Meeting report

DELIBERATIONS

15 March 2006

These minutes were provided by National Council of Provinces Table Staff

PRESENT

Mahlangu, Mr M J (Chairperson of the NCOP)

Hollander, Ms P M (Deputy Chairperson of the NCOP)

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)

IN ATTENDANCE: Staff: Adv. L L Matyolo-Dube, Adv. BVL Momoti, Mr. S Makhasi,

Mr. B Nonyane, Ms. J A Borien, Adv. A Gordon, Mr. M Tyumre, Mr. M Nguqu,

Mr. M Tshaiviti.

1. OPENING

The Chairperson of the NCOP, Mr. M J Mahlangu, opened the meeting at 11h00 and welcomed all to the meeting.

2. APOLOGIES

The following apologies were received:

Ms BN Dlulane,

3. ADOPTION OF AGENDA

The agenda was adopted without additions.

4. CONSIDERATION OF THE MINUTES OF THE MEETING OF 15 MARCH 2006

The minutes were adopted as a correct reflection of the meeting of 15 March 2006.

5. MATTERS ARISING FROM MINUTES OF THE MEETING OF 15 March 2006

5.1               BRIEFING BY TAX CONSULTANTS

The Chairperson informed members that he has asked a tax consultant to brief the members on an issue that was raised by the Secretary to the NCOP on the tax implications for members in respect of their travel allowance.

The Chairperson proposed that in addition to the briefing a half-day workshop should be held to inform members of the tax implications in terms of travel allowances.

It was resolved that the Deputy Chairperson would liase with the Commissioner for SARS to facilitate the workshop.

Tax consultants Herman Rademeyer, Peter Oberholzer from Millionsure Holdings briefed members broadly on the impact of taxation to members in terms of ground travel when they were required to have to travel to provinces.

The briefing highlighted the following issues:

• The travel allowance referred to the public office bearers allowance. In terms of this allowance members were limited to R40 000.00 per year which they could claim for travelling around the country performing their official duties (e.g. If members were required to pay for hotel accommodation or for car rental). The practical difficulty was that if a member was travelling around the country for three months in a year, they would exceed the R40 000 limit very easily. The hotel accommodation alone would impact on the limited allowance that a member had.

• The Chief Financial Officer should be contacted to verify whether within the Parliamentary environment it would be possible for members to structure their salary packages so as not to include the travel allowance. If that was possible, the tax consultants would need to discuss the matter with each member individually

• If the NCOP requires a member to travel to the province and the NCOP hires a car for that member even though that member has his or her own car, the member will not be taxed for that because it was an expense in the exercise of the Member’s duty.

• If the NCOP requires a member to travel to the province and the member is given cash in hand to hire a car and the member does not use the whole amount that he or she was given, the left over amount is taxable in the member’s hands. The onus is on the member to declare that amount.

6. MATTERS ON THE AGENDA

6.1 Four/six week cycle

The proposal from the Secretary to the NCOP was that the official cycle for the processing of Bills in the NCOP be six weeks. This was based on the understanding that that practically the NCOP needed ten weeks to deal with a Bill. The strongest motivation was the fact that out of the nine provinces, eight has rules that stipulate that before they could conduct public hearings, the Bill must have been published by them for a period of two weeks. The basis for a six week cycle was to ensure that the legislatures had ample time to:

a.       Conduct public hearings and

b.       Meet their own internal rules which seemed to be out of synch with the NCOP rules by two weeks.

The Chairperson responded by saying that the cycle should be a minimum of four weeks and a maximum of six weeks. He said that there were Bills that the NCOP could deal with in a four week cycle and there were those that required at least a six week cycle.

Ms E van der Horst suggested that the Policy Guidelines on Fast Tracking should also be updated. The Chairperson requested Ms van der Horst to locate the document and bring it to his attention.

It was resolved that the Subcommittee draft a proposal for the Committees consideration.

6.2 Subcommittee on Review of Rules

6.2.1 Protocol/Policy governing members and committee travel to Provincial

Legislatures

The meeting agreed that if a member had been invited by his or her Legislature to the State of the Province Address, the NCOP would not bear the cost of that visit. The cost would be borne by the province. This was based on the understanding that the NCOP will only bear the cost when it sent a member to perform his or her NCOP duties within the Province.

It was resolved that the recommendation of the subcommittee on Review of NCOP Rules that the Council should not bear the cost for Members.

6.2.2 Members Facilities

The Deputy Chairperson was mandated to deliver a report on the investigation to ensure that the Members Facilities policy was correctly applied.

6.3 Discussion on the establishment of a Committee dealing with discipline of the House as well as contempt of members

6.3.1 Kgoshi Mokoena presented the report of the Subcommittee and drew attention to the proposed three options as outlined in the report.

During the discussion the following two proposals emerged:

1. The Chairperson should deal with the appointment of the committee taking into consideration that the committee membership should be three or five members. (The Chairperson expressed the view that three was too few and that a membership of five would be more suitable).

2. The matter should be referred back to the Multiparty Whips Forum for further delibaration. The Forum could then submit a proposal to Kgoshi Mokoena’s subcommittee and the subcommittee could report back to the meeting of the Rules Committee for the Committee to take a decision.

The Chief Whip raised the following concerns:

• He was of the view that the Rules Committee was mandating the Chairperson as the Presiding Officer and as the Head of this Institution and that the Chairperson would handle the issue of the appointment of members to serve on the Disciplinary Committee. Furthermore, even when the Chairperson presided over that committee, he would preside with the impartiality which was demanded of the Chairperson’s office to discharge his duties. The Chief Whip warned against members starting to send signals as if the Presiding Officers of the NCOP would be biased when handling disciplinary matters.
• That the Chairperson of the NCOP would ensure that the committee would be of a multiparty character but he was concerned that if the idea was to say that every party would have to be represented then it would mean that the composition of the Disciplinary Committee would increase to seven, if it was calculated on the number of parties in the NCOP.
• He was of the view that the Disciplinary Committee needed to be composed of members who were credible and who have got the majority which the disciplinary committee deserves. He warned against putting too much emphasis on politics and on issues of proportional representation as that would detract from the objective and focus of the Disciplinary Committee.
• He understood the concern that further consultation was needed. However, he was of the view that if the Rules Committee agreed that the Chairperson was given the mandate to establish the Disciplinary Committee, the Chairperson would ensure that it was not only a one party structure and also that the parties in the House would understand that not all of them would be represented on the committee. He concluded by saying that the Disciplinary Committee was there to serve all of the members and that if the members were well behaved for the whole term the committee may not even have any work to do.

Kgoshi Mokoena indicated that he supported the views expressed by the Chief Whip.

Mr. Setona indicated that he was not in agreement with the views expressed by the Chief Whip. He reminded members that the Disciplinary Committee was not a subcommittee without powers. The powers and decisions of that committee had an impact on the NCOP as the court correctly said in the De Lille’s case that Parliament is bound by the Constitution and the law.

Mr Setona added that the issue was not whether the Chairperson was partial or impartial. The issue was that the membership of the Disciplinary Committee should be clearly stipulated. He was of the view that to arrive at that stipulation in terms of whether it was a five members and which party would be represented, it should be agreed politically on political consensus. He cautioned that in the absence of such stipulations, the Disciplinary Committee and its process could be open to serious challenges legally and constitutionally.

The Chairperson indicated that it appeared as if members were not ready to take a decision on the matter. The Chairperson suggested that members consider the matter further and that a decision be taken at the next Rules Committee meeting. The Chairperson tasked the Secretary to the NCOP to begin to draft the terms of reference for the Disciplinary Committee looking into the Rules, its powers and functions. He said that if the Rules Committee had a document before it, it could begin to discuss some of the issues.

The Chairperson said the Disciplinary Committee will have certain powers and functions and will not work like an ordinary select committee. There needed to be a clear mandate in term of the Rules as to what they need to do. The Chairperson said that the Subcommittee on Review of Rules should also be considering the matter because once the mandate of the committee in terms of its role and function is decided on, then it would not be difficult to establish and set up the Disciplinary Committee.

Ms. Terblanche said that she wanted to clarify that her view was not based on the issue of whether she or some members did or did not have faith in the Chairperson. In her view the issue was not about the person, but about the principle. She said that as a group members may have faith in the current Chairperson but that they did not know who would be the Chairperson in the future. She said that the Rules Committee should not formulate a rule based on the current situation that would bind the House forever because in the future there could be someone who was a “bad” Chairperson. She concluded by saying that she agreed with the views expressed by Mr Setona on the matter.

Mr. Mzizi said that he did not think that the Chairperson of the NCOP would necessarily have to be the chairperson presiding over the Disciplinary Committee. He said that normally in the disciplinary committee the Deputy Chairperson became the chairperson of that committee.

Mrs. Oliphant drew the Chairperson’s attention to an annexure to the Report of the Subcommittee on Review of Rules which gave guidance on how the Disciplinary Committee should deal with issues and that it would be reporting to the House. She asked why the Rules Committee was delaying taking a decision on the matter.

The Chairperson asked members to apply their minds to the annexure which Mrs Oliphant had referred to. The Chairperson also requested the legal and procedural advisers to assist the Rules Committee in considering the document.

It resolved that a decision would not be taken on the matter at the meeting. If necessary a Special Rules Committee meeting could be convened to decide on the matter once it had been more fully considered by all members.

6.4 Outstanding Matters that were referred to the Subcommittee on the Review of Rules .

The Secretary to the NCOP mentioned that there were outstanding matters that were referred to the Subcommittee on Review of Rules. Some of them were matters that arose from a review of the NCOP Rules. Certain matters taken up but were not fully finalised by the Subcommittee and they have not been followed up.

The Secretary cited an example of the definition of the term “sitting days”. She explained that within the context of loss of membership as a result of absence from sittings, the question had arisen as to whether “committee days” should be regarded as “sitting days”. At that time it was resolved that the Powers and Privileges of Parliament Act was still about to be finalised and that the discussions on the term “sitting days” would be suspended and dealt with later. The issue of sitting days had recently again arisen from another context. The Secretary said that it was therefore important that the subcommittee be alerted to the outstanding matters and try and finalise them.

The Chairperson requested Kgoshi Mokoena’s committee to look at the 2000 review of rules document that was part the document package that had been distributed.

The Chairperson added on to the example cited by the Secretary to the NCOP by saying that many people incorrectly thought that Parliament opened when the State of Address took place. Committees began sitting as from January and that meant that Parliament had already started functioning. The Chairperson said that in his view “committee days” should be regarded as “sitting days”. The Chairperson said that members should raise such issues so that it could be debated in the Rules Committee.

On the issue of loss of membership in terms of absence in Parliament, the Chairperson reminded members that when they came to Parliament in 1994, the position in the National Assembly was that if a member was going to be absent from Parliament for more than fifteen consecutive days, the member had to apply to the National Assembly so that the House itself granted the member permission to be absent. The Chairperson said that the position seemed to have changed so that a member in the NA could be absent for a year from Parliament and nobody could question that. The Chairperson said that he was satisfied if such matters were covered in the NCOP Rules.

It was agreed that the outstanding matters that were previously referred to the Subcommittee on Review of Rules needed to be finalised.

6.5 Progress report regarding the participation of the NCOP members in the Oversight Task Team

The Chairperson said that the Task Team had done a very good job and that they had finalised their first report. The report would be tabled in the next Joint Rules Committee meeting. The Joint Rules Committee could decide that the Task Team still needed to continue to do some work, or it could decide that the Task Team had fully discharged the mandate which had been given to it.

Report on ruling issued by Deputy Chairperson at the last meeting of the Rules Committee on 25 October 2005:

The Deputy Chairperson said that she had already given the report to Mr. Watson and the Chief Whip with regard to her decision.

The Chairperson said that committees were structured in order to reach consensus and that there were no rule provisions relating to points of order and other practicalities regarding committee deliberations. Committees were meant to facilitate communication in an open manner.

Mr Sogoni raised a concern that as a matter of principle that the issue of the point of order and the ruling of the Deputy Chairperson had been raised during the meeting of the Rules Committee, and that the Deputy Chairperson should therefore report to the meeting.

It was agreed that the Deputy Chairperson would formally report on the matter at the next NCOP Rules Committee meeting.

The Chairperson said that the Secretary will have to give report on the proposal on the proposal from Management to amend the policy to provide for subsistence and travel allowance for Members.

The Chairperson adjourned the meeting at 13h00.