Interpretation of Rule 157, Role & Status of Committees; Auditor General's Report; Assembly's authority on sanction for non-attendance

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Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

21 August 2001

Chairperson:  Frene Ginwala
Report No.13 of the Public Protector
Memorandum on the Status of Confidential Documents obtained by individual members  Memorandum from Parliamentary Law Advisers on the SCOPA investigation of arms deal  Memorandum regarding proposals for handling of secret/confidential documents
Discussion Document on the Role and Status of Committees
Memorandum on Non-certification of a Bill by the State Law Advisers
Memorandum on the Introduction of Uncertified Bills
Guidelines on Requests for Debates on Matters of Public Importance and Matters of Urgent Public Importance (Rules 103 and 104)
All documents in Appendix below

Regarding Rule 157, it was felt that there was a need to consider how to deal with the various documents before making a final decision.  It was suggested that lawyers or accountants should be instructed to make recommendations on the Auditor General’s report and that forensic audits of constituency offices might be needed. 

The power to punish or suspend members could be provided for in the Rules but there was no such existing rule.

The Chair expressed concern at the way matters were dealt with by deferring the issues and felt that members were not doing their duty as public officers. There was a need for a new approach whereby members begin to act rather than defer.

There is no binding rule requiring legislation to be certified before it is passed through parliament, however there are a whole range of possibilities that need to be considered. 

Parties and sub-committees need to look at the Report of the Public Protector as it had been adopted by the National Assembly and was now a report of the National Assembly.

The Chair brought up the first item for discussion – Rule 157 regarding the disclosure of confidential documents.  She referred to the memorandum on the Status of Confidential Documents obtained by individual members but was not sure that the Committee was in a position to discuss the new annexure and felt that there was a need to consider how to deal with the various documents.

Adv De Lange (ANC) enquired whether it was suggested in this document that the rules might have to be amended or if they were sufficient as they stood.

He was answered that no amendment was suggested.

The Chair brought up the next item regarding the Role and Status of Committees.  This was a long document that had been requested but not distributed.  In terms of scheduling, it was clear that the Chair and Deputy Chair should be able to do more than schedule the meetings by being able to manage them as well.  The intention was that parliament should operate on a 5-year budget plan in order to facilitate this.

Adv De Lange stated that there was a need for co-ordination between the different Committees so that they could look at all the issues together as an integrated package.

The Chair then brought up the issue regarding support for the political parties.  She enquired whether the parties had considered the Auditor General’s report submitted at the previous meeting.

Adv De Lange replied that they had looked at it and though he had no specific answers, felt that the Rules had come straight from the “old parliament” and did not fit in with the current system.

Mr D Gibson (DP) suggested that lawyers or accountants should be instructed to look at the report and come up with guidelines or recommendations.  Forensic audits of the constituency offices should be carried out.

The Chair submitted that a more fundamental question was that of proportional representation and how did constituency offices fit into this.  There was a need to rethink the entire concept of constituencies.

The Chair raised the issue of the Assembly’s authority to suspend or punish members.  A report had been circulated by the late Justice Mohamed that indicated where the limits to the authority are.  In terms of the Rules there is a certain amount that can be done to impose a sanction through the implementation of appropriate rules.

Adv De Lange stated that the way to deal with this matter was overtaken at parliament level through the Power and Privileges Bill.

The Chair replied that the Chief Justice’s point was that there was no provision made in the Rules and the question would still exist even if legislation were passed.  It was up to the committees to implement something in the Rules.

The Chair raised the issue of sanctions against non-attendance of meetings.  Provision for this had been made in the Constitution but there was a need for it to be put into the Rules especially in the light of widespread criticism of non-attendance.

Mr Gibson recommended that before any scheme regarding the sanctions was implemented there was a need to sort out the administration of the system, members who were no longer Committee members were still receiving notices of meetings and being marked absent.

Adv De Lange stated that the matter should be dealt with via the Powers and Privileges Act then flow from there.

The Chair expressed concern at the approach taken, that of deferring dealing with issues.  As public officers, the members were not doing their duty and this was leading to a vicious downward cycle.  A different approach should be taken, that of starting to act.  It was up to the MP’s as representatives and the parties to address the issues.  The question of sanction was not up for discussion but how to implement the sanction.

Mr T Yengeni (ANC) said that the ANC had discussed the issue and felt that the matter should not be deferred but looked at holistically and in context.

The Chair raised the next issue, that of certification of legislation.  There was no binding rule that required legislation to be certified before it was brought before parliament.  There were a whole range of possibilities regarding certification that needed to be considered.

Adv De Lange stated that there was no particular rule regarding this matter, it was more of a practice that had developed and could be remedied by a simple rule change that would allow for certification to be one of the requirements needed before introducing a Bill.

Mr J Jeffrey suggested that the question could be solved by a detailed report from the legal advisers on the Constitutionality of the legislation prior to it being passed.

The Chair stated that there was a need to recognise that legislation could not be passed if there was a question on its Constitutionality.  All the parties need to discuss the principle apart from the detail.

The Chair raised the last issue, that of the report of the Public Protector.  The National Assembly had adopted the report and therefore the subcommittees and parties need to look at the report.

The meeting was adjourned.

The question has arisen what the implications would be if a member of the Executive were to introduce a Bill that has not been certified by the State Law Advisers.

There is no law or rule that requires any Bill to be certified by the State Law Advisers.  However, in terms of a long-standing arrangement or convention it is the task and responsibility of the State Law Advisers (in the Department of Justice) to ensure that all Bills introduced by the Executive have been properly drafted.  In this respect the State Law Advisers have the role fulfilled by what is termed "Parliamentary Counsel" in various other Commonwealth countries.  In the process it is customary for a Bill to be "certified" by a State Law Adviser when it is ready for introduction to Parliament.  That Law Adviser will then also be available to provide (objective) legal advice to parliamentary committees considering the Bill, and to assist with the drafting of amendments, where necessary.

In the normal course of events a state department initiating legislation would prepare a draft to be presented to Cabinet by the Minister concerned for approval in principle.  That is the draft which must be submitted to Parliament in terms of Joint Rule 159.  However, that draft is usually not ready for introduction to Parliament.  That (lay person’s) draft is then also referred to the State Law Advisers - for legal scrutiny and drafting.  It is for them to analyse the subject matter of the draft from a legal perspective on the basis of proper drafting instructions, including all relevant policy documents, explanatory memorandums and Cabinet decisions, and to prepare a proper, logically structured and coherent Bill that accurately reflects agreed government policy and harmonises in all respects with existing law, including the Constitution.  This is the process envisaged in Joint Rule 159(1)(a), namely to formalise the draft, legally and technically, as a "proper draft Bill".

The possible implications of the introduction of an uncertified Bill are obvious: Parliament would have no assurance that the Bill has been properly drafted and is consistent with the Constitution and the law in general.  Furthermore, the services of an expert drafter from the State Law Advisers who is fully conversant with the Bill will probably not be available to the parliamentary committees considering the Bill.

Clearly it would be an unacceptable state of affairs if Bills were to be introduced into Parliament without having been properly drafted and formalised (by expert drafters).  Parliament does not have the capacity to draft or redraft legislation to be introduced by the Executive.  The Legislation and Proceedings Section does a lot to improve the text of Bills before introduction, but no amount of editing can transform a structurally or legally defective draft into an acceptable Bill.


TO: Speaker
 cc. Secretary to the National Assembly
FROM: Parliamentary Law Advisers
DATE:              7 August 2001

1. We have been requested to comment on whether there would be any legal implications if a bill, which has not been certified by the State Law Advisers, were introduced in Parliament.
2. We spoke with Adv Otto Kellner, one the State Law Advisers, regarding the question of certification of bills by the State Law Advisers. He informed us that the requirement that State Law Advisers certify all bills emanating from the executive was a Cabinet decision taken sometime in 1994. He said that this practice has since always been adhered to, and it has now become a convention for State Law Advisers to certify every bill emanating from the executive before it is introduced in Parliament.
3. Adv Kellner said that as far as he could recall, certification is aimed at two things. Firstly, it is intended to avert possible legal and constitutional challenges to a bill. State Law Advisers have to ensure that all bills emanating from the executive are consistent with the Constitution and the law in general. They do so by scrutinising draft bills from government departments and where necessary, formulate amendments to such draft bills before they are introduced in Parliament.
4. The second reason is that once a State Law Adviser has certified a bill, he or she becomes available to the relevant parliamentary committee and Parliament to answer questions arising from the bill and to formulate amendments. In this way, the involvement of State Law Advisers facilitates the passage of bills through Parliament. They are also able to offer objective advice to Parliament on a particular bill. Once a State Law Adviser is satisfied that a particular bill is properly drafted so as to reflect the policy of the relevant department, and does not conflict with the Constitution and other laws, he or she certifies the bill.
5. We are not aware of any provision in the Constitution, other laws or the rules that require a bill to be certified by the State Law Advisers before introduction.

TO: Chairperson: SCOPA
FROM: Parliamentary Law Advisers
DATE: 09 July 2001
1. You requested our guidance relating to two concerns raised by you in connection with the investigation of the "Arms Deal".
2. Your first concern is that SCOPA (by majority decision) has decided not to undertake further investigation of the Arms Deal despite the fact that.
· SCOPA's 14th Report of 2000 envisaged such investigation
· the Speaker, in addressing SCOPA on 29 January 2001, said that SCOPA must continue with the investigation; and
· SCOPA's Chairperson has tried to get the committee to continue with the investigation.
3. The matter in question is before SCOPA by virtue of the Special Review of the Auditor General (RP161/2000), which was referred to SCOPA in terms of NA rule 206(2). It is for SCOPA to decide how to deal with the matter. The only requirement of the Rules is that SCOPA must report to the Assembly on all decisions taken by the Committee (NA rule 137(1)).
4.The question whether SCOPA should at this stage continue with its own investigation into the Arms Deal is not a legal question, on which we can give a legal opinion. In essence it is a matter of policy, and given the highly politicized nature of the whole issue we think it would be inappropriate for us as parliamentary officials to express any views on that.
5.The second concern raised by you is whether it would be permissible for a member, in his or her individual capacity, to pursue their own investigation into the Arms Deal and, for that purpose, to request confidential documents from State Departments. As a rule what a member does in his or her private or individual capacity does not form part of the proceedings of Parliament or a committee of Parliament. A member is free to investigate anything on his or her own initiative, but unless the House or a committee has specifically requested or mandated such investigation, neither the House nor any committee will be obliged to receive or consider the results of the member's investigation.
6. It follows that any investigation by an individual member of SCOPA does not amount to an investigation by the National Assembly or SCOPA. Therefore, no State Department and no official of a State Department will be under any (constitutional) obligation to supply any confidential information or document to that member (subject to the Promotion of Access to Information Act, 2000). It simply is not an official parliamentary investigation.

Parliamentary Law Advisers
To: Speaker
From: P Lilienfeld/ K Hahndiek
Wednesday, June 27, 2001
You requested a procedure for the receipt by Parliament of secret or confidential documents.

The following assumptions have been made in drawing up a draft procedure:

1. that for the most part, such documents would be for the consideration of a committee of Parliament;

2. that the procedures would be requested only in the case of highly confidential documents.

The Manager: Protection Services and the Head: Committee Section, as well as the law advisers, have been consulted.

Decision on receipt of secret documents
1. The relevant presiding officer/s of Parliament [depending on the House/s involved] to have the discretion, on receipt of a request by the committee chairperson concerned, to consent to Parliament receiving secret documents.

2. In deciding whether it is justified to apply this procedure to any document/s, the presiding officer/s would have regard to the MISS [Minimum Information Security Standards] classification of the documents by the relevant government department if the documents emanate from a department.

3. The Secretary to Parliament to be informed of any such decision to receive secret documents.

Receipt of documents
The Secretary, or a senior official specifically designated by him (SEC), as well as the Head of Security in Parliament, or a security official specifically designated by him (HS), will
 • jointly, both being present for the handing over, receive the documents;

• issue a detailed receipt, signed by HS and SBC, to the person delivering the documents; and

• keep a copy of the detailed receipt with the documents at all times.

• Together deposit the documents in the safe designated for this purpose and both lock the safe, retaining the respective keys.

SEC and HS will each hold a different key to the safe in which the documents are held. The safe to be of the kind with two locks that requires to be opened with two different keys.

The Clerk of the Papers is proposed as the official to whom routinely such responsibilities are designated.

For this purpose, such a safe or strongroom to be identified and used for this purpose only. The safe should be located in or close to the Secretary's office. The strongroom near the office of the Clerk of the Papers would be suitable. [See also Disposal of documents" below.]

Viewing of documents
1. Authorisation for viewing" of documents to be granted by the relevant committee chairperson, who must convey the authorisation in writing to the Secretary to Parliament.

2. Specific days and times outside of which no viewing may take place, must be set aside. Proposed: Viewing times to be limited to Mondays to Wednesdays from 0930 to 1230 - any variation to be authorised by a presiding officer.

3. The Secretary to set aside and book a viewing venue.

4. HS & SEC jointly to open safe and convey documents to venue

5.  Serjeant-at-Arms or Usher (depending on the House) or a suitable replacement from the security staff (SJA) to be present throughout the viewing.

 6. At the discretion of the Head of Security, the venue to be guarded from the outside by police/security staff.

7. Only fill (not alternate) members of the committee are authorised to enter the viewing venue. Alternate members need specific authorisation in writing by the chair of the relevant committee to view. Staff to enter room only at discretion of

8. Members to sign a register on entering and leaving the viewing venue, noting the time.

9. Documents to remain throughout in fill view of SJA, and no document or part thereof is to be removed by members.

10. No cameras, audio-visual equipment or electronic equipment to be brought into the viewin2 venue.

11. Members may take notes but such notes should not be a word-for-word copy of the contents of documents.

12. SJA to call Security immediately in the event of any breach or threat of breach, and to take such steps as he deems necessary to ensure security.

13. The SJA will, at the start of the viewing, inform members of the conditions of v1ew~ng, and caution members about keeping secure the notes which they take with them after viewing.

14. On conclusion of the viewing, the SJA to call the HS & SEC, collect the documents and check them against the receipt. The HS & SEC will together convey the documents back to the safe and lock it.

Disposal of documents
1. When Parliament has no further use for the documents, they may be returned to source.

2. If it is decided that the documents are to remain part of the parliamentary record facilities and systems for the permanent secure archiving of secret documents will have to be investigated. If the volume of such documents increases, the purchase of additional facilities may be necessary.

 3. The Secretary to Parliament, who may delegate his responsibility in this regard to the Clerk of the Papers, to be responsible for secure archiving.

4. Access to material after secure archiving. Written motivated requests to be submitted to the Clerk of the Papers (acting under the power of the Secretary) who would make a recommendation to the relevant presiding officer/s.

Guidelines on Requests for Debates on Matters of Public Importance and Matters of Urgent Public Importance (Rules 103 and 104).
20 August 2001
(Prepared by NA Table)

These Rules make special provision to reconcile the needs of private members with the unobstructed progress of Government business and other programmed business, by making it possible for private members to request the Speaker to allow discussion of matters which they consider to be of public importance to take precedence of other programmed business in certain circumstances.

The Speaker has a discretion to grant or disallow such a request. In exercising her discretion, the Speaker is consistently guided by the following criteria:

Matter of Public Importance (Rule 103)
The request must deal with a matter for which the Government can be held responsible.
The matter must be definite and specific.
The request must not deal with more than one matter.
The request will not be granted if the matter can be dealt with by some other means in the near future.
The sub judice rule applies.
The rule of anticipation applies.
If approved, the date and time of the debate will be subject to the availability of the responsible Minister.

Matters of Urgent Public Importance (Rule 104)

This Rule provides for a request for such a debate to be received by 12:00 on a sitting day for that debate to be held on the same day.

This Rule has not yet been used since 1994.

The criteria the Speaker would use when considering such a request include:
The subject matter must be of so serious a nature that it requires immediate attention.
The subject must relate to a specific matter of recent occurrence, and not to a general state of affairs or to a matter of policy.
Such a request should only be allowed under very special circumstances (eg a sudden emergency).
The request must not deal with more than one matter.
The request should not be granted if the matter can be dealt with by some other means in the near future.
The request must concern a matter for which the Government can be held responsible or that comes within the scope of ministerial action.
The matter must be raised at the earliest opportunity.
Adequate notice must be given to the responsible Minister.
The sub judice rule applies.

TO                                : SPEAKER
FROM                           : K HAHNDIEK
DATE                           : 20 AUGUST 2001
                                      INDIVIDUAL MEMBERS
(1) A member informed the Speaker that he had in his individual capacity requested the Executive to supply confidential documents to him. On receipt he would be submitting them to the Speaker to have them placed in the custody of Parliament.

(2) NA Rule 157 only concerns “all documents officially before … a committee”.
The law advisers, in a separate opinion (attached), indicated that “what a member does in his or her private or individual capacity does not form part of the proceedings of Parliament or a committee of Parliament”.

(1) Strictly speaking, there are no grounds for Parliament to take into its custody documents in the possession of an individual member where such documents are not formally before Parliament or its committees. Those documents have no Parliamentary status.

(2) A member attempting to obtain a document in his/her individual capacity should not in the request be indicating that the document will be placed in Parliament’s custody, thereby suggesting that the document will have a Parliamentary status and will therefore be adequately protected, while that is not the case.

(3) A policy decision could be taken – as a service to members – to provide safekeeping facilities for individual members, but the responsibilities attached to that would require careful consideration.

(4) If such facilities are to be provided -
(a) directives would have to be put in place regarding the nature and extent of providing access to any documents in Parliament’s safekeeping on behalf of an individual member.
(b) any person supplying documents should be under no misapprehension as to Parliament’s responsibility.
(c) there will be a cost factor to Parliament in respect of physical facilities and staff duties.

(1) All members should as soon as possible be made aware of the distinction between documents formally obtained by Parliament or its committees, and documents obtained by a member in his/her individual capacity as a member.
(2) Pending further consideration of the issues involved, Parliament should not take into its custody documents that have no official status.

(prepared by NA Table)
1.                     Background
(1)                    At a meeting of the National Assembly Rules Committee on 2 March 2001 a discussion was held on the role and status of committees, based on differing practices that have developed and problems that are being experienced.

(2)                    It was agreed that the issues that had been raised should be worked into a comprehensive discussion document which would be circulated to members of the Rules Committee and committee chairpersons. The document should also form the basis for further discussion by parties and in the Committee of Chairpersons.

(3)                    The following broad issues were raised and are dealt with in separate paragraphs:
-Spread of committees.
-Committee mandates and interaction with House.
-Committee reports.
-Committees’ relations with the Executive.
-Support for committees.
-Time available for committees.
-Other issues.

2.                     Constitution and the Rules
(1)                    It was stated that the legal position was clear regarding the authority of Parliament and the relative role of committees. (Sections 55 – 57 of the Constitution, attached). Committees form an important component of Parliament and are a mechanism created by Parliament, but authority vests in Parliament itself. Committees are given some rights, such as the power to issue summons, but essentially their role is to make recommendations for approval by Parliament.

(2)                    The two Houses have approved Rules which give committees a broad mandate. Problems arise, however, from the application or non-application of the Rules. The Rules are new and a common understanding of their import and application still has to develop.

3.                     Spread of committees
(1)                    In the Assembly committees were established parallel to State departments. However, in the Executive arm of government, policy was now being integrated across departments. Many policy-related issues therefore cut across a number of committees. How should committees be structured to ensure that they were most effective in exercising oversight and accountability?

(2)                    Options would be –
-To rely on committees conferring.
-To cluster or rationalise committees.

4.                     Committee mandates and interaction with House
(1)                    A common understanding is needed of the role and function of committees as provided for in the Constitution and the Rules. To what extent are they empowered to act autonomously of the Assembly? As mechanisms created by the Assembly, their consequent interaction with the Assembly by way of reports and recommendations needs to be developed into an effective practice. An understanding of the role of committees will also clarify how they relate to the Executive.

(2)                    In this regard, some current experiences were noted:
(a)                    Committees write a direct role for themselves into bills, requiring departments to link directly with them.
(b)                    Committees in terms of certain legislation make recommendations for appointment of office-bearers directly to the Presidency, without approval by the House being required.
(c)                    Committees send bills back to departments, effectively thereby withdrawing them from Parliament.
(d)                    Departmental reports and papers that should be formally tabled in Parliament are presented directly to committees.
(e)                    Committees independently secure sponsorships and external funding.
(f)                     Committees engage formally with the Executive without the knowledge, or approval, of the House.
(g)                    Committees are controlled with too light a hand.
(h)      Committees do not interact sufficiently with the House by way of

(3)                    A procedure should be developed that must be complied with when a committee wishes to write a role for Parliament into legislation.

5.                     Committee reports
(1)                    In carrying out their mandates, committees interact with the House by way of reports. Committee reports are therefore very important.

(2)                    Committees should report regularly on their activities. They should also report on any tours that are undertaken.

(3)                    Reports can be presented for information or specifically for consideration and/or adoption by the House. Consideration should be given to procedures to determine which reports –
-Merely get printed on the ATC for information.
-Are placed on the Order Paper for debate only.
-Are placed on the Order paper for debate and/or adoption.

(4)                    Consideration should also be given to –
-The status of a report after adoption by the House.
-Options available to the House when a decision is to be taken on a report (including motions for adoption, and nature and extent of possible amendments in the House).
-Channels for formal communication of reports after adoption by the House, and for formal responses to such reports.

(5)                    Committee reports should receive more attention in the House. Frequently consideration by the House is limited to adoption without debate.

(6)                    Committee reports should comply more fully with rules requirements in respect of their scope and content. Also, where committees present recommendations for decision by the House, these recommendations should be clearly distinguished and accurately formulated. A standard approach to formatting and construction of reports should be developed.

(7)                    Committees need to be given the resources for the preparation of substantive reports.

6.                     Committees’ relations with the Executive
(1)                    The nature of committees’ relations with the Executive is closely linked
with what the role and functions of committees is understood to be, and
the extent of their autonomy (see paragraph 4 above). The approach to
the principle of the separation of powers also has a direct bearing on
the relations between the Executive on the one hand and Parliament
and its committees on the other.

(2)                    For purposes of exercising its functions of overseeing Executive action
     and holding the Executive accountable, a committee will regularly 
     interact directly with appropriate roleplayers in State departments and
     other organs of State. Such operational interaction should however be 
     distinguished from formal communications and interaction which belong
     on the level of exchanges and co-operation between Parliament and the
     Executive, each with its specified area of authority.

(3)                    Various examples of direct interaction between Committees and the Executive are given in paragraph 4. It was also noted that there are instances when Ministers contact committees direct – not necessarily only on operational issues.

(4)                    A common understanding needs to be developed of appropriate relations and interaction between committees and the Executive.

(5)                    The role of presiding officers as formal spokespersons for Parliament needs to be emphasised.

7.                     Support for committees
(1)                    Essential resources for committees must be provided by Parliament to enable them to function effectively.

(2)                    Oversight of a department is often dependent on information and reports supplied by the very department that is being overseen.

(3)                    Committees should have the capacity for -
-Independent research.
-Report writing.
-Adequate minuting records.
-Summarising and assessing of public submissions.
-Maintaining a register of papers referred to a committee.
-Legal and procedural advice and guidance.

(4)                    The Committee Section, in summary, needs to be strengthened in respect of both its capacity and its authority. Committee chairpersons should be engaged on this aspect.

8.                     Time available for committees
(1)                    Committees are allocated insufficient time in the Parliamentary programme to do their work. During session, meetings can only take place two days per week. As a result, the quality of committee work tends to suffer.

(2)                    A proposal was made that one week per month should be set aside for committee work.

(3)                    Committees should also develop work programmes. However, such work programmes and scheduled meetings were sometimes disrupted by
directives received from the Programme Committee.

9.                     Other issues
(1)                    The nature of Parliament’s function of conducting oversight and holding the Executive accountable: This is the subject of a separate investigation by a Joint Rules Subcommittee.

(2)                    Exercising control over delegated legislation (such as ministerial regulations) is also receiving separate consideration.

(3)                    The application of Parliamentary privilege in committees needs to be clarified. The Powers and Privileges of Parliament Act is presently being revised.

(4)                    The manner of dealing with confidential documents in terms of Rule 157 is being considered separately by the Rules Committee.

(5)                    The role of study groups is also important. Members serving on committees should have clarity on their parties’ policies on particular issues and should where necessary be appropriately mandated.

(6)                    Committees indicate when debate in plenary is advised on a particular issue, but it is necessary for the Assembly, members and the public that debates should be conducted in plenary on many of those issues.


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