Deliberations

NATIONAL COUNCIL OF PROVINCES RULES COMMITTEE
DELIBERATIONS
25 OCTOBER 2005

These minutes were provided by the National Council of Provinces Table Staff

PRESENT
Mahlangu,                     Mr M J     (Chairperson of the NCOP)
Hollander,                      Ms P M    (Deputy Chairperson of the NCOP)                     
Dlulane,                        Ms B N 
Goeieman,                    Mr C M
Mack,                           Mr N J
Matlanyane,                  Ms H F
Mokoena,                      Kgoshi L M
Mzizi,                           Mr M A            
Nyanda,                        Ms M F
Ntuli,                             Mr Z C
Oliphant,                       Mrs M N    (House Chairperson)
Sogoni,                         Mr E M
Sulliman,                       Mr M A      (Programming Whip)
Terblanche,                   Ms J
Van Heerden,                Dr F J
Watson,                        Mr A
Windvoël,                      Mr V V Z  (Chief Whip of the NCOP)

APOLOGIES: Mr T S Setona, Ms M P Themba, Mr J O Thlagale, Ms A N D Qikane.

IN ATTENDANCE: Staff: Adv. L L Matyolo, Adv. B V L Momoti, Mr S Makhasi, Mr B Nonyane, Ms J A Borien, Adv A Gordon, Mr M Tyumre, Mr M Nguqu, Ms V Mnana, Mr M Tshaiviti.  

1.OPENING

The Chairperson of the NCOP, Mr M J Mahlangu, opened the meeting at 09:45 and welcomed all to the meeting.

2. APOLOGIES

The following apologies were received:

Mr T Setona, Ms M P Themba,  Mr J O Thlagale, Mrs A N D Qikane.

3. ADOPTION OF AGENDA

The agenda was adopted without additions.

4. CONSIDERATION OF THE MINUTES OF THE MEETING OF 13 SEPTEMBER 2005

The minutes were adopted as a correct reflection of the meeting of 13 September 2005.

5. MATTERS ARISING FROM THE MINUTES OF 13 SEPTEMBER 2005

The Chairperson referred to Page 2, Item 2 of the minutes and said that the Rules Committee was a policy making body and that it was very important for the Committee to meet in order to finalise policy. If members decided to be absent from the Rules Committee meeting, it would be acceptable only if they had valid reasons. The Chairperson referred to the apologies tendered by Mr Thlagale and Mrs Qikane and said that both the members did not need to attend the Select Committee meeting at the time the Rules Committee was meeting as they did not have to vote at the Select Committee meeting. If they had to vote, they would have been released from the Rules Committee at the time they needed to vote. He said that the Whips should assist and attend to the matter of attendance of members. With regard to Mrs Themba’s apology, that the member also should have attended the Rules Committee meeting since she was only co-chairing the Select Committee meeting.

Mr Watson enquired whether the Rules Committee decided that Select Committees should not sit whilst the Rules Committee is meeting.

Mrs Dlulane referred to the minutes and said that it was decided that the Rules Committee meetings should be prioritised. She however added that the Rules Committee meeting had initially been scheduled for the previous week and that was probably why Select Committee meetings were taking place at the time that the Rules Committee meeting was taking place.

The Chairperson said that the members who were members of the Rules Committee meeting should excuse themselves from other meetings.

Mrs Dlulane referred to page 4 of the minutes and asked whether the item of the Focus Group on Projects would be discussed under the agenda item.

The Chairperson said that the matter would be dealt with under the agenda item. The Chairperson enquired whether Mrs Themba was still a member of the Rules Committee.

The Chief Whip responded that the composition of the Provincial Whips had changed and that members sometimes still attended. He said the composition of the whips should be attended to in order for members to have clarity on who should be attending the Rules Committee meetings. The Chief Whip added that the core of the members who was obliged to attend should attend the Rules Committee meeting to assist other members to attend other committee meetings.

Dr Van Heerden proposed that an item be added to the agenda. He said that on Heritage Day, during the debate in the Chamber, he proposed that a painting of former President Mandela be displayed and that Dr Jordaan responded that the matter regarding the painting of former President Mandela be raised at the Rules Committee meeting. Dr Van Heerden requested that the Rules Committee meeting discuss the matter. 

The Chief Whip responded that Dr Van Heerden had raised an important matter. He however said that such a matter did not fall within the jurisdiction of the NCOP Rules Committee. The Joint Rules Committee or the Presiding Officers should deal with it. He proposed that the Chairperson be requested to raise the matter at the meeting of the Presiding Officers.

The Chairperson said that Dr Van Heerden proposed the item and that it should be discussed by the Rules Committee. The Rules Committee should   then decide where to refer it. He however agreed with the Chief Whip that it was a parliamentary and not an NCOP matter.

Kgoshi Mokoena referred to page 9, paragraph 5 of the minutes and requested that the spelling of his name be corrected.

Agreed:

The Whips to attend to the attendance of members of the Rules Committee.
6. MATTERS ON THE AGENDA

6.1. Four/six week cycle
 
The Secretary to the NCOP said that she did not expect the Rules Committee to take a decision on the agenda item before it but that she thought it important to raise the matter since it kept coming up during the Programming Committee meetings and also when requests came for Bills to be prioritised.

The Secretary referred to the document that she tabled and said there is currently a four- week cycle during which time provinces and the NCOP are expected to process 76 legislation. The Secretary referred to the respective weeks and the processes which take place during these weeks. She also commented on the 3-day rule and said that in the National Assembly, between the day of processing of the final report of the committee and the tabling of the report, 3 days were supposed to lapse. These 3 days were however no longer there. She said that there were reasons behind the 3-day rule, that it gave the committee clerk the time to prepare the report, have it scrutinised and signed off by the committee and then publish it in the ATC. Currently, the Bill is before the committee the one day and before the House for debate the next day which results in either the wrong bill or a grammatically incorrect bill being put before the House for passage. The Secretary appealed to the committee to consider officially changing the four- week cycle. She said that it has already assumed the status of a rule to such an extent that when it is raised at the Programming Committee, the NCOP is told that its rules provide for a four-week cycle. The Secretary further contended that the four- week cycle does not allow provinces the time to publish the Bill and conduct public hearings. She added that when that happens, the NCOP is faced with the challenge of processing legislation in contravention with the Constitution.

The Chairperson responded that the matter was discussed at the Workshop for Presiding Officers which was held on 29 May 2005. He said that the matter was not one of a rule but of policy. He said that the Procedural Services Office was requested to draft a policy for the Rules Committee to consider. He said that all Bills were not the same and would require different time frames to be dealt with. A minimum cycle of four weeks and a maximum of six weeks should be looked at. He explained that there are simple, technical Bills that could be finalised in four weeks but there are also complex Bills that would require more time and would therefore take up to six weeks to be processed. He emphasised that a draft policy was required that would allow for a minimum of four weeks and a maximum of six weeks to ensure enough time for passage of bills.

The Chairperson requested the Secretary to draft the policy and circulate it to the members of the Rules Committee for discussion and adoption at the next meeting.

The Chief Whip said that this should be seen in the context of the decision taken in the Programming Committee meeting that all section 76 Bills should be introduced in the NCOP. If all government departments were to abide by this decision, it would also avoid some of the challenges the NCOP are faced with. He said that the executive should be requested to introduce section 76 legislation in the NCOP to avoid these problems.

The Chairperson responded that it was a matter of persuasion rather than policy. In terms of the Constitution, Ministers are allowed to introduce legislation in the National Assembly. If the NCOP wishes that all section 76 Bills be introduced in the NCOP, the Leader of Government Business should be persuaded to discuss the matter with the executive.

Mr Sogoni raised a concern regarding the time to be allocated to complex Bills. He was of the opinion that six weeks were not enough if the process embarked on in provincial legislatures, such as advertising for public hearings, was to be taken into account.

The Chairperson requested members to apply their minds to the matter but cautioned that not too much time should be allocated, as the danger would then be that Bills would take too long to be finalised. He said there should be a certain time frame. He asked when the cycle started, whether it was when the Bill was tabled in Parliament or when the Bill was referred to the NCOP. He said that in terms of Joint Rule 159, the national executive should notify Parliament before a Bill is introduced and the Presiding Officers of Parliament would notify the provincial legislatures that the Minister intends introducing a specific Bill. Provincial legislatures are then expected to look at the Bill and to familiarize themselves with the content thereof. The Chairperson asked whether provincial legislatures were utilising that time. The Chairperson said that in his understanding the cycle should start when the Bill comes to the NCOP and not when it is introduced into Parliament.

The Chief Whip said that consideration should also be given to the views of provincial legislatures.

Mr Sulliman said that the draft policy would assist the NCOP in applying its mind to the matter. It was also important to link up with the provinces and test their views on the draft policy. He enquired whether it would be possible for the Chief Whip to put the matter on the agenda of the Whips Workshop which was scheduled for 11 November 2005.

Mr Sogoni responded that the Gauteng provincial legislature would not deal with a Bill that has not been formally referred to it.

The Chairperson said that the NCOP is dictated to by the Rules and policy.

Mr Mzizi asked at what stage the draft Bill is referred to the provinces in terms of Joint Rule 159.

The Chairperson said that when the draft Bill comes from the executive it is immediately sent to the provinces.

Mrs Dlulane asked at which stage Minmec was involved. At what stage do the Ministers sit down with the MECs?

The Chairperson replied that it could not be correct to assume that the provinces are not aware of the draft legislation.

Agreed:

The Secretary to draft the policy and circulate it to the members of the Rules Committee for adoption at the next meeting.

6.2. Report of the Subcommittee on Review of NCOP Rules

6.2.1. Rule 9 – Upgrade of Chairperson of Committees and Deputy Chairperson of Committees to House Chairpersons

The Chairperson of the Subcommittee, Kgoshi Mokoena reported that there were many consequential amendments required to the NCOP Rules regarding the upgrading of the positions of the Chairperson and Deputy Chairperson of Committees.

He referred specifically to Rule 9, 14 A and B and said that all rules that refer to the Chairperson and Deputy Chairperson of Committees, their titles and their functions had to be amended.

Kgoshi Mokoena proposed that the Rules Committee adopt the upgrading of the positions and the consequential amendments of the rules.

The Chairperson said that the Rules Committee had already agreed to the upgrading of these positions and that a debate was not required on the matter. He put the question to the Committee regarding the adoption of the consequential amendments to the Rules.

The consequential amendments were agreed to.

The Chief Whip said there was a small but important addition to be made to the functions of both House Chairpersons as outlined in the report of the Subcommittee. He proposed that with reference to 4 A , to add (i) after (h) and in effect to add “and other related functions”  and with reference to 4 B,  to add (m) after (n). He said that the functions of the two House Chairpersons overlapped. If one of the House Chairpersons is not there, the inclusion of “and other related functions” would allow each of the House Chairpersons to proceed with the business at hand. The proposed amendments of the Subcommittee do not provide for their powers and functions to be designated. He proposed that the words “and other related functions” to be added.  Also, that the reference to “L19” to be changed to “Members’ Facilities”.

The Chairperson seconded the proposal and said that it would not change the substance of 4(f). He also proposed that the words “L19” be removed and substituted by “Members’ Facilities”.

The Chairperson further informed the Committee that he received a letter from the Moseneke Commission and read it to the Committee. The letter confirmed that the role profile for House Chairpersons had been drafted and that the Commission was in the process of grading and benchmarking all positions in the NCOP. The Commission will communicate the grading results of all NCOP members during December 2005 and submit these recommendations to the President in March 2006. The letter was circulated to members of the committee.

Agreed:

The consequential amendments to the rules regarding the House Chairpersons were agreed to.

6.2.2 Rule 73 – Formal written mandates not required with respect to International Agreements

Kgoshi Mokoena said that the Subcommittee had consulted widely on the matter. That this was a policy issue being attended to by the President and Cabinet Ministers and reducing it from the President to the provinces will be unwise. He said that there was no reason for the provinces to give the NCOP mandates in respect of International Agreements. The Chairperson proposed that the Committee adopt the proposal of the Subcommittee that no formal mandates would be required from provinces when dealing with International Agreements.

Mr Watson said that he was in agreement that in the case of International Agreements it was difficult to get mandates from provinces. However, the question is where the authority is derived from if the delegates are allowed to vote without mandates.

The Chief Whip said that the Subcommittee was given a mandate to deal with the matter. He said that the matter had been discussed at the Workshop for Presiding Officers where Speakers, Chief Whips of provinces and legal advisers from the provinces were present. That it was unlikely that provinces will again open this matter. He proposed that the Committee adopt the recommendations of the Subcommittee.

The Chairperson asked whether it meant that no formal written mandates would be required from the provinces. That provinces could communicate but that it need not be formal mandates.

Kgoshi Mokoena said that provinces could advise the NCOP. He added that of all the Protocols passed in Parliament, not one was amended by both Houses. This was done at executive level. He said that the executive was merely being courteous to take everyone on board, to make provinces aware of what is happening. He emphasized that no formal mandates were required from provinces.

The Chairperson said that he would have thought that committees would have the right to pronounce themselves on International Agreements without necessarily amending them as International Agreements ultimately become binding on the Republic of South Africa.

Mr Mzizi said that permanent delegates do go to the provinces to brief them if there are matters that are bearing on the provinces when they take decisions. That is why six provinces have to agree on an issue. The Select Committees also make clear their processes; it is clearly not a matter of rubber-stamping the proposal of the executive.

The Chief Whip referred to section 231(2) of the Constitution and said that it needed to be read together with section 231(1). He quoted section 231(1) and said that South Africa was a unitary state and that the Constitution stated that the NCOP needed to ratify the International Agreements in order to provide the members and provinces with information regarding the International Agreements. He said that Cabinet consulted on these matters even before the agreements are entered into. Once a situation is allowed where provinces could affect amendments to International Agreements, there may be serious political ramifications. The decision of the workshop was to allow provincial legislatures to have the necessary information but not to the extent that they could make changes.

Mr Watson said that he is in agreement that International Agreements are policy matters dealt with by the executive but asked on what basis permanent delegates would be voting. Who decides what the vote of each province is?

Mr Sulliman proposed that the legal advice office be requested to consider the processes to be followed regarding the ratification of International Agreements.

Kgoshi Mokoena said that delegates were voting per province and not as political parties. The Select Committees are empowered to write reports to the House on their recommendations regarding International Agreements.

Dr Van Heerden said that Mr Watson raised something that needs to be investigated. He asked that a legal opinion be sought on the matter before the Committee takes a decision.

Mr Sogoni responded that the NCOP had two workshops on the matter. He said that it was clear from the Constitution that it was not the prerogative of the NCOP to change the terms of an International Agreement. He proposed that the rule be adopted at the next meeting as there was no unity at this stage.

The Chairperson requested Advocate Gordon from the Parliamentary Law Advice Office to provide clarity on the matter.

Advocate Gordon said that the position had been canvassed at the various workshops and numerous legal opinions had been sought on the matter. She proposed that she be allowed to provide legal advice at the next Rules Committee meeting.

Advocate Matyolo, the Secretary to the NCOP, said that it was not the role of Parliament to draft International Agreements but to check whether the International Agreements are in line with the Constitution. She said that foreign affairs were outside the ambit of the provinces and therefore the NCOP in terms of Schedule 4 of the Constitution. If an International Agreement affects the border of a province, provinces as well as the NCOP have a say. Advocate Matyolo said that if that could be understood, the role of provinces and the NCOP would be understood and there would be clarity as to the way forward on the matter.

Mrs Oliphant proposed that the submission of the Subcommittee be supported as the provinces all agreed to this at the workshops that were held on the issue. Mrs Oliphant referred to meetings where their committee was briefed, specifically when the Department of Transport briefed the committee. The Department said that International Agreements are done internationally but if the committee raises amendments, the Minister can raise these amendments.   

Advocate Gordon responded that she was in agreement with the Secretary to the NCOP. She said it was important to consider the role of the executive and the role of the legislature in respect of International Agreements. Section 231(2) leaves it in the jurisdiction of legislation to tell the NCOP how to get mandates from provinces. In terms of subsection 2, all that is required is that voting be done in terms of section 65 (one vote per province). The way in which a mandate is acquired depends on the working relationship between the NCOP and the provincial legislatures.

The Chairperson said that he was of the opinion that extensive consultation was done before and during the process of acceding to an International Agreement. He does not think that the executive would go through extensive negotiations without informing their provincial counterparts. It should therefore not be any different when the NCOP ratifies, the NCOP will notify the provinces. That the mechanism of how we get these mandates are at issue.

Mr Watson said that it seemed that he was misunderstood. He said that he had no problem with International Agreements and the rights of the executive. He said that when the NCOP expresses itself on anything, there should be a mechanism in terms of how it arrives at that decision.

The Chairperson said that an internal mechanism could be decided on to deal with these matters.

The Chief Whip said that there has been a suggestion that the proposal of the Subcommittee be adopted and the proposal was seconded.

The Chairperson asked whether the proposal was accepted.

The proposal was agreed to.

Agreed:

The proposal of the Subcommittee that no formal mandates would be required from provinces when dealing with International Agreements agreed to.

6.2.3. Protocol /Policy governing members and committee travel to Provincial Legislatures
               
Kgoshi Mokoena formally tabled the document relating to the Protocol /policy governing members and committees’ travel to provincial legislatures. He said that the document basically provides that the NCOP would be responsible for bearing the costs for all NCOP related activities to the provinces. However, that if members or committees were invited by provincial legislatures, the provincial legislatures would be expected to bear the costs.

The Chairperson said that the document in essence provides that if NCOP members or committees have to travel to the provinces to brief the legislatures on legislation or anything pertaining to the business of the NCOP, the NCOP would be funding such expenses incurred by the member or committee.

The Chairperson added that the NCOP should not be inviting provinces to look after NCOP members and that NCOP members should be assisted to be able to do their work in a dignified and supported way. He said that the NCOP should take care of its members in terms of air and ground travel as well as accommodation. He proposed that the policy be adopted.

Mr Mzizi was in agreement with the Chairperson. He however mentioned that there was a discrepancy in that when he went to the province he was degraded to economy class and he wanted to know why.   

The Chairperson replied that Mr Mzizi was on a different subject and said that Members’ Facilities should not be mixed with the work of the NCOP.

Mr Watson said that when members are sent to the provinces as part of a committee, in terms of Members’ Facilities, the normal facilities that are arranged by Parliament includes air, ground travel and accommodation with breakfast and dinner. No provision is made for lunch. However, Members’ Facilities state that when members are sent away from Parliament there is a per diem allowance. He said that this has however not been applied since he has been in Parliament. He requested that these matters be investigated to ensure the Members’ Facilities policy is applied correctly.

Mrs Oliphant said that there was a need to review the travel policy especially regarding accommodation and meals. She said that the rates of some hotels exceed R900.00 per night and the travel policy provides for R700.00 per night.

The Chairperson said that the amendment of the travel policy should be discussed at the JRC meeting or at the POA or with the Presiding Officers. It could not be discussed at the NCOP Rules Committee meeting.

The Chief Whip moved that the draft policy be adjusted in accordance with the recently amended Members’ Travel Facilities so that there would not be these discrepancies. He proposed that the Subcommittee on Review of Rules come up with the relevant formulation.

The Chairperson said that whatever proposals the Subcommittee come up with has to be referred to the relevant body as it affects the entire Parliament. The NCOP is not in a position to amend Members’ Facilities.

Mrs Dlulane asked where these suggestions should be submitted.

The Chairperson said that it should be submitted to the POA.

The Chairperson then referred to the document on the travel policy in the package, specifically to point 2 on page 3. He asked whether reference is made to the provincial legislature or the NCOP. He said if it referred to the NCOP, he did not have a problem. He asked clarity on what exactly the Committee would be approving. Whether the NCOP would cover all costs.

The Secretary responded that it was accepted that the Rules Committee had decided that air and ground travel as well as accommodation should be paid by the NCOP. She asked whether the tax implications of such a decision could be verified in order to avoid unintended consequences. She said that originally the provinces had to provide shuttles between the airport and the legislature to take away the burden from the members as members are receiving car allowances. However, that there is nothing preventing the NCOP from providing ground transport.

The Chairperson proposed that the policy be adopted which stipulates that the NCOP would bear all the costs. He said that he would contact the South African Revenue Services to find out how this will affect members. It was important that this consideration not prevent the NCOP from adopting the policy. That it is important that members not be subjected to problems when they are doing their work.

He further said that accommodation should also include breakfast and dinner and asked whether the policy provided for that.

The Secretary responded that the policy does not cover that. That it falls under the Members’ Facilities policy which provides that members must be reimbursed. The Secretary informed the Committee that there was going to be a proposal from management to amend the policy to provide for subsistence and travel allowance (S&T) for members.

The Chairperson asked whether there was a difference in giving members S& T.

The Secretary said that the policy was adopted by both Houses and provided for members to be reimbursed.

The Chairperson requested the Chairperson of the Subcommittee to draft amendments regarding the Members’ Facilities policy. He requested the House Chairpersons and the Chief Whip to assist the Subcommittee to amend those issues in Members’ Facilities and then refer these amendments to the his office. He would then refer it to the relevant authority.

Mrs Oliphant referred to points 1.2. (a) and 1.1.(b) and asked what the difference between the two was.

The Chairperson said that the policy had not changed. It applies to the House Chairperson and then to the Chief Whip as the Chief Whip must ascertain according to the Parliamentary Programme whether trips could be undertaken when there are sittings.

Mrs Oliphant said that during committee weeks there are no plenaries. She referred to points 1.1. (b) and 1.2. (a). She requested clarity regarding these two matters.

The Secretary responded that 1.1. (b) refers to a situation where the House Chairperson has already approved the programme of a committee. The Chief Whip would be consulted to ensure that this programme would not affect a quorum. The second point refers to unplanned visits. The House Chairperson has to initially approve the committee’s application as at this stage it would have already scheduled oversight visits outside plenary time, but if it does happen, the Chairperson should be informed.  

Mr Sogoni said that the document needed to reflect exactly what the position is. The language used in the document does not do that.

The Chairperson requested that the points be rephrased.

Agreed:

That the policy be adopted which stipulates that the NCOP would bear all the costs.
The Chairperson of the NCOP to contact the South African Revenue Services to find out how the provision of ground transport by the NCOP to its members would have any tax implications for members.
The Chairperson of the Subcommittee to draft amendments regarding the Members’ Facilities policy.
The House Chairpersons and the Chief Whip to assist the Subcommittee to amend those issues in the Members’ Facilities policy and then refer these amendments to the Chairperson’s office.
The Chairperson of the NCOP to refer these proposed amendments to the relevant authority.
The Secretary to rephrase points 1.1.b and 1.2.a in the policy to ensure clarity.

6.2.4. Discussion of Report tabled by the Subcommittee at the previous Rules Committee meeting

The Chairperson of the Subcommittee proposed that the Report tabled by the Subcommittee be discussed and adopted by the Rules Committee.

He said that in the last meeting the Subcommittee tabled a document regarding contempt and the discipline of members. He said that the Subcommittee’s proposal is that one committee be established to deal with discipline of the House as well as contempt of members. Kgoshi Mokoena said that there were three options proposed. The first option is that the committee be composed of ten members representing each province. The second option would be to establish a committee consisting of party representatives. The third option is that the Chairperson could propose the composition of the committee. 

The Chairperson said that that the Subcommittee proposed three options and that it was clear that all was in agreement with appointing a committee.

Mr Watson said that he only received the document that morning and that he had to consult with his party. Whilst he was in agreement with the principle of establishing a committee, he needed more time to consider the options. 

The Chief Whip proposed that the matter be flagged for now and finalized at the next Rules Committee meeting.

It was agreed that the matter be discussed in the next Rules Committee meeting.

Mr Ntuli, along with the other members belonging to Kgoshi Mokoena’s committee asked to be excused to attend their meeting.
  
The Chairperson said that item 6.5. should be discussed next and asked the Deputy Chairperson to report.

Agreed:

The principle regarding the establishment of a committee was agreed to.
The three options regarding the composition of the committee to be discussed at the next Rules Committee meeting. 

6.4. Progress report regarding the participation of NCOP members on the Task Team on Oversight

The Deputy Chairperson reported that in the meeting of 13 September 2005, she was requested to follow up on the involvement of parties representing the NCOP in the Focus Groups. She said that due to other pressing meetings and the parliamentary programme she was unable to convene a meeting to address the matter. She informed the Committee that she had scheduled a meeting for 9 November 2005.

That she however verified the level of participation of NCOP members in Focus Group meetings. With regard to the Focus Group on Committees, Mrs Oliphant represented the NCOP. The Focus Group on Projects met on 18 February 2005 and there was no representative from the NCOP. The Focus Group had scheduled another meeting for this morning at 10:00 a.m. and she hoped that the NCOP would be represented. The Focus Group on Budget had a workshop on 4 October 2005 and Mr Mkhaliphi and Mr Watson represented the NCOP. The Deputy Chairperson said that it was important to look at the attendance of NCOP members as failure to participate will result in the NCOP not being able to ensure that the document takes into account the unique nature of the NCOP. The Deputy Chairperson said that the member representing the NCOP in the Focus Group on Projects was a Democratic Alliance (DA) member and that this member has never been replaced.

Mrs Dlulane reminded the Committee that Mr Watson was supposed to find out from the Democratic Alliance the name of the member who will be representing the NCOP in the Focus Group on Projects.

The Chairperson asked whether the NCOP allocated members to the Focus Groups on the basis of their party political membership or because they are NCOP members.

The Chief Whip confirmed that members were representing the NCOP and not their political parties. He said that it was not the only instance where Democratic Alliance members were not representing the NCOP when they were supposed to and made reference to non-attendance of Democratic Alliance members to the Peer Review Mechanism. He proposed that other parties be involved to avoid the situation of non-attendance of the NCOP.

The Chairperson requested Mr Watson to look into the matter. The Chairperson asked the Deputy Chairperson to further chair the meeting and requested to be excused, as he had to attend another meeting.

Mr Watson said that he was confused and needed clarity. He said that a multiparty forum appointed the members in charge of the Focus Groups. He said that he was appointed and that he has been attending. He is not aware of any other person that has been appointed but not attending. He said that the Chief Whip was out of order as the discussion was about the Focus Groups.

The Deputy Chairperson referred Mr Watson to page 6 of the minutes of the previous meeting when Mr Watson undertook to look into the matter of the Democratic Alliance member who was supposed to attend the Focus Group on Projects.

Mr Watson said that he had reported that he looked into the matter but that he was unable to find the name of the member who was supposed to represent the NCOP.

The Chief Whip said that he would assist Mr Watson in that regard. He requested that Mr Watson withdraw the statement namely that he was out of order. He said that he was fully aware that the Focus Group was under discussion and not the Peer Review. That he had made an example of other areas where the NCOP had been frustrated by the non-attendance of DA members. 

Mr Watson said that he would not withdraw his statement. He said that the Chief Whip was out of order as he had discussed the matter with him.

The Chief Whip requested the Deputy Chairperson to rule on the matter.

The Deputy Chairperson requested Mr Watson to withdraw his remark.

Mr Watson refused.

The Deputy Chairperson said that she would look into the matter and take a decision. She said that she would inform both members of her decision.

Agreed:

Mr Watson to look into the matter of the attendance of the DA member representing the NCOP on the Focus Group on Projects.
The Deputy Chairperson to look into the dispute between the Chief Whip and Mr Watson and inform both members of her decision.






6.3. Report on rules previously referred to the Subcommittee on Review of Council Rules – extracted from previous minutes and the Review of NCOP Rules document 

The Secretary to the NCOP said that item 6.3. was meant to be tabled and referred to the relevant committees. She said that the document was an extract of the Review of Rules done by the NCOP in 2002. She added that a number of matters were referred to the various bodies and some of these matters had not been finalised. The Secretary requested that all relevant offices pick up on what they were supposed to do in terms of the documents for finalisation at the next Rules Committee meeting.

Agreed:

All relevant offices to scrutinise the document and report on what they were supposed to do in terms of the documents for finalisation at the next Rules Committee meeting.

7. CLOSURE

The Deputy Chairperson adjourned the meeting at 11:50 a.m.




_______________________
Hon. Mr. M J Mahlangu, MP
Chairperson of the NCOP Rules Committee 




















PROPOSAL


The NCOP requires 10 weeks to process a section 76 Bill

The NCOP requires a minimum of 8 weeks to process a section 75 Bill 


PROPOSED 10- WEEK PERIOD FOR SECTION 76 BILLS


Week 1, 2 and 3 are to allow the NCOP to engage with the content of the bill. The 6- week legislative cycle (i.e. the mandates process etc) only begins in week 4  

Week    1:         NCOP (and the provinces via videoconferencing[1]) gets a briefing
from the Department on the content of the Bill as it comes from the NA or as it is introduced where the NCOP is the first House.


Week 2:            Both the NCOP and the provinces go through the Bill clause by clause[2]

            The provinces publish the Bill internally and also for purposes of ensuring that external stakeholders have access to the Bill.

            The provinces advertise public hearings on the Bill.

Week 2:            The provinces schedule briefings on the provincial interests
(end)     affected by the Bill

Week 3:            Public hearings take place in the provinces.
-------------------------------------------------------------------------------------------------------

Week 4:            Provinces process the report on the public hearings

Week 4:            Provinces consider the Bill by factoring in the inputs that have (end)              been made during the public hearings.

 
Week 5:            Provinces engage in discussions and prepare the negotiating mandates on the Bill.


Week 6:           NCOP processes the negotiating mandates that have been received from provinces.


Week 7:           NCOP reports back to provinces on the NCOP position in view of the negotiating mandates that have been received.


Week 8:           Provinces prepare final mandates


Week 9:           NCOP holds meeting to consider the final mandates.

            Select Committee finalises its report to the House.


Week 10:          Debate in the House           
            (NB. 3 –day rule to apply)[3].

  

It is strongly recommended that all section 76 Bills be introduced in the National Council of Provinces.

























REVIEW OF COUNCIL RULES[4]
(as discussed in the NCOP Rules Committee meeting of 10 May 2002)


BACKGROUND:

The Office of the Secretary to the NCOP carried out the review of the Council rules and the document was placed before the Rules Committee on 10 May 2002.

The following is a summary of the discussions and decisions taken by that meeting on issues still to be taken forward.

Rule 5(1)(b):

At the moment, the Rules do not contain a procedure for petitions. 

Agreed that:

The proposal (as adapted from the NA Rules) be accepted.

The provisions in the Gauteng Rules relating to "Appearance before committee"  and " Petitioner and others to be informed" to be included.

A provisions relating to time-periods for tabling to be considered and included, if necessary.

A provision requiring the committee which considered the petition to report to the House, to be included   


Rule 5(3):

The proposal relates to the issue of the public's right to information.

Agreed that:

the "reasonable measures" referred to in the rule, must be taken in terms of applicable legislation.

    






Rule 15

The problem was with the implementation of the rule because there were often times when Members were voting on behalf of their provinces, without the Presiding Officer and the Table being sure that they were legally mandated to do so.

A clear procedure was needed in terms of which we could write to provinces prior to each sitting at which section 76 matters will be considered, indicating that they have to provide written confirmation as to who will be the leader of the delegation at the sitting.

Agreed that:
    
a procedure was needed so that letters are written to each province prior to each sitting at which section 76 matters will be considered, indicating that they must provide written confirmation of who will be the leader of the delegation.


Rule 61

For purposes of a quorum when voting on section 75 Bills, the rules and the Constitution would seem to indicate that it would be one third of all members (i.e. both special and permanent delegates).

It was said that there was a distinction between voting on section 76 and section 75 Bills and that the matter should be referred to the Constitutional Review Committee.

Agreed:

the matter be referred to the Constitutional Review Committee.


Rule 72(2)

There were a number of resolutions that were put to the House by the Chief Whip that required decision in terms of section 65 of the Constitution. In the majority of cases the provinces were not aware that the matter was being considered in Cape Town. The Subcommittee on Review should consider the matter and report back to the NCOP.

Agreed that:

the matter be referred to the Subcommittee on Review. Subcommittee to also consider the issue of section 65 being used for decision on "internal" matters such as sitting times etc, where provinces are not directly involved. (Is this not to some extent covered in the Draft Mandates Legislation?)


Rule 102(2)(b)

Although the rules required that committees report to the Council on its activities at least once per year, the rule was generally not being adhered to.

Agreed that:

the Secretary to the NCOP was responsible for alerting committees towards the end of each year to the requirement of reporting on its activities.


Rule 167

The concern was that although the Constitution did provide for the establishment of joint committees to consider section 74 Bills and 75 Bills, it did not refer to section 76 Bills. The Joint Rules did however allow for joint committees to be established to consider section 76 Bills, and this had happened on a few occasions.

The recommendation was that, if necessary, committees of the two Houses should confer when considering section 76 Bills, rather than to establish joint committees in such instances.

Agreed that:

section 76 Bills not be referred to joint committees, but that committees confer instead.

the matter be referred to the Subcommittee on Review. The Subcommittee to also look at the issue of referral of section 75 Bills.
    
Rule 241

The concern was that Members were not informed as to the process which follows after the House has adopted their motion.

It was stated that the matter could be dealt with administratively and that it did not have to be provided for in the rules. The office responsible for forwarding the resolution to the Executive, should send a copy of that correspondence to the Member concerned.




Agreed that:
 
the matter should be dealt with administratively. The relevant office in Parliament to be informed accordingly.


 
Statements by Cabinet Members:

During the latter half of that year, the Chairperson of the Council received requests from two Cabinet Ministers for an opportunity to address the Council on matters of public of importance. The NCOP Rules, unlike those of the NA, do not provide for Executive statements. Although the Chairperson was able to accommodate the requests, it might be appropriate for our Rules to expressly make provision for such occasions for purposes of clarity.

It was recommended that the following provisions be included*:


Executive statements:

(1)        A Cabinet member may make a factual or policy statement relating to        government policy, any executive action or other similar matter of        which the Council should be informed.

(2)        The time allotted to a Cabinet member making an executive          statement in terms of subrule (1) may not exceed 20 minutes, except            with the consent of the Council.

Whenever possible, a copy of an executive statement must be delivered to the members of the Council at or before the time that the statement is made in the Council.

After any executive statement has been made, the Cabinet member concerned must, if applicable, table a compendium of background information.

Following any executive statement, a member or members of each of the parties may comment on the executive statement for not more than three minutes per party.
 
    [* As adapted from the provisions in the NA Rules]








Motions:

1.         Substantive Ultra Vires Motions

During one of the sittings a motion was moved by an Honourable Member regarding Palestine.

Point 2 of the motion was worded as follows:

"That all displaced Palestinians be allowed to return peacefully to their rightful land and that Jerusalem be designated the Palestinian capital."

This violated the guidelines as the motion dealt with an issue ultra vires of the South African Parliament. This should not be allowed in a motion because, if the motion is adopted, it effectively becomes a resolution that neither the House nor the Government can give effect to.

In cases of motions that are submitted to the Legislation and Proceedings Unit, this is brought to the attention of Members and as such will not come before the House. The question arises in relation to those cases where motions without notice are read directly in the House. Our concern is how will vetoing takes place in a case in which there is no objection on other grounds.

The administrative unit (Legislation and Proceedings) that does the vetoing, exercises (administratively) the power of the Chairperson to adjudicate on the content and drafting of motions. Would it then be proper for the Chair to exercise this right in the Chamber by ruling such a motion out of order without any objection from a Member, or should the Chair rather propose an amendment to rectify such a clause?

International practice does not provide guidance on this issue specifically because during training Members are made aware of this as a basic principle in the drafting of motions and as a result such incidents are not recorded. In some countries the Presiding Officer actually does rule the motion out of order because of the phrasing of its contents.

This position can be taken comfortably in older democracies. However, in my view it can pose problems in a Parliament such as ours in which there is a limitation (rule) against raising the same motion twice within a certain period of time. This would mean a lost opportunity to register a point that might be of national benefit at the international forum if the motion is ruled out of order because of its contents.

Our concern is that, if the Presiding Officer does not rule against such a motion, its remaining on record might reflect negatively on our procedures.




2.         Notices of Motion:

Quite a number of Members' motions lack the major distinguishing factor of this category of motions, viz the notice.

These motions conventionally should read as follows: "I hereby give notice that at the next sitting of the House I will move that ……etc".

The correct procedure is that these should then be included under "Further Business" on the next Order Paper. This puts them in line for consideration when time avails itself. Members are at liberty to request the Chief Whip to ask that such a motion be brought above the line and actually be debated. There are usually short speakers' lists allowing the mover 3 minutes opening address and two minutes to respond. This time is usually determined by the Whippery as time allocated to Members' business, as against Government business and Parliamentary business.

3.         Motions without notice:

Frequently these are worded correctly but are rather long and mostly fail to crystallise the issue, or deal with a number of issues in one and the same motion. This tends to cloud issues and opens it to points of order and/or difficulties in determining where they should be directed after they have been passed as resolutions of the House.

We are aware that the Chairperson had mentioned at one of the NCOP Programming meetings, that the issue of the quality of the motions needed to be addressed. We however, still believe that the Chairperson's intervention might help improve the quality of motions as it has done with that of general speeches. Perhaps the Chairperson might bring these other issues to the attention of Members.          

Questions

1.         Same question to different departments:

Questions are a means of making government to account to Parliament. As the rules of the NCOP on this matter are silent on the question whether the question can be asked to more than one Minister at the same time in a case where the Ministries could have done something about the issue concerned. Taking into consideration the purpose of questions, it stands to reason that accountability in respect of the issue concerned is the basis for calling the Ministry to account to the House.

We propose that Rule 232 be amended by adding the following:

"Questions must be directed at the Ministry that is officially tasked with the particular area of responsibility for which information is requested".                

The  Constitution


1.         Allocation of delegates to the NCOP: section 61


Section 61(2)(b) provides that " Within 30 days after the result of an election of a provincial legislature is declared, the legislature must appoint the permanent delegates in accordance with the nomination of the parties".
The question here is that the effect of this provision is that it effectively gives powers to the political parties to appoint Members of the NCOP (in accordance with the nominations of the parties) to the exclusion of the legislature.

Section 62 of the Constitution determines membership of the NCOP as based on the nomination by the Provinces from Members of the Provincial Legislature.    
In turn, membership of the legislature is determined by section 106 of the Constitution as based on qualification to vote with certain exclusions. These exclusions are included in section 106(1)(c), (d) and (e) – (unrehabilitated insolvents, unsound minds and criminal record after 1996)     

Practically the IEC is supposed to partly screen Members in so far as they are eligible to vote.

There does not seem to be a clearing place for sections 106(1)(c), (d) and (e). One would assume that this would be done by legislatures since this is a constitutional requirement. However the same Constitution indirectly takes those powers from the legislature and gives them to the parties.

These are both constitutional obligations, which one would supersede which in case the issue arises? Who has a duty to monitor compliance with section 106(1)(c), (d) and (e)?              


2.         Assent to Bills by the President: section 79

Quite a number of Bills have been passed by Parliament but have not been assented to by the President because there is no official translation of the Bill. A number of these Bills are actually fast-tracked Bills, but this nullifies the whole rationale for fast-tracking if they are delayed by as much as three to four weeks.

Joint Rule 221 stipulates that when the official text of the Bill is sent to the President for assent it must be accompanied by the official translation or translations.

The Constitution stipulates that once a Bill has been passed by Parliament it must be sent to the President for assent. The Constitution is silent on the official translation. This is a situation of a Rule versus the Constitution, which should in fact mean that the Rule is superseded by the Constitution.

However, the section 6 of the Constitution encourages the use of more than one language. The question is what should the position be.

Another issue is, what is understood by the phrase official translation and what relevance is this in the passage of Bills? At what point exactly must this be made available to Parliament?

The responsibility for making the translation available to Parliament is said to rest with the Executive. The question is whether Parliament has done its job of legislating on a particular issue, if that legislation has not been assented to by the President not because of a legal concern, but because Parliament had not yet sent it to the President for assent. Furthermore what happens if a matter regulated by that Bill comes before the courts, after the Bill has been passed by Parliament and before the President has assented to it, and the Bill was reversing an earlier situation.    

This matter seems to us to require an analysis by the Law Advisers with the intention of making proposals to the Presiding Officers as to what procedure or rule or process needs to be put in place to fill in this gap in the processing or passing of legislation.


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