Proposed Amendments to the Joint Rules of Parliament (Draft 1, 3/398)

Present: De Lange (NA Co-Chair, ANC), Moosa (NCOP Co-Chair, ANC), Hendrickse (NA, ANC) Selfe (NCOP, DP), Odendaal (NA, NP), Maree (NA, NP), 4 clerks and advisors.

The document was supposed to have been discussed during a meeting of the committee on Monday 9 March. That meeting, however, was postponed because it coincided with a sitting of the National Assembly (see earlier report). The current meeting on March 12 was, therefore, the second attempt of the Joint Subcommittee on Review of Rules to discuss the document.

The meeting started half an hour late because there seemed to be a similar problem of overlap, this time with a sitting of both the NCOP and the NA. Apparently, the matter of a committee meeting during a sitting of the House had not been discussed in the Programme Committee (as was suggested on March 9). Therefore, the problem regarding permission to hold a meeting had not been solved. Nevertheless, the committee decided to go ahead, apparently approaching the matter from a more practical point of view this time: the need to finalise the new rules before the end of the parliamentary session.

After a welcome to the new members of the committee, the NA Co-Chair asked the legal drafter, Mr. Gerrit Grove, to go through the document clause by clause to explain the amendments he drafted. Grove told the committee the amendments were mainly dealing with issues still outstanding from the latest change of joint rules (new Joint Rules of Parliament were approved by the Joint Rules Committee on 19 November 1997) and new issues that since then had come up.

The first and most important point of discussion was the establishment of the new Joint Committee on the Funding of Political Parties (proposed clauses 10i and 90F to 90J). The committee briefly spoke about the composition of the new committee. Since it will deal with the funding of political parties all parties should have at least one seat. Clause 90G1 was drafted accordingly but does not yet mention the number of members for each party because the exact composition of the new committee is still to be decided by the Chief Whips. Nevertheless, Mr Maree suggested that the composition of the new committee would have to be determined according to the principle of proportional representation. The NA Co-Chair subsequently suggested the legal drafter would draft an alternative clause including the principle of proportional representation and it would be left to the Joint Rules Committee to choose between the two clauses. Furthermore, it was agreed that clause 90F2 would have to be redrafted to state without ambiguity that although the Speaker and the Chairperson of the Council appoint the members of the Committee they cannot do so without the consent of the relevant party.

The committee spoke at length about the formal position of the new Joint Committee. According to the Public Funding of Represented Political Parties Act (Act 103 of 1997) the President will regulate this type of funding, thereby acting on the recommendation of a parliamentary committee. The discussion focussed on the question whether it would be unconstitutional for a parliamentary committee to make binding recommendations to the President. Apparently, parliament by passing Act 103 decided to delegate the power to regulate the public funding of parties to the President, but at the same time decided to keep the power by stating that the President will act on the recommendation of a parliamentary committee. Thus, the role of the President appears to be reduced to a rubberstamp. Whether that is unconstitutional was, according to the Chair, an interesting question but not one that had to be solved in this meeting.

What needed to be solved was the question of whether a parliamentary committee can make such a recommendation to the President, thus binding both Houses of Parliament. Would one by establishing such a committee be bypassing the supremacy of the Houses of Parliament? The committee agreed that would not be the case as long as the new committee would report to both Houses.

This, however, raised another question: what will happen if the two houses disagree on the matter? According to Grove the rules present only one deadlock breaking mechanism in such cases, namely the Joint Rules Committee. Grove therefore suggested establishing the new Joint Committee on the Funding of Political Parties as a Subcommittee of the Joint Rules Committee. The new subcommittee would then advise the Joint Rules Committee to make recommendations to the President. The Chair stated that this seemed to be a logical solution but that it would perhaps be wise to seek more advise on this complicated issue.