(SubCommittee) Proposed Amendments to the Joint Rules

Meeting report

NOTE: PMG missed the beginning of the meeting [not in the livestream]

Chapter 3
Rules applicable to virtual or hybrid joint committee meetings
Adv Benny Nonyane, Under-Secretary in the NCOP, took Members through the proposed new rules. The two houses already had rules for virtual and hybrid, but it has now been inserted into the joint rules. So, it provides everything related to virtual and hybrid sittings. In particular, the question of the venue, because the seat of Parliament will be the venue, the distribution of papers as well, that electronic papers would suffice, presiding of Member and the privileges that Members enjoy in a normal sitting will also carry over in respect of virtual or hybrid sittings. But more in particular, we have also looked at what has been the current practice that seems to be working when it comes to voting, both the raising of hands, but also taking into account technology as it is now might fail us, that those members who are unable may use voice by indicating whether they support or not, and also including the participation of the public. This rule mirrors the NA and NCOP rules regarding virtual and hybrid meetings.

Rules applicable to Joint Subcommittees

The amendment here refers to the fact that initially, it talked about the “task,” which we thought was more limited. So, the rule was expanded to talk of “functions assigned” so that it is broader. We also propose that instead of “procedure,” we talk of “working arrangements,” which are broader to encompass issues beyond just the procedure.

Chairpersons

Amendments were made to this rule. 

Rules relating to the Joint Committees

The amendment was to delete some of the committees taking into account that some of the structures within Parliament have since changed. For example, we now have the financial management of parliament, so the old subcommittee that dealt with the budget has been phased out. We also now have, for example, the PGIR, so the previous subcommittee on international relations no longer exists. So the rule was cleaned up to respond to new developments. The names of the joint subcommittees to be deleted are listed in bold.

However, Members' attention was drawn to the particular rule dealing with the subcommittee on delegated legislation. It is one of the rules proposed for deletion, but the joint subcommittee on delegated legislation is informed by the provision of the Constitution, specifically section 101, which talks about Parliament in its own rules that shall provide a mechanism to deal with subordinate legislation. Subsequent to that, in the Second, Third and Fourth Parliaments, a number of studies were commissioned to look into how best for Parliament to deal with delegated legislation. Reports were compiled, but as such, there hasn't been a clear direction as to whether, subsequent to those reports, there would be a specific mechanism that will deal with delegated legislation or whether delegated legislation will be dealt with by the respective committees depending on which committee specifically that delegated legislation relates to. So due to the fact that this committee has not been functioning for some time, this was one rationale that informed the proposal to this committee that this subcommittee be deleted. On the other hand, we still have some legacy issues relating to delegated legislation, such as which structure will be driving that aspect if we do away with this subcommittee on delegated legislation.

More specifically, section 146 of the Constitution gives the NCOP a unique role in determining where there is a dispute between national legislation and provincial legislation. So as to a mechanism to deal with that, should this committee then also go ahead and thrash out all of those contained in the report and then make the necessary recommendations on how to deal with those matters? These are the broader issues this committee needs to consider when they pronounce on whether we should have this [delegated legislation subcommittee] or do away with this as proposed.

The next committee proposed to be done away with is the joint subcommittee on powers and privileges. The subcommittee must deal with any matter affecting the powers and privileges of Members arising from joint business refer to it by the Speaker and the Chairperson acting jointly and must deal with any matter affecting the powers and privileges of Members arising from joint business refer to it by a Member or Members and may deal with any matter relating to the powers and privileges of Members arising from joint business on its own accord. Particularly in the National Assembly, a specific committee, for example, includes when members have been removed from the House. So, the joint powers and privileges will be one of those committees that will then be seized to deal with those matters.

The next substantive change was to the joint programming committee, mainly around the deletion. We have since worded the rule, particularly when it deals with a composition in both a component of the NA programming committee and the component of the NCOP programming committee, which will form the joint committee. Therefore, we felt that having the composition in the joint rules was unnecessary.

The next substantive change was with respect to the rule on the constitutional review committee, particularly the addition that the constitutional review committee must consider and submit to any bill amending the Constitution referred to by the Speaker or the Chairperson. Usually, the mandate of this committee was to review the Constitution annually and, as such, go through all those processes. But we are now proposing that there be this insertion that the constitutional review committee may as well look into any bill that amends the Constitution referred to by the Speaker or the Chairperson.

Mediation Committee
Adv Charmaine van der Merwe, Senior Parliamentary Legal Advisor, explained the concern was that we didn't have a clear starting point. We also have the challenge of the rule about the established mediation committee. But that is not the case. In practice, there are a lot of practical challenges. If we regard a mediation committee as a single committee within Parliament, the legislation they must consider may be very complex, especially if there's a dispute between the two Houses, that the issues involved may be complex. You actually need the Members who have been a part of the process to consider and discuss. So the proposals that we make with respect to the mediation committee are to indicate that there will be a mediation committee established per bill. In other words, when it is required, there will be this establishment. And then, of course, it must be done as soon as reasonably possible. Once established, we have that bill referred to the mediation committee, and the Constitution's timelines will start to run. So it is just to make it very clear what the actual process is so that we don't have a situation where it is unclear and we don't know where this committee is, when it is happening, and so on.

The new rules 139 and 140 simply build on that with more consequential amendments because there's a new rule. With respect to the new rule 142, it is just to indicate that your referral is for mediation, and it will be per committee they will be able to refer. The next rule, 143, is a consequential amendment based on definition changes. The new rule 144 clarifies that section 74 prohibits a mediation process. However, both houses are involved. Both the House's decisions are very important as they are constitutional amendments; therefore, it is understandable that there should be a mediation process. However, when we look at decisions in a committee, this is clearly not what section 74 requires. But it is a committee that is making a decision. So what we're trying to do with sub Rule three is just to say that in the mediation committee, this will be the decision process, even on section 74 bills, but when we get to the house, there will be voting majorities required by section 74 that will be applied. This is also the practice in committees, where a simple majority carries the vote, but once it goes to the House, the majority is required by section 74.

The proposal is to combine part 9 with part 14 ad hoc committees. So I will speak to it under Part 14. So, at this point in time, our proposal here is for this part to be deleted simply that this committee, which is a joint committee that will be considering legislation, which is required by section 45 of the Constitution, is, in effect, an ad hoc committee. It is something established for a specific task. So, joining part 14, which deals with ad hoc committees, allows for a bit more flexibility.

Part 14: Ad hoc joint committees
Adv van der Merwe explained that this part makes provision for joint committees to consider section 74 or section 75 legislation. So all we have done here is actually just put in things that weren't in the ad hoc committee part so that it is clear that it now provides for both legislative-type bodies and other ad hoc joint committees. Timelines were also proposed for the ad hoc joint committees. The rules allow local governments to have a representative on that committee, although they cannot vote.

Part 18: Joint Tagging Mechanism (JTM)
Adv van der Merwe explained there have been a few changes to this section because of changes in judgments and legislation. It is proposed that the joint committees on legislation utilise the JTM to decide whether a bill should be considered in a joint process. It is something that has a bit of a discomfort to it; the Constitution requires us to have it, but we have been given so many hidings by the courts that I think we all are a bit cautious about that process. So the proposal is that a technical body must consider whether a bill is suitable. It shouldn't just happen out of the blue; if the Minister asks, Parliament must comply. The proposal is to have a technical body, like the JTM, decide after consultation with certain bodies.

There is a proposed deletion to the mixed bills. the rationale is simply that the courts have made it clear that if a bill is mixed, it is a 76 bill, and that basis must be proceeded with. It’s not a process that we've been using. When the executive has introduced legislation, they would rather do a first and a second amendment bill and split the bills themselves. But because there is no need, where even one clause falls in Section 76, the courts have said that the whole bill becomes a 76 and must follow that process.

On subrule 4, we are proposing the removal of the phrase “not bound by any legal advice”. The problem with that is based on strict interpretation; if something is included in one part of a section and not in the other, it is irrelevant. So it is not necessary to state that the JTM is not bound by legal advice – advice, by its very nature, is not preempted. So the proposal is to delete the phrase - it is superfluous and administrative in nature and just causes interpretation challenges.

The next change refers to the joint process, saying both houses will consider a finding from the JTM. It's not binding and must just be carefully considered. Any joint consideration requires a lot of caution, and there need to be a number of decisions before that happens.

Adv Nonyane brought the Committee’s attention to the committee on security services and changes to their oversight, so the proposal is to delete that rule.

Joint Standing Committee on Defence
Adv Nonyane said the secretaries of the two houses requested that this matter be deferred to a later time, considering several issues need consultation. They can present it to the Subcommittee only after the consultation.

Joint Standing Committee on Intelligence (JSCI)
Mr Nathi Mjenxane, Parliamentary Legal Advisor, took Members through the proposed change to the rule regarding the inclusion of “special oversight report”, which means a report prepared by the Inspector General of Intelligence on the request of the committee when the committee deems it necessary for the purpose of executing its constitutional mandate of oversight over the intelligence services as contemplated in the act. And the Act would be the Intelligence Services Oversight Act.

The next amendment is the proposal of a new clause: the chairperson may request that certain matters decided in his or her absence be revisited within a reasonable time of such decisions if the chairperson believes it is reasonable and necessary. The intention behind this proposed amendment is that where the chairperson of the Joint Standing Committee of Intelligence is unavailable, a deputy or an acting chairperson be appointed to preside over meetings of the JSCI. However, because the Act does not provide for an acting chairperson, when on the return of the chairperson, in terms of the Act, the acting chairperson then briefs the appointed chairperson (in terms of the Act) and appraises the chairperson of the decisions taken in his or her absence. So the proposed amendment “tones down” the rule so that the acting chairperson only must appraise the chairperson on his return, without necessarily the chairperson having the power to ratify and almost test processes from scratch when they have progressed well.

The last proposal is related to the lawmaking powers of the joint committees. It was a general proposition or request of the Joint Standing Committee on Intelligence to be considered by the Rules Committee that the joint committees be granted the procedure, in terms of the joint rules, to process legislation referred to the joint committees, in terms of the rules. With respect to this, it must be noted that section 45 (1) (b) of the Constitution provides that joint committees have the authority to process legislation that is referred to them. The limitation of a joint committee is that they cannot introduce legislation in the two houses. However, it is anticipated, or at least envisaged by the Constitution, that joint committees may process legislation referred to them. Now, the Joint Standing Committee on Intelligence, a specialised committee that oversees intelligence services, considers itself the best committee to legislate in the intelligence services area because it would benefit from oversight of the services over time. However, regarding the rules, as they currently pertain, it cannot process legislation. This is the background to the request of the JSCI that the joint rules be amended to provide for a procedure for processing legislation referred to the joint committees.

Joint Committee on Ethics and Members’ Interests
Adv Anthea Gordon, Acting Registrar of Member’s Interests, said the proposed amendments are not substantial changes but are more administrative matters. Having looked at the committee's composition, in joint rule 165, the old rule made provision for 14 Members of the National Assembly to be allocated, but having looked at the background. Where the number 14 came from, it appeared that the number 14 was a legacy number from previous parliaments when the portfolio committees of the National Assembly were comprised of 14 members. So, with the incoming of the Sixth Parliament, we still had 14 members of the National Assembly, who comprised a part of the ethics committee. Now, of course, we know going forward into the Seventh Parliament, all sorts of nuances may affect how the portfolio committees are constituted. It would be incorrect for the ethics committee to be comprised of 14 members, give and take, as we are uncertain how the National Assembly portfolio committees will be structured going forward. On that basis, the recommendation is to align the structure of the ethics committee to how joint committees are usually structured. And that would be in respect of the NA component, the proportional representation. So the wording in joint rule 165 (1) (a) would now be that the joint committee consists of members of the assembly, taking into account substantially the same proportion as how they are represented in the assembly. What remains the same in this rule will be the nine members allocated to the ethics committee from the council because that would take into account the structure of the nine provinces, so we propose to remain unchanged.

The next amendment would be to joint rule 165 (2), where the council chairperson normally appoints the council members to the committee. The rule currently states that it would be based on the parties or provinces, but we all know that the chief whip of the council would do the allocation. So that takes into account how the committee's representation is done.

Joint rule 166 is just a cleanup as well. The Joint Committee on Ethics and Interests must appoint the chairperson, so the chairperson is not necessarily elected after the elections when the committee is constituted. The election procedure occurs, but co-chairpersons will be appointed according to the joint rules.

The proposal to joint rule 167 is not substantial and changes how the rule reads for a better flow. The joint rule provides that the Joint Committee on Ethics needs to implement the code, we need to develop standards, and then we need to regularly review it so that when one reads it, one now gets a crisp understanding of what it is that the Joint Committee on Ethics is required to do in respect of the code. The new proposed insertion is that the committee acts as an advisory body, and we perform the functions provided in terms of the code. So nothing has changed, only the swapping of the subsections.

Joint rule 170 (1) refers to alternate members. This provision has never been applied due to the nature of the ethics committee and its confidentiality, meaning there cannot be alternate membership. Members are sworn into the ethics committee, so having alternate membership would disrupt the committee's intended flow. The recommendation is to delete “alternate member” and only make provision for the number of members we would have in terms of the new joint rule 165.

Parliamentary Group on International Relations
Adv Nonyane said there aren’t any changes to the rule but brought to Members' attention that the Joint Committee on HIV and AIDS is currently not operating, so the proposal is to delete this structure from the rules since those matters are now ceased by the committee's dealing with health.

Minor changes were made in respect of general ad hoc joint committees to do with a resolution or a decision, establishing an ad hoc committee for consideration of a bill that may include, for example, their timeframes for the reporting on progress on the bill. this will assist in enabling whatever House the bill is supposed to come to after this ad hoc committee to at least they can plan based on the committee's proceedings and report. Challenges were also made to enable ad hoc joint committees to be established at any time and not necessarily when the Houses are sitting to allow for urgency when required. Changes were made to the composition.

Chapter Four
Joint Rule 159: 2 proposals
Adv van der Merwe explained that joint rule 159 dealt with legislation on its way to Parliament. There was a concern that because departments don't always submit this notice in time, it stops them from introducing legislation and causes delays. Sometimes the notice comes at the very last minute, or the bills differ. So the one proposal was to actually delete this requirement. The other proposal was to say there is value in getting this information because it allows for planning, so it’s best to make it stricter. So, the one proposal is to delete most of the joint rule 159 but to place more requirements on the leader of government business regarding reporting to the programming committee and communicating with other committees. The second proposal is to make it stricter and apply to private members' bills. It should be changed so that it is not after cabinet approval but after certification, because certification sometimes delays bills for a lengthy time. So, making it stricter requires more information to clarify what is happening with that specific bill. Then, just put caution in that if it is not submitted, it does not stop the introduction of the legislation. However, it may affect the scheduling because the committee does not have time to program. The proposal is for the Speaker to require an estimated date and place the same requirement on the leader of government business so that there's more communication with the joint programming committee, quarterly reports and liaising with the actual committees.

The next part is part two, the classification of bills. One of the things that we propose is that more is said about constitutional amendment bills. this is not the type of bill that often comes to Parliament, and it is perhaps something that could be easily overlooked. More explanation and a stricter definition of what is required for constitutional amendments must be provided. So that is part of what we propose with respect to the rules relating to what the JTM must do, i.e., pre-introduction consultation and the matter of joint consideration of legislation.

Legislation has affected the rules relating to the join tagging mechanism—the rule referencing the Traditional and Khoi-San Leadership Act will be changed as it has been referred back to Parliament.

A proposal is to explain Money Bills more clearly, as with constitutional amendment bills.

Chapter three also dealt with the issue of the deadline for introduction [of Bills], and while we can't refuse a Member to introduce legislation, we can determine our program, which is what the courts have found. So we propose deleting this because we can't say that a bill is out of order because it is introduced late – a member is entitled to introduce a bill.

Part 3: consideration of Bills by Joint Committees
Adv van der Merwe said section 45 of the Constitution requires us to have this, and what we are proposing is to just make it a bit clearer, explaining a bit more of the processes and that other parts must be read with this. The referral will be by resolution or by the presiding officers. section 45 [of the Constitution] says only 74 and 75 bills can be referred, so we make it very clear that it is necessary for the joint tagging mechanism to first make a finding on classification. Only then can we have this referral for a joint committee - section 76 may not be referred. We provide that the joint tagging mechanism may be consulted when making this determination as there will be some political reasoning. So, it allows for hearing of views in a joint meeting if there is an s75 bill, for example, that may touch on some provincial issues and the bill is completely technical in nature. This could speed up the process, save on costs, etc.  The only bills that actually remain as urgent are constitutional court order bills where there has been a suspension but keep in mind that it has to be 74 or 75, likely 75. There are safeguards such as consultation and decision-making, so it’s not something that’s just “up for grabs”, and it’s not something that has to be made use of, but it must be there, so the proposal is to have clear rules for the process and gives some guidance.

Regarding the process in the committee, we've just made it clear there is no longer discretion on public comment; it must be there. The Assembly rules make very nice provisions for a process in a committee on a section 75 bill, so we borrowed from there, of course, adjusting a bit. So to say that there must be a motion of desirability when to do further amendments if it’s a Member’s Bill, involving the Constitutional Review Committee if it’s a 74 bill, involving the JTM regarding the classification of the bill and making it clear that s76 bills can’t be dealt with by a joint committee.

We’ve also borrowed from the Assembly rules dealing with section 75 bills relating to specific separate formal stages, discussing the subject of the bill, the motion of desirability, public comment deliberations, formal consideration, consideration and adoption, just giving some clarity on how things will work. The rule also speaks to the reporting and what goes back to the two Houses.

According to the Constitution and the case law, the two Houses can receive a briefing together, participate in public, deliberate on the bill together, adopt the bill, and make a recommendation to the Houses together. Still, when it comes to voting in the Houses, the Constitution requires things to happen in a certain sequence. So, concerning 74 and 75, the Assembly must consider the second reading first and then transmit the bill to the Council. So the rule makes this very clear so that you don't have an accident where perhaps the Council reads the bill first, and the House hasn't passed it, and then we have a constitutional challenge.

If it happens that this committee cannot reach a consensus, the idea is that there will then be a report, and then the bill will proceed the normal way; in other words, it will first go through a portfolio committee will consider it, it will be passed by the Assembly and then go to a select committee will consider it and then passed by the Council. So if they cannot agree, the rules were expanded to say that if the consensus is in respect of either clause of the bill specifically, on an amendment that is referred or to adopt a report on the bill itself, then the committee reports to the Assembly, because remember, this is a 74 or 75 bill, so the next step in the process will be a legislative step to be taken in the Assembly. So we propose that the rules require that the report clearly indicate the cause of the failure, what they agree on with respect to the bill, and what steps have been completed. This is because the Assembly may then consider this report and refer the bill to a committee per the Assembly rules, and may indicate the stage from which the bill must proceed. So say, for instance, the public participation has been done, everyone was satisfied with it and agreed on where we need clauses to be changed, and we just have a problem on one of the clauses the wording on one of the clauses. It is unnecessary in the Assembly for that committee to restart the whole process; they can simply proceed from deliberations on the bill and consider those amendments.

Then the next part deals with constitutional amendment bills. We propose a new rule - pre-interaction consultations. Because it doesn't happen often, it is such an important bill if the Constitution is amended, so we must be careful about complying with these procedures. We propose that the joint rules just indicate how the two houses work together, who submits what, what the next process is, and so on. So, in other words, when a Bill is not to be passed by the Council, the Council needs to be notified that this bill is coming. If that happens in the Council, the Chairperson notifies the Speaker because it's also a requirement that the Council has a public debate on that bill, so then the two Houses are aware of what is happening. And then the second rule is what you must submit as the Constitution requires regarding submissions.

This is the other problem that we have - how can the joint tagging mechanism make a decision on whether a bill is constitutionally in order if it is not given the information on whether section 74 or 75 has been complied with? So, the proposal is to ensure that the joint tagging mechanism gets the necessary information. There would also be a requirement for notice in the ATC on written comments received with a link to the documents. the public debate can only be scheduled in the Council once the JTM has made a finding because the person introducing it might say that this bill doesn't have to be considered by the Council. The JTM may make a different finding, and the public debate requirement disappears. So, that whole rule deals with section 74 and how it should be implemented between the two houses.

If a constitutional amendment specifically affects a province or provinces, that province or provinces must approve that part of the bill. The proposal clarifies this rule by referring to the Constitution's wording.

We just made consequential amendments to joint rule 177 regarding the new rules relating to the mediation committee.

Further consequential amendments were briefly outlined.

Part 8: Bills referred back by the President
Adv van der Merwe said the first proposal is that if a referral by the President is not clear, we propose it be included specifically in the rules because there is such uncertainty about section 79. Some interpretations are very, very strict, and that could prohibit some actions from being done. Section 79 allows the two Houses to make provisions in their rules for the process to be followed. So we propose that we just make it clear that if something is unclear in the President's referral, we could ask for clarification. For instance, on the copyright [bill], the body of the letter refers to one clause, whereas in the end, the actual referral refers to another clause. Now, we could figure it out in that specific referral, but that is a type of thing that could happen.

We are limited to the reservations by the President, but if a reservation specifically refers to clause four, but if we accept that we will also have to make changes to clauses nine and 12, but this is not in the referral, then, of course, we need to make it as a consequential amendment. It’s almost stating the obvious, but there are some challenges to interpreting section 79. On a strict interpretation, we must provide for these matters in the rules and make what was done with that bill absolutely transparent. So when the committee reports, it must clarify what steps were taken and not what they will still do, to address the defects. The report must indicate due consideration to public participation. There was the Performing Animals Protection [bill], where the only concern was the quorum issue in the NCOP.

We propose that the current rule be deleted and replaced with something else on non-procedural defects. When we look at Section 79, a number of bills need to be referred to the Council, including Section 75 bills where the process affects the Council. And in our view, even if there is a rejection of the President's views in the Assembly, that still has to be referred to the Council - we can't just stop the process in the Assembly, because section 79 requires both Houses to participate. The rules do provide for conferral, but if we look at the court cases with regard to the role of each of the Houses, the court has made it very clear that one cannot rely on the process of the other. So our proposal here is then to make that very clear.

If there is a disagreement, we need to have a mediation committee. Remember, in this process, even though it's reservations from the President, we still have the two Houses playing full legislative roles, and the NCOP must be able to differ from the NA; and how to resolve that difference through mediation, so this was brought into the rules.

Part 9: Time limits
Adv van der Merwe said the next part deals with time limits, and we are proposing the deletion of fast-tracking. Joint rule 214 refers to exceptions, so we just made it clear that it's subject to them. We are proposing some time limits. The months inserted were just proposals, so we also need some guidance from the committee. When I did present on the themes, I provided some statistics. From the statistics, we could see that on section 75 bills, more or less, this would be a reasonable number of months, and on 76 bills, more or less, it would be a reasonable processing time by both houses. This is, again, something that is required by the Constitution in Section 45. So it's a bit difficult to set time limits for legislation. We’ve been so often told by the courts that we can't rush the process, et cetera. However, section 45 also requires that we do this. The joint programming committee must consider extensions or a specific subcommittee established for that purpose. But if neither are sitting, then the Speaker or the Chairperson may grant that extension. We don't want legislation to fall foul of the rules, just because a committee is not sitting.

So on fast tracking, as I’ve said, it's very difficult to speed up or set a limit for how soon something must happen on legislation. We have so many constitutional requirements, and over the years, they have been expanded on by the courts, making it increasingly difficult for Parliament to act in haste. There are other ways of dealing with legislation faster - bills can be prioritised, committees can sit faster, we can look at the conferring of two committees, et cetera. So we are proposing that we rather do away with the rule on fast-tracking - it hasn't been used in the past. When we discussed this with the support team, we couldn't remember when last a bill was fast-tracked. So the proposal is for this simply to be removed; it is too risky.

Part 10: General matters concerning the legislative process
Joint rule 217: designation of members to be in charge of Bills in the other House
Adv van der Merwe said this is not something that is used. In the National Council of Provinces, the phrase “member in charge of a bill” doesn't even appear [in the rules]. Members of both Houses are welcome to address a committee of another House, so there is no need for this rule, and we propose that it be deleted.

Regarding the distribution of copies, we propose that “a permanent Member of the Council” be permanently deleted because all members of the Council should be able to get copies. Then, we propose adding an electronic copy. the reason for that is simply that as we are working now, we rarely have the distribution of hard copies; hard copies are available but not distributed. You can always ask for one, but distribution happens electronically. We are proposing that this paragraph be deleted. The documents accompanying a bill on introduction are a certificate and the publication in the Gazette, and we're not even aware when that could ever have been distributed. So, just to align with practice, it is proposed this section be removed. It is not something that is required for Members to be able to prepare for the legislation.

Amendments were proposed to what must be announced in the ATC when a bill is introduced, and it is proposed that these first two paragraphs be deleted. They could still be included, but the way that they're worded here seems to be separate requirements. So we propose that this is removed here, but it will still happen.

Joint rule 220: Language requirements
Adv van der Merwe relayed that there were some concerns from the Bills Office that this does not happen and the office needs to “massage” things behind the scenes to ensure that the second reading of bills is not delayed. So, we propose that this is removed. We still will have something to say when the Bills go to the President for assent; there must be an official translation. So it will still happen. But we just give a bit more time for that translation to happen. Remember that this language requirement does not relate to public participation, we must differentiate that the language requirement here deals with the legislative process, in other words, when the bill can be read a second time. Public participation is dealt with in a separate policy, and it is absolutely a requirement that it needs to be translated; those translations are dealt with in a different way. This rule refers to an official text, and there are very specific requirements for how that is done.

Joint rule 222: Subsequent amendments
Adv van der Merwe said there are two challenges here. The first is that we want legislation in all official languages. On the other hand, we also need legal certainty. So if a bill is introduced in language A and translated into language B, we cannot have an amendment in language C, because the nuances and phrases are different, and you cannot read the one with the other without a translation. So for that reason, we need clarity. And that is the proposal that we then make here to say that the official language must be the same language as the official text, and any translation must be the same official language as the language of the official translation. Still, we propose that we make it very clear that bills may be translated into other official languages to give effect to Section Six of the Constitution. Once this has been done and a bill has been translated by Parliament into languages C, D, E, and F, your official translation may be in any of those languages. So then that removes the need for the subrule.

Discussion
The Chairperson thanked the team. He got a sense that rule 159 was rushed a bit, and it's quite critical as it creates the genesis of both the opportunities and problems, and so much flows from it. He hoped the members would follow that because the committee needed to pay particular attention. In most cases, the Executive is given “hospital passes” by the Assembly on many issues at the 11th hour, and rule 159 assists Parliament in dealing with that, so it’s quite material, but it was reviewed quickly. He said much was covered, which was very important, and he hoped that the Committee would not just want to tick the box and rush through anything. But the team might have to come back on rule 159. He invited Members to contribute to chapters 3 and 4 of the joint rules.

Mr H Papo (ANC) asked the rationale for some of the amendments relating to the Joint Standing Committee on Intelligence because a bill is currently undergoing public hearings to amend that area. Can’t we wait for the bill to be passed, and then we then amend [the rules]?  That area of work operates differently from other committees because Members have to be vetted to be in that committee first for security clearance. The committee is also different because it runs its affairs in a confidential environment, particularly when it presents operational matters. So what is the rationale [to amend the rules]? The rationale will then inform whether some of these amendments are necessary for that work area. Also, was the committee chairperson consulted to get his opinion on these intelligence matters?

Regarding section 75, the rules must speak to one-third and not a quorum, which is not explained.

On joint rule 117, we should delete the joint subcommittee on delegated legislation as committees must deal with delegated work when required and not through a joint subcommittee. It may be necessary that the two Houses deal with legislation jointly if the bill doesn’t affect provincial affairs, so this should be expressed in the rules.

On joint rule 202, he asked if three days were enough for the JTM or if it should be increased. This area needs some work.

He repeated the need to know the rationale behind the rule changes to the joint standing committee on intelligence, noting that accountability in the intelligence space happens in a particular manner, which is generally accepted. The politicisation of defence and intelligence is very dangerous for any country.

Ms C Labuschagne (DA, Western Cape) responded to Mr Papo that the rules were being amended to allow for joint standing committees, of which the JSCI is one, to deal with legislation. At the moment, the JSCI has formed a joint ad hoc committee, as prescribed in the rules, to deal with the Gilab Bill, but perhaps clarity was required regarding whether this is actually what the proposal seeks to amend.

She turned to the rules on the mediation committee and outlined her concern that rules were being created for efficiency but for something that had never been dealt with in Parliament until last year. In the process, we must just ensure that we are not creating a bigger problem for ourselves in the future. While she understood some of the motivations for changing these rules, the mediation committee is dealt with in the Constitution under Section 76 or 78, where the Constitution discuss the processing of bills. According to her logic and understanding, it's been put in there because the mediation committee is not for any other mediation except if the two Houses differ on a specific legislation or a bill. Therefore, it's been put in there and how it must be put together where the compilation of the mediation committee is described in the same way that the Joint Standing Committee on Intelligence and the Joint Standing Committee on Defense have been described in the sections were in deals with the security of the country. Therefore, a mediation committee is standing in the middle because it's part of the process of speaking about bills. In the old rules, and something that started this whole chicken vs. egg conversation, whether the mediation committee should be established at the start of a term or a year, or only if there is a bill. If she understood, all joint standing committees, including the mediation committee, were established at the start of a term, as the Constitution prescribes. In the existing rules, if there is a difference, a bill must be referred to the mediation committee within seven working days after the Assembly or the Council has rejected the bill. So that rule has been there all these years. Parliament has never dealt with any bill that needed mediation and was caught off guard and didn't know what to do. From what she understood, the rationale was to establish the mediation committee and then refer the bill instead of having the committee established at the start of the term. It is a question of interpretation, and she was concerned that, given the changing political context, more bills might require mediation. Civil society has become more active and taking part in processes, rightfully, and any coalition could influence how bills are voted on, especially in the NCOP.  She was concerned that something was being created which could create a bigger problem. It has been over a year since the Gambling Bill was referred for mediation, and no committee has been put together to prevent it from lapsing. She was concerned that if three bills were sent for mediation, three committees would have to be established and deal with differing timeframes besides the normal schedule.

She noted that it should be remembered that in the NA, committees vote on the majority, but in the NCOP, there is provincial voting on s76 bills.  

Dr G Koornhof (ANC) thanked the staff, officials and advisers for their presentation. In his view, the joint rules were being technically cleaned up to align with the current rules of the Houses. Regarding joint rule 75 (2), he recommended using one-third as a minimum for a quorum. 

A decision needs to be made on joint rule 79 (5) regarding whether minority views would be included; he personally did not have a problem. 

On the Joint Standing Committee on Intelligence, he questioned whether these rule amendments were required now because we need to consult with the members of that committee, especially the political leaders in that committee, and to make sure whether there is indeed a need for a process for legislation and whether there is a need for a special oversight report by the IG of intelligence. we may want to flag that and not immediately decide on it. But just to consult, which can still be done before the end of the Sixth Parliament.

We have always had a problem with a quorum on the Ethics and Members’ Interest Committee. If his calculation was correct, he said 13 members were needed for a quorum, which is quite substantial. Members of the Ethics and Members’ Interest Committee have other committees they serve; historically, that’s always been a problem. Given the current proposal on the membership, he asked what the quorum would be.

On joint rule 159, bills referred back by the President, he said it seemed to be an improvement, but he would have a closer look at it.

He asked about rules for mechanisms for committees to process legislation together unless he missed it. Should this not be part of the joint rules if not presented?

Prof A Lotriet (DA) was also concerned about not having a standing committee for mediation established at the start of the term, as mediation might need to occur more often. 

Regarding chapter four, some direction from this committee was required regarding submitting bills, where two proposals were made. She thought that the stricter of the two is better, so there is more pressure and responsibility on the introducer of a bill if she understood correctly, and that the leader of government business is also then tasked to oversee this process of making sure that we don't sit at the end of a term with a whole raft of bills that have to be processed. So I think I would go for the stricter option there.

She was also concerned about how two committees would look at a bill jointly and how this would work. She was concerned that the mechanism could be used for expediency and not for the two Houses to interrogate the bills independently. She was unsure that the safeguard that the Houses would vote on the Bill separately at the final stage was enough to avoid influence. She was in favour of separating the two Houses when dealing with bills. 

Adv Nonyane responded to the joint committee on delegated legislation and said the direction was clear and that this should be removed.

Regarding the one-third quorum for decision-making, Adv Nonyane said this direction was appreciated

Adv van der Merwe said the rule was still there so the Houses could consider legislation jointly. The proposal is that part 9 of chapter 3 be deleted, but part 9 should be pulled with part 14, which deals with ad hoc committees, to add the issues related to legislative committees. The reason for this is that part nine specifically required that the committee be the portfolio committee and the select committee, but there may be a reason to have other members sitting in on this joint process, which ad hoc committees allow for. Pulling part 9 into part 14 is the proposal that makes better sense because it makes provision for a type of ad hoc committee. Section 45 of the Constitution requires this to be provided in the rules.

Adv van der Merwe responded to Prof Lotriet’s question on whether this rule can be abused. Yes, anything can be abused, but the proposal is to expressly provide for some processes, starting with the JTM and its consultation. The JTM would then need to make a finding, and both houses must resolve whether such an ad hoc committee can be established. It is doubtful whether there would be many bills that qualify for this. She used the example of the Correctional Services Bill, where the processes in the select committee repeated the portfolio committee process with the same submissions. Neither committee made any amendments, and the bill had a deadline. The rule prescribes a very careful decision-making process.  The rules also provide for cases where the two Houses don’t agree on where the normal legislative process will proceed, House by House. Those are the safeguards.

The next question related to the three days on the JTM—Adv van der Merwe said that in practice, it is not three days, and the legal services office often advises on seven working days because these decisions are not easy. Each clause is carefully considered because just one word can render that entire bill that was proposed as 75, to be 76. And it has happened more than once.

In respect of mediation, Adv van der Merwe agreed that the National Gambling Bill has been hanging for quite some time. And I don't think it's a parliamentary problem that the Bill hasn't been referred to. I think that there's a political problem. There's simply so much wrong with the bill, in practice, and what is wanted for the bill to achieve, and I think that is more of a concern than what has happened. Parliament has done more than one mediation before. I think that, during my time in Parliament, I know of about two or three bills referred for mediation. In each of those instances, the mediation committee was established within a few days of the bill being referred, the mediation committee had the meetings, and they reported on the bill, exactly as provided in Section 76. So it is something that has happened before. The mediation committee is established at the time that the need arises. Looking at the Constitution, the way section 78 reads is very confusing because it speaks about “the” mediation committee as if it's already established, which makes it very difficult. Of course, that is a decision for Parliament to make, and if the decision is that we need a mediation committee at the outset, then we can make that choice. However, we have seen in practice that it is more practical and more efficient to have a committee that has already considered the bill and knows the content and the issues, making it much easier to reach a decision in 30 days.

Regarding the proposal to joint rule 159, Adv van der Merwe said the proposal is to wait until certification. What happens is that the state law advisor’s office must certify the bill, and very often, the bill is referred back to the department with concerns. Often, the bill lies with the state law advisors’ office for a couple of months, sometimes even a year or more, and that certification process causes significant changes in the bill. Because if there's a concern with the concept, that whole concept has to change. So the proposal is to wait for certification, and while this impacts the time to plan, to counter that, there is a proposal to also indicate when the bill will be introduced. The other proposal is just to bring parity because Private Member's Bills at this point in time do not have any requirements for this submission. We currently use Assembly Rule 276, which seeks publication to make that announcement so that there is some notification to committees just to include them as well. And then we have a proposal to give more of a role to the leader of government business because, remember, most of the bills are executive bills, and that is where we need more cooperation and more information. So, there may be quarterly reports to the programming committee, and the leader of government business may facilitate ministers per committee to give regular feedback on bills that are being planned. So, in other words, their committees are regularly updated on both they can expect in the next quarter. And then lastly, what we propose is that if there is no submission, then they cannot introduce the bill. And sometimes this is a challenge where the bill is urgent, and you're just not getting the Minister to sign. We then add a rule to say that this does not prohibit you from introducing the bill but may affect bill scheduling. The proposals make the process stricter and more streamlined.  

Regarding bills referred back by the president, Adv van der Merwe explained that what was done was to look at the challenges. Section 79 is quite stark in what it says, it is very limited, but it does say that the rules must provide for the processes. So we simply indicate that we should provide more information about our processes. Also, let's comply with 79 regarding the role of the two houses. So the rule expands on the role of two Houses and indicates exactly what can be amended e.g. practical or technical amendments, quality of legislation, not opening up other substantive matters or consequential amendments. The rule also speaks of the reporting requirements of committees to speak of past tense on what was done, giving more information and ensuring the processes of the two Houses are aligned.

Adv Gordon responded to the issue of the ethics committee quorum, explaining that the current rule makes provision for the nine NCOP and 14 members of the NA, so the current size is 23. The recommendation is to revise the committee's size to align with the proportional representation of how it's determined in the seventh parliament. For instance, had it been that that rule made provision for proportional representation in respect of our NA component, it means that in the sixth parliament, we would have essentially had 11 members of the NA, and not 14, and would have revised the size of the committee down to 20, instead of 23. Be that as it may, what we find when the Houses are extremely busy. There are clashes in terms of meetings and programmes, and members have to attend multiple meetings, or house business or whatever; we find that generally, we have a steady stream of about eight to nine members who do arrive for our committee, but then we fall short of two or three or four [members] to make that quorum. So I never really thought of the suggestion of revising the quorum to solve the problem that we occasionally face in ethics where we fall short of that.

Adv Gordon said she listened to the suggestion of revising some joint committee decision-making to one-third, so perhaps that's something we could look at taking the quorum of the ethics committee forward. For instance, if we have the current 23 members revised down to, let's say, a third of our members, that means that our quorum is eight. And that is essentially the number we get as a steady stream of members in attendance.

Adv Gordon said she would favour revising the quorum, but of course, just blanketly making that suggestion could have unintended consequences. We must remember that we are in an environment highly subjected to litigation. We could find the scenario that people say that we are not applying ourselves as the committee. If only six members, eight members, are present, are we doing justice by applying ourselves to the committee? But she did take the suggestion that it is a possible solution to aid the ethics committee in the seventh parliament, and perhaps we should just go back to the drawing board and look at the Joint Rule 169 and see if we can solve that problem before the rules are adopted before the Joint Rules Committee.  

Mr Mjenxane explained the rationale for the proposed amendment of the rules relating to the JSCI. The Inspector-General of Intelligence (IGI) reports directly to the JSCI regarding the Intelligence Services Oversight Act for the overall functions of the office and their work at least once a year.  Practically, there are instances where the JSCI might require information more frequently to exercise its oversight role of the IGI. The Committee sought the amendment of the joint rules to enable it, from time to time, to ask the IGI to report on a specific issue to assist the oversight work of the Committee, as the Committee is entitled to do. Asking for these specific reports is not intended to weaken the IGI but to strengthen the oversight function of the JSCI over the IGI. That is the intention of the proposed amendment [bad audio]

On the issue of amending the joint rules related to the deputy chair of the JSCI, this is only in instances where the chair cannot perform his or her functions. The joint rules provide for the acting chairperson, but the proposal for amendment is to make the reporting back process less onerous [bad audio]

Dr Koornhof wanted to confirm that legislation is being processed by two committees, one in the National Assembly and one in the National Council of Provinces. If the joint rules allow for this, that it be parked under the ad hoc committee section—he did not have a problem with this. However, he wanted clarity on whether it could process legislation of two identified committees within the same environment and portfolios to do it together. He wanted to know if he understood the principle of processing legislation together.

He thought it was a fine balance to have a working ethics committee and to address the challenge of not having a quorum occasionally. He would be hesitant to amend the quorum - the committee must be very careful and get legal advice. But at the moment, we must have a working and functional ethics committee, and it pains him to see that committees cannot meet because of a lack of quorum. So we must be innovative and see how to assist such a committee in the seventh parliament to work effectively.

On joint rule 159, he noted that the original idea of the rule was for the member of Cabinet to submit the bill [the bill] to the Speaker and the NCOP Chairperson after it has been approved by Cabinet. The aim was to warn both Houses early that the bill had been approved and was on its way. One of the aims was to have an early line of sight of the bill coming and to provide more time for committees to prepare. I just want confirmation that we will not lose that if we change it to wait for the bill certification. That was his understanding of the original benefit of joint rule 159.

Ms P Majodina (ANC) said we should have joint meetings to discuss specific bills where possible. Currently, bills are delayed. Where we think we can have joint meetings, let it be in our rules so we can be flexible without establishing joint committees in every case. So, currently, our joint rules are not flexible for joint briefings at the start of processing bills.

Adv van der Merwe said the joint rules allow committees from both Houses to have a joint process. In other words, they will sit as a joint committee, and there will be a joint committee report. That report will go to the Assembly for a second reading of the bill and then to the NCOP without going to the Select Committee. We also have a provision for conferral between committees. For instance, we used conferral power on the Electoral Matters Amendment Bill, where the committees could be briefed together, etc.

On joint rule 159, while he heard the concern on certification, the challenge was to address a different concern about the bill changes. It is clear that Members definitely want joint rule 159. Whether we do that after Cabinet approval or certification, I think it addresses whether the bill is similar enough to take instructions on. But if members wanted the rule to return to the Cabinet decision, we could do that. It was simply a proposal to try and assist with certain things, but we can definitely go back.

The Chairperson said the issue here, which is critical, is to allow parliament for early planning. So in any of those two options, it's important that Parliament gets a heads up on the first of those that kicks in. Parliament's quarterly and yearly programme assists those committees in scheduling and budgeting for these kinds of processes. So there's a lot that goes into that. Hence, I spoke about hospital passes. I didn't elaborate on what I mean, but rugby players would know what that means. It's when somebody keeps the ball with them and doesn’t pass it until they are in trouble. And then you just throw it away. The one who catches it is immediately found with the ball and is tackled and wakes up in the hospital. So, it's a selfish approach to doing things. And we want to get rid of that.

Adv van der Merwe understood. We'll go for the stricter approach. The second option is to simply change certification back to Cabinet decision. It will then remain that after the Cabinet decision, there must be this referral to Parliament. So we can definitely do that.

Legislation before joint committees is provided for under ad hoc committees, and of course, we have the conferral process available.

The Chairperson said nothing stops Parliament from overseeing the certification process, especially if it takes a long time. So it puts a spotlight on every milestone that you have, including certification points.

Adv Gordon responded that it's easy to say let's revise the quorum, but as I mentioned earlier, it's a very serious committee tasked with important work. And I do think that perhaps in the seventh parliament, the problem will solve itself. When we look at the Joint Rule, as proposed earlier, to revise the committee's size in line with the proportional representation of the NA, I think that when aligned, it will essentially address the quorum issue. If we had had that scenario in the current sixth parliament, I would have had a committee of 20 members, and the quorum would have been revised down. Because we were stuck with a legacy provision, the quorum was greater than it actually should have been. I don't think the joint rule regarding the quorum should be touched. I think the recommendation for the amendment of the committee's composition should go through and that the Seventh Parliament should resolve itself in practice.

The Chairperson said that the ethics committee is different because whereas others can easily meet virtually, it is my understanding that ethics has to meet physically. And I don't know what's the track record of that committee, pre-COVID, when you did not have these virtual setups when the requirement was physical, and people were in Parliament, because it might invoke, therefore, the kind of support and resourcing needed because it’s not like other committees and the requirement is to meet in person. Have these things been looked into for comparison?

Adv Gordon gave a bit of background, saying she’s been with the Ethics Committee for almost six years since 2018. So I've had the opportunity to come with this committee since the business of the Fifth Parliament into the Sixth Parliament. At the end of the Fifth Parliament, when I inherited the Office of the Registrar, I think the work was substantially backlogged. And we've made huge inroads from the fifth to the sixth parliament. Going into the sixth parliamentary, the matters that lapsed, as business before the Houses lapse at the end of the term, we took a decision as a committee in the sixth parliament to revive certain matters, and certain matters were brought anew by the complainants at the start the sixth Parliament. Then COVID came in 2020; our first committee meetings were in 2019, and COVID came in March 2020. During the COVID time, we didn't meet because, as the Chairperson correctly stated, we meet in person. It's a committee where we don't take chances with people's personal information. It's a committee that deals with financial and registerable interests. Also, in the light of the POPI Act, we have to take all information before us in a very serious, strict, confidential light. So we meet in person; we also don't disseminate documents before our committee to ensure that we don't have a situation where an email is sent incorrectly, maybe to the wrong person. So we ensure that all our documents are disseminated in hardcopy before members on the day of a committee, and the files are returned to us at the end of our committee meeting. So, as 2021 folded and the COVID restrictions lifted, we could meet more frequently. We made up the lost time, and currently, the Ethics Committee has no backlogged files. We are up to date. We are current. I know that it seems to be this narrative that we have a backlog, and I wish to categorically say there is no backlogged business before the ethics committee. Everything that we were required to do for 2023 has been processed. Our committee reports have been ATC’d, members have been receiving the penalties, and we’ve had to fend off litigation in the High Court, so we are very active and have made up for the lost time of the COVID years. It is a very interesting question going forward into the seventh parliament. but it's a challenging environment; it's one that we haven't found a solution for yet, but perhaps in the Seventh Parliament, we will be reaching some measure of success in solving that problem.

Mr Mjenxane explained that the JSCI was a special committee established by legislation. It is contemplated in the Constitution, Section Eight and then established by legislation, the Intelligence Services Act. Amongst the functions of the Committee, as stipulated in the Act, is its power to consider and make recommendations on all proposed legislation related to the intelligence services and any other intelligence and intelligence-related activities and to initiate legislation in connection with the services so that the general powers of the JSCI to create legislation that governs the intelligence services. The only issue that has constrained the committee in exercising this power is that it is not envisaged that members of the JSCI would introduce legislation. So with the Gilab Bill, an ad hoc committee had to be set up to deal with the legislation when it could have been dealt with by the JSCI because there was no provision to do so. The JSCI resolved to approach the joint rules committee to request that in terms of section 45 of the Constitution, the JSCI be provided with a procedure in the joint rules to process legislation within their purview. This was the background. [bad audio]

On the issue of the special report, the Committee is seeking to strengthen its own oversight mechanism through the joint rules to request special reports from time to time from the civilian body overseeing the intelligence services in order to enhance the work of the Committee. [bad audio]

Adv Nonyane highlighted that the Joint Subcommittee was still to review Chapter Five of the Joint Rules.

The Chairperson asked if Members feel that the matters we dealt with are ready to proceed to the joint rules in the two Houses, or whether there are a few areas that you still want to have a second bite on. This is before we go to chapter five and the schedule.

Dr Koornhof, said broadly speaking, I get the sense there is agreement on the chapters presented, so I would be hesitant to delay it further. We are working in a very tight timeframe till the end of the sixth parliament. And every day or week we lose now will put more pressure on the two Houses. So, I would suggest that we accept what was presented with appreciation. If there is any other feedback that we need to give to their officials, advisers, and staff, we are free to do it.

Dr Lotriet: I also think we have had the opportunity to express our concerns, but overall, it is ready to be presented to the joint rules.

The Chairperson thanked the Members but said that, based on these comments from the four presenters, work still needs to be done to polish and enrich the discussions on chapters three and four.

Chapter Five: Stopping Funds to Provinces
Adv Nonyane explained that the joint rules try to operationalise what is provided in section 216 of the Constitution. Section 216 (3), in particular, of the Constitution provides that a decision to stop the transfer of funds due to a province in terms of section 2141 may be taken only in the circumstances mentioned in subsection two, and may not stop the transfer of funds for more than 120 days and (b) may be enforced immediately, but will lapse retrospectively unless Parliament approves it following a process substantially the same as that established in terms of section 7176 (1) and prescribed by the Joint Rules and orders of Parliament. The process must be completed within 30 days of the decision by the National Treasury, and sub-four provides that Parliament may renew a decision to stop the transfer of funds for no more than 120 days at a time following the process established in terms of subsection three. Five days before Parliament may approve or renew the decision to stop the transfer of funds to a province, the Auditor-General must report to Parliament, and the province must be given an opportunity to answer the allegation against it and to state its case before a committee.

The initial rules contained in the joint rules were, in a way, not giving effect to what the Constitution said in the sense that they made reference to the tabling of the motion from the Minister of Finance to the National Assembly. In contrast, the Constitution was ambiguous, and it was clear that Parliament needed to do this. So, we then had to propose amendments that would at least have an effect on Parliament. However, Joint Rule 223 (1) (b) specifically indicates that the motion should outline why funds for the province have been stopped, as the Constitution clearly outlines.

Joint Rule 224: establishment of ad hoc joint committee
This rule specifically makes reference to the fact that an ad hoc joint committee known as an ad hoc committee on the intervention of provincial funding must be established by a resolution adopted by both Houses. The Constitution has a certain timeframe, so when there is a recess to make a provision that in those instances, then the Speaker and the Chairperson act jointly after consultation with the Chief Whip of the majority party in the NA. The Chief Whip of the Council shall then be able to establish the ad hoc committee. The proposed amendment makes specific reference that the Speaker and the Chairperson of the Council must refer the motion for a report and recommend to a joint ad hoc committee on intervention in provincial funding.

The composition was streamlined - we are proposing that the other committee shall consist of Assembly members appointed so that the number of Assembly members is equal to that of the National Council of Provinces. The parties in the Assembly are represented substantially in the same proportion that are represented in the NA, and the Council composition shall be in such a way that each province is represented by two members. Each party in the Council that does not have the majority seats in at least one of the provinces is represented by a member. This is in line with the rules of the NCOP, wherein those parties that may not have a provincial whip represented will also be able to participate in committees in proportion to the composition of the NCOP.

The chairpersonship is similar to a joint ad hoc committee where a member of the Assembly component will elect the chairperson of the joint ad hoc committee component of the NA, and the NCOP component as well will elect the co-chairperson from the NCOP component

The function of the joint ad hoc committee was streamlined so that there's a flow in a way in which the committee's work should be undertaken. First, the Minister will have to brief the committee on the rationale for stopping funds in terms of the Constitution. Thereafter, the Auditor-General will report on his or her findings, as the findings will have influenced the finance minister's decision. Then, the committee will investigate the matter. Having done so, the province would then be afforded an opportunity to state its case as provided for the Constitution and, thereafter, for the committee to deliberate and decide whether they approve or reject the motion to stop funds. If done, then provide for the committee's report within five working days to work towards the 30-day period that the Constitution provides the committee to finalise its work.

Joint rule 228 refers to the committee's decision when the Assembly and NCOP components and the majority agree to adopt the resolution.

Then in respect of rule 229, once the matter is completed, it will be referred to the Houses for consideration of the report. The same process the NA follows when considering reports before them is the same as the NCOP. however, taking into account that the Constitution also specifically makes reference that the process should, in a way, mirror that process that is outlined in Section 76 (1), this is where, for example, the two Houses may not agree, which is possible taking into account that the NCOP’s interest to provinces, they may have looked at this differently, we then make provision for the mediation committee, which will then mediate the dispute between the two Houses.

[new] Joint rule 232 provides for the constitutional time limit, and rule 230 provides for renewal. In doing so, the same process will be followed, which will then determine whether those matters were addressed, and so forth, with another report.

Dr Koornhof said it was clear and straightforward, and he was happy with the presentation.  

Adv Nonyane thanked the subcommittee for their direction. The report would be prepared.

The Chairperson thanked the support staff and Members

The meeting is now adjourned.