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SUBCOMMITTE ON REVIEW OF THE NCOP RULES
18 February 1999
REVIEW OF NCOP RULES
Documents handed out:
Draft Rules of the NCOP
Chairperson Moosa (ANC) reminded the committee that at the last meeting in October, the committee made a number of changes. The National Assembly set their rules last July 1998. The NCOP’s last draft was February 1998. This committee is looking at the third draft of the rules. Tomorrow, the joint rules committee will meet to finalize the rules of the joint house. The chairperson’s goal is to release these rules to the multi-party caucuses next week and have these complete for the next sitting of Parliament by the 15th of March.
Gerrit Grove (private consultant) remarked that the NCOP Rules Committee with only minor changes adopted most of these Rules. Therefore, the chairperson suggested that the committee looks at the minor changes, and discuss the salient points. It should be noted that Mr. Grove and Mr. Mayer (Parliament’s State Legal Advisor) were the primary authors of the rules changes, and were handed control of the meeting.
Rule 9, Section 3
Deemed a technical, necessary change
Mr. Mayer said that the committee had not reported; they were waiting for an independent researcher to respond. This however is now within the parties, and due to the controversial nature, it is doubtful that it will be resolved before the end of the term. Mr. Selfe (DP) responded that the research report was tabled and went to the full caucuses. It has yet to be determined where the parties stand. Due to the constitutional issues, he believes this will not be resolved before the session.
The Constitutional Development Committee was supposed to discuss this issue. Mr. Mayer commented that Dr. Bauer was in discussions with the Department of Constitutional Affairs. The Department said that before they would write the law, they would see what the established practice is and then they will draft the bill around the practice. The chair added that the Minister made a similar comment, and this committee could not wait for the issue. He recognized the need to establish conventional wisdom on the topic. Therefore, this committee needed to shore up the issue of mandates; i.e. the clause for criteria. The chairperson asked a rule to be drafted of what makes a mandate a mandate, verifications and qualifications. Mr. Sipoyo (Manager: Provincial and Municipal Liaison for the NCOP) disagreed, claiming that every province has a different procedure to determine mandates and in order to standardize, would need to circulate a format throughout the province.
Mr. Selfe (DP) said the committee could standardize how mandates arrive to the NCOP, but that how mandates are processed through provinces vary. To legislate on how provinces handle mandates circumvents the sovereignty of the provinces, and he didn’t believe that such action was binding. Mr Selfe was also concerned about the backlash from provinces regarding such legislation. The Chairperson, however, insisted that there must be rules concerning how the mandate reaches the NCOP, whether it is achieved by a survey of common practices, petition, etc. The NCOP needs to have certainty on how the mandate arrives at Regis House or the Speaker; to have the mandate come from some sitting committee which is not a legislative body, is simply not good enough. Mr. Sipoyo said that there is a standard format; currently there is some endorsement from the province before it comes to the NCOP. The chair argued that an endorsement from a provincial committee, not from the provincial legislature, allows mandates to arrive from provinces approved by practically anyone in the province. Mr. Selfe worried that this was too prescriptive, that we delay the mandate, so it is not so formal. The Chair agreed, but argued that an immediate, practical solution needed to be found, so that the NCOP rules didn’t fall short.
The Chair again asked for a rule regarding standardizing mandates in terms of the NCOP rule committee. He suggested that the liaison officers confer the mandates to the NCOP unless written confirmation from the provinces was received. Mr. Selfe said that the provincial legislatures confer the mandate to whomever the legislature designates as the committee. He gave the example of the Western Cape legislature. Yet the Chairperson again asked how would the NCOP know which are true mandates and what’s not. A standing committee is not the legislature, argued the Chair. Mr. Mayer said that since mandates are the position of provinces on various issues, it didn’t seem fair for the NCOP Chair to know the provinces vote beforehand. Mr. Grove stated that a mandate is how a province is going to vote in the NCOP. The head delegate casts the vote, so he then questioned if the committee was going to say how to rule the provincial legislatures from the Chair? Eventually, they will comply with the constitution, proscribing uniform procedure.
He believed the Department of Constitutional Affairs needs to be proactive regarding rule 65, section 2. This committee cannot prescribe to the provincial legislature, only to the NCOP. Desiree (Secretary’s office) said that she believed this was an administrative problem that didn’t needed to be dealt with in the rules. The Chair again asked that the committee determine a uniform procedure on how the NCOP receives mandates. The Secretary of the NCOP stated that sometimes committee clerks receive the mandate first, causing embarrassment because the chairs want the mandates, not the head of the delegation. The Chair said that this was not acceptable. When the mandate arrives at the NCOP, the mandate needs to travel from one central point in the province to one central point to the NCOP. Therefore, the Chair asked that two reports be prepared for next week. One that explained the different practices throughout the provinces, and the second on how the provinces preferred the mandate to arrive to the NCOP in a standard format.
The NCOP Secretary said that she saw practical problems with Rule 59. An example was a past point of order argument by the National Party. It affects the special delegates’ lists and it worked, but no one’s conforming to the rule. The Chair then said that the committee needed to reevaluate the rule to see if it is worthwhile. Mr. Sipoyo said that the provinces often make last-minute decisions on who is coming. The list is often typed up at the last minute and then given to protocol. The Chair said that a rule should be made then to send the list to the liaison officers. Mr. Selfe argued that for 6-7 bills in one day, the provinces could send 6-7 delegations. One would need a separate list for each bill – seemed silly. The Chair questioned why the committee could not just formalize the common practice. Desiree stated that Rule 59 could be interpreted in various ways. Mr. Mayer said the committee could link rule 59 to rule 14.3. Mr. Selfe asked if a rule could be made, stating that two hours before the speech the NCOP chair could receive the list, allowing everyone to know who was there. He believed that it was the head delegates responsibility to know who their delegates were. Mr. Grove suggested that these lists also form a part of the official record for constitutionality purposes. Yet Mr. Selfe argued that in the ATC, it says who was present and who wasn’t, making the need for recorded lists redundant. Mr. Sipoyo suggested that special delegates be given a sticker or badge, identifying themselves as special delegates, solving the problem. Desiree said that if the lists are given to the secretary before the vote is given, then these problems could be avoided. If there is a dispute over the delegation, the secretary’s list is final and binding.
Mr. Selfe said that the executive has a habit of creating parliament structures without informing parliament. Thus, the only time committee is created when it was okay with the Parliament. The Chair asked that the words "for approval" be added to section 1(a). William (Clerks Manager) asked if this rule also covered jobs that are created due to the creation of subsequent committees, boards, etc. The Chair said that they would export this rule to the joint rules committee for further comment.
Mr. Mayer asked that the committee delete the phrases "established by rules committee" and "established by the Chair of the Council" in sections (d) and (e). It was approved
Mr. Sipoyo said that this rule often gets challenged on how to reports the minutes. A format needs to be in place to make it easier for the committees to report. William said that the system on the other side compiles by submitting summaries. The problem lies within the administration. Mr. Mayer said that the reports are on the ATC, which is what Rule 87 is for. Minutes are different and therefore would need a different rule. William said that the communication between the provinces and the committee clerks is poor. The necessity is not a rule, because a rule will not solve the problem. The Chair argued that some committees do not represent every province, making minutes a necessity. It does no good, argued the Chairperson, for the committee to meet on a Monday and the minutes to get to the provinces on the Friday when the vote is on the next Monday. The Chairperson stated there is no reason for the clerks to not hand in minutes within 24 hours of the meeting. William argued that the clerks do their best, but budgetary constraints means that not every committee receives its own clerk. Perhaps, William argued, if we adopted a system (similar to Germany) whereby MP’s assist clerks by writing a brief summary of the meeting, which would be sent out prior to the minutes, it would allow the provinces to understand what occurred in the meeting. Mr. Selfe argued, however, that the Chairs of committees needed to be held accountable for the business of the meetings, including the distribution of the minutes. Mr. Grove stated that the principle outlined in Rule 87 was not a problem. He suggested that Rule 235 could apply to the committees as well, with a sentence discussing distribution in a timely manner. The Chair said however, that something needed to be done, because it was ridiculous for Mr. Sipoyo to continually be arguing with the Premiers from various provinces over lack of information from the NCOP. Desiree argued that this problem was due to the lack of communication between the Public Liaison’s office and the Clerks that could be solved through better communication.
The Chair then broke for tea, and the monitor left the meeting.
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