A summary of this committee meeting is not yet available.
JOINT SUBCOMMITTEE ON POWERS AND PRIVILEGES
11 October 2000
DRAFT POWERS AND IMMUNITIES BILL
These draft minutes have been compiled by Committee Secretary, Masibulele Xaso
Ginwala, F N
Goniwe, M T
Masutha, M T
Mpontshane, A M
NATIONAL COUNCIL OF PROINCES
Ntwanambi, N D
Mushwana, M L
Vilakazi, J N
Surty, M E
Mbete, K (Deputy Speaker - NA)
Pandor, N (Chairperson - NCOP)
Makoela, M I
Makwetla, S P
Staff in attendance: Lilienfeld, P; Xaso, M; Adonis, J; Palmer, I; Raphela, MM; Nonyane, B; Borien, J; (Consultant: Prof N Haysom)
2. Adoption of Minutes [21 June 2000]
3. Matters arising from Minutes of previous meeting
2. ADOPTION OF MINUTES [21 JUNE 2000]
The minutes were adopted on the motion of Mr Mushwana, seconded by Mrs Vilakazi.
3. MATTERS ARISING
The Speaker noted that at the last meeting staff had been asked to advise the subcommittee on the procedure for processing the legislation.
It was agreed that such a procedure be developed to enable the Bill to be considered by the House early in 2001.
4. DRAFT POWERS AND IMMUNITIES BILL
The Speaker outlined the issues the meeting had to consider as follows:
1. Procedure for processing the legislation; and
2. Contents of the draft Bill.
4.1. PROCEDURE FOR PROCESSING THE LEGISLATION
The Speaker intimated that the authority to draft the legislation had been granted by the Rules Committee and that the subcommittee was therefore functioning within its mandate. She said that given the fact that the draft legislation was not a private member's legislative proposal, it would once it was finalised, and subject to anything to the contrary, be tabled in the name of the two presiding officers to give it the authority of the Houses. She suggested that an expanded or ad hoc committee, representative of all the parties, would have to be established in order to process the legislation with a view to submitting a report to the House for adoption in February 2001.
Mr Surty agreed with the suggestion by the Speaker and added that the subcommittee would have to report formally to the Rules Committee for the approval of the recommended procedure.
The Speaker stated that due to time constraints the subcommittee would, by agreement among the parties, report directly to the House not via the Rules Committee.
After deliberations on the matter, it was resolved that:
A considered opinion on the procedure be prepared and submitted to the Speaker's office without delay.
The National Assembly and the National Council of Provinces adopt a resolution on the matter on Friday, 13 October.
4.2 CONTENTS OF THE DRAFT BILL
Prof Haysom provided an overview of the draft bill, after which the clauses were discussed individually.
He mentioned that the Bill was still a draft which had emerged from cursory discussions and an agreement that in order to give proper instructions for drafting, the subcommittee needed too have a text in the form of a draft Bill. In incorporating the old framework, the draft Bill had taken into account the context of the new institutions and also gave effect to the current constitutional prescriptions relating to freedom of speech. In line with the decision taken at the previous meeting, the term "immunities" had been used instead of "privileges". The shift was in line with an international trend. The Speaker, in explaining the shift from "privileges" to "immunities", said that the intention of the legislation was not to set up an elite with privileges that did not extend to other citizens. Instead, it was there to enable parliamentarians to function adequately and the explanatory memorandum would need to explain this. Mr Eglin cautioned the subcommittee about the constitutional implications of the shift in terminology. The Speaker asked the drafters to look into this matter before finalising the legislation to ensure that the constitution was not contravened.
Matters not covered in the draft Bill
Prof Haysom indicated that the Parliamentary Law Adviser had suggested that the clause dealing with Parliament's powers to set its own budget be omitted because the Public Finance Management Act dealt extensively with the matter. However, his view was that the matter pertained to the powers of Parliament and as a matter of principle, it should be reinserted in the Act and the mechanics thereof be dealt with in the Public Finance Management Act. The Speaker agreed and stated that as a matter of principle the powers of Parliament to deal with its own budget had to be incorporated into the legislation, since this was a fundamental power of the legislative component of government.
The other matters which had been omitted related to (1) contempt vis-a-vis the powers of Parliament. It was necessary to flash out the concept of contempt; (2) the constitutional requirement for Parliament to specify the circumstances under which a member could be expelled for failure to attend Parliament. He suggested that for the sake of completeness the legislation needed to refer to the fact that the Rules had to specify the circumstances for the expulsion of a member.
Protection of right of freedom of speech
During the discussion, members queried the apparent inadequacy in the protection granted to the special delegates of the NCOP and in respect of the definition of
Parliamentary precincts. The Speaker mentioned that Parliament and its committees had the right in terms of the Rules to meet anywhere in the country. It was agreed that these provisions needed to be explored and defined properly.
4.3 CLAUSE-BY-CLAUSE DISCUSSION
Prof Haysom stated that in other legislatures, 'parliamentary precincts' were defined by reference to a geographic zone, the outlines of which were gazetted.
The Speaker added that it was necessary to ensure that where committees sat beyond the precincts, they were given the necessary protection.
Ms Vilakazi added that defining the precincts geographically should not preclude Parliament from sitting elsewhere, as was provided for in the Constitution.
CHAPTER 1 - FREEDOM OF SPEECH
In response to an enquiry by Mr Eglin, Prof Haysom pointed out that the fact that parliamentary freedom of speech was subject to the relevant standing rules, was specified in the Constitution. He added that while the draft indicated the manner, form and venue of freedom of speech, it did not define its content. The draft set up a framework, not the machinery.
The Speaker stated that abuse of freedom of speech should be dealt with, either in rules or in legislation. For example, where a member knowingly abused the right of freedom of speech to destroy the reputation of a non-member, knowing that the information was incorrect, a remedy should be provided. Prof Haysom responded that in terms of the Constitution, this could only be done in terms of the rules. Mr Surty pointed out that it would have to be borne in mind that the rules could not violate a constitutional right of an individual.
The Speaker said that there should be clarity on whether cabinet ministers and the President were protected. Prof Haysom responded that the right of freedom of speech was not a personal right, but was needed to enable a full debate to be conducted. It therefore applied to any person participating. It was agreed to flag this issue.
In response to an enquiry by Mr Eglin as to whether clause 4(b) was necessary, Prof Haysom suggested that it be left in provisionally and flagged.
CHAPTER 2 - IMMUNITIES
The Speaker pointed out that such immunities only applied where a member was acting in his capacity as a member of Parliament, and this should be made explicit. Prof Haysom stated that these rights were drawn from the Constitution. This would be looked at, since it might have been too narrowly worded.
Clauses 3 to 7: Prof Haysom stated that the immunities granted to members to enable them to perform their duties, extended beyond freedom of speech, to a range of activities, covered largely in clauses 3 to 7.
Clause 7: Prof Haysom explained that this clause sought to prevent an outside agency from fettering a member in the free exercise of his powers and duties as a member. He added, however, that it might prove necessary to exempt the functioning of parties from this provision.
The Speaker pointed out that at present, a member who was a consultant in an area under discussion could declare his or her interest and recuse him/herself. Since this clause might prevent any commercial link at all - especially subclause (b), the issue should be flagged for consideration.
Clause 8: The Speaker queried who would perform the 'arrest' referred to in subclause (1). In addition, since the clause referred to the situation where Parliament or a committee was sitting, what would be the case if there was no sitting at the time of the incident? Where this had happened previously, members had accepted an informal ruling by the presiding officer, but this needed to be examined.
Mr Surty stated that the issue was how to preserve the dignity and decorum of Parliament, whether or not a sitting was in progress.
It was agreed to flag subclause (3).
It was agreed as a principle that Parliament should only as a last resort call on the police to assist in maintaining discipline in Parliament. The whips should provide guidance in this regard.
In contrast to the previous Act, the draft bill provided that a nonmember who creates a nuisance is handed over to the criminal justice system. Mr Eglin commented on the distinction drawn between a 'person' and a 'member' who infringed the rules. It was agreed that this would be flagged.
Clause 10(c) Mr Eglin asked who determined whether an act was 'calculated' as defined in the clause. It was agreed to flag the issue of whether such an act had to be intentional. Mr Eglin queried whether this subsection should be not covered in the Rules.
Clause 11: The Speaker asked whether, in view of the Chief Justice's comments about certain procedures only being permissible in terms of rules, it was appropriate to have this provision in legislation. Including the fine in the legislation would also have to be considered.
Clause 12: Mr Eglin compared this clause with clause 8(a) and pointed out that it did not appear to cover the case of a committee sitting beyond the precincts. The Speaker stated that this should be clarified in redrafting, and that 'sittings' should include committee sittings. Prof Haysom pointed out that one of the clauses dealt with the need to deal with a disturbance, while the other concerned procedures after the event.
Clause 13: The Speaker queried whether a total ban was appropriate, and stated that this would have to be examined. Prof Haysom asked for guidance on redrafting the clause. The Speaker pointed out that there was a lack of clarity on what the word "sitting" meant.
Clause 14: Prof Haysom pointed out that the provisions of the clause reflected international practice.
CHAPTER 4 - MEMBERS AND OFFICERS
It was proposed that the situation of special delegates to the NCOP be clarified throughout.
Clause 18: Prof Haysom suggested that this clause and clause 19 could be integrated. He pointed out that the provisions of the clause went beyond disclosure.
Mr Mushwana expressed concern about the fact that similar clauses were to be found in the Code of Conduct. The Speaker pointed out that she had asked parties to consider these issues.
CHAPTER 5 - WITNESSES
The Speaker asked to what extent witnesses were protected. She cited the possibility of a person who wished to make defamatory allegations, protecting him/herself by making them to a public committee of Parliament. She pointed out that the statements need not necessarily be in the form of responses to questions asked by the committee, as referred to in Clause 26. Parliament should not lay itself open to being used for such a purpose. Prof Haysom referred to the offences relating to witnesses in clause 25. Mr Mushwana stated that for a witness to enjoy protection, any evidence given should be relevant to what had been asked for.
4.3 (A) TIMEFRAMES AND PROCEDURE
Prof Haysom suggested another meeting of the committee at which parties could make inputs on the issues raised, so that adequate instructions could be given to the drafters.
The Speaker pointed out that party inputs had been requested for a year, with little response. It was now necessary to set deadlines, and the legislation should be in place by February 2001.
[Prof Haysom left the meeting, with apologies]
CHAPTER 6 - PARLIAMENTARY PUBLICATIONS
The limits of the protection for publication of parliamentary material were discussed - for example, was a person who quoted defamatory material from Hansard protected, and if so under what circumstances? It was necessary to investigate how this was dealt with in other jurisdictions.
Mr Bakker raised the issue of the use of parliamentary letterheads.
CHAPTER 8 - GENERAL
The Speaker stated that this was a blanket provision, and cautioned that it was necessary to ensure that it was not unconstitutional. She questioned whether Clauses 3 and 33 did not overlap.
4.3 (B) TIMEFRAMES AND PROCEDURE
On the proposal of the Speaker, it was agreed that:
A meeting be scheduled during the one-week session in Oct/Nov 2000.
At the meeting, parties to finalise instructions to the drafters with deadlines.
After the meeting, the subcommittee to recommend to the House to appoint a committee to consider the legislation.
The meeting adjourned at 12:01
No related documents
- We don't have attendance info for this committee meeting
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.