Auditor General's Report on Financial Support to Political Parties; Report of Ad Hoc Committee (S2(1)of Public Protection Act); Report of Sub-Committee on Review of National Assembly Rules

Meeting report

NATIONAL ASSEMBLY RULES COMMITTEE
5 February 2002
AUDITOR GENERAL'S REPORT ON FINANCIAL SUPPORT TO POLITICAL PARTIES; REPORT OF AD HOC COMMITTEE NO 13 OF THE PUBLIC PROTECTOR; SUBSTANTIVE MOTIONS; SCOPE OF AMENDMENTS TO BILLS; APPOINTMENT OF NATIONAL ASSEMBLY COMMITTEE (S 2(1) OF PUBLIC PROTECTOR ACT); REPORT OF SUB-COMMITTEE ON REVIEW OF NATIONAL ASSEMBLY RULES

Relevant Documents:
Rules Governing Constituents' Allowances Payable to Political Parties
Substantive Motions; Scope of Amendments to Bills (See Appendix 1);
Appointment of a Committee of the National Assembly in terms of section 2(1) of the Public Protector Act (See Appendix 2)
Proposed Amendments National Assembly Rules ( See Appendix 3)
Sub-Committee on Review of National Assembly Rules Committee Minutes 16 October 2001 Report of the Ad Hoc Committee No 13 of the Public Protector (See Appendix 4)

Chairperson: Ms F Ginwala

SUMMARY
The Committee took a principled decision accepting that political parties, instead of individual members, are responsible for constituency funding. The detail of the Auditor General's report on the funding of political parties was left for consideration by the Chief Whips Forum who would submit a report to the Committee for discussion.

The Speaker felt that Members were not taking attendance in the House seriously and that this should be dealt with by imposing fines for non-attendance.

Adv de Lange briefed the Committee on the amendments to Quorum, Certification of Bills and Questions proposed in the Sub-committee on Review of NA Rules.  The other matters were left for further consideration by parties.

MINUTES
Auditor General's Report on Financial Support to Political Parties
The Chairperson asked if parties have had a chance to look at the report.

Adv de Lange (ANC) said his party has not had a chance to look at the detail of the report. However, they are comfortable with the principle that a party instead of an individual be responsible for constituency funding.  He moved that members agree on the principle and that the detail be taken back for parties to look at and to pass on to the Chief Whips Forum to discuss and come up with a document for the Committee's discussion.

Mr Selfe felt that the issue of how the principle is to be applied needed to be discussed as well.

The Chairperson said she would like an assurance that parties agreed on the legal position. Namely, that the constituency office is that of a party and not of an individual.

The UDM accepted the principle as it provided more room to manoeuvre and to reach out to constituencies everywhere.

Ms De Lille (PAC) asked how Parliament would monitor and implement the proposal.

The Chairperson pointed out that there is no definite decision taken on how the constituency offices would function. Parties have to consider whether it would be necessary to phase in Parliamentary offices that will serve the public.

The Deputy Speaker said she was concerned about the conflict presented by the provisions of paragraphs 6 and 8 of the Draft Rules Governing Constituent's Allowances Payable to Political Parties. Mr Barker agreed that it was a conflict that parties rent and employ staff of the offices but may not use them as a political party office.

The Chairperson said the country has a system of proportional representation of parties in terms of the Constitution, which also requires that members be accountable to the electorate. The constituency offices are a way of attempting to achieve this accountability to the voters. At the moment the system in place was the one suggested in the proposed rules and it still needs to be considered whether another form of office should be established such as Parliamentary offices mentioned earlier.

Mr Cassim suggested that a system of common signage recognisable as that of a constituency office might be used. Also that there be documents of Parliament so that people are able to recognise the office as that of Parliament wherever it is.

Ms De Lille said the role of members, provincial members and local government representatives had to be carefully considered in seeking to intervene as Parliament in the constituencies. It would be necessary for Parliament to be mindful that it is not functioning alone and that there are other spheres of government out there.

Members agreed to accept the principle and leave the detail for the Chief Whips Forum to discuss and bring a report for the Committee's consideration.

Report of the Ad Hoc Committee No. 13 of the Public Protector
The Chairperson expressed doubt whether parties had considered the report as they would have received the documents late.  She reminded members that in one meeting she had enquired what powers Parliament has to pronounce on sanctions to enforce the accountability of members. She referred to the case of The Speaker of the National Assembly vs De Lille and Another 1999 (4) SA 863 (SCA). Mahommed CJ said that the National Assembly is empowered by Section 57 of the Constitution to determine and control its internal arrangements, proceedings and procedures. The Chairperson felt this authorised Parliament to pronounce on the sanction. She referred to the documents marked annexure A and B.

The Chairperson felt that Members were either not in full attendance in the House or left halfway through the meeting. She suggested that the Committee should consider a rule allowing for the imposition of fines to Members who fail to attend.

Substantive Motions
The Committee had commissioned research on the matter and the paper marked “annexure C� was culmination of that research. She said currently there is no distinction drawn between Notices of Motion that are intended for formal consideration and Members' statements.

Notices of Motion should be used as originally intended to give advance notice of topics that Members intend to be formally discussed by the House. The current practice has been for Members' statements to pretend to be questions. The Committee has to look at the option of allowing Members to make a written statement and having others join in by signing in support of the motion.

Adv de Lange said he was supportive of following international practice regarding notices of motion. He said the Rules should allow statements to raise constituency issues and expressing views by Members.

The Chairperson said NA Rule 105 providing for statements by members has not been implemented.  She proposed that the rule be activated and that the Chief Whips Forum should consider whether major changes are necessary to notices of motion.

Scope of Amendments to Bills
Mr Hahndiek, Secretary to the NA, pointed out that there was no document prepared on the subject. He said there was a concern that Committees were limited in making amendments to Bills emanating from the executive.

Adv de Lange said Parliament was the only legislative authority in terms of the Constitution and could therefore allow no restrictions in this regard.

Mr Jeffreys (ANC) asked whether there is a requirement for publication to inform the public where Committees want to introduce a new matter in a Bill from the executive.

Adv de Lange said such a requirement would be difficult in practice because new matters are usually introduced after public hearings and if published again this would further prolong the process of finalising Bills. He said the Rules are clear that Committees need to publish their wish to bring out a new Bill and they have to approach the National Assembly if they want to introduce new matters.

Ms De Lille said Parliament should set parameters in legislation regarding regulations by the Executive. She was concerned that it was not clear to what extent Parliament has power of oversight over the enactment of regulations by the Executive.

Adv de Lange said in providing for the Executive to make regulations Parliament actually hands over its legislative function to the Executive and once this has taken place it can never be taken back. Mechanisms developed to monitor the executive were to require that regulations first be tabled in Parliament and if there is a problem with a regulation members would interact with the executive.

The Chairperson said the Joint Committee on Rules needs to consider how powers given to the Executive to make regulations should be monitored.

Appointment of a Committee of the National Assembly in terms of section 2(1) of the Public Protector Act
The Chairperson said there is a view among Chapter 9 Institutions (such as the Human Rights Commission and the Public Protector) that Parliament does not recognise them.

Adv de Lange said the issue is how they interact with Parliament and how willing they are to subject themselves to scrutiny by Parliament. He said it would have to be considered whether another Committee should be set up to deal with these institutions.

The Chairperson said there is a conflict in the way these bodies interpret their independence and accountability and there needs to be an awareness of that difficulty. She suggested that as a way of acquainting Parliamentarians and the public on how these bodies function debate on the Committee reports on the bodies should take place in the House in future.

Report of the Sub-committee on Review of National Assembly Rules
Adv de Lange briefed the Committee on the changes proposed by the Subcommittee on Review of NA Rules on quorums, certification of Bills and questions.

Quorum
Adv de Lange pointed out that the provisions for quorum requirements were inherited from the interim Constitution. A new clause was adopted in the final Constitution. Rule 25 reflects what is in the Constitution, namely, that quorum is 50 per cent when voting on Bills and one third on other matters.

He said the possibility of adjourning the House was taken out. In terms of Rule 26 the Speaker is faced with two options; she may either suspend the proceedings or postpone the decision of the question.

Certification of Bills
Adv de Lange said this originated from a Rules meeting which proposed creating a rule in practice that a Bill be certified by State Law Advisors as being consistent with the Constitution and properly drafted in form and style which conforms to legislative practice.  Where it is not certified this does not prevent Parliament from dealing with it but that the State Law Advisors should give a report to say why they have not so certified the Bill which would help JTM and parliament in dealing with the Bill.

Rules on Questions
Rule 107(6) - Adv de Lange said two options are proposed for dealing with questions that offends against practice or the Rules.

Rules 108 - He said that the use of an asterisk to refer to questions requiring oral reply was changed and it was now required that they be endorsed as oral questions.

Rule 109 - He pointed members to the note on the Chief Whips Forum.

Rule 109(2A) - He said currently parties decide to which minister they want to address questions.  He said the rule suggests that within a cluster ministers rotate on answering questions to ensure accountability of all ministers.

Rule 109(3) - He said this rule has to be read with rule 115(3) in mind.  He it is suggested to collapse the two into one and to delete 115(3).  He pointed out that the DP is not of the same but that they have suggested deletion of the words “and the Speaker and after consultation with the Leader of Government Business so directs� and for the question to automatically go on to the following week, which is essentially the same as rule 115(3).


The Chairperson said questions have always been the business of Parliament not the executive and that she had no problem with “after consultation with the Leader of Government Business.�

Rule 109(5) - He drew Members' attention to the note on the subrule which said that if there is to be rotation of Ministers in a cluster in terms of subrule2A the number of questions per Minister could be reduced to five.

Rule 111 - He said here is just spelt out what questions to the President must be and the number of times they should be scheduled per year.

He said the DP preferred three calendar months instead of four times.  Also, that they wanted to change the number of days from 16 to 9 for submission of questions to President to the Secretary.  The DP also wants the number of questions to the President to be increased from 6 to 10 and that every party must in turn have a question.

The Chairperson said it might be useful to say questions to the President be scheduled four times a year at a minimum and not prescribe that it should be four times.

Rule 116 and 117 - He said there are no changes in option 1.

The Chairperson said parties should have at least two to three weeks to work on the changes.  The meeting was adjourned.

Appendix 1
NOTES ON PROCESSING "SUBSTANTIVE MOTIONS"
(prepared by K Hahndiek, Secretary to NA]

1.Background
(1 )     Members currently have the opportunity on each sitting day to give oral
notice of motions in the House. The Notice of Motion period is limited to 15 minutes, each member being allowed 1 minute. Members are given the opportunity on the basis of an agreed party rotation.

(2) The Notices of Motion are subsequently printed on the Order Paper and in Hansard.

(3) Although presented as draft resolutions, the Notices of Motion in practice have developed into a mechanism for members briefly to air their views on topical issues, and there is no expectation that they will be programmed for formal consideration by the House.

Problem: The problem arises that there is no process to distinguish Notices of Motion that are in fact intended for formal consideration, including for instance -

-Substantive motions containing charges or allegations against a member.
- Censure motions.
- No confidence motions (for which there is constitutional provision).

A process needs to be developed to deal with such Notices of Motion.

2.Proposals
(1) The identified problems could be overcome if Notices of Motion regained their original purpose of giving advance notice of motions which members intend should be formally considered by the House
.
(2)The current "Notices of Motion" could then be properly identified as Members' statements.

(3) NA Rule 105, which provides for statements by members, has not yet been implemented. It could be adapted to accommodate the current Notice of Motion practice.

(4) Apart from members' statements, there would then be an opportunity daily of giving Notice of Motions. Such "proper" Notices of Motion would have to meet agreed criteria:

a)Text: if the Notice of Motion is proposed as a draft resolution, then
unlike current Notices of Motion, it should be "short and succinct and framed so as to express with as much clarity as possible the distinct opinion or decision of the House" (quoted from Australian Senate Practice).
b)If the Notice of Motion is intended to propose a subject for discussion, the wording should be limited to identifying the topic, which should be clearly established.
c)"Substantive motions" dealing with allegations against members would, as at present, require Speaker's approval (in terms of such allegations being properly motivated and adequately substantiated, etc).

Processing of "proper" Notices of Motion: "Proper" Notices of Motion :ould be processed as follows:

a)  All Notices of Motion to be routinely referred to the Programme Committee and the weekly Chief Whips Forum with a view to the Forum making a recommendation on scheduling to the Programme Committee
b).  The Programme Committee takes a final decision on scheduling Notices of Motion. If no agreement can be reached, the Notice of Motion remains on the Order Paper and individual members, or parties, can formally have their support for the Notice of Motion printed. When sufficient support has been obtained (by agreed formufa), the Notice of Motion must be scheduled. (This alternative is based on practice also followed in other parliaments).

(6) Printing: If the proposed distinction between Notices of Motion and Members' statements is approved, I would further recommend that Notices of Motion be printed on the Order Paper, and that members' statements only appear in Hansard.

 INTERNATIONAL PRACTICE RE NOTICE OF MOTION
United Kingdom - House of Commons

I.   A member gives notice of a motion by handing in its text to the relevant office. The notice may or may not contain a heading or title. A specially printed form is provided for members on which to submit their motions; however, members are not obliged to use it.

2.  After the motion has been checked for conformity with the Rules of the House- •  It is printed in the Notice Paper with name(s) of the member(s) in charge. •  Other members show their support by tearing out the page from the Notice Paper containing motions and signing below the chosen motion or motions. •   alternatively, members often give the Table Office the relevant number of the motion (as indicated in the Notice Paper) and ask their names to be added. •  The signed page is submitted to the relevant office (Table Office). •  The Notice Paper is then reprinted with the additional information.

3.   [An important point to note] - There is no stipulated amount of signatures required for a motion to be programmed Many signatures on a motion will only serve to highlight topicality of or interest on the subject.

4.  Motions remain current for the rest of the Session in which they were put down and extra names/signatures can be added at any time during their currency. At the end of a Session all motions on the Notice Paper (our Order Paper) fall, but can be introduced again in the new Session; however, they do not carry forward the signatures appended to them in the previous Session.

5.   A member may put down an amendment or amendments to another member's

motion, but he cannot submit an amendment. if he or she signed, the motion. In. order ljo do this he would have to withdraw his name from the main motion.

French Parliament [motion of censure]
 1.   A motion of censure is tabled together with a list of signatures of at least one tenth of the Inembers of the Assembly. Once tile motion is tabled, no signatures may be withdrawn or added.
 2.  The chairmen's conference determines tile date on which motions of censure are to be djebated,
 [NB: The (Rules of Procedure of the French Parliament do not give details on dealing with motions/draft resolutions generally]

These are some of the other Rules of Procedure checked: India, New Zealand Australia,
Canada, Phillipines, Botswana.

UK and France were more relevant than the rest for the purposes of this inquiry.

Appendix 2
MEMORANDUM ON THE APPOINTMENT OF A COMMITTEE

OF THE NATIONAL ASSEMBLY, IN TERMS OF THE

PROVISIONS OF SECTION 2(1) OF THE PUBLIC PROTECTOR

ACT. 1994 (ACT NO 23 OF 1994)

lntroduction

The appointment by the National Assembly of a committee for the

purpose of considering matters referred to it in terms of the Public

Protector Act, 1994 (the Act), is long overdue.

2.     Background

2.1    The provisions of the Public Protector Act, 1994.

The Act came into operation on 25 November 1994. Originally,

the Act made a distinction between a committee appointed in

terms of the Act to deal with certain matters pertaining to the

Public Protector and a joint committee appointed in terms of

section 110(2) of the interim Constitution, 1993 that had to attend to issues such as vacating of his/her office by the Public

Protector.

The amendment of the Act that became effective on 27

November 1998, did away with this distinction. Section 2 of the

Act (as amended) provides as follows:

"(1) The National Assembly shall, in accordance with the rules

and orders of the National Assembly, appoint a committee for

the purpose of considering matters referred to it in terms of this

Act: Provided that the composition of such committee shall be in

accordance with the provisions of section 193(5)(a) of the

Constitution.

(2)  The  remuneration  and  other  terms  and  conditions  of

employment of the Public Protector shall from time to time be

determined by the National Assembly upon the advice of the

committee: Provided that such remuneration...........

(3) The National Assembly or, if Parliament is not in session, the

committee may allow a Public Protector to vacate his or her

office-

(a) on account of continued ill-health; or

(b) at his or her request: Provided that such request shall be

addressed to the National Assembly or the committee, as

the case may be, at least three calendar months prior to

the date on which he or she wishes to vacate such office,

unless the National Assembly or the committee, as the

case may be, allows a shorter period in a specific case.

(4) If the committee allows a Public Protector to vacate his or

her office in terms of subsection (3), the chairperson of the

committee shall communicate that fact by message to the

National Assembly: Provided that any decision taken by the

committee in terms of this subsection must be ratified by the

National Assembly.

(5)  The  Public  Protector  may,  at  any  time,  approach  the

committee with regard to any matter pertaining to the office of

the Public Protector

2.2 The National Assembly is obliged to appoint a committee to

perform the functions as set out above.

2.3 Subsequent: to the amendments to the Act, the Office of the

Speaker of the National Assembly was approached with the

request that the committee be appointed.

2.4  On 18 February 1999 the Speaker advised as follows:

"As we are coming to the end of this Parliament, we do not wish

to   establish   any   new  committees  at  this   point.  The

establishment of a committee to deal with matters pertaining to

your Office will therefore cniy be finalized after the elections.

In the interim, the House will by resolution appoint the Portfolio

Committee on justice to perform the functions contemplated in

the Public Protector Act, 1994."

2.5 Apparently, as part of the further consideration of the request

for the appointment of a committee, a study by the Faculty of

Law of the University of Cape Town was commissioned early in

1999.

2.6 The Law Faculty submitted a report on this study entitled:

"Report on Parliamentary Oversight and Accountability" (the Report) to

the Speaker in July 1999. It, inter aha,  recommended the

establishment by Parliament of a Standing  Committee on

Constitutional Institutions that would also fulfill the functions of

the committee referred to in section 2 of the Act.

3. The current position.

3.1 To date the recommendations of the Report have not been

implemented.

3.2 As the office, of the Public Protector is an independent institution

that does not form part of the Department of Justice, the

interim arrangement that the justice Portfolio Committee should

act as the committee envisaged by section 2 of the Act, should

not, in my view, continue indefinitely. The Legislature clearly

had in mind the establishment of a separate committee that

would attend to matters pertaining to the office of the Public

Protector as an independent institution.

3.3That the so-called Chapter 9 institutions should be dealt with

separately from government departments and agencies in all

respects   is   clearly  emphasized   by  the  findings   and

recommendations of the Report. On page 5 thereof, for

example, the following is stated:

"The constitutional provisions relating to the independence of

Chapter 9 institutions make it imperative that steps be taken to

guarantee their constitutional independence. These concerns

have  been  underscored  in  the  recent judgment of the

Constitutional Court in New National Party v Government of the RSA and

Others 1999(5)BCLR 489 (cc). The judgment clearly shows that

steps need to be taken so that the Constitutional guarantee of

independence for the Chapter 9 institutions are realized in

practice. In particular we endorse with respect the observation

of the Court that both financial and administrative independence

are required for the effective performance of their functions.

The way in which these institutions receive their funding needs

to be re-examined in the light of their constitutional status and

special   role   in   relation  to   the   executive.   It   is  our

recommendation that they should not receive their funding via

the budget vote of departments of State.

We recommend that legislation be considered to guarantee the

independence and accountability of constitutional institutions.

We also recommend the establishment of a Parliamentary

Standing Committee on Constitutional Institutions. Such a body

would scrutinize the reports of the constitutional bodies as well

as make recommendations on their budgets to Parliament."

3.4   The tenure of the current Public Protector expires at the end of

  September 2002. The committee envisaged by section 2 of the

  Act will have to consider the conditions of service of his

 successor. There is also a need to refer certain other matters, as

 provided tor by section 2(5) of the Act, to the committee.

4.    The solution

lt is suggested that the matter concerned be resolved in one of the

following two ways:

4.1     By urgently appointing the committee in accordance with the

provisions of section 2 of the Act; or

4.2     By  urgently  implementing  the  recommendations  of  the

 Report  in  respect of a Joint Standing  Committee for

constitutional institutions.

It  is,  in  my  humble  submission,  of  utmost  importance  that  the

matter be addressed, as a priority, during the first session of

Parliament in 2002.

ADV S A M BAQWA, SC

PUBLIC PROTECTOR

24 JANUARY 2002

Appendix 3
This appendix includes the changes made as a result of this meeting's deliberations:
31-01-2002
PROPOSED AMENDMENTS TO RULES ON QUESTIONS
OPTION 1

1. Replace Chapter 10 with the following Chapter:

CHAPTER 10
QUESTIONS

Part 1: General
Notice and placing of questions

107. (1)  Except as otherwise provided in these Rules or with the prior consent of the Speaker
 notice must be given of each question by placing it on the  
 Question Paper;
 no question for oral reply may be asked on the day on which 
 notice thereof is given.

 (2)  A member who wants to give notice of a question must deliver to the Secretary, for placement on the Question Paper, a signed copy of the notice, indicating the day on which the question will be put.

 (3)  Questions delivered to the Secretary before 12:00 on any working
day may appear on the Question Paper on the second sitting day thereafter and not earlier.

(4)  Subject to rules 108(7), 109(2A), 110(3) and 111, the Secretary must place the questions on the Question Paper in the order in which they are received.

 (5)  No question may be addressed to any person other than a member of the Cabinet.

 (6)  If a notice of a question offends against the practice or these Rules the Speaker may either amend the question or return it to the member who submitted it.

(7)  A member may give notice or take charge of a question on behalf of an absent member if the member has been authorised to do so by the absent member.

Part 2: Questions for oral reply

Form and arrangement of questions

108.      (1)  A member who wants an oral reply to a question must write the words “for oral reply� on the copy of the notice of the question delivered to the Secretary in terms of rule

107(2).A question for oral reply may not contain more than five subdivisions.

(3)  If the Speaker is of the opinion that a question deals with a matter of a statistical nature, the Speaker may direct that the question be placed on the Question Paper for written reply.

 (4)  Questions for oral reply are limited to two questions per member per question day.
 
 (5)  The restrictions imposed by subrule (4) and by rules 109(5), 110(4)  and 111(5) do not apply to questions -
 (a) approved as urgent questions in terms of rule 112;
 (b) standing over in terms of rule 114(2)(a) or 115(1); or
 (c) transferred from written to oral reply in terms of rule 117.

(6)  A question for oral reply may be placed on the Question Paper for reply on a day at  least five working days after the day on which it
      appears on the Question Paper for the first time.

(7)  An authorised representative of a party may before 12:00 on the
Wednesday before the question day on which questions put by members of that party are to be answered, notify the Secretary in writing of the order in which those questions are to be placed on the Question Paper.

NOTE: Parties would have to identify authorised representatives.

(8)  Questions that cannot be placed on the Question Paper for oral
reply because of quotas must be placed as questions for written reply.

(9)  Subject to rule 109(2A), the sequence of questions on the Question Paper rotates on a continuous basis for the duration of an annual session according to the order in which members of the respective parties may put questions. That order is determined by the Chief Whips' Forum from time to time.

Questions to Ministers

109. (1)  Questions for oral reply by Ministers must be dealt with in accordance
with three clusters of portfolios of government affairs, as determined from time to time by the Chief Whips' Forum in consultation with the Leader of Government Business, and published in the ATC.

[NOTE: This would give functions to the Chief Whips' Forum that it does not have at present.  If this subrule is agreed to, the following consequential amendment will have to be made to rule 221:
RULE 221: Amend rule 221 by the addition of the following subrule, the existing subrule becoming subrule (1):
(2) The Forum must perform any other functions assigned to it by these Rules or resolutions of the Assembly.]

 (2)  The clusters rotate on a weekly basis, so that questions relating to each respective cluster are answered every third question day (subject to subrules (3) and (4)).
OPTION:
(2A) Within a cluster questions on the Question Paper to the various Ministers rotate on a continuous basis.

 If a Minister is absent on a day when questions relating to the relevant
cluster are to be answered and those questions are not answered by another Cabinet Member or by the Deputy Minister concerned, the Speaker may, if requested to do so by the member in whose name a question to that Minister stands, and after consultation with the Leader of Government Business, direct that -
 the questions to that Minister be placed on the Question Paper for the first question session for Ministers following that day; and
 an additional 30 minutes be added to the question time
 for that session to accommodate questions to that Minister.
NOTE:
If the underlined part of this subrule is accepted, rule 115(3) could be omitted.

(4)  Questions to Ministers must not be scheduled for a day on which the  
President is scheduled to answer questions in the Assembly.

(5) The number of questions to a Minister is limited to eight questions per question day in respect of any one department of state.
NOTE:
If there is to be rotation of Ministers within a cluster in terms of the option in (2A), the number of questions per Minister could be reduced to five.

(6)  Where the order in which questions are put to Ministers according to rule 108(9) is interrupted at the end of a question session, the next question session to Ministers starts from the point where the order was so interrupted.

Questions to Deputy President

110. (1)  Questions to the Deputy President must be scheduled for a question day once every second week.

(2)  If that day falls within a week in which -
(a)  the President is scheduled to answer questions in the  
      Assembly; or
(b)  the Deputy President is scheduled to answer questions in the   
 Council,
questions to the Deputy President must not be scheduled for that week, but for the following week.

(3)  Questions to the Deputy President have precedence over questions
to Ministers.

(4)  The number of questions to the Deputy President is limited to four
questions per question day.

(5)  Where the order in which questions are put to the Deputy President according to the rule 108(9) is interrupted at the end of a question session to the Deputy President, the next question session to the Deputy President starts from the point where the order was so interrupted.

Questions to President

111. (1)  Questions to the President must be -
(a)  scheduled for a question day once every three months; and
(b)  limited to matters of national or international importance.

OPTION:
(1) Questions to the President must be-
limited to matters of national or international importance; and
scheduled for a question day four times a year, as follows:
the first, before the end of March;
(ii) the second before the end of June;
(iii) the third before the end of September; and
(iv) the fourth before the end of November.
           
(2)  All other questions relating to the Presidency must be directed to the Deputy President or the Minister in the Presidency. 

(3)  Questions to the President must be submitted to the Secretary before 12:00 on the Monday, 16 days before the question day on which they are to be answered.

(4)  The Secretary must submit the questions to the Speaker for approval.

(5)  The number of questions to the President is limited to six questions
per question day.

Where the order in which questions are put to the President according  
to rule 108(9) is interrupted at the end of a question session, the next question session to the President starts from the point where the order was so interrupted.

Urgent questions

112. (1) A member may, with the permission of the Speaker, place an urgent
question for oral reply on the Question Paper for a question day on which
such a question would not normally be dealt with.

(2)  A member who wants to place an urgent question on the Question
Paper must deliver a signed copy of the question to the Speaker before 12:00 on the Tuesday in the week preceding the week in which the question is to be answered, clearly indicating that it is an urgent question.

(3)  The Speaker must consult the Leader of Government Business before approving an urgent question.

(4)  If the Speaker approves an urgent question, it must appear on the Question Paper before or on the Friday of the week preceding the week in which the question is to be answered.

Times allotted and time limits

113. (1)  Questions for oral reply have precedence on Wednesdays.

(2)  The time allotted for questions is two hours.

(3)  The reply to a question is limited to three minutes, but if the presiding officer is of the opinion that the matter is of sufficient importance an additional two minutes may be allowed.

(4)  In respect of each question, four supplementary questions may be
asked.

(5)  The member in whose name a question stands or who takes charge of a question in terms of rule 107(7), must be given the first opportunity to ask a supplementary question.

A member who asks a supplementary question may make a statement
or express an opinion, but may not speak for more than one minute.

A supplementary question may not consist of more than one question.

The reply to a supplementary question is limited to two minutes.

Unanswered questions

114. (1)  Replies to questions for oral reply which have not been reached at the
   end of the time allotted on a question day, must be submitted to the Secretary for inclusion in the Official Report of the Debates of the Assembly.

(2)  If a reply to such a question is not received by the Secretary by 12:00 on the Thursday following the question day concerned -
(a)  the question must be regarded as standing over; and
(b)  in the case of a question that has stood over in terms of
paragraph (a) or rule 115(1) from a previous question day, the  
Question Paper must be endorsed to the effect that the 
question has not been replied to.

(3) Subrule (1) does not apply where questions to a Minister are put on the Order Paper for the following question day in terms of a direction by the Speaker under rule 109(3).

Questions standing over

115. (1)  A question for oral reply must stand over if the person to whom it is
addressed -
 so requests, either in the Assembly when the question 
comes up for reply, or by notice in writing to the Secretary before the start of question time on the day for which it is on the Question Paper; or
  is not present in the Assembly when the question   
comes up for reply and the question is not replied to by someone else on his or her behalf.

NOTE: This rule could make it easy for the object of the whole cluster system to be undermined.

(2)  Subject to a direction by the Speaker under rule 109(3), a question that stands over in terms of subrule (1) or rule 114(2) must be -
 placed on the Question Paper for reply on the next
question day on which the person to whom it is addressed is scheduled to reply to questions; and
 must be published at the end of the Question Paper,
but may be prioritised in terms of rule 108(7).

(3)  Despite subrule (2)(a), a question standing over because the person to whom it was addressed was not present in the Assembly when the question came up for reply, must be placed on the Question Paper for reply on the first question day following the day for which it was initially placed, if the member in whose name the question stands, or who takes charge of a question in terms of rule 107(7), so requests.           

NOTE: See note after rule 109(3) - subrule (3) to be omitted if rule 109(3) is accepted as proposed.

(4)  A question for oral reply may not stand over more than once.

(5)  If a question standing over is not answered, either orally or in terms of rule 114(1), the Question Paper must be endorsed to the effect that the question has not been replied to.

Part 3: Questions for written reply

Form and placing of questions

116. (1) A question for written reply -
 may be placed on the Question Paper for any working day;
 must be delivered to the Secretary before 12:00 on the
 Tuesday of the week during which it is to be placed on the  
 Question  Paper for reply.

(2) A question for written reply may not contain more than 15
subdivisions.

(3) Questions for written reply are limited to three questions per member per week.

(4) The restriction imposed by subrule (3) does not apply to questions referred to in rule 108(8).
(5) If a question standing over is not answered, either orally or in terms of rule 114(1), the Question Paper must be endorsed to the effect that the question has not been replied to.

Written reply not given

If the responsible Cabinet member has not replied in writing to a question within 10 working days of the day for which the question was set down for written reply, and the member in whose name the question stands, or who takes charge of a question in terms of rule 107(7), so requests, the Secretary must place the question on the Question Paper for oral reply.


DP PROPOSALS
PROPOSED CHANGES TO NATIONAL ASSEMBLY
RULES ON QUESTIONS:
DP Proposals underlined (insertions) or square bracketed in bold (omissions).
In addition DP also propose that existing rules regarding interpellations be retained.

1.Replace Chapter 10 with the following Chapter:

CHAPTER 10
QUESTIONS
Part 1: General

Notice and placing of questions

107.(1) Except as otherwise provided in these Rules the Speaker -
(a)notice must be given of each question by placing it on the Question Paper;
(b)no question for oral reply may be asked on the day on which notice thereof is given.
or with the prior consent of
(2)A member who wants to give notice of a question must deliver to the Secretary, for placement on the Question Paper, a signed copy of the notice indicating the day on which the question will be put.

(3)Questions delivered to the Secretary before 12:00 on any working day may appear on the Question Paper on the second sitting day thereafter and not earlier.

(4)Subject to rules 108(7), 110(3) and 111, the Secretary must place the questions on the Question Paper in the order in which they are received.

(5)No question may be addressed to any person other than a member of the Cabinet.

(6)A notice of a question which offends against the practice or these Rules may be amended or returned to the member who submitted the question for amendment.
(7)A member may give notice or take charge of a question on behalf of an absent member if the member has been authorised to do so by the absent member.

Part 2: Questions for oral reply

Form and arrangement of questions

108.(1) A member who wants an oral reply to a question must distinguish it by an asterisk on the copy of the notice of the question delivered to the Secretary in terms of rule 107(2).

(2)A question for oral reply may not contain more than five subdivisions.
(3)If the Speaker is of the opinion that a question deals with a matter of a statistical nature, the Speaker may direct that the question be placed on the Question Paper for written reply.

(4)Questions for oral reply are limited to two questions per member per question day.

(5)The restrictions imposed by subrule (4) and by rules 109(5), 110(4) and 111(5) do not apply to questions -
(a)approved as urgent questions in terms of rule 112;
(b)standing over in terms of rule 1 14(2)(a) or 115(1); or
(c)transferred from written to oral reply in terms of rule 117.

(6)A question for oral reply may be placed on the Question Paper for reply on a day at least three working days after the day on which it appears on the Question Paper for the first time.

(7) Questions that cannot be placed on the Question Paper for oral reply because of quotas must be placed as questions for written reply.

(8)The sequence of Questions on the Question Paper will determined by drawing randomly those Questions which have been submitted for reply for the day in Question

Questions to Ministers

109.(1) Questions for oral reply by Ministers must be dealt with in accordance with two clusters of portfolios of government affairs, as determined by the Chief Whips' Forum in consultation with the Leader of Government Business, and published in the ATC.
(2)The clusters rotate on a weekly basis, so that questions relating to each respective cluster are answered every second questions day (subject to subrules (3) and (4)).

(3)If a Minister is absent on a day when questions relating to the relevant cluster are to be answered [and the Speaker after consultation with the Leader of Government Business so directs]-
(a)questions to that Minister must be placed on the Question Paper for the first question session for Ministers following that day; and
(b)an additional 30 minutes must be added to the question time for that session to accommodate questions to that Minister.

(4)Questions to Ministers must not be scheduled for a day on which the President is scheduled to answer questions in the Assembly.

(5)The number of questions to a Minister is limited to ten questions per question day in respect of any one department of state.

(6)The sequence of Questions on the Question Paper will be determined by a random draw of those questions which have been submitted for reply for the day in question.
Questions to Deputy President

110 (1) Questions to the Deputy President must be scheduled for a question day once every second week.

(2)If that day falls within a week in which the President is scheduled to answer questions in the Assembly [or the Deputy President is scheduled to answer questions in the NCOP] questions to the Deputy President must not be scheduled for that week, but for the following week.

(3)Questions to the Deputy President have precedence over questions to Ministers.

(4)The number of questions to the Deputy President is limited to ten questions per question day.

(5)The sequence of Questions on the Question Paper will be determined by a random draw of those Questions which have been submitted for reply for the day in question.

Questions to President

111.(1) Questions to the President must be -
(a)scheduled for a question day once every three calendar months; and
(b)limited to matters which fall within the responsibility of the President"

(2)All other questions relating to the Presidency must be directed to the Deputy President or the Minister in the Presidency.

(3)Questions to the President must be submitted to the Secretary before 12:00 on the Monday, 9 days before the question day on which they are to be answered.

(4)A Notice of a question to the President which offends against the Practice or these Rules may be amended or returned to the Member for amendment.

(5)The number of questions to the President is limited to ten questions per question day.

(6)(a) The ordering of questions to the President shall be according to the numerical strength of the Parties in the Assembly.

(b)Where the order in which Questions are Put to the President according to Paragraph (a) is interrupted at the end of a Question session the next Question session to the President starts from the Point where the order was so interrupted.

Urgent questions

112.(1) A member may, with the permission of the Speaker, place an urgent question for oral reply on the Question Paper for a question day on which such a question would not normally be dealt with.

(2)A member who wants to place an urgent question on the Question Paper must deliver a signed copy of the question to the Speaker before 12:00 on the Tuesday in the week preceding the week in] Monday prior to the Wednesday on which the question is to be answered, clearly indicating that it is an urgent question.
(2A) The Speaker, in consultation with a whip representing the member who submits the urgent Question, must approve the urgent Question before it is placed on the Order Paper for the Wednesday on which it is replied to.

(3)If the urgent Question is approved it must -
(a)be submitted to the office of the Minister to whom it is addressed by close of business on the day on which it is submitted and
(b)        appear on the Order Paper on the Wednesday on which it is replied to.

Times allotted and time limits

113.(1) Questions for oral reply have precedence on Wednesdays.

(2)The time allotted for questions is two hours.

(3)The reply to a question is limited to three minutes. [but if the presiding
officer is of the opinion that the matter is of sufficient importance an additional two minutes may be allowed].

(4)In respect of each question, four supplementary questions may be asked.

(5)The member in whose name a question stands or who takes charge of a question in terms of rule 107(7), must be given the first opportunity to ask a supplementary question.

(6)A member who asks a supplementary question may make a statement or express an opinion, but may not speak for more than one minute.

[(7) A supplementary question may not consist of more than one question].

(8)The reply to a supplementary question is limited to two minutes.

Unanswered questions

114.(1) Replies to questions for oral reply which have not been reached at the end of the time allotted on a question day, must be submitted in writing to the Secretary for inclusion in the Official Report of the Debates of the Assembly.

(2)If a reply to such a question is not received by the Secretary by the end of business on the Wednesday when the reply was due -
(a)the department must instead submit in writing the reason why the question is standing over; and
(b)in the case of a question that has stood over in terms of paragraph (a) or rule 115(1) from a previous question day, the Question Paper must be endorsed to the effect that the question has not been replied to.

(3)This rule does not apply where questions to a Minister have to be put on the Order Paper for the following question day in terms of a direction by the Speaker under rule 109(3).

Questions standing over
115.(1) A question for oral reply must stand Over if the person to whom it is addressed
(a)so requests, either in the Assembly when the question comes up for reply, or by notice in writing to the Secretary before the start of question time on the day for which it is on the Question Paper; or
(b)is not present in the Assembly when the question comes up for reply and the question is not replied to by someone else on his or her behalf.

(lA) A Minister who wants a Question to stand over must
submit reasons in writing to the Secretary why the Question cannot be replied to on the date for which it is set down for reply.

(2)A question that stands over in terms of subrule (1) or rule 114(2) must be
(a)placed on the Question Paper for reply on the first Question day following the day for which it was initially placed,
(b)must be published at the end of the Question Paper, but may be prioritised in terms of rule 108(7).

[(3) Despite subrule (2)(a), a question standing over because the person to whom it was addressed not present in the Assembly when the question came up for reply, must be placed on the Question Paper for reply On the first question day following the day for which it was initially placed, if the member In whose name the question stands, or who takes charge of a question in terms of rule 107(7), so requests.]

(4)A question for oral reply may not stand over more than once.

[(5) If a question remains unanswered after standing over, rule 114(2) applies to that question.]

Part 3: Questions for written reply

Form and placing of questions

116.(1) A question for written reply
[(a) may be placed on the Question Paper for any working day
(b)] must be delivered to the Secretary before 12:00 on the Tuesday of the week during which it is to be placed on the Question Paper for reply.

(2)A question for written reply may not contain more than 15 subdivisions.

(3)Questions for written reply are limited to four questions per member per week.

(4)The restriction imposed by subrule (3) does not apply to questions referred to in rule 108(8).

Written reply not given

117.If the responsible Cabinet member has not replied in writing to a question within 10 working days of the day for which the question was set down for written reply, and the member in whose name the question stands, or who takes charge of a question in terms of rule 107(7), so requests, the Secretary must place the question on the Question Paper for oral reply.

QUORUM (Rules 25, 26 and 27)

1.Replace rules 25 and 26 with the following rules:

Quorum
25(1) The Assembly may proceed with its business irrespective of the number of members present but may vote on a Bill or decide on any question only if a quorum is present in terms of subrule (2).

(2)Except where the Constitution provides otherwise-

(a)a majority of the members of the National Assembly must be present before a vote may be taken on a Bill or an amendment to a Bill;

(b)at least one third of the members must be present before a vote may be taken on any other question before the Assembly.

Absence of quorum

If the attention of the presiding officer is called to the absence of the prescribed quorum when a question is put for decision and if after an interval of five minutes, during which time the bells must be rung there is still no quorum, the presiding officer may suspend the proceedings or postpone the decision of the question.

2.Delete Rule 27.

CERTIFICATION OF BILLS

1.Amend rule 243 by inserting the following subrules after rule 243(1):

(1A) A Bill introduced by a Cabinet Member or Deputy Minister must be certified by a State law adviser as being

(a)consistent with the Constitution; and

(b)properly drafted in the form and style which conforms to legislative practice.

(1B) If a Bill is not certified as contemplated in subrule (1 A), the Bill must be accompanied by a report or legal opinion by a state law adviser on why it has not been so certified.

Appendix 4
REPORT OF THE PORTFOLIO COMMITTEE (PUBLIC ENTERPRISES) TO
PARLIAMENT ON THE REPORT OF THE AD- HOC COMMITTEE ON
REPORT NUMBER 13 OF THE PUBLIC PROTECTOR AS REFERED TO THE
COMMITTEE.

I. PURPOSE
The purpose of this report is to report to Parliament on the following:

(a) Issues of corporate governance in the State Owned Enterprises and within government;
(b) An integrated approach on the management of the state shareholding in the State Owned Enterprise (SOE) as referred to the committee by the report of the ad hoc committee on report number 13 of the Public Protector. (Check paragraph 5(2) of the AHC report and recommendations contained in paragraph 4(4), 4(9) and 4(10).

2.BACKGROUND

The need for this report arises from a report, which was referred to the Portfolio Committee on Public Enterprises indicating matters of corporate governance breaches and requiring that the Portfolio Committee address these matters. In the light of the said report, this Committee was entrusted with a responsibility to consider and report to Parliament.

3. SUMMARY

The ADH report requested a report from this Committee to address the following matters as indicated in paragraph 5(2).

3.1 The management of issues of corporate governance within the SOEs.
3.2.The management of the issues of the State shareholding in the SOEs.

The current situation is that the shareholding~ in the SOEs is held by a principle of governance within the SOEs are handled in a diverse, varied and fragmented manner from department to department. This leads to confusion both to the SOEs and to the departments themselves and results in difficulties in managing governance issues

The fragmented approach in handling governance matters is also experienced with other public entities at National and Provincial levels. To this end some of the responsible departments at Provincial levels. may not be familiar with the Protocol on the Corporate Governance, which is a serious concern, requiring urgent attention.
4.         DISCUSSION

The ADC on Report of number 13 clearly indicates the following issues relating to Corporate Governance within SOEs Public Enterprises and within government.

· The need for a board with a balance of Executive and Non-Executive Directors. Reference should be made to the King Report on Corporate Governance for guidance in addressing these matters with particular reference to the work done by the Department on Corporate Governance.
·We also want to indicate that there is a need for a uniform approach to addressing Corporate Governance matters within government. (Reference to point 10 of page 153 of the King Report)

Those entrusted with the custody of the state assets must keep this obligation, as it will assist them in managing these assets in a manner that is in compliance with the principles of corporate governance as espoused in the Corporate Governance Protocol for the use in the Public Enterprises as published in October 1997.

These principles include:

Board such as appointments, remuneration, accountability, ethics, probity and overall performance of the board and the Public Enterprises.
· Roles of shareholder/s in relation to clarifying the multifaceted roles of Govemment as a shareholder. This includes clarifying reporting by the public enterprise to the respective departments.
· Financial reporting, transparency and audit both internal and external.
· Communication and participation all stakeholders.
· Technology, risk management and fraud detection plans.
· Compliance with the instruments of good governance, which include among others legislation. Memorandum and Articles of Association, Protocol on Corporate Governance, shareholder Compacts. Internal Business Policies and Procedures.

ln giving effect to the Protocol and the provisions or. the Treasury Regulations, the shareholder compacts have been developed for the use in the SOEs. The shareholder compact is an annual performance agreement entered into between the boards and the shareholder It seeks to clarify the roles and responsibilities of the parties and set out the performance targets to be attained by the SOEs annually in an attempt to achieve the
Ion g-term targets set out in the corporate plans. When the objectives and goals are set out in the shareholder compacts and its supporting documents as well as in the corporate plans, it is anticipated that there could be real maximization of the shareholder value as envisaged in the Restructuring Policy Framework of Government.

RECOMMENDATIONS:

In the light of the above, it is recommended that this House considers the following recommendations as charting the way forward in the handling the State's shareholding and governance matters

·That the Government Departments entrusted with the responsibility of managing shareholder matters attend to these matters in a uniform manner. This can be achieved through adopting the same processes including board appointment remuneration and induction policies. There has to be strict compliance with these policies as soon as they are adopted. This will assist in eliminating the fragmented approach in handling board related matters.
·The shareholding of SOEs should be handled in manner that allows for growth and prosperity, by defining the mandate of the SOE and allowing the professionals to give the SOE strategic direction that will optimally maximize the SOE's potential in business. This can be achieved by removing the uncertainties that the management of the SOEs encounter on a regular basis. These uncertainties generally arise from the multifaceted role of government as a shareholder regulator and stakeholder through various departments and at times one department performing most if not all of these roles. The department concerned could also find itself in a compromised position as in most instances it is likely to send mixed messages to the same SOE
· Where the Public Entities are placed under the executive authorities in terms of PMFA, the Executive Authority should fully discharge its authority and minimize a situation where National Treasury' takes full charge of the whole business reporting. This is because PMFA as it stands puts enormous responsibility on National Treasury for a number of business reporting which to a certain extent can lead executive authorities responsibilities not being taken seriously

Full financial responsibility of other public entities which are non-profit making entities can reside with National Treasury as they are either fully or partially subsidized by
government and have to account for the utilization of the assets at their disposal.
·A shareholding model will have to be considered by government. This model will assist government in addressing the fragmentation in handling the shareholding issues. It must be submitted that it has not yet dawned on some shareholding departments as to what the real meaning and responsibilities of the shareholder are. The business environment is not stagnant and requires frill preparedness and understanding of how to manage these issues as government without placing a heavy reliance on consultants.
· Whilst government is restructuring its SOE it is understood that this is done to achieve maximum efficiencies, it however has also to be understood that whatever asset has not bee restructured either through privatization, should also attain the same level of efficiency. This can be achieved where all these assets are managed through one system of shareholding, which will consider the investrnent possibilities and a full realization of the shareholder value. Various models exist in various countries where these models are being used successfully. In Ghana for example, the Ghanaian Commission is responsible for all state businesses. In Singapore a model referred to as a shareholding company is used, whilst in Australia and New Zealand they use the Treasury and the Auditor General's office to efficiently manage government shareholding. These models have to be investigated further with a view of finding a model that will be able to address the unique South African socio-economic requirements.
·In the meantime, extensive workshops for departments, provinces and even relevant portfolio committees are necessary to enhance the level of awareness and to entrench a culture of good governance both in government and business. These workshops should aim at clarifying the responsibilities of government as sole or major shareholder and how it relates with other shareholders where it is not the sole shareholder. The workshops should also be extended to all public entities popularizing good governance ethos within the entities.
·Those departments that have made significant progress in these issues should take a lead in driving these issues to avoid reinventing the wheel whilst others need to be fully capacitated to address these issues as a matter of urgency.
·Some systems are already in place and others are being developed to ensure that shareholding governance matters
are given effect to. These systems include the database of all public entities, the database of a pool of potential non-executive directors, board appointment and remuneration policies, board selection processes covering the induction, training and monitoring of performance of board members. There is always a scope for learning as the processes unfold, and departments can learn from each other and can improve on what has been done.

Report to be considered.