(Subcommittee) Matters referred by the Rules Committee

Meeting report

Chairperson: Good morning. This meeting is a continuation of the meeting that we had on Wednesday 23 October to finalise the items that were left off as we were rushing to the House sitting. Hopefully our meeting will not take very long because we have touched on some of the issues. Let's observe a moment of silence.

The real reason we are having this meeting today is also to allow the National Assembly (NA) Table to draft a report which will be sent to the Speaker in preparation for the Rules Committee meeting. That is why we must finish everything today. Are there apologies, even though we all know that our meeting doesn't require a quorum? Even if it's three or two people, we can proceed with the meeting.

There was one apology for Ms Thembi Siweya, Parliamentary Counselor to the Deputy President.

Recusal/withdrawal of Members
Noting this matter was partly discussed at the 23 October meeting, Mr Masibulele Xaso, Secretary to the NA, said the intention was not necessarily to finalise the matter today because the Ethics Committee would need to be consulted at some point. Maybe the next Rules Committee meeting after the next one would finalise the matter but it is important to get all inputs in the subcommittee, which was partly received on 23 October.

Chairperson: Thanks for clarifying that. Indeed we cannot finalise some matters where there's a need for further consultation. We'll just put forward our inputs, then it will be deferred to another meeting of the Rules Committee after consultation.

Mr Perran Hahndiek, Procedural Advisor: We did present the proposals and gave an overview on 23 October. Members did express themselves and raise some concerns and issues that they had with the proposals. Our proposals were very much a first attempt, based on some of the legal principles that we were looking into. We would propose that, based on the issues that were expressed, that the subcommittee convey the drafts as well as the concerns to the Ethics Committee, for them to advise on how these drafts would impact, if at all, on the Code of Ethics and how the whole regime of ethics, including the recusal of Members, must be aligned. We think that we are ready to convey that to the Ethics Committee, and then for them to make a submission, probably to the Rules Committee. Not next week, but at the following meeting.

Discussion
Dr M Ndlozi (EFF): I am hoping that we at least get some confirmation that our 23 October comments were taken into consideration on this item. Would it be helpful if we wrote to the Table what our input was, or will they be able to cover it?

Mr M Manyi (MK): I'm just wondering, based on the input that Dr Ndlozi made last time we met, that in particular, what the recusal of a Member means in terms of representation of that constituency. Whether, in fact, we should even entertain any nuance of a removal of anyone. Rather, if there is a matter like that, as opposed to physical removal, that we propose, as a subcommittee, that should a situation that warrants removal arise, instead of removing the person, rather, that person is declared as person that is not going to speak, but at least the person can still be in the House and take notes but will not be allowed to participate. Is that not much more of a less emotional approach than to just physically remove? It just sounds barbaric, actually, to just to remove people because they disagree with you. Surely you can make a ruling that your opportunity to speak, because of this and that, is finished. I think that is a much better pill to swallow than to be ejecting people.

Mr M Gana (Rise Mzansi): I think Mr Manyi might be mixing up removal from the Chamber with recusal from participating in certain deliberations where there’s a conflict of interest. I do agree with what the Table is advising to take this matter to the Ethics Committee to deliberate and maybe look at the Code because if you think about it, it sits in the Code of Ethics. Dr Ndlozi made the point around political conflict – maybe the Ethics Committee must deliberate on this and all sorts of conflicts, and what is the best way to handle it if there’s any kind of conflict. Ordinarily, one would not want a Member with an interest in an issue to participate – they should not even be listening. That is a normal practice.

Ms L Makhubela (ANC): I'm supporting the proposal made by the Table staff that this matter of conflict of interest should be ventilated more at the Ethics Committee so that we do not just measure conflict haphazardly at this time. The issue can be ventilated more and further drilled down so that we ensure that we don't prejudice Members based on interests that are not there, whether political interest or family interest or financial interest. But let us take this matter further to the Ethics Committee.

Chairperson: The easiest summary that I can give is that indeed, all concerns will be then conveyed to the Ethics Committee as the Table staff has advised. So can we now step off to this item and move on to the next one.

Supplementation of political party membership lists
Mr Gana asked what was the resolution on the supplementation of political party membership lists, discussed at the 23 October meeting.

The Chairperson said the matter was concluded to resolve that all Members who will be coming after the swearing in, their names must be published for the public to comment on whether they are suitable or they are not to allow for public objection. It is a process that is done with all Members before we were sworn into Parliament.

Mr Xaso: It certainly is our understanding that it was agreed that we would publish the names of the Members coming in, in the ATC and the [parliamentary] website, and would allow a period of 10 days from the date of publication to the swearing in of the Members, and secondly, that the party signatory will confirm in writing that these Members meet the membership requirements as prescribed in the Constitution. That's the essence of what we proposed. Our impression was that Members were in support of that direction.

Chairperson: We have dealt with this and there is nothing more to add.

Dr Ndlozi: The original published names do get published during the elections and all of that. So this idea of the new names is on the condition that it was not on the original list that went through public scrutiny. Can you just make that clear? It’s not like every time there is a new MP, the name is published, regardless of whether that name was on the original list of names initially scrutinised on the list before the elections? I'm just trying to say, let’s make a distinction, because parties submit about 200 names before the elections which go through that process of public disputations and all of that.

Mr Xaso: The idea is that members who did not go through that process of pre-publication should be published. It does happen that when the supplementary lists come in, there could be new members, and there could be members who were part of the original list, but they were far down on the list, and they didn't make it at the time. So the sense I'm getting from Dr Ndlozi is that maybe the list should be confined to only new names. And of course, we can work on that. But the idea was that if you get a list of 10 names, and eight of them had not gone through the system pre-election, and two had, you would simply just publish the whole list. But we are happy to consider the point made by Dr Ndlozi.

Chairperson: The point that Mr Ndlozi raised is a valid one, because we really do have parties that publish a long list of names. It would assist to know which names were already published before the elections. This will confine the process to completely new names.

Mr Gana agreed on the point of party representatives making a declaration to confirm the person is fit to be a MP so that there's a little process and we don't end up with people in Parliament that shouldn't be in Parliament.

Mr Xaso: We would certainly consider that as well, because in the event that a member, and I hope it never happens, deliberately misleads Parliament or the National Assembly, then there will be room for structures, such as the Ethics Committee and others, to work on that. There may be one limitation to the point made by Dr Ndlozi, because the law says that the supplementary list must be published in the Gazette. So the law does not distinguish between new names and old names. So we may be constrained in that sense to publish the whole list as is, as we would publish it in the Gazette.

Mr Manyi: I think the intention here is to create equity, so that the dispensation that applied with the original sworn-in members is similarly applied. The issue I have now, just thinking about it, is that in the original list, the signatory does not have the obligation that is now being put on the signatory from the party in terms of the new names. Why is that the case? Same rules must apply. If in the original list there was no affidavit from whoever submitted the names, why should there be an affidavit for the supplementary lists? It’s not making sense to me. Surely, the IEC must do what it must do. As a signatory, I don't have the wherewithal to be going through checking people's criminal records and all of that. That's why we have the IEC. If anyone objects, the IEC will do what it does, as it did with President Zuma, for instance. So why is that now the burden of whoever submitted the names? I don't think that's correct. The same rigour that applied then must then apply now. I think that part must be removed, because it's just an unnecessary burden to someone who hasn't got the authority and the wherewithal. This is just an unnecessary bureaucracy.

Chairperson: Thank you very much members for your inputs on these matters. You can also send your suggestions to the Table not later than Monday 28 October. What we can assure this meeting of is that the legal route will be taken into account with these matters. If the law says this is what must be done, we cannot deviate from it. It will be done as such.

Dr Ndlozi: I don't think this matter will be closed in the next Rules Committee meeting so we will have an opportunity to canvass it then.

Definitions and terminology
Mr Hahndiek: Members will see on the screen a brief that we prepared on the basis of research and the legal opinion that concerns the terms and concepts used in the Rules presently. So members will, of course, be aware that the Seventh Parliament has a unique composition in so far as no party has an absolute majority, and I will talk about the definition of majority in a minute. The government itself is also made up of a coalition involving a considerable number of parties. Now, the rules of Parliament and the National Assembly, were not specifically developed for coalitions, and that is why the Rules Committee, after the election, met, and there were submissions on these terms by the ANC, DA and EFF at the time. And on the basis of those inputs, the Rules Committee and the House provided some guidance on the definitions of majority and minority, the opposition, the leader of the opposition, and the titles of party whips.

But there was also a view that at the time, that that was an interim measure, and that further research was needed. The intention is to provide rules and a rules regime that can provide for any electoral eventuality, because it's not ideal, but may sometimes be necessary, to change the rules at the beginning of every Parliament. So this paper is an attempt to take that discussion forward. As I said, it's on the basis of research and some legal advice that we were given. The brief talks about majority and minority parties, the opposition and the status given to the whips as party functionaries.

Perhaps the most difficult issue to define is that of a majority and a majority party. This is in part because the Constitution does not even, in fact, refer to a majority party. Instead, it only refers to minority parties. And that's in Section 57 in the case of the NA, which says: The rules and orders of the NA must provide for the participation and proceedings of the Assembly and its committees of minority parties represented in the Assembly in a manner consistent with democracy. So there's no definition in the Constitution of majority party. When we looked at comparative parliaments, and especially parliaments within the context of a parliamentary system where the executive is part of the legislature, we found that the term majority is used in at least two ways.

There's a term called the absolute majority, which means 50% plus one of the collective - in the case of the National Assembly, that would be 201 Members of the 400 and what's just called a relative majority, which is simply the largest number. In other words, a party can have a relative majority. It can have 40% of the total seats, and that is considered a majority, even though it doesn't have an absolute majority.

Now the latter definition, which is a relative majority, is a position that was, in fact, articulated by Legal Services when they had a look at applicable statute on the matter. I think the legal opinion was circulated as well. But in their opinion, they draw attention to the consolidated rules for Political Office Bearers Pension Fund, which is part of the Pension Funds Act, which provides that in the case of trustees, majority party – and this is the definition in the Rules – majority party means the party with the highest number of seats in the National Assembly, even if not more than 50% of the seats. So that is the definition that's used in the consolidated rules of Political Office Bearers Pension Fund. Now, my understanding is that it's a regulation, not necessarily appearing in statute.

Dr Ndlozi interrupted to say he needed guidance. We approved the rules with regards to these definitions in the National Assembly around the second term, I think, which resulted in MK Party becoming the official opposition. Why are we covering the same grounds? I thought we're going to go straight to the specific rules that still have ambiguity and apply already adopted definitions [to them], because these definitions have already been adopted in the House, in the National Assembly. Am I missing something?

Chairperson: Of course, we dealt with the definitions. We came up with the issue of the largest party and the second largest party, then the opposition party. We dealt with the definitions, of course, but we said this issue of majority needed to be further processed because there was no exact definition on it.

Mr Xaso: Indeed. There was a view that we needed to just do more work, but maybe we could be allowed to complete the briefing because our proposals do not change what was already agreed to. We're just bringing clarity and to give some background of what we have found in trying to get more information on the matter. I just appeal to members to allow us to complete the presentation, because we really are not changing what was agreed to.

Mr Hahndiek continued. We're not really changing anything that was agreed beforehand in terms of definitions. And some of the definitions, for example the opposition, were clarified, and there's no longer any questions on what that means. But there was still some debate about how to understand a majority or what a majority party is. Now, there were views expressed in the Rules Committee previously, but there was no specific definition of majority party that was agreed to at that time. Basically, what we're suggesting is that in the Rules currently, where it refers to majority party, we replace that with the largest party in the executive. In other words, you actually remove any ambiguity about what majority party means, because you actually remove that concept from the Rules.

You have the largest party in the executive. And that will become more clear when we discuss party whips. I do want to also say that the term majority part is not used in the Constitution, so therefore we could, in fact, avoid it, but the term minority party is used as I've mentioned. So we do need a definition of minority parties which is not actually in the Rules presently. So our proposal is that minority party means any party other than the largest party in the executive. The committee could also consider whether, if it is agreed that there is in fact no majority party, in other words, no absolute majority and whether all parties, in fact, in the current situation, can in fact be considered minority parties. So again, moving away from the definition.

On the question of opposition, the paper just provides some background, both to the research and to what was discussed in the Rules Committee previously. But in short, we found no further issues with the way it was defined in the Rules Committee. So the opposition means any party other than the largest party in the executive. So a party does not have to be represented in the executive at all, and the leader of the opposition is leader of the largest party that's in opposition. So those were the definitions that were agreed. And we think that can be proceeded with without any issue.

In terms of party whips, there was a view in the Rules Committee that this needed to be looked at a bit more closely, in lieu of the of the definition, especially of majority party. The Rules grant the chief whip, which is currently defined as the chief of the majority party, specific institutional functions. So they're responsible for both coordinating the work of their party, but also, in some extent, the business of the executive. So they perform a somewhat dual function. If you look at the chief whip currently, he is the chair of the chief whips forum. He also has an integral role in the programming of business every day, he approves the order paper. So those are institutional functions. So we're basically saying that if you move away from the concept of majority, the chief whip is then defined as the chief whip of the largest party in the executive, and that is because of the somewhat dual function that the chief whip plays. So it can't be the chief of the largest party, because the largest party in the House could theoretically, in fact, be in the opposition. I think that's the case in the KZN legislature at the moment. So the chief whip needs to have a role within the governing collective. That's our definition.

We are also recommending that, possibly, this was on the basis of submissions, that the Rules also recognise the chief whip of the second largest party, and that would have implications for structures like the programming committee and as well as remuneration issues, provided that the second largest party is not in the opposition or is not the largest opposition party. In which case, the leader of the second largest party would be known as the chief whip of the largest opposition party. So currently, we obviously have that position, and that's another position that we're recommending actually be inserted into the definition of the Rules – the chief whip of the largest opposition party – because the Rules presently don't have definition for that. In summary, some of these things have already been concluded, but there is still question marks, in our view, around specifically how the House wants to define majority party, and whether, in fact, we can move away from that concept.

Discussion
Chairperson: Of course the presentation doesn't change anything from what was agreed upon in our previous meetings.

Mr Manyi: Firstly, I think a posture that seeks to make rules that are going to last for 100 years is an incorrect posture and it's also almost like legislating laziness. I think every administration must deal with what the voters have said in that particular cycle. So therefore there must be, on principle, a state of readiness in terms of ensuring that the Rules of the National Assembly align with what the voters have said in that voting period. That's the first point. Even the non-mention of majority in the Constitution is because it's actually implied. If you talk about minority, majority is implied. So to pretend that because it's not physically written there, therefore it's not there, I think it's disingenuous. I think the first thing is that the administration must be ready to change, and the issue of largest party is correct for this administration. The next administration, who knows, we might have a majority party. So we should not have a situation that rules out ever having a majority party.

That's the first a point I want to make. Second point I want to make is, I'm struggling to understand in this current administration, why do we even have to have a chief whip of the second largest party? What purpose is that going to serve in this administration? Because we've got a coalition and there's a clearing house for agreement so why do we need a chief whip of the second largest party? Why? Why? Why do we even need that? What purpose is that going to serve? Lastly, what exactly are we doing here? Some of these things have been “signed, sealed, delivered”. What's the whole point? Why are we just being kept busy? We know that what we're doing here is not going to change anything so why are we even doing it?

Dr Ndlozi: There shouldn't be proposals made on matters that the House has concluded, unless you are suggesting that we must change them. This is not fair. These matters have been canvassed and concluded. We should have gone straight to that which has not been concluded so that we are not repetitive. Here it seems to me the new thing we were supposed to be dealing with is minority party, because we have canvassed on chief whip, largest party, opposition party etc. Let’s not re-canvass those grounds. Even in the explanation, there is no basis for why we are being asked to again consider the definition of chief whip.

Let me address minority party, and I did go to the Constitution. When we submitted our document earlier, we had a much more substantial conversation, a substantial submission with the spirit of the Constitution, and the spirit we need to keep in mind is the Constitution envisages South Africa's democracy as a multi-party system of democratic government. Those party to the conversations in 1994 would remember that the right wing was worried about the dominance of the ANC. And there were proposals to try and not have a situation in which this new democracy – which at the time was clearly going to be a one party dominant democracy – there were attempts to try and do the checks to allow and give life to other small political parties to participate. So the entire dispensation of the Rules, as well as the chapter on Parliament, tries to enforce, regardless of how dominant a political party may be, even if it may get 90%, to still make the rules and provisions for minority parties. The specificity of that terminology of minority is also consistent with the thinking of the time by the right wing forces that ‘we're worried about the minorities’.

There was a whole big discussion, and this was De Klerk’s passion at the time, to not outdo minorities. Minorities at the time were Whites, but, they tried to extend this. They were worried that this fracturing that they had introduced would result in white interests not being realised. They wanted to continue being white, so the ideas of white rights, the Indian rights, the colored rights, the African rights, and so on and so forth. They were worried about minorities, that the majority being black Africans, which, according to them, did not include colored people, Indian people and white people, must not trump the minorities. It seems to me that is the spirit. I'm putting this political background for us to appreciate that it’s about the letter and the spirit of the Constitution. Unfortunately, democracy, by nature, by definition, is always already the rule of the majority, full stop. And if you think about the democratic decision, it’s universal suffrage in terms of section 1(d) in that every single person votes, and then we determine and that party rules in the interest of everyone, so to speak. So this question of minority is because of that background. So let us say now that 30 years later, we are seized with the situation in which there is no longer a one party dominant political system, or we don't have that anymore. We truly have a multi-party democratic Parliament now.

You can see even now in Parliament when we say minority parties, and how we allocate whips and all of that, we are talking about numbers like, we club about nine political parties at the moment, if I'm not mistaken, more or less, we club them together because they are too small to have a whip. Whatever the case might be, I'm not persuaded at all but I think for the purposes of the Rules, to say minority is any party that is not in the majority….is MK in the minority?  It's not minority. It's opposition. The DA is not minority. They’ve got 20% that's not minority. I'm not persuaded. What is the need for a definition here other than small parties? It’s not minority, meaning parties that are not majority, it just means small parties. That's what it means. Rather just give them a whip.

Mr G Michalakis (DA): I'm not going to go into the recognition of the chief whip of the second largest party, and ultimately the opposition chief whip. The House has already adopted the resolution on that, and if the argument surrounding it is not understood, I don't think we're ever going to be able to land that argument with anyone who does not understand it by now. The fact that the Constitution refers to the minority party means that there is a need for this concept to be defined in the Rules. I would like to ask what the consequences would be. In my mind, currently, we are all technically minority parties, because no one has an absolute majority, if you want to define it in that way. But if we go that route, what would the consequences be for how the Constitution refers to minority party? Would the largest party in Parliament be considered a minority party?

I don't know if that makes sense, but is it the case where the Constitution gives certain opposition duties to the concept of minority party, or would it be possible in the context of the Constitution using that term, that the largest party in Parliament can be considered one of the minority parties, without constitutional problems. If it is a case there will be constitutional problems referring to a party in government as a minority party, then I would support the proposal of making the concept of majority party one that doesn't necessarily refer to an absolute majority. But other than that, I do think that the definitions as proposed are quite useful. I think they're necessary and I do think that they complement the resolution already taken by the House earlier this year.

Mr Xaso: I would like our colleagues to take us to the 24 July  First Report of National Assembly Rules Committee for the Seventh Parliament that was adopted by the House to give context to why we are bringing in this matter here without opening up another discussion.

The Rules Committee indicated that the definitions still needed to be reviewed and that is what we're doing today. The House had agreed that these definitions, especially of the majority, must still be discussed and finalised. So what we had in the House was not a final position on the matter.

The Rules Committee agreed to the following definition:
“Leader of the Opposition” means the leader of the largest party in the Assembly that is not in the National Executive.

That's what we have affirmed today.

“Opposition party” means any party that is not represented in the National Executive. This definition was taken as a working definition for the time being.

“Leader of the Opposition” means the leader of the largest party in the Assembly that is not in the Executive.

The definition of “Chief Whip” would be adjusted to take into account the different categories of

“Largest”, “Second Largest”, and “Opposition” parties. These definitions would be finalised in the overall

amendment of the identified aspects of the rules.

That is why we're discussing this today and we propose to the Subcommittee that this matter now needs to be finalised. We thought it useful to bring in the background that we did, so that as you finalise this position, we all understand what the Constitution says and what the other laws say on the matter.

Chairperson: The Rules of the National Assembly is a working document. It will always be reviewed. The rules will always be amended at any given time. The Rules of the National Assembly are always in line with the Constitution. We don't do anything outside the Constitution because if we try to do that, there will be some court challenges on the Rules. Hence, we align it with the Constitution, and rules will always be amended based on the situation that we find ourselves in.

Mr Gana: I thought this was going to be one of those simple items, because it was meant to conclude the work we had done before when we went to the House. It’s more that we need to take this as a cleaning up the definitions. That's the exercise we are involved in. The positions of the chief whip of the largest party, the chief whip of the second largest party, and the chief whip of the opposition have been accepted by the House, as per the ATC. Our role is then to clean up the definitions. I think the proposal we have received today is a good definition that we should insert because the definitions have been agreed to. I move that the definitions are correct, from my side at least, and we take it to the Rules Committee.

Mr M Mahlaule (ANC): Maybe we should be firm now to say we accept the proposed definitions. It is unfortunate that some do not have knowledge of how we arrived here.

Mr Manyi: Think I pretty much agree. I think maybe what we as this committee should do is just to accept the decision of the House. If things are brought before the Subcommittee, Members will discuss it. If the definitions were agreed to by the House, there can’t be shenanigans to squeeze in additions. I'd be happy to say whatever the House had signed on, then let's just go with that. If you are going to start to want to recover from a lost argument, then we are going to unravel the whole thing.

Dr Ndlozi: I now understand. I won’t canvass the definition of opposition of the majority party or largest party. It seems to me the last thing that we need to do is ‘minority party’. I have the following questions. If you take into consideration what I said earlier, that even in the Rules, as they are now, and even in the Constitution, you can read there are four instances in which the terminology ‘minority party’ appears. The idea there is that Parliament is enforced by the Constitution to make provision that parties with few Members participates and it says, in a manner consistent with democracy. So how Parliament resolved that, in this instance, was to look at the composition of committees and allocation of speaking times etc. What would be the problem if minority party was left undefined?  Once you say minority parties means parties that are not the majority, it won't help you resolve those things of composition and all of that. The first option is to leave the definition of minority party as is as everyone knows what it means, the parties that need to band together for collective whips and representation on committees. But if there is an insistence that minority party be defined, it must be clear what system of definition is used i.e. Is the party no more than 1% or 2% of the NA seats. Something like that. I don't know if it makes sense. If it doesn't make sense, I'll have to write it down.

Dr G Koornhof (ANC): I thought we were close to an agreement, and now we’re starting to drift again. Can I suggest that we ask the Table to respond to the inputs, just to conclude the presentation. There's also references in the Rules on the issues being raised now. I move that we just conclude on this issue.

Mr Hanhdiek: What we've done for the terms we're talking about such as the chief of the majority party, minority party, opposition party, is collate all the rules that apply to each of these different terms. So it's possible then to cross reference and see if we define minority party in this way, these are the rules that will be impacted. I would suggest perhaps that it seems that there is still a need for discussion on some of these technicalities on a more conceptual level. It may be that this committee could note this report, in other words, not necessarily endorse it and that it go to the NA Rules Committee (NARC), even if it is on the understanding that parties will still confer and discuss this. That is one possibility, given the concerns are arising from this.

Mr Xaso: To take it further, I'll say that the matters that are settled already, like chief whip of the majority or chief whip of the largest party and second largest opposition party, those go to the Rules Committee for affirmation, and we don't go back to them.

The one issue that we may have to do some more work on is minority parties. As you see Rule 132 speaks of members of each party entitled to make a number of statements, minority parties being given an opportunity to participate in a manner consistent with democracy. Now, if you also go to the remuneration of public office bearers, I think it speaks of the leader of the largest minority party in the NA. There are a lot of references, either in the Rules, or possibly in legislation, but certainly in the determinations of the remuneration of public office bearers that make reference to minority parties. To conclude my point, the matters that have been agreed to, settled, we proceed with those.

We welcome the inputs by Dr Ndlozi, we will look into those, but we do need to find a solution to some of the references. On what we used to refer to as smaller parties, there was a view that we must refer to them as other parties. So those are the parties that would not qualify for whips. Then the parties below nine Members represented in the NA, they are grouped together, and referred to as other parties and they are given three whips. That is the principle that is applied at the moment.

Chairperson: I have given you enough time to ventilate on these matters, and we are all in agreement on the definitions adopted by the House. The issue here is defining the minority or the smaller parties, other parties, minority. We will put that aside so that we try to process this and members are allowed to make their submissions based on the concept of minority.

Dr Ndlozi: Thank youv ery much for the summary, I'm very happy with it. What I'd like to request is that the document from the Table state what the Chairperson said in summary. It should say there's agreement on majority, largest party opposition, etc, and we are going to discuss minority, and then do a separate document on minority. Please send us the documents you are speaking about, those things of nine MPs, those things where minority is important because that is exactly what it says in the Constitution and what it should say in the Rules as well. If there is an opportunity to get a proposal for [definition of] minority before the next Rules Committee, you'll see we’ll agree. I would say that let's try that by all means.

Chairperson: Indeed, we can make submissions to the NA Table on that. If it can go to them not later than Monday 28 October, so that when we go to the Rules Committee and they will have proposals on how to frame it. Can we now move on to the next item?

Government undertakings and petitions
Mr Hahndiek: Members will of course know that the Assembly is constitutionally obligated to provide mechanisms to ensure that members of the executive are accountable, and it does this in a variety of ways, in the House and obviously in committees. Members will be aware that at present, there is no mechanism by which members can monitor government undertakings made from the floor of the House. These are promises that the executive or ministers and deputy ministers make from the floor. It can be either in question time, often the minister will say, I will get back to the member on this point. It can be in a debate where a minister will say, I will supply parliament with this information. So those are promises made and there's no mechanism by which the House tracks those.

Then in the case of petitions, we do have rules governing how Parliament processes petitions. Currently, they're referred to portfolio committees, but there are concerns – and there have been concerns for some time – that the way portfolio committees deal with petitions is varied. I think it would be fair to say that sometimes they're not dealt with, or they're not given a priority so they can sit in the system for quite some time.

To address both of these elements, a proposal has been put forward that the Rules establish a special committee on government undertakings and petitions. This committee would have both those functions. We have prepared draft rules for the functions and powers of this committee which are on the screen. We did look at other parliaments which have very similar structures. The NCOP itself, as a sister house, has such a committee, and they have very extensive procedures, which we have obviously looked at for these proposals. Rule 252(c)(2) talks about guidelines for this committee. The guidelines have also been circulated. The guidelines are meant to provide within the framework of the Rules, for two elements.

Firstly, they allow this committee to decide, from time to time, which parliamentary proceedings should be prioritised on government undertakings. Question time, for example, is probably the most obvious example where ministers make promises to the House. But they can also do that in other forums. So the idea is that this committee will decide, initially, as a first step, we're going to look at question time or we’re going to look at members’ statements and then from there grow into a space where it can track all the proceedings of the House. That is the idea of the guidelines, that the committee can evolve in a measured but effective way.

The second provision in the guidelines is the requirements for the committee in following up with the executive, and in the case of a government undertaking, should, in fact, try and involve other committees. Where minister said that he's going to supply the member of the defense portfolio committee with a report, that member would obviously have an interest in that undertaking. So this committee, although it would be mandated to follow up, it would also be required at certain points to liaise with either the member concerned, or potentially a portfolio committee as well. In the rules, this committee must report at least once a year to the House on its work on government undertakings, with the intention that other committees will draw on that information. It should report more frequently but that's a minimum requirement. The intention is to try and involve other structures as well, so that you don't get a silo situation where committees are doing the same things.

Petitions would be the other function of this committee. The NA already has rules and guidelines on petitions but that they concern petitions referred to a portfolio committee. But now we're saying these petitions should be referred to this committee. This is just a mechanism to streamline petitions. Again, when necessary, we're saying that that this committee must liaise with other portfolio committee so that you find parliament is working in a coherent way.

Discussion
Dr Ndlozi: I'm happy with the proposal, really, this is very good. I wanted to request where we say government, let us try to use executive, which is a constitutional term. I suppose most of the petitions are addressed to the President so the President must be able to go to the petitions committee and explain. But as things are standing now, you would have to use a broader term to include the President, which is national executive. That's all I have to say for now, but otherwise, I think this is a good step forward. We've been asking for it for some time now. So I would request members to let's adopt it and establish this committee ASAP. Thank you very much.

Mr Gana: I generally agree. There are entities like Stats SA or the Chief Justice that are separate votes but are not government department or agencies. What would be an all-encompassing terminology to take into account a petition to such bodies which are not so much of a government department, but it's also not part of the national executive. What will be the correct terminology?

Dr Koornhof: It's a new initiative in the National Assembly. It's working well in the NCOP. We're setting our foot on a new path here which needs to be welcomed. As far as petitions are concerned, I propose that we accept as proposed here. The committee may then invite the department or agency or invite further comments from the petitioner or from the public on the petition and hold public hearings. It's a process that will evolve and develop itself. My proposal is that we accept the proposal as it stands. By the way, the President is not a Member of Parliament. Thank you.

Chairperson: There is an agreement in this meeting for the establishment of that petitions committee in the NA as it is established in the NCOP.

Dr Ndlozi: My request is to use the terminology of organ of state, which is in the Constitution’s chapter on cooperative government. Organ of state is an all-encompassing terminology, because the judiciary, the executive, Parliament, departments and SOEs and all part of the state. That would be my proposal.

Mr Xaso: I will consider that. You could do without “government”. You can say, invite the relevant department or agency. But we'll take Dr Ndlozi into account. We may have to take care of this concern in the definitions. We don't want to make the change now. We'll consider that and by the time we go to the Rules Committee, we would have taken that into account.

Chairperson: We are indeed in agreement of the establishment of this committee as proposed. You'll look into it the terminology. Then if you find it suitable to be used as advised, you'll then take it to the Rules Committee. Can we now move on to the next item?

Oversight over the presidency
Mr Xaso: We want to state again that the Rules Committee in the Sixth Parliament decided that a study tour be undertaken to the UK, and it was undertaken. The Rules Committee said the following under its recommendations: “While our parliament has comprehensive procedures to facilitate over certain accountability, there could be features in the rules and practices that could be enriched and that we should remain proactive and open to reforms to support our systems and practices. In the case of oversight over the Presidency, the Portfolio Committee on Planning, Monitoring and Evaluation be mandated to scrutinise the budget and spending of the vote of the Presidency”.  

When the Rules Committee met at the beginning of the Seventh Term, it reflected on this matter, and the issue was referred to this committee to explore. So what we have here is the recommendation that came from the study tour, to say that the Portfolio Committee on Planning, Monitoring and Evaluation be identified for this purpose. Therefore, if it is agreed that we go the road of that committee, we propose that the following resolution could be adopted: “The Speaker to assign those aspects of the budget vote and operations of the Presidency that are not scrutinised by other committees to the Portfolio Committee on Planning, Monitoring and Evaluation and the Leader of Government Business to inform the Speaker in writing of the minister or member of the executive delegated to account for the administration of the Presidency”. We are placing this for consideration by the Subcommittee.

Discussion
Dr Ndlozi: We totally disagree with this matter being dealt with this way, because it's basically the status quo from the beginning. The problem is you've got a division of revenue called into being through Budget Vote 1; how then do you constitute the expenditure items in light of the constitutional prerogative of Parliament to hold the executive accountable. How do you deal with those items? Where is that money being used? Where is Parliament exercising oversight? It is not the Minister of Planning, Monitoring and Evaluation that is spending that money; it is the President. There are a whole set of programmes that the Minister of Planning, Monitoring and Evaluation has no say on. There is the AIDS Council etc.

Our point is that there must be a Portfolio Committee [on the Presidency]. That is what we've been saying since the Sixth Term, not this. I did try on 23 October, almost 48 hours ago, to say, when we make proposals and the Table staff comes back, it must reflect the views of all members. The proposal for a Portfolio Committee on the Presidency has been made and should have been included. There must be a separate portfolio committee on Budget Vote 1: The Presidency in which either the President or the presidency appears, so that a BRRR can be considered, as well as a division of revenue accountability process on Budget Vote 1. The Presidency now has SOEs and a bill about all SOEs having a holding company. That Bill is sponsored by the President, not the Minister of Planning, Monitoring and Evaluation. This proposal is inadequate. Even if you defeat us with your numbers, comrades, put the proposal in writing. Let's go to the Rules Committee, because there were two proposals from the beginning. So I disagree completely with this one. We want a special portfolio committee that is going to exercise oversight on the Presidency for Budget Vote 1 and the division of revenue process. Thank you very much.

Mr Mahlaule: We are fully in support of the proposal before us. Amongst other reasons we are supporting it is that there seems to have been issues strongly raised about the accountability on other operations of the Presidency that are not scrutinised by other committees. You are well aware that Planning, Monitoring and Evaluation is scrutinising some of the activities in the Presidency. The Department of Women, Youth and People with Disabilities is scrutinised by a portfolio committee. So the missing point is operations that are deemed to be necessary to be known by the public, but not scrutinised by any committee. This proposal says the Speaker must assign those aspects of the budget vote and operations of the Presidency that are not scrutinised by other committees, to close that gap. There is an obsession with a standalone committee. It can be a standalone committee but it still does the same issues that we are trying to close the gap on with this proposal.

With the President not being a Member of Parliament, there is a Deputy President and other ministers, and when it comes to accountability and responsibilities in the Constitution, it does say members of cabinet are accountable, collectively and individually to Parliament for the exercise of their powers and performance of their functions. We should not pick and choose what we want to see. There is accountability from the Presidency, and if there are certain issues that we think are not covered, and we want them to be covered, here is a proposal that is closing the gap. So we fully support this initiative and proposal by the Table staff.

Mr Gana: I think the proposal as it stands is a move in the right direction. What I will suggest, whether it forms part of the resolution or is outside, is the resolution should include that there be some kind of review because it may well be that the proposal is not effective enough. That would give us room to review the rules even within the Seventh Parliament. We give this a try. Let's see how it works, and then if there are areas we can tweak, we can do that. I think it will also help, not necessarily for this committee, perhaps as part of the Chief Whips Forum or it's handled in one of the political party forums, to look at the functions to ensure that they are covered before the full implementation. But I think in the in the short term, this is moving us in the right direction, and I think we will get there. I think, at least for me, it will not be a desire to say that the President ought to appear before the portfolio committee. At least for me, it will not be the essence of what is holding the executive to account – it does not necessarily mean that the President must appear before a portfolio committee. That's my submission. Thanks.

Mr Manyi: I think the concept of collective responsibility is rhetoric. Only yesterday, Minister Nzimande did not want to accept that responsibility of collective responsibility. People throw this term around but the executive has no respect for that thing called collective responsibility. I have served in the PME Portfolio Committee. I know the issues much more intricately in that committee and I don't think this formulation would cover that. For instance, just to give you a practical example on the evaluation of ministers. If you ask Minister Maropene Ramokgopa in the Presidency to share how a ministers’ performance is managed so Members can know how ministers are being rated, she can’t answer on that. That is the specific preserve of the President. The issue here is that the President, strictly speaking, which is also in the Constitution, is the executive authority, and others are basically assisting him to execute that function. But the President does not devolve all his powers to the various ministers. So this thing is very murky as it currently stands.

Maybe we should park this for now and get more information on what is envisaged and ensure everything under Budget Vote 1 is accounted for. We must know that all is covered and that there are no gaps. Especially with the ANC/DA coalition, we cannot trust anything that is not properly explained. I think our view is that if we are to consider this, then all the information must be put on the table. Give us a list of the activities which you know yourselves are not scrutinised, so that when we agree to this, we know what we're agreeing to. If there are some gaps that are not covered, we don't know what those gaps are, because this thing is worded in the most political way. It's got all kinds of escape clauses. I'm saying give us adequate information so that we can make a clear decision. Right now, you've just given us a screen saver. We don't want a screen saver.

Chairperson: I just want to remind you, you keep on using this term, ANC/DA coalition. There's no such - we have a Government of National Unity led by the ANC made up of ten parties.

Dr Koornhof: I think we must recognise that there are various departments in the Presidency that account to various portfolio committees in Parliament. It's DPME, it's Woman, Youth and Persons with Disabilities, State Security, National Planning Commission and others. That's the first point I want to make. The second one is that there is a comprehensive debate on Budget Vote 1 for two days, it might be three, with a reply included. Thirdly, this UK study tour the Sixth Parliament undertook had submitted quite a comprehensive report. Now the United Kingdom doesn't have a President, but they did undertake the tour, and they came with recommendations that the Seventh Parliament must further look into it.

It always worried me that we shouldn't make a decision on a study tour that was taken only to one Western European country. Maybe we can recommend that the Rules Committee may make a recommendation to undertake a further comprehensive comparative study, which also includes countries on the African continent and other jurisdictions with a similar parliamentary system – rather than only relying on a European country. Looking at the resolution, I want to make a proposal that we support this resolution and recommend the Rules Committee make the final decision. Thank you.

Mr C Dugmore (ANC): I think a number of speakers have covered me. I want to indicate support for the resolution as it is captured. I think that the Speaker assigning these aspects of the Budget Vote will assist and it's also critical that the Leader of Government Business informs the Speaker in writing in time, because obviously we need the BRRRs to cover all aspects of Vote 1 and that those reports need to come through to comply with national legislation deadlines. We are all going to have this particular debate in the Rules Committee and even in Parliament but I must say that the mechanisms which currently exist clearly provide for a number of levels of oversight. I think this is a solution which assists us, especially to get clarity now for the duration of the Seventh Parliament. I would also support Dr Koornhof’s proposal that we leave this as what we'll do for the Seventh Parliament but let's go and have a look at a number of countries on the continent, maybe some countries in the East, and look at any lessons that can inform us. However, for the duration of the Seventh Parliament, this gives clarity, and at least we know where that accountability will lie. It's clear to me that there's no attempt to escape accountability. It actually enhances it.

Ms Makhubela: Let me support the proposal as is. I am in full support of the statement by Mr Gana which states that – it's not ideal – we don't want a situation where we would want to bring the President to a portfolio committee, so that one is out. But in the spirit of wanting accountability, the mechanisms that Parliament has for now are sufficient because in every quarter, the President does come to answer questions to Parliament. The various departments that are housed in the Presidency are reporting direct to portfolio committees and for now I believe the systems that we have are sufficient for accountability. However, I want to support the proposal that says let's expand our scope and determine the parliaments that have a portfolio committee that looks into its presidency and see if we can work on something that brings in sufficient studied practices, rather than just wanting to have a portfolio committee for the Presidency. The proposal as is, is sufficient.

Mr Mahlaule: When we debate here about which route to take, we do it on the basis that we want Parliament to be empowered to discharge its oversight responsibilities effectively. That is why some of us, when we differ with the likes of Dr Ndlozi, we do appreciate where it's coming from, and we listen. To get to a point where you differ with the submission, you have appreciated what he is trying to push. However, with others, it's difficult to appreciate what they are saying, because the things that are said are very shocking. Let me give you an example. You can't, when it suits you, say the very same Constitution that states the President is the executive authority, also say there is rhetoric in the Constitution about collective Cabinet responsibility (section 192). This makes some of us lose appreciation when you bring a point to better the work we are doing for parliament. Now, if Mr Manyi has a problem with how ministers are behaving towards the Constitution, that’s another issue that we must deal with. However, we can't appreciate the Constitution at one level and don't appreciate it at another level and want to be guided by the very same Constitution that we appreciate selectively. It becomes very difficult.

The same with diagnosing situations under a “collation government”. We are not going to help you here because there is no coalition government here. We are dealing with GNU. Once you don't appreciate that, you will speak out of turn every day, and you’ll think we don't appreciate your views when you speak about them. It's not given that we must agree but at least make us appreciate that you are going towards a direction to help Parliament to discharge its responsibility. I mean, you can't say when it suits you that this is a “screenshot issue” when we have been receiving presentations and appreciated the Table staff for the presentations. Now you want to ridicule it and call it a screenshot. It's really difficult to appreciate some of the submissions made here and go towards a conclusion that assists Parliament to discharge its responsibilities. Thank you, Chair.

Mr Manyi: Firstly, let me make it clear that there's a difference between a screen saver and a screenshot. So I understand Mr Mahlaule’s response to this, if his understanding is that a screen saver and a screenshot are one and the same thing. They are two different things. The issue here is a very simple one. There's an acid test for this. The acid test is – of the 100% power and authority that the President has, how much of it has he devolved? Has it devolved to his ministers in the Presidency and if the answer is he has devolved 100% of it, then I'm covered. But if the answer is no, there are certain things he has held back, but spending money on, but those are things that are only under the guidance and the leadership of the President, then he must come and account. I think that is the essence of the issue here. So what we've been told here is indeed a screensaver.

Just so that’s not ambiguous, I'm very clear, my understanding is that the President has not devolved all his powers, and therefore these ministers are never going to be able to account for every cent happening there. We therefore reject this proposal. We want a very clear standing portfolio committee that is going to deal precisely with the areas which are the sole preserve of the President. The various ministers that have been listed are already exercising those powers. The problem we have are the other things that have not been devolved to them. I gave an example of the performance monitoring and evaluation of ministers that is not in one of these. If the President devolves all his powers to the ministers, then we know that we're dealing with the full thing. But I know sitting here that that is not the case, and therefore we are saying the President himself must indeed account. And by the way, there's nothing peculiar about the President coming to account, and not being a member of parliament. We call even private citizens to come and account in Parliament. So what is special about the President accounting? The President must come and account. So we reject this proposal.

Dr Ndlozi: Maybe we must address the tension between Mr Mahlaule and Mr Manyi. It’s not necessary to be marking each other like that, comrades. I'm just appealing that maybe we want to take a different approach, since at this level it is about developing proposals and not get bogged down in the details of screenshots and screen savers [laughs]. I want Members to appreciate the following: One, the question and answer session is a mechanism of Parliament for every member of the executive. So it's not like special for the President. Everybody goes through question and answer sessions in the National Assembly. Second, the budget debate – Dr Koornhof thinks because the budget vote one is debated in the National Assembly for two days, it means there is no need for the division of revenue processes that other debates are subjected to. That budget vote one doesn't have to simply because it's debated twice over a two day period. Again, this is wrong, because budget debates are subject to every other budget.

 It's part of the division of revenue process outlined by the National Assembly. Now you are going to get into a cul de sac when it comes to the Budgetary Review and Recommendations Report – from where would the BRRR process for Budget Vote 1 come? You don't have it. It couldn't come from Planning, Monitoring and Evaluation because Planning, Monitoring and Evaluation is a ministry itself; it’s a department; it has its own portfolio committee recommendations and reports. You've got programmes in the Presidency that are done by the President, where state money is being spent that are not given to any other portfolio committee. This needs to be processed through a BRRR process and the general division of revenue process. They are not there. The President himself is engaged in those programmes and the Minister of Planning, Monitoring and Evaluation cannot speak to those programmes that are there. I'll give you several examples: that minister is not responsible for the National AIDS Council; is not responsible for South Africa's investment conference; Presidential Climate Commission; Infrastructure South Africa; National Strategic Plan on GBV; Presidential Youth Employment Intervention, Operation Vulindlela, etc. It’s a lot. Ministers in the Presidency are not responsible for the money spent in those programmes. They will not be able to speak to us about those. That is the truth. That minister is not the sponsor of the bill on state-owned companies being under one single holding company. Those Ministers will not be able to speak to that, because they are not responsible for that. So let's be fair what this argument is about and if comrades can at least have some intellectual fidelity to what we have been raising from the beginning. In the past, it used to be all members of the opposition that agreed on this.

Now my final point is the study tour. I completely reject that we must go somewhere in the world to do what the Constitution of South Africa asks us to do. We must develop mechanisms to hold the executive accountable. The President is the executive. There is absolutely nothing, wrong with having a portfolio committee in which the President appears to answer about the programmes he's leading and where taxpayers’ money is being used and leading conversations about why he wants to establish a holding company. There’s absolutely nothing wrong. Do not make him above the Constitution. Do not shield him from accountability. Thank you very much.

Chairperson: Thank you very much members. I think we have exhausted our inputs on this matter. What I'm hearing from the different members is that no one is saying there should be no accountability. We are all saying that there should be accountability – of which we do have mechanisms in parliament for the executive to account – of which the President is one of the executive members who is accounting in Parliament. Then, there is this issue of saying in the budget, there are some aspects which are not covered. What we are getting here is a recommendation of which some members are agreeing with the recommendation. If I may take you back, there was a presentation by the Budget Office, which led to members of the Chief Whips Forum embarking on that study tour. But what other members are saying here is that, yes, there was a study tour. It didn't come with concrete evidence that we can take from of how a portfolio committee overseeing a presidency is doing oversight. So let's embark on other research, be it desktop or another study tour to other African countries which have the same system as South Africa. We know that our systems are not the same all over the world, but let's rather use what is being recommended now. Then while doing so, let's embark on another study tour, be it desktop or study tour. Then we will come back and see how best we can do what we have to do as Parliament. But it doesn't mean that there is no accountability. As we speak, there is accountability. No one is barred from asking any questions to the President, any question they want to ask. In the meantime, the suggestion is let's make use of what is before us. Let's support this proposal. If maybe those aspects can be clearly stipulated on what aspects of the budget are not accounted for. That is what he was saying. So with those two different views, I think they will be captured as such in our report to the Rules Committee. I want us now to step off this item and move on to the last item of the day.

Money Bills and Related Matters Act
Mr Hahndiek: Hope this will be a little bit more straightforward. This is really more of an update, and by way of background, so in the last Parliament, the Rules Committee was working on draft rules to supplement the Money Bills and Related Matters Act to assist parliament to implement the Act, and obviously in its effectiveness in terms of budget matters. It was quite far advanced at that point. There were draft rules. It was then agreed that those draft rules should be sent to the respective standing committees of appropriations and finance, both in the NA and in the NCOP, because some of these procedures indirectly or directly affect the NCOP and even the provinces. We did receive feedback from those stakeholders, but it was very late in the term, and then, of course, you know, the house adjourned for elections. In this Seventh Parliament, the matter was resuscitated in the Rules Committee, and we then felt that because these committees were new standing committees, the members were new, it's a new parliament, that they should be given a new opportunity to look at the draft rules and raise any issues that they may have. We're expecting feedback by the end of October. We would hope that the next meeting, if not at the Rules Committee, then the subcommittee, that we will have any inputs they may make. But we are quite confident that if there are any changes, they won't be dramatic and I think we will be able to proceed with it quite quickly. Thank you.

Mr Xaso: Our commitment is to finalise this matter this year. We think that we need to get to a point where the NA or Parliament broadly, can be in a position to amend the budget if it deems that appropriate. We want to provide the rule infrastructure so that it's really up to the House how it utilises that rule in that rules infrastructure.

Discussion
Mr Gana: I agree with that recommendation.

Dr Koornhof: We support.

Dr Ndlozi: That’s fine.

Closing
The Chairperson thanked the Table for the presentation on Money Bills. Everyone is agreeing with the proposals that you are putting before us. We have come to the end of our meeting, but I want to say this to the meeting – when we are in a committee meeting, let's focus on what is before us, which is the business of that particular committee. Let's not bring in some things that are not really necessary. These portfolio committees meetings are being followed by all South Africans, so we have young people who are also looking up to us as members of parliament, as their role models. Let's make sure that we are civil to one another, and also we focus on the business of the day, not to bring things that are really not necessary. Let us be the honorable members. We must always behave in a manner that is appreciable of everyone who's watching the programme or who's listening to what we are saying. With those few words, let me take this opportunity to thank you all for your inputs and also for attending this meeting. And to the NA Table led by Mr Xaso, we thank you for the work that you are doing. We really appreciate it.

The meeting is adjourned.