People’s Assembly Arrangements; Oversight Mechanism for Auditor-General; Role of Leader of Opposition

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NATIONAL ASSEMBLY RULES COMMITTEE
8 June 2005
PEOPLE’S ASSEMBLY ARRANGEMENTS; OVERSIGHT MECHANISM FOR AUDITOR-GENERAL; ROLE OF LEADER OF OPPOSITION

Chairperson
: Ms B Mbete (Speaker)

Documents handed out:
Report of the Ad Hoc Committee on Auditor-General, dated 4 February 2005
Legal Opinion from Legal Services
Letter from Democratic Alliance
Role and Status of Leader of Opposition by Dr Nazeem Ismail, Undersecretary: Research and Parliamentary Practice
Ismail and Hahndiek Briefing on Oversight Mechanism
Submission on the Establishment of the Oversight Mechanism
Official Committee Minute for 8 June 2005 (see Appendix)

SUMMARY
The Parliament Planning Committee outlined its strategic plan for the Peoples Assembly to be held at Kewtown and the Walter Sisulu Memorial Square, Gauteng on 26 and 27 June 2005.

The Committee discussed the mechanism for establishing an Oversight Committee over the Office of the Auditor-General. Ms Hogan was charged with investigating the composition, size and functions of such a Committee.

The Committee discussed the issue of the leader of the largest opposition being viewed as the leader of all opposition parties in the National Assembly. This status provided certain benefits as well as the convention that the Leader of the Official Opposition had the opportunity to make the first response the President or a Minister has addressed the house The majority of committee members expressed the view that the leader of the largest opposition could not be regarded as leader of all minority parties. A legal opinion held that neither the Constitution nor the Rules of the Assembly regarded the leader of the largest opposition as the leader of all minority parties in Parliament.

MINUTES
People’s Assembly
A presentation on the plans for the People's Assembly was made by Mr T Lamani and Mr M Coetzee of the Planning Team. The People's Assembly, to be held at Kliptown, Soweto, would mark the anniversary of the People's Congress of 1955 held in Kliptown by various political parties of the democratic movement. The People's Assembly was an attempt by Parliament to further the ideals of the Constitutional Assembly, deepen the democratic spirit and the public participation process and to listen to the voices of ordinary people. There were four themes: eradication of poverty, safety and security, public participation, marginalised communities and communication issues. The Planning Team would continue to create awareness of the event among Members of Parliament across the and the general public.

This Peoples’ Assembly would be held on 26 until 27 June at the Walter Sisulu Square in Kliptown, near Johannesburg. A monument of Walter Sisulu would be unveiled in recognition of his contribution to cause of democracy. The unveiling of this monument was a State event and Members were urged to attend. President Thabo Mbeki would give his address to mark the 50th anniversary of the People’s Congress.

The workshop would be held at the Gauteng Legislature and parliamentarians would engage with ordinary people. Parliamentary committee chairpersons would attend the preparatory workshop in Gauteng Legislature on 26 June 2005. The planning stages of the Assembly were on course and the budget for it came out Parliament coffers as well as from the European Union. Although the budget was not yet finalised it was estimated that the costs of the Assembly were around R5 million.

The Assembly would take the form of a ‘People’s Parliament’ where ordinary people would participate in workshops together with parliamentarians. The workshops would have different themes for discussion and the outcomes from these workshops would be referred to relevant Committees in Parliament.

The Assembly would include the actual participants, artists, musicians and poets who were present at the Peoples Congress in 1955. Ms Mbete welcomed a suggestion from a committee member that schools, artists and cultural organisations be made part of the celebrations. It is believed that this would add festive excitement to this historic event in democratic South Africa. The event would be covered live for four hours by the SABC and efforts were being made to link coverage with other provincial legislatures countrywide.

Transport costs for Members attending the event would generally be covered by Parliament. Members would be accommodated in accredited Bed and Breakfasts (B & Bs) in and around Soweto. The Parliament Planning Team had already identified an accredited Bed & Breakfast in Soweto that could accommodate about a hundred guests. In event of insufficient accommodation, the Deputy Speaker was making arrangements to find accommodation in houses belonging to the people of Soweto.

Discussion
Mr D Gibson (DA) asked what criteria were used to invite the Community Based Organisations (CBO) and Non-Governmental Organisations (NGO) which would be representing the ordinary people during the workshops.

Mr P Nofolovhodwe (Azapo) also raised concern over the issue of representivity of the CBOs and NGO’s. He observed that these organisations were not broadly representative of ordinary people. Such organisations might send only their leadership to the workshop, thereby defeating the objective of the Assembly.

The Speaker noted the concern of Members on the type of representation at the workshops and said that the planning team would investigate the matter.

Mr Van Der Merwe (IFP) reported that the Inkatha Freedom Party caucus has decided not to participate in the Peoples Assembly. The IFP expressed the view that the event was an ANC political commemoration of its own history. The IFP said it was unfortunate that taxpayers' money was being used to further a party political agenda.

The Chairperson noted that the decision by the IFP not to participate was regrettable. The Parliament wanted to ensure maximum participation of all political parties and promote public participation process. The attendance of all political parties was meant to encourage public participation but the IFP decision was respected by Parliament.

Ms S Rajbally reminded Members that the week preceding the Assembly was constituency week and some Members would be in Gauteng to meet with their constituencies.

Ms Mbete explained that the Planning Team was urging Members who would already be Gauteng to remain there and use their residences for accommodation. As for air travel to and from Gauteng, the air travel for parliamentarians will cover the costs. Members would be able to claim reimbursement for travel costs.

Mr Ellis wanted to know who would be the participants in the workshop. Mr Gibson asked for an estimation of the cost for the Peoples Assembly and who was funding the event.

Mr Coetzee replied that the budget was not yet finalised but there were two sources of funding. The European Union was funding the event through its public participation programme. The other costs were being covered by Parliament out of its own coffers. He highlighted that the biggest costs came from infrastructure being used at the event which would cost Parliament about R3 million.

Mr N Kondlo (ANC) encouraged Members to consider the so-called social dividends that would accrue from the event. He said the event was a drive to further public participation and should not be looked at from a costs angle alone.

Establishment of Oversight Mechanism for the Office of Auditor-General
Mr K Hahndiek gave a brief account of the functions of this oversight committee which would be formed to facilitate accountability of the Office of Auditor-General to Parliament.

Discussion
Ms Mbete opened this topic for discussion. She noted that previously an ad hoc oversight committee had existed, comprised of both non-parliamentarians and parliamentarians. She added that certain skills were desirable for people serving on such an oversight committee.

Mr A Nel proposed that the formation, composition and size of the Oversight Committee be determined by the Subcommittee on the Review of Rules.

Mr S Tsenoli (ANC) remarked that the ANC was worried about efficiency being affected by the proliferation of committees. He urged that size of committees be considered. He felt that the size and the mechanism of the Committee not be dealt with in isolation of one another.

Ms B Mbete stated that a minimum number of thirteen and fifteen Members was being proposed by the Subcommittee on Rules.

Mr Ellis expressed the concern that if the size of Committees was reduced to eleven, the danger of excluding smaller parties became greater. Mr C Mulder warned that currently the ANC held six seats in committees and the remaining five were shared evenly amongst minority parties. He shared the sentiments raised by Mr Ellis about possible exclusion of smaller parties from committees.

Ms Mbete noted the concerns raised by Members on the size of committees and ruled that issue of size be determined by the Subcommittee on Rules. She said that Parliament wanted the Oversight Committee on the Office of the Auditor-General to be vigilant and efficient. The composition of such a committee would be informed by its functions and mandate. She pointed out that the previous ad hoc committee had seventeen members and some of the members were non-parliamentarians.

Mr J Jeffrey proposed that the mandate be given to Committee responsible for the Review of Rules.

Mr T Masutha suggested that Ms B Hogan be mandated to consider the composition, size and functions of the oversight committee.

The Committee agreed that Ms Hogan be given a brief to conduct research on the size, composition and functions of the envisaged oversight committee.

Role of the Leader of the Opposition
The Committee considered feedback from Parliament's Legal Services in response to the letter from Mr D Gibson (DA). The letter requested legal opinion on the role and recognition of the Leader of the Opposition as leader of all minority parties in Parliament.

Mr Gibson pointed out that the only special provision for the Leader of Opposition is the financial contribution made by the State. The Official Opposition has been afforded the privilege of being first during question time in Parliament. He submitted that the leader of Official Opposition had to be Leader of all minority parties in the Assembly. That official recognition of such Leader be accompanied by the respect afforded by all parties in the Assembly.

Mr Doidge expressed the view that respect must in general be accorded to any other leader of the opposition parties at Parliament. He charged that special recognition was not to be afforded to the leader of DA as official opposition in Parliament. The convention was that when there was an address by the President or a Minister, the Leader of the Opposition was afforded an opportunity to pose questions and comments before others.

Mr Gibson said that the DA supported the notion that leader of the Official Opposition is the leader of all Minority Parties in Parliament. This notion was supported by the Constitution as well as Commonwealth countries such as UK, Canada and Australia.

Mr Doidge rejected the DA submission on the issue and urged Members that a tradition of South African democracy should be cultivated and developed.

The Legal Services Office replied that S57(2)(d) of the Constitution on the National Assembly provided for the recognition of the Leader of the largest opposition in the Assembly to become Leader of the Opposition. The National Assembly Rule 21 defined the leader of the Opposition as "leader of the largest party in the National Assembly that was not in government". The Legal Advisors concluded that the Constitution and National Assembly Rules do not recognise the leader of the largest party as leader of all opposition parties in the Assembly. Further, the parliamentary legal advisors expressed the view that neither the Constitution nor the Assembly Rules refer to the largest opposition party as "Official Opposition".

Mr Nofolovhodwe commented that if recognition was accorded to the leader of the opposition as leader of all smaller parties including AZAPO, this would create an untenable situation. If this status were conferred on such a leader, it would elevate him/her to the status of the President as leader of government.

Mr Green submitted that the idea that leader of the official opposition was leader of all minority parties did not reflect a true picture. His view was supported by Mr Jeffrey who remarked that there was a lacuna in the law regarding this as the Constitution and Assembly Rules were silent on this matter. Therefore he proposed that the matter be referred to the Rules Review Committee for consideration.

Mr Van Der Merwe told Members that this matter had also cropped up in the Provincial Legislature of KwaZulu-Natal. He charged that Members should stop using the phrase "opposition party" and instead use "largest opposition party". The IFP leadership wanted the KZN Provincial Legislature led by the ANC to recognise it as official opposition and accord it the appropriate benefits. The matter was referred to the legal counsel of the Legislature. Counsel had advised the Legislature that the largest opposition party be accorded certain benefits and privileges.

Mr Jefffrey submitted that even the former Minister of Home Affairs, Honourable M Buthelezi, leader of the IFP, addressed the Assembly as minister / a leader of government and not in his capacity as leader of the IFP. Similarly such a distinction should be drawn when the President addresses the House not in his capacity as leader of ANC.

Mr Nofolovhodwe raised his concern over separation of Office of Presidency and Head of Government as suggested by Mr Gibson. He contended that the President addresses the House as both the head of government plus as the President. The Constitution provided that the President and Head of Government were concepts which were used interchangeably when addressing the House. The two should not be referred to separately especially in the case of the President addressing Parliament.

Mr Masutha reacted that the DA sought to separate the office of the Presidency from his relationship with his party. The submission of the DA was bordering on incorrect interpretation of constitutional provisions and Rule 21 of Assembly.

Ms Mbete said that the President was elected by the House and he speaks as President as provided for in the Constitution. The leader of the largest opposition party must be given recognition and be called as such and not the leader of opposition. The leader of the largest opposition party must be given recognition due to him including the benefits and privileges accordingly.

Mr Nofolovhodwe argued that recognition be accorded all leaders of opposition parties and the leader of largest opposition party only be given recognition according to ranking order. The leader of the largest opposition party would be granted special privileges different from other leaders of other opposition parties. He concluded that the only difference in recognition should exist in their order of ranking.

Mr Jeffrey agreed in part but pointed out that there was constitutional recognition for the leader of largest opposition party. The constitutional provision was imported from the Westminster system where provision was made for two-party system. However he argued that South Africa's parliamentary system somewhat differed from the Westminster system. Therefore he proposed that the issue be reviewed by the Subcommittee on the Review of Rules.

Mr Gibson reacted that the Constitution provided that the Rules of the Assembly must provide for recognition for the leader of the largest opposition party. He warned that any attempt to deviate from the constitutional position would create problems.

Ms Mbete said that the matter of recognition of the leader of opposition was a contentious matter and should be considered separately by the Committee. She noted the strong views expressed by opposition parties especially the DA on this issue. She stressed the need to follow the letter of law in regard to recognition of such a leader.

Mr Jeffrey submitted that the question of privileges and benefits for the leader of the largest opposition party had to be given serious consideration by the Committee. There was a ‘legal lacuna’ as no provision was made for similar recognition for leaders of other opposition parties. Therefore he argued that the Assembly Rules and the Constitution must be revisited to correct this anomaly.

Ms Mbete summed up the discussion on this matter and undertook to look at the issues raised by opposition parties especially the Democratic Alliance. She pointed that some progress was achieved on the oversight mechanism and the issue of leader of opposition. However there were areas of contradiction in both the Constitution and the rules of the Assembly.

She submitted that the Committee must seriously consider the issue raised by the opposition. She remarked that recognition of the leader of the opposition was provided for in the Constitution. She suggested that the issues that seemed contradictory in the Constitution as well as the rules be referred to the Subcommittee on the Review of Rules.


The meeting was adjourned.

 

Appendix:

Parliament of the Republic of South Africa

MEETING OF NATIONAL ASSEMBLY RULES COMMITTEE

Chairperson: Speaker of the National Assembly

Secretary : Masibulele Xaso (NA Table) Ext. 3260 [mxaso@parliament.gov.za]

National Assembly Table Division

DRAFT MINUTES OF PROCEEDINGS: 8 JUNE 2005 AT 11:00

Present:

Mbete B (Speaker)

Doidge G Q M (House Chairperson)

Botha C-S (House Chairperson)

Ellis M J Nel A C

Gibson D H M Nene N M

Goniwe M T Newhoudt-Druchen W S

Green L Nefolovhodwe P J

Jeffery J H Rajbally S

Kalyan S Seaton S A

Masutha M Thabethe E

Madikiza G T Tsenoli S L

Mfundisi I S Van der Merwe J H

Mulder C P

Staff in Attendance: M Coetzee (Deputy Secretary to Parliament), K Hahndiek (Secretary to National Assembly), T Lamani (Chief Operations Officer) and M Vassen (Legal Services).

  1. Apologies (Agenda Item 1)
  2. Apologies were received from the following members:

    Chohan-Kota F I, Greyling C H F, Maluleka H P, Modisenyane L J and September C C.

  3. Adoption of agenda (Agenda Item 2)

The agenda was adopted with the following additions:

    • briefing on the Peoples’ Assembly as the first item, and
    • the reduction of the size of committee membership, as the last item.
  1. Briefing on Peoples’ Assembly (Additional item)

Mr M Coetzee stated that the Peoples’ Assembly had initially been scheduled for October 2005. However, there had been a change in the planning and the event would now be held on 27 June 2005. Legislatures would conduct a series of workshops prior to the event in line with the following themes: eradicating poverty and underdevelopment, safety and security, public participation and South Africa belongs to all. He said that the objectives of the Peoples’ Assembly were to:

  • Mark the fiftieth anniversary of the Congress of the People in Kliptown;
    • Create an opportunity for the public, particularly the most marginalized of communities, to engage with Parliament and the Provincial Legislatures; and
    • Provide a national platform for peoples’ voices to be heard on issues affecting them.

The proceedings of the Assembly would coincide with the unveiling of the Walter Sisulu Square of Dedication (WSSD) in Kliptown. Members of Parliament would also be invited to the unveiling ceremony. A preparatory meeting for the Peoples’ Assembly had been scheduled for 26 June in Gauteng.

Mr Lamani indicated that arrangements were being made for members to arrive in Gauteng on Saturday, 26 June 2005 and be accommodated at bread and breakfast facilities. If the number of bread and breakfast facilities arranged was found to be inadequate, some members could be accommodated in peoples’ homes. The National Intelligence Agency would provide a non-photo accreditation for delegates attending the Assembly. The South African Broadcasting Corporation had agreed to provide a live broadcast of the event.

The Speaker indicated that the Deputy Speaker was responsible at a political level for the coordination of the Peoples’ Assembly. There were also ongoing interactions between staff of the Gauteng Legislature and of Parliament in preparation for the Assembly.

Mr Gibson wanted to know the time at which the unveiling of the monument would take place and also whether invites to the Assembly had been sent to non-governmental organizations. He expressed concern that there seemed to be very few ordinary people scheduled to participate in the Assembly, in terms of the draft programme. Mr Nefolovhodwe asked whether members of Parliament who lived in Gauteng would also get transportation to the venue of the Assembly. The Speaker responded that members who lived in Gauteng would be encouraged to arrange their own transportation.

Mr Green indicated that the African Christian Democratic Party (ACDP) was happy with the proposed programme and would participate in the event, adding that his party’s expectations were for an atmosphere of remembrance and festivities. He asked whether in terms of the programme schools had been scheduled to participate in the event. The Speaker said that the preparatory meeting scheduled for 26 June would finalise the matter of who should be invited. She suggested that the programme be organized such that there were interactions between delegates and members of the community of Soweto. The issue of the involvement of non-governmental organisations and community-based organizations needed further consideration.

Mr Van der Merwe said that the Inkatha Freedom Party (IFP) caucus had decided not to participate in the Peoples’ Assembly as it was of the view that this was purely an African National Congress (ANC) event. Mr Goniwe in response said that the ANC rejected the assertion by Mr Van der Merwe. He said that by implication the ANC was being accused of waste or abuse of state funds. The ANC was not ashamed to celebrate its own history and would at no stage hide behind institutions such as Parliament in order to do so. He urged that the matter be not laid to rest. He suggested that further clarification be provided to the IFP about circumstances around the convening of the Peoples’ Assembly. Further, bilaterals on this matter should take place between the IFP and the Parliamentary service.

Mr Gibson wanted to know what the cost for the event would be on Parliament’s budget. Mr Coetzee responded that the budget for the Assembly had not been finalized yet. However, revenue sources to be utilized in this regard would include the European Union Support Programme for Legislatures and Parliament’s budget. Travel costs of members would be covered by air mileage. Infrastructure cost would be in the region of 3 million rands. Mr Goniwe remarked that events such as the Peoples’ Assembly should not be considered purely on the basis of rands and cents, but also on their social dividend.

Mr Lamani indicated that an information sheet would be made available to members.

  1. Establishment of Oversight Mechanism for the Office of the Auditor-General and Proposal for reduction of number of members per committee (Agenda Item 3)

The Speaker indicated that Ms B Hogan had as requested by the Rules Committee made a submission on the establishment of the oversight mechanism. She referred members to the document entitled submission to the Joint Rules (sic): establishment of the oversight mechanism of the Auditor-General and asked them to comment on it.

Mr Gibson proposed that the oversight mechanism be established immediately, on the basis of Ms Hogan’s input. Mr Nel responded that there was a need, first, for a broader discussion on the matter (establishment of the oversight mechanism) at the level of the Rules Committee and thereafter the Subcommittee on the Review of Rules could be asked to work on the details. Mr Tsenoli said that the issue of size of the oversight mechanism should not be treated in isolation of the general problems relating to the size of portfolio committees e.g poor attendance etc. The issues before the Rules Committee in regard to the composition specifically of the oversight mechanism and generally of committees were symptoms of a bigger problem which was broader than the creation of this oversight mechanism. The composition and appropriateness of the skills mix was precisely the issue that affected many committees. It was therefore necessary that these challenges were addressed on an ongoing basis.

The Speaker indicated that she had received a letter from the Office of the Chief Whip of the Majority Party proposing the reduction of the minimum size of committees from 15 to 13 members. Mr Nefolovhodwe proposed a lower minimum of 11 members. However, Ms Rajbally expressed concern that if portfolio committees only consisted of a minimum of 11 members it would be difficult for smaller parties to participate in them, and Dr Mulder concurred. In response to Ms Rajbally, House Chairperson Mr Doidge explained that in terms of the Rules a member may participate in any committee.

The Speaker reminded members that Parliament was required by law to establish the oversight mechanism for the Office of the Auditor-General. Its establishment should therefore be treated as a specific matter and the Rules Committee should as a matter of principle discuss the nature its representation. For instance, should its membership be party political or should membership be decided on the basis of the skills mix that Ms Hogan had suggested in her submission? Regardless, its composition should be such that it was able to deliver on its mandate. And, its members should ideally not be primary members of other committees.

Mr Nel asked that Mr Hahndiek give a brief summary of the document he had presented on this matter at the last meeting of the Rules Committee, adding that a proper understanding of the functions of the oversight mechanism would enable members to have a good idea also of the envisaged frequency of its meetings. On the basis of this understanding, parties could then be encouraged to deploy members to it along the lines of its functions. The Speaker drew attention to page 3 of Ms Hogan’s submission in which she had suggested that the oversight mechanism should be as small as it was feasible within a multiparty democratic Parliament. She asked members to take this view into account when deliberating on the composition of the oversight mechanism.

Mr Hahndiek explained that the functions of the oversight mechanism were broadly in three areas. Firstly, this body would be consulted by the Auditor-General on a range of issues including the process for the calculation of audit fees, the appointment of the Deputy Auditor-General, the issuing of a code of conduct to authorise auditors and submission of regulations to Parliament. Secondly, the other range of functions related to the oversight exercise and involved consulting the recommended candidates for appointment as Auditor-General in order to make recommendations to the President, the receiving of any concerns of the Audit Committee, the consideration of the budget and business plan of the office of the Auditor-General and the approval of international best practice relating to financial statements. Thirdly, there were also functions relating to the reporting and the notification and submission of documents by the Auditor-General and the Deputy Auditor-General.

In terms of the Act, the Auditor-General must make available the annual report, financial statements and the audit report within six months after the end of the financial year and would engage with the oversight mechanism on those reports before they were tabled in Parliament. The Deputy Auditor-General must also report to the oversight regarding under-collection of revenue, the shortfall in revenue etc.

Mr Jeffery stated that it would be difficult to arrive at a conclusion with regard to the size of the oversight mechanism without information on the sizes of the erstwhile Audit Commission and the current Ad Hoc Committee on the Auditor-General. He suggested that the issue of composition and size of the oversight mechanism be referred to the Subcommittee on the Review of Rules for consideration. The Speaker responded that the information referred to by Mr Jeffery could be obtained without referring the matter to a Subcommittee. In response to Mr Jeffery’s observation, Mr Doidge indicated that the Ad Hoc Committee on the Auditor-General had 17 members and the Audit Commission 11.

Mr Masutha said that the Subcommittee on the Review of Rules had difficulty in having to make policy choices, adding that his understanding was that the role of the Subcommittee was limited to consideration of technical issues with a view to giving effect to policy decisions. He said that Ms Hogan had clearly put a lot of work into conceptualising the design of the oversight mechanism. He proposed that Ms Hogan be asked to take on board all the concerns that had been raised in her submission, and by the Rules Committee, and make proposals regarding the composition of the oversight mechanism. The broader question of the size of committees could be considered by a separate structure and further inputs could be made to that structure.

Agreed:

    • Ms B A Hogan to be consulted to take on board all the concerns raised in her document and the Rules Committee, and make proposals regarding the composition of the committee.
    • Members to be informed about progress i.e result of interaction with Ms Hogan and her proposals. Members could respond in writing.
    • The broader question of the size of committees to be considered by an appropriate structure and inputs to be made there.

  1. Recognition and role of Leader of the Opposition (Agenda Item 5)

Mr Jeffery indicated that the ANC had studied the relevant documentation in regard to the matter under consideration. He said that while Mr Gibson’s letter of 13 May 2004 referred to the titles of Leader of the Opposition and Official Opposition Party, it was quite clear from the legal opinion by the Parliamentary Legal Services that neither the Constitution nor Assembly Rules referred to Official Opposition. Furthermore, the ANC was not aware of any current national legislation or regulation that referred to official opposition. It was thus the view of the ANC that the law did not recognise the largest minority party in the Assembly as the Official Opposition. In any event, in a proportional representation system the sizes of parties were not necessarily that far apart. He said that the concept of Official Opposition had its origins from a Westminster system, a largely two party system. However, as far as the role of the leader of the Opposition was concerned, there had been a specific recognition of that position in the grading of remuneration of members of Parliament. Therefore, the relevant constitutional provisions had been complied with in this regard.

He noted that most of the international comparison regrettably had been done within the context of the Westminster system. He reminded the meeting that the key issue that had sparked the whole debate was the request by the Democratic Alliance (DA) for the Leader of the Opposition to have the right of first reply to the President’s state-of-the-nation address. Similarly, there seemed to be a position that members of the DA had to have precedence in responding to an address by a Minister. However, the ANC’s position was that whenever the President addressed the House, he had done so as President of the Republic and not as a member of the ANC. Similarly when Ministers addressed the House, they had done so as Cabinet members utilising ministerial time, and not ANC time. The view of the ANC was that the largest party should have the right of first reply to the President. Definitely in respect of the state-of-the-nation address, it would make sense that the largest party responded first in order to put forward the position of the majority party. In conclusion, he said that the ANC was quite happy with the existing position.

Mr Gibson said that, firstly, the constitution clearly stated that the leader of the largest minority party must be recognised as Leader of the Opposition and the Rules had to some extent applied that constitutional provision. However, where there were inconsistencies in this regard, the Rules should be corrected. Secondly, often the speakers’ list referred to the Leader of the Opposition by his name instead of his official title. Thirdly, the Leader of the Opposition had the right or otherwise to take precedence over other members in response to the President’s address to the House. He argued that when the President addressed the House he spoke either as head of state or head of government. When he spoke in his capacity as head of state, he was in the same position as the Queen and, as head of government, in the same position as Prime Minister. Therefore, when he spoke in his capacity as head of government, it was appropriate for the Leader of the Opposition to follow immediately. He said that the recent practice was for the ANC to schedule a junior member to precede the Leader of the Opposition. The impression this created, at least to viewers, was that this was an attempt to put down the Leader of the Opposition. And, whether or not the DA should be referred to as the Official Opposition was of no consequence. The only change from the current practice which the DA wanted was that the Leader of the Opposition should be treated with respect which the opposition was entitled to. Also, the ANC should reconsider its position that Ministers and the President were not speaking as ANC speakers when addressing the House.

Mr Nefolovhodwe said that his view was that once elected by Parliament, the President automatically assumed the status of the President of the Republic. With reference to Mr Gibson’s earlier statement, he said that he had a problem with the separation of the two roles played by the President. The second issue concerned the notion of Leader of the Opposition, namely that his interpretation of this notion meant that this particular Leader would by virtue of his title also be the leader of AZAPO within Parliament and, as far as he was concerned, that was untenable. If that had been the intention, he said, the election of the Leader of the Opposition should follow the same procedure as election of the President. Mr Green concurred with Mr Nefolovhodwe adding that the leader of the largest opposition party should be recognised as such. South Africa’s position was different from that which obtained in Britain and for that reason Parliament should design its processes such that they addressed its own special needs in regard to the recognition of the leader of the largest opposition party. Mr Van der Merwe said that while he also had problems with the notion of Leader of the Opposition, the DA had never suggested that their leader was the leader of all opposition parties in Parliament. He proposed a departure from the use of the description of leader of the Opposition in favour of leader of the largest opposition party and that a special status should be given to that person. Traditionally that person was very important and often would be called in by the head of state to inform him/her of certain critical events and also enjoyed certain privileges.

Mr Nel said that the ANC had taken exception to the remarks by Mr Gibson regarding the manner in which ANC speakers were deployed in debate. He questioned Mr Gibson’s motive in what he said was an attempt to make a determination on the scheduling of ANC speakers. He indicated that the ANC did not need a lecture on democratic practices especially in view of the history of this country with regard to participation of the different parties in different structures. The issue of trying to draw a distinction between the President acting as head of state and as head of government was an argument which lacked a basis. It was quite clear that in the whole function of the government the President was treated as the President of the nation as a whole. When the President addressed Parliament, he had always done so in that capacity. When responding to questions in the House, the President had always been at pains to distinguish his role as President of the country and of the party. The government at the executive level consisted of a range of other parties that had been drawn in to participate in its work. Therefore, when a Minister who belonged to a different party other than the ANC addressed the House, they had done so in their capacity as members of cabinet. The ANC supported fully the fact that leaders of all parties deserved to be recognised and respected as such. However, there was a need to develop South African traditions for South Africa’s democracy and not uncritically import concepts that derived from systems such as the Westminster without evaluation. Adv Masutha said that he found it odd that the DA which tended to put itself across as the great defender of the constitution mixed a constitutional question with a political argument. He said that effectively the DA was saying that it was a smokescreen to separate the office of President from his relationship with the party. The DA should elect either to discuss a constitutional matter or to politic about the issue. Mr Madikiza said that a perception seemed to have been created by the Rule that said that the leader of the largest party in the Assembly not in government was the leader of the Opposition. If the DA wanted to call itself the official leader of the opposition, the impression created could be that the other opposition parties were illegitimate. He proposed that the relevant Rule be adjusted.

The Speaker summarised the discussion as follows:

  1. The President was elected by the House as President of the Republic and spoke as such when addressing the House.
  2. The title of leader of the largest opposition party was preferred to leader of the opposition as the latter tended to create confusion.
  3. The leader of the largest opposition party must be given recognition and privileges fitting that position. The nature of such recognition and privileges still needed to be defined.

Mr Nefolovhodwe said that all leaders of opposition parties needed to be accorded respect and recognition which should of course differ according to proportionality. Mr Jeffery said that while he agreed with Mr Nefolovhodwe’s view, the constitution made provision for the recognition of the largest party as the leader of the opposition. He said that his view was that the matter warranted further consideration. The Speaker noted that there were strong views coming from the Opposition with regard to the constitutional provision that referred to Leader of the Opposition. Therefore, this matter should receive further consideration. Mr Jeffery indicated that in spite of the wording of the constitution the legal opinion from Parliamentary legal advisers said that this person may not be regarded as the leader of all opposition parties. There was a lacuna in the Rules in that there was no mention of leaders of the other opposition parties. He asked the meeting to note that already the Leader of the Opposition was recognised in terms of salary. Mr Masutha indicated that the Rules should reflect the constitutional provisions in regard to this matter and the Rules Committee should perhaps instruct the Subcommittee to consider it further.

In conclusion the Speaker noted that the meeting had made some progress in that there had been agreement on certain issues and an acknowledgement that there were constitutional provisions that could not simply be ignored. The discussions had also highlighted some areas of contradiction that were not clearly stated in either the Rules or the constitution. The Subcommittee on the Review of the Rules should therefore look into the issue of contradictions between the constitution and the Rules and advise the Rules Committee on what should be done to rectify the situation. The Rules Committee also needed to consider the concern that had been raised by opposition parties in regard to the title of leader of the opposition. The Speaker noted that it was clear that special recognition should be given to the leader of the largest opposition party as part of the current dispensation. However, the question of the nature of this recognition needed to be clarified. She asked that consideration be given to asking the National Assembly Table to conduct research on this matter and make recommendations to the Rules Committee.

Agreed:

    • The Subcommittee on Review of Rules to look into the issue of contradictions between the constitution and the Rules and advise the Rules Committee on what should be done to rectify the situation.
    • The Rules Committee to consider the concern that had been raised by opposition parties in regard to the title of leader of the opposition.
    • Noting the need for special recognition of the leader of the largest opposition party as part of the current dispensation and the need to clarify the nature of this recognition, National Assembly Table to conduct research on this matter and make recommendations to the Rules Committee.

Adjourned 13:00.

 

 

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