Powers and Immunities of Parliament Bill: deliberations

Meeting report

JOINT SUBCOMMITTEE ON POWERS AND PRIVILEGES
2 October 2001
POWERS AND IMMUNITIES OF PARLIAMENT BILL (THIRD DRAFT): DELIBERATIONS

Relevant Documents:
Summary of Third Draft of Powers and Immunities of Parliament Bill
Draft Powers and Immunities of Parliament Bill, 2001

Chairperson: Mr Kekana (ANC)
Co-Chairperson: Mr Moosa (ANC, NCOP)

SUMMARY
The Co-Chairperson, Mr Moosa, provided the Committee with a brief insight of discussions at the previous meetings on the 26 and 28 September. Options were to be drafted and placed before the Committee for consideration at the earliest possible convenience due to the time constraints involved.

MINUTES
In summarising, Mr Moosa stated that he was unsure how the Committee should proceed, either as a workshop or deliberations? It had appeared, in his opinion, that the discussions had moved more towards deliberations. Mr Moosa left this to Committee members to decide how they wished to proceed.

An issue of concern raised at the last meeting was the understanding and uniqueness of the Bill. The question that Parliament is sovereign needed to be focused on. Other issues raised at the previous meetings included the security of Parliament and the manner in which members of Parliament should or should not be allowed to participate in court proceedings.

Mr Moosa also informed the Chair that an issue raised previously surrounded the integrity and protection of Parliament that had to be defended by the Speaker. Following on this, the way in which Members of Parliament would be allowed to attend proceedings.

Clause 16
The point of departure by the Committee at its last meeting was Clause 16 of the Bill. The question was then raised whether a person employed to take minutes would be entitled to give evidence without the leave of the Speaker. Following on this issue, who would be allowed to give evidence? Does it refer specifically to persons employed by Parliament or to public persons as well? The example used by Mr Moosa was a member of the public sitting in the gallery. Will such testimony bear the same credence?

The unique nature of this Institution needed to be looked at and Members should bear this in mind when dealing with the Bill.

Mr Moosa again addressed the issue of drafting options for policy consideration to be placed before the Committee.
Ms De Lille (PAC) agreed with Mr Moosa’s sentiment and stated that the Committee appeared to be moving into an area which circulated around party policy. To avoid this, a framework or guideline was needed.

The Chair agreed with Mr Moosa, that issues raised regarding Clause 16 of the Bill required the drafting of policy options and thereafter deliberations by the Committee. He stated that at the time of deliberations the Committee would then have a clear sense of what the issues are and how to proceed dealing with them.

Ms Rajbally (MF) referred the Committee to Clause 16 and asked the person employed to take minutes of proceedings be defined and qualified. The Chair in answering these questions advised that the policy options to be drafted by the State Law Advisers would cover such issues.

The Co-Chair, Mr Moosa, asked for an indication from Advocate Meyer and Mr Palmer, both State Law Advisers, on whether or not they intended approaching Professor Marais in assisting them to draft policy options.

Mr Cassim (IFP) asked if such changes to Clause 16 would not also require amendments to the Rules of Parliament.

The Chair intervened and stated that they should debate the Bill as regards the integrity of Parliament and the various Rules surrounding Parliament.

Mr Moosa suggested that the Committee divert from the workshop mode to enable the State Law Advisers to commence drafting option policies.

Mr M Surty (ANC, NCOP) suggested that the Committee look at a rationale between the integrity of Parliament and the right to attend court proceedings. In his opinion, the onus was on the Speaker to decide this. Why should reference then be made to the Rules of Parliament for guidance?

Mr Cassim thought that the purpose of Clause 16 was the necessity of a Member of Parliament to attend Parliamentary or court proceedings must be "reasonable".

Mr Palmer, State Law Advisor, raised the issue of Provincial Legislatures and their inclusion in the Bill. He suggested that decisions on policy be taken prior to drafting. To conclude this process, Mr Palmer, recommended that the Committee divert from a workshop mode to a Committee mode so that a firm decision could be taken for drafting purposes. The Chair pointed out that the mode adopted would not effect the process as long as a firm or final decision was to be made.

The Co-Chair noted his concern about time constraints for drafting. Advocate Meyer mentioned a two to three week period. To speed up this process, the Co-Chair recommended that after each discussion, policy options are to be drafted and made to the Committee for consideration in its next meeting. He urged Advocate Meyer and other state legal advisers to engage in this process as a matter of urgency. Advocate Meyer expressed hesitation on this matter and informed the Co-Chair that they are not drafters per se. He proceeded by requesting that a consultant be employed to fulfil this task.

Mr Cassim agreed that a consultant needed to be employed due to time constraints. Mr Surty also supported this view. The Chair agreed that a consultant be employed.

Advocate Meyer then proceeded to outline the debate regarding Clause 16. Concerns were raised regarding various offences. To address these concerns, Advocate Meyer stated that the Clause did not purport to prohibit anyone from giving evidence.

Clause 17
Clause 17 focused on issues of Members of Parliament having a direct financial interest. Advocate Meyer informed the Committee that Clause 17 was a repetition of Clause 11 and that it, in fact, overlapped with Provisions of Parliament and the Revised Code. As the sections stands it only covers a situation where "…a member has a sufficient financial interest". According to the Code, it requires that the interest of a "staff member" also be incorporated.

Mr Surty (ANC, NCOP) stated that Clause 17 was too narrow and could lead to criminal sanctions. Advocate Meyer replied that this was a consideration that needed review.

On Clause 17 Ms P De Lille (PAC) asked whether there would be a requirement that an attorney should not be allowed to derive any benefit from the Bill, if the Joint Justice Committee, for example, consisted of members of the legal profession and attorneys? Advocate Meyer referred Ms De Lille to Clause 17(3)(b) which covered situations as presented by the latter spokesperson.

Ms Hangana (ANC) asked the Committee what the situation would be if, for example, a Committee member had an interest in both land and fisheries and the various Bill’s with respect to the latter were being dealt with, would such Committee member then be allowed to vote on these issues?

The Co-Chair stated that one would have to declare this at the commencement of proceedings or else it would amount to a conflict of interest. He stated further that Ms De Lille’s issue focused around the category of participants on the Committee and that this was different from a Committee member having a personal financial interest.

The Co-Chair also suggested that the Committee differentiate and distinguish between laws of general application and where there is legislation that will impact on members. Such a person has a duty to declare himself to other members of the Committee.

Ms De Lille asked whether it was necessary for a member to declare this interest should it not be incorporated into the Bill? Advocate Meyer replied that the State Law Advisers were there to assist members on such issues. He emphasised that the importance was on the words "direct, financial interest".

Clause 18
Advocate Meyer proceeded to Clause 18 which related to the receiving of compensation by members. This Clause provided for a fine of R5000, alternatively forfeiture of the amount so compensated.

Advocate Meyer notified the Committee that Mr Hahndiek had raised the issue of who money must be compensated or forfeited to.

Mr D Bakker (NNP) asked if the inclusion of the words "spouse and life partner" as reflected in Clause 18(1) of the Bill was not constitutional. He asked what would happen in a situation where, for example, a spouse was a lobbyist for an environmental group and her husband, a Member of Parliament, formed part of a Committee that intended to pass a Bill relating to environmental issues in Parliament?

The Co-Chair in answering this question commented that his understanding and interpretation of this view was different. He stated that any Member of Parliament had access to the processes of Parliament and that this Clause emanated from the ability of a member to benefit from being associated to such a partner. And, that this view was based on the understanding and formulated to curb corruption by members of Parliament against bribery, lobbying or thereby diverting it through any member, spouse or partner.

Mr Surty’s (ANC, NCOP) opinion was based on the view that the moment there appears to any kind of relationship between financial considerations and benefits received by a partner, it immediately amounts to corruption. He stated that the Clause as it stood was clear-cut and narrow, and hence should remain the same.

A Member asked the Committee if the Clause was to incorporate contract staff. The Co-Chair agreed that this was a necessity.

Clause 19
According to Advocate Meyer, Mr Hahndiek had suggested that all the offences should not be listed under the section towards the end of the Bill. Ms Rajbally (MF) and the Co-Chair concurred with the suggestion.

Clause 20
Advocate Meyer then continued with Clause 20 by stating that it was a repetition of the Constitutional provision with the exception of the Committee asking for the attendance of a specific member. The Co-Chair suggested that the Clause be redrafted so as to be understood by the ordinary lay person. Advocate Meyer stated that this would be taken into consideration.

Clause 21
Advocate Meyer notified the Committee of Mr Hahndiek’s query which related to whether or not it was permissible for a summons to be issued by the Speaker.

Mr D. Bakker (NNP) asked if it would not be proper for the Chairperson to obtain the approval and consensus of the Committee members prior to the issuing of a summons. Advocate Meyer replied that he was unsure what the Rules of Parliament had indicated in this regard, but that it would be reviewed.

Advocate Meyer in explaining Clause 21(2) stated that the content of the summons should include or list the persons responsible for the serving of the summons, as well as the time, date and place of the service of such a document.

The Co-Chair in referring to Clause 21(3) asked what the situation would be if, for example, the person on whom summons must be served cannot be located. Can provision be made in this Clause for substituted service whereby a copy of the summons would also be published in the local or district newspaper where the applicant or respondent was last known to have lived. He asked that the Legal Advisers review this topic.

Ms Rajbally (MF) raised the concern of the summons being served to someone other than the applicant or respondent. She asked that the Clause be revisited to cover this aspect.

The Co-Chair remarked that the circumstances surrounding the service of a summons to a person other than the applicant or respondent would depend on the decision of the Courts. He illustrated this by stating that if, for example, a person was overseas at the time a summons was issued, it would not amount to a contempt of court. He continued by stating that although provision was made for such situations in the Magistrates and High Court Rules and Act, no provision had been afforded in the Bill. How then would such situations be dealt with should they arise?

Advocate Meyer stated that this matter is best left to the Courts to decide.

A Member asked if the purpose for which a person is required to attend Court proceedings was implicit in the Clause. The Co-Chair agreed with this view and stated that the Clause needed to be redrafted to include the reason for a person having to attend the Court proceedings as well as producing any documents.

Clause 22,23
Advocate Meyer proceeded to Clause 22 relating to the ordinary swearing in and affirmation of a witness. He concluded that this Clause not only covers witnesses, but any persons present at proceedings.

The Chair asked for comments or concerns on this issue, but none were raised. The same applied to Clause 23.

Clause 24
Advocate Meyer proceeded to deal with Clause 24. In so doing, a Member posed a hypothetical situation where, for example, a person after some 5 or 6 months required a certificate from a Presiding Officer who no longer fulfilled such function. Advocate Meyer responded by saying that it would be a requirement that the certificate be issued immediately after proceedings.

Mr Bakker (NNP) asked when the certificate would be issued – is it under oath or merely on request? He suggested that a time period be granted to a person to claim or request such a certificate. If the certificate is not requested in such a time period, it would lapse. Advocates Meyer supported this view and advised that this needs to be written into the Bill. The Chair, however, advised that this issue be addressed in the policy options to be placed before the Committee.

Clause 25
Advocate Meyer summarised the content relating to Clause 25. Mr Bakker (NNP) asked Advocate Meyer to differentiate between "just cause" and "sufficient cause". Advocate Meyer in responding stated that from a principle point of view the term "just cause" was harsher. However, it would be open to the Court for interpretation to establish when there is "sufficient cause". This Clause, he believed, could not be taken any further from a legal perspective except that in terms of Section 56 of the Constitution, the National Assembly is allowed to issue summons to any persons to appear before it to give evidence. No comments regarding Clause 25(2) were raised by the Committee members.

Clause 26(1)
The aim of Clause 26(1) stated that the aim of this Clause was to protect persons acting on the instructions of Parliament, provided such action had been conducted in good faith and without malice. Clause 26(2), however, was incorporated as a "vetting mechanism" to protect members and staff members of Parliament. No further issues on Clause 26 were raised by Committee members.

Clause 27
Advocate Meyer proceeded to Clause 27(a) and advised that the Rules of Parliament prohibited the publication of documents when a Committee convenes in a session in private. Regarding Clause 27(c), Advocate Meyer stated that Professor Murray’s view be supported that this section of the Clause be deleted as it provided no relevance. The Co-Chair disputed this view and recommended that it be redrafted and deleted per se.

Clause 28,30,31
The Committee agreed with the contents of Clause 28 and no concerns or issues were raised.

Clause 30, Advocate Meyer alleged, aimed at making provision for the Speaker or Committee to perform the acts of the House and in so doing, they would also have the powers of the House.

Ms P. De Lille (PAC) expressed the view that Clause 30(2) was problematic. She suggested that powers of the Speaker and the powers of Parliament required differentiation. In other words, the Bill needs to address when a Speaker would be authorised to go beyond the powers of Parliament. This she remarked was a contradiction in terms of the Constitution. Advocate Meyer stated that this suggestion would be taken under review.

No concerns were raised regarding Clause 31 of the Bill.

Clause 32
In dealing with the content of Clause 32, Ms P. De Lille (PAC) asked Advocate Meyer whether, by repealing Act No.91 of 1963, they were not rewriting the contents of Act No.91 of 1963. Advocate Meyer responded that the Committee will have to determine these provisions against the Constitution.

Mr Cassim (IFP) asked if the Bill would apply to the Municipal legislature as well.

Ms De Lille (PAC) referred to the content of Section 57 of the Constitution and asked the Committee if all these issues had been covered satisfactorily in the Bill. Advocate Meyer stated in his response that Section 57 was inherent to Parliament. He believed that the purpose of Section 57 of the Constitution was merely to codify or constitutionalise one of Parliament’s ancient provisions. Even if these provisions were not incorporated in the Constitution, it would prevail in terms of common law. Thus, there would be need to repeat the provisions of Section 57 of the Constitution in the Bill. He concluded that Parliament was responsible for regulating its own functions subject to the Constitution.

Ms P. De Lille (PAC) asked Advocate Meyer where the Parliamentary Rules gave effect to the provisions of S57 of the Constitution. Mr Rajbally (MF) supported De Lille’s argument.

Advocate Meyer responded by stating that in terms of Section 57 of the Constitution, the National Assembly may make rules and orders concerning its business. In terms of the Bill, there is a qualification.

The Chair concluded by stating that options were to be drafted and placed before the Committee for consideration at the earliest possible convenience due to the time constraints involved. He suggested that the assistance of Professor Marais be sought in this regard. Ms De Lille, however, differed and suggested that Professor Corder of the University of Cape Town, who assisted in the initial drafting process of the Bill, be requested.

Advocate Meyer stated that this recommendation would be considered. He also recommended the services of Professor Huyssteen, should Professor Corder be unavailable.

Advocate Meyer nonetheless assured the Chair that the Bill would be given first preference and that policy options would be drafted and presented before the Committee by next week.

The meeting was adjourned.