A summary of this committee meeting is not yet available.
POWERS AND PRIVILEGES OF PARLIAMENT JOINT SUBCOMMITTEE
26 September 2001
POWERS AND IMMUNITIES OF PARLIAMENT: DELIBERATIONS AND PUBLIC HEARINGS
Chairpersons: Mr Mokaba (NA), Mr Moosa (NCOP)
Documents handed out:
Draft Powers and Immunities of Parliament Bill, 2001
The Committee focussed on Chapter Three of the Bill. Among the issues that were discussed was whether immunity should also be extended to Members of Parliament who are invited to participate in the proceedings of a provincial legislature of another province and vice versa. The Committee also heard oral presentations from the Media Institute of Southern Africa and from the Freedom of Expression Institute.
Co-Chairperson, Mr Mokaba (ANC), indicated that this workshop would run concurrently with the public hearings. He thereafter asked Adv Meyer to do a summary of the main issues that the committee had discussed at its last meeting. After Adv Meyer had finished briefing the committee on the issues that were discussed at the last meeting the floor was opened for a discussion. The purpose of the summary was to brief those members of the NCOP who did not have a chance to attend the previous meeting. The Media Institute of Southern Africa as well as the Freedom of Expression Institute gave their views on certain clauses.
Mr C. Eglin (DP) based his question on Chapter Three of the Bill and asked Advocate Meyer if he could explain the significance or alternatively the importance of having included the word "proceedings". He asked who else was given indemnity or immunity because of the inclusion of the word. The Constitution does not make any reference to the word "proceedings". The Constitution travels beyond freedom of speech in granting immunity to an extent that a Member is protected for anything produced before delivery. How does the reference to the word "proceedings" in the Bill change the rule under Section 58 of the Constitution? Does it include more people who will be entitled to privilege or does it mean that less people would be entitled to claim privilege? What was the real meaning of the word "proceedings" in the amendment Bill?
Adv Meyer conceded that the word ‘proceedings’ does appear in the amendment Bill and does not appear in the Constitution.
Mr Eglin clarified his question by asking what really changed by including the word "proceedings" in the amendment Bill when there was really no such qualification under Section 58 (2) of the Constitution. Was the Committee free to make a constitutional amendment unless such amendment was passed by a two-thirds majority?
Adv Meyer replied that this appeared to be a bit problematic. He did not think that the amendment clause amounted to the amendment of the Constitution at all or the intention to do so.
Mr Eglin was emphatic that the inclusion of the word "proceedings" in the amendment Bill does have the effect of amending the Constitution. He said that he would ask Prof Murray at a later stage.
Mr Moosa interjected and replied that perhaps this question should be asked in reverse. What would be the impact or the benefit of omitting the word "proceedings" from the amendment Bill? If this word had been left out in the amendment Bill freedom of speech may have been cast much wider?
Mr Eglin asked what difference it made eitherway?
Mr Moosa was not sure. However, if one does not utilise the word "proceedings" everything would be covered. But if one utilises the word "proceedings" then one clearly defines freedom of speech as covering the duration of a Parliamentary session. In a sense that it would not cover a comment made in the corridor or pamphlets left on top of the desks of Members before the sitting commences. This is what is attempted to be covered by the word "proceedings".
Adv Schmidt (NNP) asked if the reference to "proceedings" does not relate to Parliament as a whole or whether freedom of speech relates to certain individuals only. He mentioned having read the Rajbansi case which contains a principle that a defamatory paper placed on a Member’s desk does not relate to proceedings of Parliament. It was therefore not included or was not covered by the privilege. He finally remarked that he was not certain whether this answered Mr Eglin’s question.
Adv M Masutha (ANC) remarked that the first element to Mr Eglin’s question is whether the effect of introducing the word "proceedings" would amount to amending or altering the principle envisaged in the Constitution. Section 58(1)(a) of the Constitution does give room for Parliament to further regulate or prescribe the manner in which freedom of speech can be exercised in its own Rules and to also make orders in regard thereto. The only other basis on which an argument can be framed is to ask whether this issue should be dealt with in the Rules of Parliament as opposed to the Act. Whether or not one cannot further prescribe the manner in which free speech can be exercised is a matter that has already been accommodated and dealt with in the Constitution. The Constitution anticipates some further regulation of this privilege relating to free speech.
Ms P De Lille (PAC) inquired how could one link the word "proceedings" to Clause 2 of the Bill that defines the precincts of Parliament? The precincts of Parliament include Member’s offices in any other building or part of Parliament. Would this also be classified as "proceedings", and how does one link the two?
Adv Meyer said it is certainly not the intention that everything occurring within the precincts of Parliament is covered by Parliamentary privilege. If the Bill appears to be suggesting otherwise, then there would be a need to redraft it and redefine its provisions. However, it is clear that a private conversation between Members outside the committee rooms or a press statement by a Member is not covered by Parliamentary privilege.
Mr Eglin inquired what the Bill means when it provides that freedom of speech may not be challenged?
Adv Meyer explained that it refers to the freedom of speech and freedom of proceedings. This freedom cannot be challenged or questioned. This also extends to debates made in Parliament. The idea is that a court should not use information to prove or disprove a point when it is the subject of the legislation.
Mr Mokaba suggested that the discussion should be narrowed to the point raised by Mr Eglin and the question by Ms De Lille.
Adv Meyer commented that the idea was to extend the freedom of speech and of debate to those matters that are not covered in the Constitution because the Constitution has a limited effect. It refers only to freedom of speech in Parliament and in Committees. The Bill should go further than that to provide that Members should also enjoy freedom of speech in relation to the "proceedings" that are not covered within the confines of the Constitution. The second purpose of incorporating the word "proceedings" into this Bill is to link it to the questioning or the challenging of those proceedings in a court of law.
Mr Moosa said that the essential question to be decided is whether the word "proceedings" should be utilised to define the way in which the freedom of speech is used in Parliament or not.
Adv Meyer referred to pages 21–23 of Professor Christina Murray’s Report for the answer, where it is recommended that there be a provision for the word "proceedings" in the Bill.
Professor Murray, of the Law Faculty at the University of Cape Town, remarked that as far as she is aware the Constitutional provision is narrow. It is substantially narrower than the protection that Commonwealth Parliaments usually have. The word "proceedings" broadens the ambit of protection. She mentioned that this word does two things:
-It clarifies that protection extends not only to the spoken words but also to the written documents.
-It ensures that preparatory materials for Parliamentary articles would be covered by the protection. It thus extends the protection of freedom of speech that is given or set out in the Constitution. Section 58(2) of the Constitution allows other privileges and immunities of the National Assembly or the NCOP in section 71 to be set out in national legislation. This Bill is an example of national legislation.
Mr Lever (DP) asked a question relating to the committee quorum. If, hypothetically, a meeting commences with a quorum and thereafter two members leave. If immediately thereafter some Member utters some defamatory remarks. Would privilege extend to protect the person who made defamatory remarks because such utterance was made in a Committee that did not have a quorum?
Prof Murray replied that the issue of a quorum would not be relevant in this case. It becomes relevant only if somebody challenged the constitutionality or the legality of a decision taken by Parliament. Therefore, the Constitution requires certain quorums and certain majorities for particular decisions. Furthermore, Parliamentary proceedings can be convened without the appropriate quorum. A quorum is only relevant in decision making.
Mr Lever also asked if this indicated the relevance of the word "proceedings" in the Bill.
Prof Murray replied that it becomes particularly close because the defamatory statement would be speech and is covered already by the freedom of speech provision whether or not there is a quorum. Speech covers so many things that people are usually concerned about. Proceedings include preparation of documents, discussions in corridors that are preparatory to work in Parliamentary committees and in the House as Mr Moosa had suggested.
Adv M Masutha (ANC) asked if the word "proceedings" would extend to cover the instances of heckling?
Prof Murray replied that the immunity that was the subject of the discussion extended to members of Parliament only. Therefore, something that was uttered by a heckler would not be covered. Even if heckling was done by a member, the protection of freedom of speech is subject to the Rules and Orders of Parliament. These Rules and Orders give the Speaker or someone acting as a Speaker or the Chairperson of the NCOP the right to control un-Parliamentary speech. This Bill contains a provision that makes obstructive and interfering behaviour that impedes the functioning of the House or the Committee an offence. This is one of the means of dealing with heckling. Heckling by non-members would not be covered.
Mr Mokaba asked if the inclusion of the word "proceedings" into this Bill would not require a constitutional amendment of any nature.
Mr Eglin remarked that he took it that including the word "proceedings" in the Bill does not confer any rights on anybody other than members and cabinet members. He said that this is how the Constitution reads.
Mr Moosa replied that on the question of whether or not the Constitution allows for this kind of formulation in the Bill an answer can be inferred from Section 58(2) of the Constitution. This Section provides that other privileges and immunities of the National Assembly and the Cabinet ministers may be provided by national legislation. The next question that the Committee has to ask is what constitutes "proceedings" for the purposes of this national legislation. He related a matter that had been discussed earlier, i.e. whether a pamphlet containing defamatory remarks placed on desks of each Member of Parliament before the commencement of proceedings would be covered by privilege. He asked if the pamphlet, as defamatory as it is, can properly be regarded as part of the freedom of speech.
Prof Murray replied that this question was complicated. However the present interpretation of the word "proceedings" would not include a defamatory letter of the kind envisaged by Mr Moosa because proceedings would be interpreted to mean or relate to the business of Parliament and its ordinary functions. Gratuitous defamation would not fall into that category. Case law does not deal with that kind of defamation. She however acknowledged that even if that may be, courts are generally unpredictable.
Mr Hendrickse (ANC) asked what would happen if the very same defamatory letter was distributed after the House had commenced its business. Would this conduct be covered?
Prof Murray replied that her understanding was that proceedings cannot relate to things that are not part of the business of Parliament.
Adv Meyer concurred with the Professor’s reply. He said that if the letter is not related or linked to the business of the House for the day then it would in all probability not be covered. The mere fact that it is distributed at the same time that the House is starting its business would not necessarily be sufficient.
Mr Mokaba desired to know if the question of what amounts to "proceedings" could not be effectively addressed and the issue that had been raised by Ms De Lille on how one can link "proceedings" with precincts as set out in Section 2/
Mr Moosa replied that the Committee was gradually going to achieve clarity in that regard. The committee was deliberately using the term "business of Parliament" to try and define the term "proceedings". Commenting on another subject, he disagreed with what had been submitted around the question of heckling. Heckling is part of the Parliamentary process and it was not uncharacteristic for Parliament to have heckling. It was just as much part of the Parliamentary process. He drew an example of heckling that usually occurs in the House of Commons. All the Members of the House of Commons are protected by Parliamentary privilege and are entitled to be protected.
Mr Eglin commented that Section 58 of the Constitution provides that members of the Assembly have freedom of speech in the Assembly and its committees subject to its Rules and Orders. He asked if the committee was now not making freedom of speech subject to Rules and Orders but making it subject to a number of legislative provisions. He asked if was this at all in order with the provisions of the Constitution.
Prof Murray replied that the issue that was the subject matter of the debate was not freedom of speech in proceedings but was freedom of speech and freedom of proceedings. The Bill was not intended to limit or qualify the freedom of speech that the Constitution grants but it adds an element of freedom of proceedings. It also immunizes proceedings from questioning or challenge in a court process. This is also in line with Mr Moosa’s interpretation.
Ms De Lille asked if a court must adjudicate using this Act of Parliament. She also asked how will the Act assist the court in deciding whether a member has abused freedom of speech. She asked if the Bill will assist a court in reaching a decision.
Prof Murray replied that this question relates to a different issue: namely, when a member is accused of abusing freedom of speech under Rules and Orders. The first question would be whether Parliament deals with that matter internally, as is presently is the case, or whether that matter is dealt with externally by a court of law. The proposal in this Bill is that this matter should be dealt with internally. However, a second question may arise, that internal proceedings are not constitutionally valid. The Court would be able to investigate this matter. She would have thought that Clause 4 prevents a court from looking at the speech made in Parliament but could determine under the administrative action provision in the Bill of Rights the fairness of proceedings that may have imposed sanctions on a Member for abusing Parliamentary process.
Adv Meyer added that this Bill does not take this matter further. The Bill spells out what would amount to a contempt of Parliament and also sets out possible sanctions. The Bill does not give guidance or instruction to the courts on a matter that may be taken to it or brought before it on account of any unconstitutional action.
Ms De Lille remarked that the cause of her question was based on Judge Ismail Mohammed’s judgment where a clear distinction was made between the role of Parliament and that of the Speaker. The Bill does not take this into consideration. There was a clear distinction between the role of Parliament and the role of Speaker.
Adv Masutha commented that there are two levels of inquiry in this matter. The first stage would be to determine whether any utterance by any person falls within the ambit of section 58 of the Constitution. Section 58 contains a guarantee of free speech. Once it has been determined that the utterance falls within that ambit, then in terms of this Section of the Constitution it falls outside the ambit of the courts. The only basis upon which a matter can be taken to court is on the basis of criminal or civil law. Once the avenues of access into courts have been closed in the Constitution it means that the jurisdiction of the court has been removed. It cannot deal with this matter. However, section 58 (1)(a) of the Constitution does nevertheless allow Parliament to regulate that privilege further internally through its Rules. The fact that it may have been excluded from the side of the courts does not exclude Parliament regulating how that should be done. The purpose of this Bill is to delineate those parameters more succinctly as excluding the court proceedings.
With regard to heckling, the first inquiry would be to determine whether it qualifies under Section 58 of the constitution as free speech. The following issue would be to determine how to deal with it in the Rules.
Prof Murray agreed that this would be correct. She however said that Section 58 does not deal with heckling by someone who is not a member. It only protect cabinet members. It was not the purpose of the Bill to further delineate the immunity that was granted by the Constitution. The constitutional provisions are clear and they are recapitulated in the Act. It is not for legislation to explain the constitution. Freedom of speech subject to the Rules and Orders is correct.
Mr Mokaba asked if there could be a response to Ms De Lille’s question.
Adv Meyer replied that clause 4.4 to which Ms De Lille referred to – if a Member willfully contravenes a Standing Rule, that Member would be guilty of contempt of Parliament within the meaning of section 8. Section 8 prescribes a list of what would amount to a contemptuous conduct by an MP.
Mr Mokaba suggested that the committee needs to proceed to deal with Chapter Three
Adv Meyer initially commented that Clause 5 repeats what is already stated in the Constitution. It is however broader in some respects, e.g. Clause 5(b) relating to the preparation of documents, which is not dealt with in the Constitution. He also recapitulated the discussion about Clause 7(2) of the last meeting.
Mr Moosa commented that one of the issues that the Committee had been grappling with was the delegates of the NCOP, particularly in the definition of "member". The definition of member in Subclause (b) covers permanent delegates of the NCOP. Subclause (c) covers special delegates of the Council while acting as special delegates. There is a special process by which one becomes a special delegate. One would have to be designated by a Speaker or one’s Provincial Legislature to be a special delegate in Parliament. The concern was about members of the Provincial Executive, MEC’s and Premiers of Provinces. They might attend and participate in proceedings in Parliamentary Committees on the invitation of the Speaker or the Chairperson of the NCOP. But this would be in the absence of having been delegated as special delegates in terms of the Provincial legislature’s Rules. This raises a matter of grave concern because Members of the Provincial Executive participate not having been designated as special delegates to deliver speeches in the NCOP Chamber. Another problem is that NCOP’s permanent delegates have speaking rights in Provincial Legislatures.
The third issue is that that Section 117 of the Constitution provides that powers and immunities of provincial legislatures may be regulated by national legislation.
Firstly, the definition of special delegate as it is currently drafted in the Bill may be limited to regulate the manner in which Provincial Legislatures participate in Parliament. Secondly, this law could apply as that national legislation referred to or contemplated in Section 117 of the Constitution.
Prof Murray answered that the issue of provincial powers and privileges is more urgent than the national powers and privileges. The reason for this is that powers and privileges Act passed by the provincial legislatures before 1996 are no longer valid because the Constitution requires national legislation.
Mr Moosa commented that there is a need to protect members of the National Assembly participating in provincial legislatures. They need to be afforded some privileges.
Prof Murray remarked that a Member of the National Assembly cannot go to the Northwest Provincial Legislature and heckle there and expect to be protected.
Mr Hendrikse asked why heckling in a different legislature is not permitted. Should protection not be extended to the MEC’s and Members who participate in the proceedings of another legislature?
Mr Moosa added that the National Assembly committees incidentally do this as well. It is not only confined within the NCOP committees.
Mr Meyer replied that if this privilege absolutely has to be extended to protect Members who participate in Provincial Legislatures a constitutional amendment would be required.
Ms De Lille was not satisfied with Mr Meyer’s reply. She remarked that the intention of the Constitution was to protect all elected members, whether a Member of the National Assembly or whether an MEC of a Province. A Member would therefore be entitled to the immunities and privileges of Parliament, the NCOP and whatever structure. She finally asked if Mr Moosa’s recommendation was in contradiction with the Constitution of it to require an amendment.
Mr Masutha differed with Ms De Lille. He said that Clause 58 provides that Cabinet Members and Members of the National Assembly have freedom of speech in the Assembly and in Parliamentary committees. However, this is subject to the Rules. This is an empowering, not a limiting clause, in that it is not circumscribing Parliament to create certain additional rights that are not covered by this clause.
Mr M Chikane (ANC) asked if it would not make it easier if the Committee were to define absolute rights versus rights. He thought that this would make it easier to know the limitations of those Members who are not members of the National Legislature.
Mr Mokaba stated that the Committee also needed to look at how the rights of other members not belonging to the National Legislature may be protected, as suggested by Ms De Lille.
Mr Chikane remarked that Members of Parliament have absolute rights. It was necessary to determine where the difference was with reference to their respective powers so that it could be determined whether there would be a need for a constitutional amendment or not.
Prof Murray replied that if a person defames another, such conduct would amount to a civil wrong. In other words, that person’s (the defamer’s) freedom of speech as contained in the Constitution is thereby limited. But the freedom of speech that Members have in the House is not so limited, it is protected outside the Bill of Rights. It is also accompanied by an immunity to the effect that a Member would not be liable to a civil or criminal prosecution. This is an absolute right regarding freedom of speech in Parliament. She added that when a Member has been elected to a Provincial Legislature, his role is such that it is limited to that provincial legislature to which he has been elected. If that Member participates in the proceedings in some other legislature there is no need to be protected by freedom of speech in that legislature. An MPL is an MPL for a particular Province. The immunity cannot be extended beyond a legislature for which a person has been elected.
Mr Chikane disagreed. He said that South Africa is a unitary state not a federal state. A Member is nominated in terms of the South African Constitution. Therefore, why should there be a differentiation between the type of immunity that is extended to Members of the National Legislature to those of the Provincial Legislature?
Mr Mokaba, closed off the discussion regarding this issue, saying the matter needed to be investigated further. He indicated that it would be raised at the next meeting.
Media Institute of Southern Africa
Mr Raymond Louw (Member of the Council of the Media Institute of Southern Africa) made an oral presentation on behalf of this Institute. He initially complained about the differences to the Bill that was handed over at the morning of the briefing as compared to the version that was handed earlier.
He indicated that the major thrust of their presentation was the freedom of the media at large and the free flow of information. He emphasised that freedom of the media is a fundamental right for all people. This right has been centralised on the media for all people to express other rights that they have. He said that the institute is not opposed to the general objectives of the Bill which are in part designed to reduce corruption and to order the affairs of Parliament.
He outlined threefold objections to the Bill, viz.
-Reporting of Parliament
-Commissioning of Members of Parliament to write articles for the media, and
-The summonsing of journalists to disclose information to Parliament
Their first objection was with regard to Clause 27(1)(c) of the Bill.
This clause deals with reports emanating from Parliament. The original Bill did not have the Heading "Parliamentary Publications". This current heading suggests that this only applies to parliamentary publications. Clause 27(1)(c) of the old version of the Bill referred to "false and misleading" documents. The current clause refers to "documents purporting to be an account of proceedings of Parliament while they are not such an account". This is the Institute’s concern. It is not clear who would decide what is not an account of proceedings. It is also not clear what are the yardsticks. He remarked that the wording of this clause is too wide and too ambiguous and would cause problems for journalists.
The Bill also criminalises the reporting of proceedings. This is a new departure for South Africa. South Africa has never criminalised such reports in the recent years even though it did it before 1994. If Parliament wants to criticise reports emanating from Parliament it has sufficient means to do so through the press ombudsman or the Broadcasting Complaints Commission. A misdemeanor in this regard should not be criminalised.
The Institute outlined their objection relating to Clause 7(1) about the improper influence of members, as well Clause 18(1).
With regard to the Clause 7(1)(a) he suggested that the clause should rather read "functions" of a Member than "conduct" of a Member. This clause relates to the benefit or inducement of any kind. An inducement could extend to an offer of a fee for a Member of Parliament writing an article in a newspaper or magazine either in favour of a Bill or against it or on any other matter of a public interest. The manner in which this clause has been phrased could allow such an interpretation to be drawn that such a fee is improper for a person.
Clause 18(1) is spelt out rather more carefully. It suggests that one cannot get a fee for writing an article in a newspaper or magazine promoting or opposing a Bill. Its wording is thus inappropriate and should be changed.
The Institute discussed the issue of witnesses – Clauses 20, 21 22, 23 and 24 empower Parliament to summons witnesses. Clause 25 is also relevant. The injunction is that Parliament or a Committee may summon any person to appear before it to give evidence or to produce documentary evidence in that person’s possession. The only grounds upon which a witness can decline to give evidence is where he shows sufficient cause against it. This only relates to a failure without sufficient cause to attend and to remain in attendance until excused. This is the only ground for sufficient cause. The Institute proposes "just cause" to be a ground against the giving of evidence because it is in line with the Constitution in the right contained in it which is in favour of freedom of the press and the media. If these clauses were enforced they are likely to result in a situation that a journalist may be brought before Parliament to disclose a source of information. This would be tantamount to invoking the notorious and old Section 205 of the Criminal Procedure Act that required journalists to be interrogated regarding the sources of their information by the police. This must be given a much wider consideration to avoid journalists being compelled to give evidence of that kind. Journalists should be exempted from doing so. A journalist should be able to show a just cause for not giving evidence.
Freedom of Expression Institute (FXI)
No formal presentation was made by the Institute. However, Mr Nicholas Dieltiens, from the Freedom of Expression Institute merely said that he does not share Mr Louw’s reading of ambiguity in so far as it relates to publications emanating from within Parliament, not outside Parliament.
Adv Schmidt (NNP) said that he understood the concern about the protection of the media. What would the situation be if the media were to report intentionally misleading and false reports, and what would be the options open to Parliament if that happens?
Mr Louw replied that the appropriate recourse would be to approach the editor of the newspaper concerned for a correction. If the publication was intentional the editor can also be approached. If the matter is not resolved in an appropriate manner between the parties, that matter can be taken further to the Ombudsman and the Appeals Committee. If it so be that the Ombudsman finds against the newspaper, that newspaper can be forced to publish the judgment against it. If the publication was intentional amounts to a serious censure against the newspaper concerned and a publisher or a journalist. The appropriate punishment is publication by that newspaper of a judgment that has been made against it and its publication thereof by that newspaper’s competitors.
Mr Lever (DP) asked if Mr Louw would like Parliament to define just cause as he proposed should be inserted in Clause 25. Or if he would like to give some limitations to it or whether he opted for this phrase to be defined by a court.
Mr Louw responded that it would have to be defined by a court. The phrase "just cause" has stronger legal connotations than "sufficient cause". It is a proper legal phraseology.
Mr Chikane asked what would happen if a journalist has written a story that contains omissions. This is because an omission changes the whole complexion of a story.
Mr Louw replied that an omission changes the whole complexion of a story or a report. The person concerned, who would either be a Speaker a Committee Chairperson or a Member of Parliament can request a republication of a report that contains an accurate account or alternatively report the newspaper to the Ombudsman. The same occurs with broadcasters as well.
Professor Christina Murray (University of Cape Town’s Gender & Equality Research Unit/Dept. of Public Law)
The Chairperson reminded her that the committee was still dealing with Chapter Three of the Bill in order to help in limiting the generality of the comments to be made.
Professor Murray remarked that she was concerned that the Bill does not contain any Preamble. A preamble is necessary, as it makes it easier to set out the facts or the object of this legislation, e.g. parliamentary privileges and the contempt of Parliament and so on. The presence of the preamble to any piece of legislation helps in the understanding of an act of Parliament.
She also mentioned that she was worried about the phrase "precincts of Parliament" and the fact that a Chairperson or the Speaker could circumscribe or delineate the precincts of Parliament in Subclause 3. This phrase is very important because only certain offences could occur or can be committed within the precincts of Parliament. The precincts of Parliament ought to be publicly known. The Bill does not specify where the Speaker or the Chairperson can delineate or prescribe where the precincts of Parliament are supposed to be and this can be a problem to the susceptible and gullible public which may not really know the extent of the precincts. One solution would be to delete Subclause 3 and allow the rest of the Clause to stand on its own as the adequate description of the precincts.
The Heading to Chapter Three of the Bill lists the "immunities, independence and protection of the members" She was surprised that this Chapter also deals with Parliament, e.g. Clause 6 deals with interference with Parliament and Members. It is important to remember the principle that powers and immunities do not exist only to protect the Members but also exist to protect Parliament as an institution. One may therefore desire to add that the Chapter also protects Parliament.
Clause 8(2)(d) is unclear. The word "contempt" in this paragraph should be supported with the word "disrepute".
In Clause 8(2)(e) the reference to "which in terms of this Act" seems to be redundant because it is in paragraph 8 that contempt is committed.
She also observed that Clause 4 minimises parliamentary speech and proceedings from challenge in a court of law. This means that the court cannot question something that happened in Parliament. However, in Clause 17 an offence is created if somebody votes in a matter in which he has a direct financial interest.
The elements of this offence are -:
-proof that a member has a direct financial interest in a matter
-that he took part in a discussion or voted in that matter
To prove the second element of this offence one has to question or interrogate speeches or proceedings in Parliament. Therefore, there is a tension between Clauses 4 and 17, and between Clauses 7 and 18. Some of the offences that are set up will require the court to investigate what had occurred in Parliament and to inquire whether particular conduct occurred. This is prohibited in Clause 4 but is expected in Clause 17. One manner in which this can be remedied is to include a formulation to Section 4 to the effect that "despite the prohibition or questioning proceedings of Parliament a court may do that if a matter before it involves an offence in terms of this Act".
She finally concluded that the wording of Clause 27(1)(c) is fairly vague as Mr Louw had suggested. She wondered if this clause was necessary at all and recommended that it should be deleted.
The Chairperson closed the discussion on Chapter Three.
Mr Hendrickse asked a question on an improper influence of Members, particularly with regard to the question of extending a contractual agreement. He asked whether it was the court that has to determine that the purpose of the agreement was to influence a member, e.g. that a newspaper asks a member to write an article for it. Would it amount to improper influence if a newspaper were to ask 100 MP’s to write articles against particular proposals and pay those Members in return amount to an improper influence?
Mr Meyer replied that this was a problematic provision. The contractual agreement is probably too broad.
Mr Masutha remarked that this matter might probably best be dealt with not in the legislation but in the Code of Good Practice.
Adv Meyer agreed with Mr Masutha that one should look at whether this matter may not be appropriately dealt with in the Code.
The meeting was adjourned.
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