Deliberations

The Chairperson of the National Council of Provinces opened the meeting at 10:10.

2. Apologies (Item 1 on agenda)

Apologies were tendered on behalf of Ms F I Chohan-Khota, Ms C B Johnson, Ms N D Ntwanambi, Mrs A N D Qikani, Ms E Thabethe and Messrs M R Baloyi, F Bhengu, M J Ellis, D H M Gibson, N T Godi, S H Gqobana (Eastern Cape), C H F Greyling, I S Mfundisi, S Shiceka and J O Thlagale.

The agenda, as presented, was agreed to.

4. International Relations: Establishment of structured relations with European Union and other regional bodies (Item 3 on agenda)

In addition to a set of supporting documents circulated earlier, a document entitled "Towards a structured parliamentary diplomacy model: Potential models for cooperation between Parliament of South Africa and third parties" was distributed to members of the Committee and presented by Mr Ahmed.

The Chairperson of the NCOP opened the floor for discussion, but cautioned that since the presentation was the first the Committee had had on the topic, the issue might not be finalised that day.

The Speaker said that the arena of the Portfolio Committee on Foreign Affairs should be separated from international relations that Parliament engaged in, as there was a clear distinction between the two. The portfolio committee dealt with oversight over the country’s foreign policy. That did not fall within the domain of the Joint Rules Committee, though it was useful for Parliament to take the country’s foreign policy into account in its own relations with international parliaments and parliamentary bodies.

She said that apart from being overwhelmed by the amount of work in the past 10 years, one of the reasons why Parliament had not formed parliamentary friendship groups was because there had been a tendency, before 1994, to form friendship groups for the purpose of sanctions-busting. The majority party had come to Parliament in 1994 determined not to perpetuate such practices. Requests for the establishment of formal friendship ties with the South African Parliament were therefore declined.

The Committee was now being asked to consider whether Parliament should establish bilateral friendship groups where members, in a consistent manner, could look at issues arising from their ties with other parliaments. In other words, the Committee had to decide whether friendship groups were the mechanism through which Parliament would like to relate to other parliaments. The request for the establishment of a European Union friendship group could then be considered in that context.

The Speaker explained that there were also issues requiring consideration that arose out of Parliament’s participation in bodies such as the IPU and CPA. For example, the delegation that would go to the IPU conference in Manila had met the previous day and international peace and security had been discussed. Also, Mr S J Njikelana had been chosen by the IPU as a rapporteur, so work was emanating from such forums. Parliament’s work in respect of the international arena was not dependent on relations between the Department of Foreign Affairs and other countries’ foreign affairs departments.

The Speaker added that there was sometimes pressure, usually from portfolio committees, for affiliation to international sectoral bodies. In the past 10 years the stance had been that Parliament should be wary of affiliating to all kinds of international sectoral bodies, as it was usually costly and there was, in fact, nothing preventing committees or members from attending the activities of such bodies, if they had the necessary budget.

She said that there used to be a Subcommittee on International Relations, but already in the previous Parliament the presiding officers had come to the conclusion that hardly any substantive, content work was being done by the subcommittee. How Parliament engaged with its counterparts internationally was, however, a critical issue that required policy decisions and often there was a need to provide delegations with mandates before they attended conferences. The question therefore was whether Parliament’s international relations should be a standing item on the agenda of the Joint Rules Committee.

Ms Mentor said that the document that had been presented raised important issues, including the need to transform the approach to international relations, but no role had been proposed for the presiding officers. It had not been indicated whom or what would drive the processes, whether it would be the International Relations Section or whether such an important function would be located in the Office of the Speaker and the Office of the Chairperson of the NCOP.

Ms Kalyan said that at present there was a semi-formal relationship with the Pan-African Parliament, managed by an ad hoc committee. She asked where that function was currently situated and whether an evaluation had been done to determine whether it was working or not.

Mr Ahmed replied that serious discussion was required as to where to place the work formerly done by the Subcommittee on International Relations. The subcommittee had been chaired by the presiding officers and was therefore a high-level policy-formulating body, though eventually it had been bogged down by detail around visits to and from Parliament. The presiding officers had a critical role to play in international relations and would probably drive the process. He continued by explaining that he currently chaired a committee that provided support to South Africa’s members of the Pan-African Parliament. However, how the relationship with the Pan-African Parliament would be structured still remained to be decided.

Ms Rajbally thanked the Speaker for outlining the implications of establishing friendship groups with other parliaments. She said that it was important to ask what Parliament stood to gain by establishing friendship ties, whether the norms, standards and values of other parliaments could be applied to South Africa and what the financial implications would be. She said that friendship ties should not be dismissed out of hand, as Parliament could not work in isolation, but various avenues had to be explored first.

Mr Nkomfe said that the document did not indicate what approach informed Parliament’s engagement with foreign parliaments, for example whether such engagement would merely deal with the role of Parliament as a transforming legislature.

Adv Masutha asked whether an individual member of Parliament, in his or her capacity as a member of Parliament, could subscribe to an association of parliamentarians at international level without necessarily acting on behalf of Parliament as an institution. He also asked whether such members could accept invitations from those associations without the sanction of Parliament and its relevant structures. Also, where a member of Parliament was active in nongovernmental structures, could he or she, in an advocacy capacity and as a member of a delegation of that body, interact with parliaments and parliamentary institutions outside the country? He said that the policy position had to be clear.

Mr Sithole said that the question of how Parliament should look at its international relations could be considered at two levels. The first was at the level of the portfolio committee, where the preoccupation was with oversight over state institutions implementing the government’s foreign policy. Parliament was expected to interact with other parliaments and the question was whether one wanted to set up a committee that derived its powers from the same source as the portfolio committee. Mr Sithole suggested that that was not the best option. Anyone who served in any international body should have a mechanism through which he or she could report back to Parliament on the activities in which he or she had engaged on behalf of Parliament. Such participation often went beyond mere representation and also involved, for example, the monitoring of elections. There should, therefore, be a mechanism that would allow members to report back to Parliament, so that Parliament could process the information, if necessary.

Mr Sithole proposed setting up a committee that would process such participation both administratively and politically, located in the Office of the Speaker and the Office of the Chairperson of the NCOP. He further proposed that for the purpose of allowing greater flexibility, the committee should not be established in terms of the Rules. Such a committee would process all international relations issues on behalf of Parliament, under the leadership of the presiding officers. That would allow the presiding officers to have first-hand information, but also for Parliament to guide those parliamentarians who served on international bodies and to give them proper mandates.

The Speaker said that the question of where members of the Pan-African Parliament would get their mandate from and process issues emanating from the Pan-African Parliament had been considered while it was being set up. It was decided then to establish two subcommittees of the Portfolio Committee on Foreign Affairs, one to deal with Africa, including the Pan-African Parliament, and the other to deal with the broad area of foreign policy. She reminded members that the delegates to the Pan-African Parliament served as representatives of the African people. There was no recognition of a South African delegation as such.

The Speaker added that the point raised by Mr Nkomfe was important. A document was required that would indicate broadly what principles guided Parliament in conducting its international relations, albeit bilaterally or multilaterally.

On the proposal of the Speaker, it was

AGREED: That a policy document containing the core values that informed Parliament’s international relations would be presented at the next meeting of the Committee for processing and refinement.

With regard to individual MPs participating in international parliamentary forums to which Parliament was not formally affiliated, the Speaker said that they would not be prohibited from participating as long as it did not bind Parliament officially. Parliament would not prevent a member from participating, but would also not pay for such a member’s trip. It was a matter between the individual member and his or her party whips.

Regarding Mr Sithole’s proposal for the establishment of a committee, the Speaker proposed that the option of establishing a committee be put on the table for discussion. She further proposed that members also give consideration to the establishment of focus groups that would report back to the Joint Rules Committee. She added, however, that more discussion was required before the matter could be finalised.

On the proposal of the Chairperson of the NCOP, it was

AGREED: That Parliament’s international relations would be included in the agenda for the next meeting of the Committee.

5. Provisions from Interim Constitution still in operation (Item 4 on agenda)

A document entitled "Provisions of the Interim Constitution that are still in operation" had been distributed to members of the Committee earlier and was presented by Mr Ramurunzi.

The Speaker explained that the matter of provisions from the Interim Constitution that were still in operation came up because the Joint Rules provided for a Joint Committee on Oversight of Security Matters, but it could not be established owing to a specific provision in the Interim Constitution still being in operation. Consideration had to be given to operationalising that structure, in which case a constitutional amendment would be required, or maintaining the status quo.

Ms Mentor asked what was meant by the phrase "There is a functional basis for this section" that was used in the document.

Mr Jeffery said that he was also unsure about what was meant by "functional basis", as he had presumed that there was a functional basis for everything that had been included in the Constitution. The question was probably whether a particular provision was still valid or not. He suggested that the issue was rather what should be done with the report as a whole. One option was to refer it to the Constitutional Review Committee for a recommendation and another was for the Houses to pass a resolution, requesting the Minister for Justice and Constitutional Development to look at the matters contained in the document. He asked whether the Rule on the Joint Committee on Oversight of Security Matters had ever been operationalised and, if not, whether anything was lacking as a result of not having such a committee.

Ms Kalyan asked whether the matter had already been before the Constitutional Review Committee and, if so, what the committee had reported.

The Speaker said that the question was very specifically what had been envisaged by the inclusion in the Rules of the provision for such a committee. What role had been foreseen for it? She said that there had to have been a reason why it was considered necessary to include such a provision.

Mr Jeffery listed the functions of the joint committee and asked whether they were not already being performed by the Joint Standing Committee on Defence, the Portfolio Committee on Defence, the Portfolio Committee on Safety and Security and their equivalent committees in the NCOP.

Mr Ramurunzi explained that the point of departure had been that since the provisions in question had been included in the Interim Constitution, there was a functional basis for their existence, but in many cases they could now be taken up in existing legislation.

Adv Masutha proposed that the Constitutional Review Committee, in its deliberations, should look holistically at whether provisions that had been carried over from the Interim Constitution into the Constitution by way of transitional arrangements should be kept alive as such. He said that an attempt should be made to get rid of the legacy element in the Statute Book. If something had already been resolved and finalised, either in the Constitution or in current law, it should not still be carried as a legacy issue.

Mrs De Lille said that she did not quite understand why it was being suggested that because something was contained in an Act of Parliament, it should be removed from the Constitution. She asked whether they were talking about constitutions or whether they were talking about the Constitution vis-à-vis Acts of Parliament.

Ms Mentor said that her concern was similar to Mrs De Lille’s. She said that she was trying to understand was had to be done. For example, if the provision on the rationalisation of public administration were to be juxtaposed with the section on the Public Service and Administration currently contained in the Constitution, and taking into account the history of the rationalisation of the Public Service, the proposal in the document would, in the long run, entrench in law what had been an interim arrangement for the public administration and dilute what was contained in the Constitution. She said that it was necessary to consider what the final impact of the proposals would be.

Mr Nhleko said that most of the issues raised related to the Speaker’s first question, namely why the provisions were in the Constitution in the first place. If that particular analysis were to be made, the implications of removing them or locating them in other legislation would be clearer. The Speaker’s suggestion should therefore be the starting point. He said that the only thing the Committee could look at was at how the issues should be processed.

Dr Van Heerden asked whether the Legal Services Office could give the assurance that the provisions contained in the document were the only provisions from the Interim Constitution that were still in operation.

The Speaker, as background, explained that the issue had come up when the establishment of committees was considered after the election. At the time the law advisers were asked by the Committee to draft a document on all the provisions from the Interim Constitution that were still in operation.

On the proposal of the Speaker, it was

AGREED: That -

1. the document entitled "Provisions of the Interim Constitution that are still in operation" would be referred to the Constitutional Review Committee for consideration and report; and
2. that a report would be presented to the next meeting of the Committee to indicate whether, with reference to the 1996 constitutional provisions (sections 198 and 199), the structures for oversight of the security services that were currently in place were already fulfilling the functions envisaged for the Joint Committee on Oversight of Security Matters, at which time a decision would be taken on whether to retain the provision in the Joint Rules or whether to propose its deletion.

6. Problems with language practices in Parliament in relation to bills and amending bills (Item 5 on agenda)

At the request of the Chairperson of the NCOP, Adv Gordon provided some background on how the draft Language Practices Relating to Parliamentary Acts Bill before the Committee had come about.

The Speaker said that the Committee needed a problem statement. Was the problem that the need for a translation into other languages was delaying the legislative process, that the executive had to develop the capacity to provide the necessary translations or was it being suggested that translations were no longer required? To date the matter had been dealt with on the basis that the executive had to provide the translations Parliament required for processing bills.

Mr Tsenoli said that it was necessary to look at whether the problem was related to the implementation of the language policy that had been adopted by the Committee. He agreed that the problem should not be addressed in a piecemeal fashion.

Mr Jeffery said that if multilingualism was being promoted by Parliament, it was necessary to have bills available in more than one language at the time of introduction. If there were public hearings or discussions at constituency level, the bill would then be available in more than one language. He said that it would be good if a bill were available in more than two languages, but Parliament currently required a bill in two languages in order for it to be sent to the President for assent.

He said that the introduction of bills in more than one language should be encouraged. The question remained, however, whether matters should be taken care of by way of legislation or whether it should be incorporated in the Rules. He proposed that it be included in the Rules, as it concerned the procedures of Parliament. The exception clauses could also be incorporated by providing for discretion for the presiding officers.

Mr Jeffery said that in his view the only clause that would possibly have to be retained in legislation was clause 4, which concerned the deeming of official text of Acts passed between 27 April 1994 and 25 March 1999. He said tthat apparently it was not clear what was the official text of Acts passed in that period and therefore it was considered necessary to deem the English text the official text.

Mr Van der Merwe said that he largely agreed with the proposal by Mr Jeffery.

Adv Gordon explained that when the Deputy Minister for Justice and Constitutional Development, Adv J H de Lange, had initiated the work on the draft bill in his capacity as chairperson of the Joint Subcommittee on Review of the Joint Rules, the bill was meant to have contained only the provision in clause 4 regarding the deeming of official text of Acts passed between 1994 and 1999. She said that she agreed with Mr Jeffery that only that provision needed to be included in legislation and the remainder of the provisions could be incorporated into the Rules of Parliament.

Dr Van Heerden asked what would happen if judgments existed that had been based on the Afrikaans text of Acts passed between 1994 and 1999. The Chairperson of the NCOP replied that other languages could also have been affected and asked that it be checked before work on the draft bill and draft Rules proceeded.

Mr Doidge asked whether the problem of amending bills being introduced in a language other than that of the official text had been addressed.

Adv Gordon said that clause 3 of the draft bill contained provisions in respect of the introduction of amending bills. It required, inter alia, that an amending bill be introduced in two languages. If neither of those languages was the language of the official text of the principal Act, then an additional translation in the language of the official text had to be provided.

Mr Doman asked for clarity about the difference between the binding force of a bill and the binding force of the Rules of Parliament. He said that in his mind legislation had more binding force and by adopting a bill on the issue in question, Parliament would be showing that it was serious about providing for all languages.

Adv Gordon said that legislation had more binding force, but the Committee would ultimately have to decide whether it wanted to have the matter regulated by law or whether it would remain an internal arrangement of Parliament, regulated by means of its Rules.

On the proposal of the Chairperson of the NCOP, it was

AGREED: That the matter would be referred to the Joint Subcommittee on Review of the Joint Rules for processing and report.

7. Progress report by Task Team on Oversight and Accountability (Item 6 on agenda)

In addition to a progress and action report circulated earlier, a document entitled "Oversight and Accountability Presentation – February 2005" was distributed to members of the Committee and presented by Mr Nhleko.

Ms Mentor expressed concern about the gender balance in the composition of the focus groups and Task Team on Oversight and Accountability in general. She said that it exposed a problem with the allocation of roles of responsibility in Parliament.

On the proposal of the Chairperson of the NCOP, it was

AGREED: That -

1. the report of the Task Team on Oversight and Accountability would be noted as work in progress; and
2. political parties would revisit their representation on the focus groups, taking into account the gender balance in each group.

8. Progress report by Joint Subcommittee on Review of the Joint Rules (Item 7 on agenda)

A document entitled "Draft Interim Report of the Joint Subcommitee on Review of the Joint Rules" had been circulated earlier and was presented by Adv Masutha.


On the proposal of the Chairperson of the NCOP, it was

AGREED: That the report of the subcommittee would be noted as work in progress.

9. Consideration of draft parliamentary travel policy (Item 8 on agenda)

Mr Doidge explained that at the previous meeting of the Committee it had been decided that the draft parliamentary travel policy would be referred to political parties for consideration and feedback. It was, therefore, with political parties.

Mr Van der Merwe said that the IFP had discussed the draft parliamentary travel policy and had submitted its proposals in writing to the Speaker.

Mr Doman said that the DA had also discussed the draft policy and agreed with the proposals in the main.

Mrs De Lille said that the ID agreed in most part with the proposals contained in the document. She added, however, that some clarity was required on how agreement would be reached among smaller parties about their representation on delegations.

Mr Green said that the ACDP had started discussing the policy, but had not yet finalised its position on the document.

Mr Madikiza said that the UDM still had to finalise its position on the draft travel policy.

Mr Van den Heever said that the ANC had gone through the document, but still had a number of concerns about its content. He proposed that a subcommittee of the Joint Rules Committee be appointed to consider the draft policy and report back to the Committee.

The Chairperson of the NCOP said that there appeared to be broad agreement among most parties and that only a few minor matters remained to be finalised. He emphasised that it was urgent that the matter be dealt with as soon as possible.

On the proposal of the Chairperson of the NCOP, it was

AGREED: That parties would go back and complete their deliberations on the draft parliamentary travel policy so that the matter could be finalised at the next meeting of the Committee.

10. Consideration of draft leave policy (Item 9 on agenda)

The Speaker asked the Committee to accept ownership of the draft leave policy as a draft or working document, even though it had originally emanated from the National Assembly Rules Committee.

In response to a question by Adv Masutha, she further proposed that the process be guided by suggestions from the Joint Subcommittee on Review of the Joint Rules as the Leave Committee no longer existed.

Mrs Botha explained that she, as House Chairperson, had been tasked to look into a leave policy and had already done some preliminary work on it. The matter had to go back to political parties for discussion as certain problem areas remained, but in the absence of the Leave Committee there was uncertainty as to what body would deal with it.

Mrs Seaton said that Mrs Botha had already participated, and could continue to participate, in the proceedings and deliberations of the subcommittee.

On the proposal of the Speaker, it was

AGREED: That the Joint Subcomittee on Review of the Joint Rules would consider the issues covered in the draft leave policy and place its suggestions with regard to the issues before the Committee for discussion at its next meeting.

11. Feedback from parties on establishment of Joint Monitoring Committee on Reconstruction and Development (Item 10 on agenda)

Mr Jeffery said that the ANC did not think that it was necessary to establish the Joint Monitoring Committee on Reconstruction and Development. He said that the Reconstruction and Development Programme had already been incorporated into broader government programmes. It was important to continue monitoring the implementation of RDP principles, but establishing a joint monitoring committee was not necessarily the right way of going about it. He suggested that the Task Team on Oversight and Accountability could look at establishing a mechanism to monitor the implementation of RDP principles.

Mrs De Lille said that it was not necessary to have a separate committee, but Parliament needed to define its role in respect of reconstruction and development in order to assist with transformation and change. She suggested that all committees should have a mechanism to monitor what was being done with regard to reconstruction and development.

On the proposal of the Chairperson of the NCOP, it was

AGREED: That –

1. the Joint Monitoring Committee on Reconstruction and Development would not be established; and
2. the Task Team on Oversight and Accountability would look at a mechanism that would enable committees to monitor and oversee the implementation of reconstruction and development principles in government programmes.

12. Consideration of draft minutes of meetings on 4 August 2004, 14 September 2004, 13 October 2004 and 18 November 2004 (Item 11 on agenda)

On the proposal of Mr Jeffery, seconded by Mr Sibanyoni, the minutes of 4 August 2004 were agreed to.

On the proposal of Mrs Kalyan, seconded by Mr Bapela, the minutes of 14 September 2004 were agreed to.

On the proposal of Mr Van den Heever, seconded by Ms Mabe, the minutes of 13 October 2004 were agreed to.

On the proposal of Ms Mentor, seconded by Mr Doidge, the minutes of 18 November 2004 were agreed to.

13. Matters arising (Item 12 on agenda)

There were no matters arising.

14. Closing (Item 13 on agenda)

The meeting adjourned at 12:45.

Parliament of South Africa

Chairpersons: Committee secretaries:

Speaker of the National Assembly Marina Griebenow ( 2060

Chairperson of the National Council of Provinces Jodi-Anne Borien ( 3017

On the proposal of the Speaker, it was

AGREED: That a policy document containing the core values that informed Parliament’s international relations would be presented at the next meeting of the Committee for processing and refinement.

On the proposal of the Chairperson of the NCOP, it was

AGREED: That Parliament’s international relations would be included in the agenda for the next meeting of the Committee.

On the proposal of the Speaker, it was

AGREED: That -

1. the document entitled "Provisions of the Interim Constitution that are still in operation" would be referred to the Constitutional Review Committee for consideration and report; and
2. that a report would be presented to the next meeting of the Committee to indicate whether, with reference to the 1996 constitutional provisions (sections 198 and 199), the structures for oversight of the security services that were currently in place were already fulfilling the functions envisaged for the Joint Committee on Oversight of Security Matters, at which time a decision would be taken on whether to retain the provision in the Joint Rules or whether to propose its deletion.

On the proposal of the Chairperson of the NCOP, it was

AGREED: That the matter would be referred to the Joint Subcommittee on Review of the Joint Rules for processing and report.

On the proposal of the Chairperson of the NCOP, it was

AGREED: That -

1. the report of the Task Team on Oversight and Accountability would be noted as work in progress; and
2. political parties would revisit their representation in the focus groups, taking into account the gender balance in each group.

On the proposal of the Chairperson of the NCOP, it was

AGREED: That the report of the subcommittee would be noted as work in progress.

On the proposal of the Chairperson of the NCOP, it was

AGREED: That parties would go back and complete their deliberations on the draft parliamentary travel policy so that the matter could be finalised at the next meeting of the Committee.

On the proposal of the Speaker, it was

AGREED: That the Joint Subcomittee on Review of the Joint Rules would consider the issues covered in the draft leave policy and place its suggestions with regard to the issues before the Committee for discussion at its next meeting.

On the proposal of the Chairperson of the NCOP, it was

AGREED: That –

1. the Joint Monitoring Committee on Reconstruction and Development would not be established; and
2. the Task Team on Oversight and Accountability would look at a mechanism that would enable committees to monitor and oversee the implementation of reconstruction and development principles in government programmes.

On the proposal of Mr Jeffery, seconded by Mr Sibanyoni, the minutes of 4 August 2004 were agreed to.

On the proposal of Mrs Kalyan, seconded by Mr Bapela, the minutes of 14 September 2004 were agreed to.

On the proposal of Mr Van den Heever, seconded by Ms Mabe, the minutes of 13 October 2004 were agreed to.

On the proposal of Ms Mentor, seconded by Mr Doidge, the minutes of 18 November 2004 were agreed to.