Subcommittee on Review of Assembly Rules: Draft Rules on Section 12 Committee & Right of Public to Respond to Statements made by

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Meeting Summary

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Meeting report


13 December 2005

Chairperson: Adv M Masutha (ANC)

Documents handed out:
Letter from Cheadle Thompson & Haysom acting on behalf of Mr Jayendra Naidoo
Hansard extract from 21 June 2005 proceedings of National Assembly
Australian Parliament Standing Committee of Privileges on Right of Reply
Legal Services Office: Legal Opinion on Complaint by Mr Jayendra Naidoo
Legal Services Office: Draft Rules on Section 12 committee pursuant to Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act
[email for these documents]
Section 12 of Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act [No 4 of 2004]
(see Appendix)

This subcommittee considered various issues related to the amendment of National Assembly rules. Discussion centred on the right of aggrieved members of the public to respond to defamatory statements made by Members of Parliament. Members also considered the right of such individuals to have their responses published in the appropriate place. This was as a result of a complaint by a member of the public that a Member of Parliament had abused the principle of parliamentary privilege and impugned his reputation. The Rules subcommittee had been asked to advise the Speaker on the correct procedure regarding the right of response by the member of public. Members also discussed the draft rules for the establishment of the Section 12 committee as well as those establishing a Parliamentary Oversight Authority.

The Chairperson asked Members to consider the National Assembly rules regarding the right of aggrieved members of the public to respond to allegations and criticisms made by members of Parliament.

Mr K Hahndiek (Secretary to the National Assembly) stated that Mr J Naidoo had requested the right to respond to statements made by Ms De Lille in the National Assembly during June 2005 [as he had been accused by her of being involved with the arms deal corruption] and that such response be published for public record. A task team had been established to consider the merits of the request in the absence of a Section 12 committee. The subcommittee had been mandated to advise the Speaker of Parliament on the appropriate way forward. Current Australian guidelines related to the right to respond by members of the public had been forwarded to Members to assist in deliberations. Parliamentary committees should not be tasked with determining the validity of public submissions or remarks made by Members of Parliament. A response from the member of public should not include a counter-attack and had to be limited to an explanation by the aggrieved party. The subcommittee should consider whether to notify Ms De Lille of decisions reached and whether to provide guidelines to Mr Naidoo concerning the nature of the response if such a right was to be conferred.

The Chairperson noted that the matter revolved around issues of Member’s powers and privileges granted within the Constitution.

Mr J Jeffrey suggested that the subcommittee recommend to the Speaker that Mr Naidoo be allowed to make a response and that such a response be recorded in the appropriate place. The subcommittee was not mandated to consider any rule changes. The rights of Ms De Lille would not be adversely affected if Mr Naidoo was allowed to respond. Legislation stipulated that the Speaker could be requested to permit a response and that such response could be published.

Mr K Van Der Merwe (IFP) referred to various statements made by Ms De Lille and asked what wrong was actually committed. The statements could not be construed as a direct attack on Mr Naidoo or defamatory. The subcommittee should be wary of setting a precedence that facilitated numerous approaches to Parliament by supposedly aggrieved people seeking recourse.

The Chairperson stated that the subcommittee was not a Section 12 committee and was not mandated to consider the merits and demerits of the substance of the statements. The subcommittee had to advise the Speaker on the right to respond and whether publication should be allowed.

Mr Jeffrey concurred that the subcommittee merely served as an advisory body and should provide a recommendation to the Speaker on the correct way forward. The statements in question such as Mr Naidoo being associated with a "most wanted list" could be construed as serious and likely to generate negative consequences. Mr Naidoo had the right not to be associated with such statements. A flood of similar requests from the general public was unlikely and Mr Naidoo should be accorded an opportunity to defend himself.

The Chairperson stated that, in the absence of a Section 12 committee, the subcommittee had to consider the best way forward. The Speaker could make the final decision on the steps to follow in lieu of the Section 12 committee.

Mr Van Der Merwe stated that the subcommittee had to consider the request from Mr Naidoo and reach a final conclusion before advising the Speaker. The legal advisors should then provide guidance on the appropriate way forward.

Mr W Doman (DA) asked whether the subcommittee should consider the merits of the request at some point.

The Chairperson reiterated that the subcommittee had to remain within the confines of the original mandate.

Mr Hahndiek stated that the subcommittee had been tasked by the Speaker to consider the request from Mr Naidoo due to the absence of relevant rules at this stage.

Adv Jenkins (National Assembly Legal Advisor) added that a decision to allow a response would not invalidate the internal procedures of Parliament as stipulated within the Constitution.

Mr Doman concurred that the statements made had contained negative implications for Mr Naidoo and an appropriate response should be recorded. The Speaker should advise Ms De Lille of the final decision reached as a matter of common courtesy.

Mr Van Der Merwe asked for further detail on the stipulated procedure to record a response and whether Ms De Lille would be afforded an opportunity to respond.

Mr Hahndiek stated that section 25 of the Powers and Privileges Act stipulated that a response be published in the appropriate Parliamentary paper. Members of Parliament could respond during the normal Parliamentary process such as Assembly debates.

The Chairperson stated that the process followed should discourage further litigation and conflict. A response should be entertained and the matter settled.

Mr Van Der Merwe declared that a response should not include an attack on Ms De Lille. The comments ascribed to Ms De Lille were of a serious nature and warranted a response from Mr Naidoo to set the record straight.

The Chairperson asked whether a response from the aggrieved party had already been made and the request was confined to the publication of such response or a new response was being requested.

Mr Jeffrey stated that the subcommittee had to consider a request to make a response and should regard no adequate response as having been made in the interim.

Mr Van der Merwe noted that more names were linked to the statements and asked whether the granting of the right to respond for Mr Naidoo would create a precedence for others to follow suit.

The Chairperson reminded Members that the mandate of the subcommittee did not include considering the merits of the rules procedure currently in practice but was confined to advising the Speaker on whether to allow a response and concomitant publication. The Speaker had the sole prerogative to consider the nature of the response and its substance.

Mr Jeffrey noted that other issues were involved such as whether the complaint had been received in reasonable time and whether the request was of an acceptable nature. The response should be of reasonable length and succinct in nature.

Mr Doman concurred that such matters of content and length should be left to the Speaker’s discretion.

The Chairperson stated that the Speaker should advise Mr Naidoo of the type of response
that was acceptable to avoid discrepancies.

Ms Rajbally (MF) stated that the subcommittee should consider the likely consequences that would arise from a response from Mr Naidoo such as other requests from additional aggrieved parties.

Adv Jenkins provided detail on deliberations pertaining to the draft rules on a Section 12 committee. The composition of the Section 12 committee had been discussed and clarity sought on definitions of misconduct. The draft rules considered the appropriate procedure for disciplinary procedures and the rights of suspended Members. Suspension without remuneration was a drastic step that would necessitate proper enquiry. A Powers and Privileges committee would be established to oversee the implementation of rules. The correct place to publish responses from members of the public would be finalised. The schedule would have to be carefully studied before the rules were adopted.

Mr Van Der Merwe asked whether members would be served notice in the normal way as per current court procedures or whether additional procedures would be followed. He asked whether the Sheriff of the Court would be involved in the process.

Adv Jenkins replied that Sheriffs could be involved if required. The Act clearly stipulated that Members had to be informed of all developments.

Mr Jeffrey stated that the subcommittee had to decide which issues should be considered by a National Assembly committee and which should be considered by a Joint committee.

Adv Jenkins responded that the schedule for both Houses required joint discussion.

Mr Hahndiek added that final arrangements per House had to remain separate but within a common framework.

Mr Jeffrey declared that the power of the Section 12 committee to decide on requests to publish responses could not be removed by a rules committee. The matter would be considered by a joint subcommittee in due course.

Mr Van Der Merwe asked whether a long period of absence by a Member would be construed as a breach of standing rules.

Mr Jeffrey replied that a relevant policy document on periods of absence was currently with the Chief Whips Forum and a final decision would be taken.

Mr Doman asked whether any research undertaken by committees had to be reported to the National Assembly

Adv Jenkins stated that all procedures within the National Assembly had to be captured and committees should be regarded as extensions of the Assembly. Certain reports could be captured within Committee Annual Reports as an alternative.

Mr Jeffrey agreed that all committees had to report to the National Assembly on activities and research findings should be adequately captured. Decisions taken within the National Assembly should be recorded within parliamentary records. The definition of leader of the opposition within draft rules would be altered to refer to merely the largest party in the Assembly other than the ruling party.

Mr Van Der Merwe asked whether the placement of a member of the opposition within the Cabinet would alter the status of that party as the opposition.

Mr Jeffrey stated that the revised definition would continue to refer to the largest opposition party within the National Assembly.

Mr Hahndiek declared that certain issues needed further deliberation such as the dilemma of two opposition parties of equal size within the Assembly.

Adv Jenkins stated that amendments to current rules would facilitate the establishment of a Parliamentary Oversight Authority (POA).

Mr Jeffrey stated that the subcommittee had to study the draft rules for the POA to consider the proposed changes. Certain changes to the powers of the Rules Committee would also be considered.

Ms M Griebenow (Procedural Officer) added that a task team was considering the scrapping of certain subcommittees and recommendations would follow shortly.

Mr Van Der Merwe asked who chaired the Chief Whips Forum.

Mr Hahndiek responded that the Chief Whip served as the chairperson of the Forum. The POA would be regarded as a joint structure containing Presiding Officers from both Houses. Each House continued to maintain own oversight authority and such right could not be removed from the National Assembly by any rules amendments.

Mr Jeffrey added that more work was needed and draft rules would be formulated by the subcommittee in due course. The subcommittee should ensure that National Assembly rules were not affected by amendments.

The meeting was adjourned.

Disciplinary action against members for contempt

12. (1) Subject to this Act, a House has all the powers which are necessary for

enquiring into and pronouncing upon any act or matter declared by or under section 13

to be contempt of Parliament by a member, and taking the disciplinary action provided


(2) A House must appoint a standing committee to deal with all enquiries referred to

in subsection (1).

(3) Before a House may take any disciplinary action against a member in terms of

subsection (l), the standing committee must-


(a) enquire into the matter in accordance with a procedure that is reasonable and


(b) table a report on its findings and recommendations in the House.

procedurally fair; and

(4) The fact that the standing committee is enquiring into a matter or that a House has

taken disciplinary action against a member does not preclude criminal investigation or

proceedings against the member in connection with the matter concerned.


( 5 ) When a House finds a member guilty of contempt, the House may, in addition to

any other penalty to which the member may be liable under this Act or any other law,

impose any one or more of the following penalties:


(a) A formal warning;


(b) a reprimand;

(c) an order to apologise to Parliament or the House or any person, in a manner

determined by the House;


(d) the withholding, for a specified period, of the member’s right to the use or

enjoyment of any specified facility provided to members by Parliament;


(e) the removal, or the suspension for a specified period, of the member from any

parliamentary position occupied by the member;


(f) a fine not exceeding the equivalent of one month’s salary and allowances

payable to the member concerned by virtue of the Remuneration of Public

Office Bearers Act, 1998 (Act No. 20 of 1998);

(g) the suspension of the member, with or without remuneration, for a period not

exceeding 30 days, whether or not the House or any of its committees is

scheduled to meet during that period.

(6) When a House finds a member guilty of contempt, the House may, where

appropriate, instead of or in addition to the imposition of a penalty under subsection (5),

refer the matter to the National Director of Public Prosecutions.

(7) A fine payable under subsection (5)(f) may be recovered-


(a) by deducting instalments from the members’ salary, as specified by the House


(b) if not so recovered, by means of civil action in a competent court.

in imposing the fine; or

(8) All fines under subsection (5)(f) which are paid or recovered must be paid into

(9) A member may not be suspended under subsection (5)(g) unless the House has

Parliament’s bank account.

found that-


(a) the member is guilty of a serious or repeated contempt; and


(b) none of the other penalties set out in subsection ( 5 ) will be sufficient.

(10) A member who has been suspended under subsection (S)(g) must leave the

precincts, and may not, during the period of suspension, without the written permission

of the Speaker or the Chairperson-.


(a) enter the precincts for whatever purpose; or


( b ) participate in any activity of Parliament or any committee. 5

(11) Despite the Remuneration of Public Office Bearers Act, 1998, a member who has

been suspended without remuneration under subsection (S)(,p) is not entitled to any

salary or allowances under that Act for the period of suspension.

(12) Except as provided in the Constitution, a House doems not have the power to

terminate a member’s membership of the House. 1 0

(13) This section does not affect the power of a person presiding at a meeting of a

House or a committee, or a joint meeting of the Houses, to maintain order and discipline

in the meeting.

Conduct constituting contempt

13. A member is guilty of contempt of Parliament if the member- 1s

contravenes section 7, 8, 10, 19, 21(1) or 26;

commits an act mentioned in section. 17(l)(a), (b) or (c) or (2)(a), (b), (c), (d)

or (e);

wilfully fails or refuses to obey any rule, order or resolution of a House or the

Houses; or commits an act which in terms of the standing rules constitutes-

(i) contempt of Parliament; or

(ii) a breach or abuse of parliamentary privilege.


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