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AD HOC COMMITTEE ON THE POWERS AND PRIVILEGES OF PARLIAMENT (NA);
AD HOC COMMITTEE ON THE POWERS AND PRIVILEGES OF PARLIAMENT (NCOP)
14 September 2001
POWERS AND IMMUNITIES OF PARLIAMENT BILL: WORKSHOP
Joint Chairpersons: Mr Mokaba (ANC) – NA; Mr Moosa (ANC) – NCOP
Documents handed out
Powers and Privileges on Parliament Bill
Legislation on the Powers, Privileges and Immunities of Members of Parliament: A Comparative Study
The committee discussed a range of issues, among which included freedom of speech and proceedings in parliament. It emerged that a member cannot publish a speech to the press before that member has had it delivered to the House. If that speech contains defamatory averments about another member and was published to the press before it was delivered to the House the member responsible would not be protected by parliamentary privilege and would be open to a defamation suit. Other issues that were discussed was whether members of parliament had powers of investigation in their constituencies. This issue was debated at length and the Law Advisor was of the opinion, together with Mr Moosa that members do not have such powers as this is regulated by the doctrine of separation of powers. Other issues were left open for further discussion.
Chapter 2 – Freedom of Speech
Clause 4 (5) Freedom of Speech and proceedings of Parliament
Adv. Meyer commented that this clause grants a member immunity in the preparation of a document, for the purposes of paragraph (a). If a member were to prepare a speech in his office and that speech is subsequently not delivered, but was prepared for the purposes of delivery in Parliament, the member will be protected under these provisions and he cannot be taken to court for what is written in the speech.
There has been a problem in other countries where an MP has handed over an undelivered speech to the press. It has been held that this conduct was not covered under parliamentary privilege if the document contained defamatory words.
Mr C Morkel (NNP) was concerned about the concept of undelivered speech as this can open itself to abuse. Most press statements have an embargo or check against delivery clause. He asked how it can be ensured that the press does not publish a statement until it has been checked before delivery.
Ms Magazi (ANC) asked what would happen if a member prepares a speech and hands it over to the press but, at the same time, he gives another speech with different content in the House.
Adv. Meyer replied that this would have legal implications if the speech contains allegations of a defamatory nature against somebody else. If a member wishes to defame another member, the sound advice would be to do that within the House. Once a member has given his speech in the House there is an absolute parliamentary privilege and that member is protected. If the media subsequently makes reports on what a member said while he was in the House, the press would have a qualified privilege. Qualified privilege means that the press cannot be sued for defamation in terms of common law. If the press were to publish not what was said in the House but what a member said or handed to it before that member spoke, then this might create a problem.
Mr P Hendrickse expressed concern that this process can be abused. A member who does not have the intention of delivering a statement in the House can prepare a statement and hand it over to the media for publishing. If it is published, he may plead that he was going to deliver it to the House. He asked if it was possible to have a clause in the Rules preventing the media from publishing a statement/speech if that speech was not delivered in the House.
Mr Chikane (ANC) commented that the purpose of the exercise was to limit any litigation process.
Ms Rajbally (MF) remarked that one needs to have a clear understanding of what amounts to prohibited speech, whether it is speech that is detrimental to Parliament and so forth. There must be a specification that members cannot prepare a particular type of a speech and publicise it before delivering it in the House.
Mr S Blanche (FF) opined that there is a duty entrusted to Members of Parliament to act responsibly. When a member prepares his speech, he must be in possession of correct facts and know what he is doing. The concept of freedom of speech does not need to be taken too far to ensure that a member is protected at all times. Members should act very responsibly.
Mr Hendrickse asked for clarity on was a slanderous or defamatory statement. Can a defamatory statement be a lie or can it be truthful also? If a member were to call another member something horrible but it is the truth, would this amount to slander?
Adv. Meyer replied that the common law offence of defamation is one of the most difficult areas in law. A slanderous statement need not be something like "You’re a liar". There has to be a publication of a slanderous or defamatory statement which impairs the dignity of a person to whom it is directed. Furthermore, that statement must lower the integrity of a person to whom it is directed in the eyes of right-thinking members of the community. This is the test that the South African courts have formulated and used over the years. One of the crystallized defences against a claim for defamation is truth combined with public interest. If a member pleads that he published a truthful statement and that he did so in the public interest, this would be a defence. It may, however, be difficult to draw clear lines.
Mr Chikane quoted Judge Mohamed who had said that "one should not allow words to escape one’s mouth". There is an absolute need that members act responsibly. He acknowledged that there would be those who fail and dishonour themselves in the process.
Ms Ester May, parliamentary researcher, noted that it would not be difficult to prove that a statement had not been prepared for delivery in Parliament. This is because Parliament’s programme is a public document. Thus one would be able to identify whether a speech has been prepared for the purposes of addressing an issue in Parliament.
Mr Mokaba pointed out that one cannot always rely on the programme. He referred to a debate on restructuring that was on the agenda for the previous day but was later removed from the programme. Further, whether or not a member participates is dependent on his party’s decision.
Mr Morkel thought that what was important was Adv. Meyer’s remark that the timing of the publishing of the statement is very important – was it published before or after its delivery to the House. Another important factor in determining if there was an intention to deliver a speech in the House is if the speech was referred to in the Order Paper. If it was listed there, there would have been a clear intention to deliver it. If not, there could not have been any intention to deliver it and the member may then be regarded to have been dishonourable.
Mr Hendrickse asked if the abuse of Clause 5(b) would not amount to contempt of Parliament.
Adv. Meyer replied that a person cannot be defamed until a statement has been published. One may harbour bad thoughts about another person but until there has been a publication of a bad statement about another, there cannot really be any claim for defamation.
Mr Blanche commented that this leaves a member of parliament with an obligation to ensure that what is published by the media is in fact what that member said in the House. A member must not pass on the document until he has checked it.
Mr Mokaba asked if this provision was adequate or whether it needed to be redefined in order to accommodate all these limitations?
Adv. Meyer replied that the provision is adequate. To redefine it in order to capture all the views that had been expressed by members would be a problem. If publication needs to be controlled, this can be done through the Rules.
Clause 6 - Interference with Parliament or members
Adv. Meyer said that this clause was fairly straightforward. The clause prohibits any person from improperly interfering with the free exercise by Parliament or a committee of its authority such as to threaten or obstruct or insult a member proceeding to or going from a meeting of Parliament or a committee.
Mr Haandiek asked if there was not any overlap between subclause 6 (b) and (c)?
Adv. Meyer replied that subclause (c) is intended to deal with a situation after a member has already spoken in the House, hence the phrase "on account of the member’s conduct in Parliament…" Conversely, clause (b) really is aimed at protecting a member anywhere outside the precincts of Parliament.
Ms Rajbally asked for clarity on what really appeared to be a semantic issue. She said that subclause (b) reads "proceeding to or going from" and asked if this made any sense.
Adv. Meyer replied that this subclause could be reformulated to read "going to or from".
Mr Morkel referred to Clause 6(a) and asked if there are any provisions in the Rules governing the following situation: a committee holds a closed meeting to conduct an investigation and a member of that committee wants to freely exercise his duty as an MP and gather additional information to further the course of the committee’s investigation.
Adv. Meyer replied that if a committee meeting is a closed meeting, its members are not allowed to disclose the contents of the discussions in that meeting. A member who discloses the subject matter of that closed meeting would be contravening Rule 10 of the House. This conduct amounts to contempt of Parliament. However, if a member were to make investigations or speak to people without making a disclosure, there cannot be any problem.
Mr Haandiek commented that if a member goes out and gathers information to further the course of a committee’s investigation, the member is not covered. Clause 6 (a) deals with the proceedings of parliament and the member’s conduct in parliament.
Mr Mokaba asked if members should be covered at all times.
Mr Goniwe replied that that was the point he wished to argue because an MP’s work goes beyond the precincts of Parliament. For example receiving information that police officers in a particular police station are intoxicated while on duty, and a member proceeds to investigate. He asked if members of parliament are not allowed to conduct any inspection in loco.
Mr Haandiek gave an example of a committee that had been tasked to perform an investigation in KwaZulu-Natal and they were prevented from carrying out their mandate. He stressed that that this was a committee, or the members of a committee, performing the functions of the committee. This would be covered. But if an individual member works within a constituency, this would amount to the functions of a member. Whether or not a member’s private functions are parliamentary-related is open to debate.
Mr Blanche commented that there are enough avenues that are already open to members to approach either the Public Protector or any other body if a member wants an investigation conducted. MPs cannot be given too much power as this would lead to an abuse of power.
Mr Mokaba wondered if the committee should not deliberate on this matter because ordinary members of the public have an expectation that an MP of a particular constituency is responsible for his constituency. If a member were to say that he cannot address an explosive situation because he is not empowered by law, this may be problematic.
Mr Morkel believed that MPs are competent investigative authorities. The idea is that MPs should act in the public interest although they should not abuse the opportunity to gather prima facie evidence. He said that members can be given powers of investigation in the Rules.
Mr Hendrickse asked if a commanding officer could prevent a member of parliament from gathering information about a particular police station. He opined that if a commanding officer does prevent a member, this would be enough material evidence for a member to approach the Minister so that he may address the matter.
Adv. Meyer commented that this matter touches at the very heart of the doctrine of separation of powers. Parliament exists to make laws and to have oversight over the executive. It is not its function to run the country, in terms of the Constitution. If members were given a free hand to go wherever they wanted to and gather information as they wanted to, this would be problematic. He agreed with Mr Hendrickse’s view that a member can report the problem to the Minister so that the Minister may investigate. He referred to an opinion he had prepared about whether members had powers or free access to prisons to investigate conditions under which inmates live. The resolution that was reached was that members are not allowed that privilege. The newly enacted Correctional Services Act provides that a committee of parliament has that right. It does not refer to individual members.
Mr Goniwe was not persuaded. He said that the word "oversight" has broader implications. Members of the public have greater expectations from members of parliament to investigate important and critical matters. This oversight role cannot be limited to the Minister alone. The role of Parliament is to advance a better life for all the citizens of the country. Therefore, public representatives must be empowered in order to be able to fulfill their roles.
Mr Blanche was adamant that MPs already have enough avenues to explore issues.
Mr Moosa commented that MPs are not given powers to instruct a policeman or anybody to carry out certain activities or duties. A member can only be able to do that through a parliamentary process by exercising his powers in terms of sections 55 and 56 of the Constitution to summon the Minister, the Director General of a particular department or even the Superintendent of that police station. It would not be appropriate for an MP to short-circuit an executive process.
Mr Mokaba said that the real issue is whether a member has any powers of investigation to satisfy himself as an MP whether the state of affairs is as reported by the public, not to have powers to instruct.
Ms Hangana commented that this was indeed a difficult debate. However, one needs to take the uniqueness of MP’s different constituencies. One should deal with the real realities in the country. Being an MP goes beyond the precincts of parliament. She asked what if some family or group of persons ask a member to intervene to diffuse a difficult situation because they know that he is a member of parliament? One needs to formulate a solution that would take into account the real situation of a country such as South Africa.
Mr Chikane said that he did not know where the cutting edge was. This was because members of parliament are also members of the public. The public also expects MPs to uphold the law.
Ms Rajbally commented that the experience in constituencies is very difficult. Members do not generally know what their powers are regarding their constituencies. She asked what are they supposed to do in a difficult situation?
Mr Goniwe proposed that this item be flagged to be dealt with at a later stage because it was controversial.
Mr Moosa commented that the discussion was on the performance of a member’s functions. A member is entitled to ask for information such as the reason for the police’s late arrival at a crime scene. The member is entitled to that information.
Ms Rajbally asked what if a member is trapped in a Catch 22 situation, for example, where the members of the community threaten to attack the suspect’s house and burn it down if the member of parliament does not intervene?
Mr Moosa replied that there are special circumstances like that but a member is not allowed to remove the dead body or instruct police officials to do so as they might be awaiting forensic experts to arrive. All that a member can do would be to instruct the commissioner to intervene.
Mr Chikane commented that members of parliament are also members of the public in that they are also entitled to effect a citizen’s arrest.
Clause 7 – Improper influence of members.
Adv. Meyer said that clause 7(1) proscribes the conduct that any person may not do, whereas subclause (2) proscribes conduct that a member of parliament is not allowed to do. He referred to the contractual arrangement referred to in clause 7(2)(b) which is aimed at influencing a member in the performance of his functions or in voting on any matter before parliament. He said that the section was aimed at prohibiting a contractual arrangement, whether formally or informally, where a member contracts with another or is promised some financial benefit provided that the member asks the right questions in Parliament.
Mr Moosa said that it was clear that there is a need for an amendment of 7(2)(b). The fact that a member carries a membership card of the ANC or any other political party is a contractual arrangement in terms of which the ANC or any other party influences a member to do or not to do certain things in his capacity as a member of parliament. Political parties are entitled to do so. There is a need to exclude contractual arrangements in respect of political processes or political parties that members belong to. Secondly, the provision does not cater for a situation where a person, who is a member of the public, enjoins a member of parliament to influence a process of government, which a member may or may not be able to do.
Mr Chikane noted that this is covered in the last section of the Code of Conduct. If so, why is there a need to include it in this Bill?
Mr Moosa replied that this might create a loophole.
Mr Chikane was unpersuaded. He commented that this issue leaves a lot of grey areas.
Mr Hendrickse commented that this need not concern a financial matter only. For example, if an MP is a member of a church and that church threatens to excommunicate him for voting for a particular piece of legislation, this would constitute a real threat to that MP.
Mr Morkel asked if the Bill dealt with the situation where if a member does not tow his party’s line, his party threatens to fire him.
Mr Moosa replied that the fact that a member carries a party membership card indicates that there is a contractual arrangement between himself and his party. He represents the party to which he belongs. If a member does not comply with the rules of his party, that party can take disciplinary procedures to get rid of that member. This is part of the private contractual arrangement between them.
Mr Chikane commented that the Code of Conduct should also cover enough information relating to the duties of a member towards his political party.
Adv. Meyer agreed with Mr Chikane that one should not incorporate matters into the Bill that are supposed to be contained in the Code of Conduct.
Mr Haandiek commented that the contractual arrangement is covered by the word "benefit" because what is envisaged is that the members should obtain a benefit for doing something or having done something. The word "benefit" is therefore sufficient.
Mr Moosa stressed that when a party appoints a person as its member of parliament it is extending a benefit or a salary to that person.
Mr Mokaba proposed that an appropriate formulation should be considered so that this matter could be dealt with at a later stage. Mr Chikane also agreed with the proposal.
Mr Hendrickse was not sure if the benefit referred to in the Bill should only be circumscribed to a financial benefit. Surely there are other benefits such as taking a member out to lunch at an expensive restaurant with an object of influencing him to vote in a certain way.
Mr Mokaba was also of the opinion that this matter be flagged.
Adv. Meyer suggested that the committee should also look at Clause 18. This clause deals with receiving compensation that is prohibited such as a member receiving a fee for asking a certain question of a Minister. Clause 18(2) sets out the applicable penalties.
Mr Morkel was concerned that Clause 18 does not make any reference to consanguinity - family or blood relations. Secondly, if anyone is in the service of a member, such would include staff members. He asked if the Bill referred to staff members other than those that are in the service of a member?
Adv. Meyer was grateful that Mr Morkel had pointed this issue out. He said that staff members are described as "staff members of Parliament". It would be best to retain the clause as it is - the clause was also intended to cover staff members who are in the service of a member.
Mr Morkel asked what about blood relations?
Adv. Meyer replied that they are not covered. It was a policy issue whether or not they should be covered. Clause 18 is limited to the persons stated by it.
Mr Morkel asked if common law made any reference to consanguinity or blood ties.
Adv. Meyer replied that unless consanguinity or blood relations is covered in the Bill it does not make it an offence in Clause 18(2).
Mr Mokaba asked what the committee proposes regarding this issue.
Mr Hendrickse proposed that this matter be discussed within the parties.
Mr Mokaba agreed to the proposal.
The meeting was adjourned.
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