied to Rule 99 where all the Whips should be consulted. The Whips should collectively decide on who could have authority to determine when the Minister could be present and what the content discussed should be. She elaborated that if it was oversight then the guidelines for oversight would be done by the governing party which was not in the spirit of the Constitution, particularly on representation. She suggested that all the Whips be included to address matters of representation.
She referred to Rule 174 and said the rule created a no man’s land in between and the NCOP was struggling with that currently. When the Provinces start dealing with a Bill while simultaneously the Select Committee on the go, it would be difficult to navigate that process. Standard operating procedures (SOP) needed to be finalised on how things should be done if the NCOP Rules could not be changed.
She asked who would be in charge of the register and who would have access to it. She asked the timeframe for the adoption of the NCOP Rules. Once adopted, a Rules workshop should be part of the training for the NCOP.
The Chairperson said everyone would agree that training needed to be provided. The detailed questions raised by Ms Labuschagne were important and needed to be written down. The minor corrections would be effected.
Mr S Mohai (ANC, Free State) said there were rules and consultative platforms such as the platform for approaching whips to address what programming must go to the House. These were important issues notwithstanding the clarity for the areas mentioned by Ms Labuschagne. He proposed that on 14 December 2021 the NCOP formally adopt the NCOP Rules. This will allow the new Rules to be part of a NCOP workshop early next year. Other amendments could not be brought up such as the parliament leave policy; the Rules must be consistent with other adopted policy. He agreed with Adv Phindela on the rotation of the Deputy Chairperson and that it should be retained. Attention should be focused on providing clarity on what role the rotating Deputy Chairperson would play because there had been criticism but no further clarity on the duty of the rotating Deputy Chairperson.
Mr J Nyambi (ANC, Mpumalanga) seconded the proposal to adopt the NCOP Rules on 14 December in the House as this ensured certainty, stability and consistency in the NCOP.
NCOP Deputy Chairperson response
Ms Lucas said what was agreed upon by the Subcommittee was that the NCOP Rules would be the bare minimum provision for certain actions. She said proper training or a workshop was needed to deal with the correct interpretation of the NCOP Rules and their implementation.
Secretary to the NCOP response
Adv Phindela replied about Rule 93(4) stating "determined by the Chairperson in consultation with the Chief Whip". The assumption was that the Chief Whip needed to consult all other whips. The Presiding Officer would consult with the Chief Whip and the Chief Whip would consultation all the Whips. This was what was proposed to the Subcommittee and the Subcommittee agreed.
Loss of membership and application of the leave policy were dealt with in the NCOP Rules on membership. The Constitution in Section 62(4)(e) dealt with an absent Council member. That section dealt with the application for leave of absence despite not going into the details of the application for leave.
On the referral of bills, the Bill needs to be sent to the provincial legislatures together with an explanatory memorandum for the purpose of the provincial legislature to consider the Bill and confer a negotiating as well as final mandate for voting. The Constitutional Court had ruled that if the NCOP said that public hearings would be conducted through the provincial legislatures then the provincial legislature must comply.
Technical matters such as the need for editing and cross-references shall be dealt with. The Rules were dynamic and could be amended from time to time depending on the circumstances.
The Chairperson said the tabling of new NCOP Rules in the House would take place on 14 December 2021. The technical work mentioned by Adv Phindela would be done. Training and related interventions would follow as part of the process. He thanked everyone involved in the amendment process.
Committee Minutes from 2019 were considered and adopted.
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