ATC180529: Report of the Ad Hoc Committee on the Review of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, dated 29 May 2018

Powers and Privileges of Parliament

Report of the Ad Hoc Committee on the Review of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, dated 29 May 2018
 

The Ad Hoc Committee on the Review of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, having reviewed the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2003 (Act No.4 of 2004) (“the Act”), in light of the Constitutional Court judgment in Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 8, (“the Constitutional Court judgment”), reports as follows:

  1. Introduction
    1. Following the Constitutional Court judgment handed down on 18 March 2016, which found that the omission of the words “other than a member” after the word “person” at the beginning of section 11 of the Act is inconsistent with the Constitution, the National Assembly, on 19 May 2016, resolved to establish an Ad Hoc Committee on the Review of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (“the Committee”) in terms of NA Rule 253(1)(a) to align the Act with the Constitutional Court judgment and to bring the principal Act in line with the developments relating to parliamentary powers and privileges.

 

  1. The Constitutional Court majority judgment made key findings, namely:

 

  1. That members’ freedom of speech contained in sections 58(1) and 71(1) may only be limited by the Rules and Orders of the Houses of Parliament;

 

  1. That the word “person” in section 11 of the principal Act includes a member and as a consequence allows for the arrest of a member which would infringe upon the immunities of members as per sections 58 and 71 of the RSA Constitution; 

 

  1. That section 11 of the principal Act was constitutionally invalid to the extent that it applies to members of Parliament, but that it will continue to apply to non-members;  and

 

  1. That the Court cured the constitutional defect by reading in the words “other than a member” after the word “person” in section 11 of the principal Act to ensure that the section does not apply to members.

 

  1. The Committee’s terms of reference was to review the Act by taking into account the Constitutional Court judgment, to bring it in line with developments relating to parliamentary powers and privileges, and to introduce a bill in accordance with chapter 13 of the Assembly Rules.

 

  1. Committee Membership

 

  1. The Committee comprised of 11 permanent members and 6 alternate members of Parliament. The representation of political parties in the Committee was as follows: ANC 6, DA 2, EFF 1, and other parties 2.

 

  1. The permanent members were:
  • Dr M S Motshekga (ANC) (Chairperson);
  • Mr M S Booi (ANC);
  • Ms N R Mokoto (ANC);
  • Mr R M Tseli (ANC);
  • Mr M L D Ntombela (ANC);
  • Mrs J D Kilian (ANC);
  • Dr A Lotriet (DA);
  • Ms N W A Mazzone (DA);
  • Mr N S Matiase (EFF);
  • Inkosi E M Buthelezi (IFP); and
  • Mr J M K Mahumapelo (AgangSA).

 

The alternate members were:

  • Ms M R Semenya (ANC);
  • Dr P Maesela (ANC);
  • Mr J H Steenhuisen (DA);
  • Mr M Waters (DA);
  • Rev K R J Meshoe (ACDP); and
  • Mr M L Shelembe (NFP).

 

  1. Process

 

  1. The Committee held eight meetings. At its first meeting held on 27 May 2016, the Committee received a briefing on its terms of reference, the key findings of the Constitutional Court judgment and its implications on the Act. The Committee agreed to review the Act beyond the implications of the Constitutional Court judgment and to consider other sections of the Act for possible amendment. The Committee requested a comparative study on international best practices and conventions relating to parliamentary powers and privileges. Countries’ conventions consulted included Kenya, the United Kingdom, Canada, Australia and New Zealand. Moreover, the Committee received and discussed the presentations on the majority and minority judgment; in order to assess the views expressed by all the judges. The Committee also received a presentation of the entire Act and possible sections to be reviewed. A draft Bill was prepared and discussed in detail by the Committee.
  2. The Committee resolved to consult broadly and agreed that this consultation would benefit the review process. To this end, it invited the public to submit written submissions on the Draft Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill, 2018 (“the Draft Bill”), prepared by the Committee. The invitation to the public was published in the Government Gazette No. 41456 on 23 February 2018. Furthermore, the Committee requested inputs from political parties within Parliament regarding any concerns or challenges they may have regarding the Act. 

 

  1. The invitation to the public for comment yielded one submission from Ms Rita Felgate, which dealt with the footnotes in the Act and a grammatical issue. The Committee deliberated on the issues raised in her submission and resolved that there was no need for the Draft Bill to include any consequential amendments to Footnote 1 of the Act in relation to amendments made to section 58 of the Constitution, as suggested by the submitter, as Footnote 1 already incorporated all the amendments that were made to section 58 of the Constitution as amended by the Constitution Sixth Amendment Act.  The Committee also resolved that since the Footnotes in the Act merely restated the content of the constitutional provisions referred to, and did not contain any substantial content, there was no need to clarify the status of the Footnotes.  The Committee however agreed that the apostrophe in the word “legislatures’ ” in clause 10 of the Draft Bill was misplaced and should be corrected but was of the view that the word should remain in small letters to conform to the drafting style and language of the Act.

 

  1. The Committee deliberated on the lack of public interest in the Bill but acknowledged that this could have been due to the nature and content of the Bill. The Committee took reasonable measures to facilitate public participation and even called for comment from internal political parties as this Bill affects Members, but there was minimal response from parties. The draft Bill was published in the Government Gazette in accordance with the rules and procedures of Parliament. While the Committee received one public submission, it resolved not to conduct public hearings as the submission dealt with technical issues relating to the footnotes in the Act and a grammatical issue.

 

  1. Draft Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill, 2018
    1. Background

On 9 May 2018, the Committee considered the draft Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill, 2018, clause-by-clause and adopted the Bill, as follows:

  1. The preamble was adopted.

PREAMBLE

BEARING IN MIND that the Constitutional Court found, in the case of Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 8, that freedom of speech in the National Assembly and the National Council of Provinces as contemplated in sections 58(1)(a) and 71(1)(a) of the Constitution is subject only to the relevant House’s respective rules and orders and cannot be regulated in an Act of Parliament;

AND BEARING IN MIND that the immunities provided for in sections 58(1)(b) and 71(1)(b) of the Constitution are absolute,

  1. Amendment of section 1 of Act 4 of 2004. Clause 1 was adopted.

1. Section 1 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2003 (Act No. 4 of 2004) (hereinafter referred to as the ‘‘principal Act’’), is hereby amended by the substitution for the definition of ‘‘disturbance’’ of the following definition:

‘‘ ‘disturbance’ means any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of Parliament or a House or committee but does not include an act committed by a member in the exercise of his or her privilege contemplated in sections 58(1) and 71(1) of the Constitution;’’.

  1. Amendment of section 7 of Act 4 of 2004. Clause 2 was adopted.

2. Section 7 of the principal Act is hereby amended by the substitution for paragraph (f) of the following paragraph:

‘‘(f) fail or refuse to comply with [an] a lawful instruction by a duly authorised staff member regarding—

  1. [the] his or her presence [of persons] at a particular meeting in the precincts; or
  2.  the possession of any article, including a firearm, in the precincts or any part thereof.’’.
    1. Substitution of section 11 of Act 4 of 2004. Clause 3 was adopted.

3. The following section is hereby substituted for section 11 of the principal Act:

‘‘Persons creating disturbance

11. A person, other than a member, who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.’’

  1. Amendment of section 12 of Act 4 of 2004. Clause 4 was adopted.

4. Section 12 of the principal Act is hereby amended by the insertion in subsection (5) of the word ‘‘or’’ at the end of paragraph (f).

  1. Substitution of section 22 of Act 4 of 2004. Clause 5 was adopted.

5. The following section is hereby substituted for section 22 of the principal Act:

     ‘‘Liability for acts done under authority of Parliament

     22. No person is liable [in] for damages or otherwise for any act done in good faith in terms of this Act, or under the authority of a House or committee and within the legal powers of the House or committee, or under any order or summons issued by virtue of those powers.’’

  1. Amendment of section 23 of Act 4 of 2004. Clause 6 was adopted.

6. Section 23 of the principal Act is hereby amended by the insertion in subsection (2) of the word ‘‘or’’ at the end of paragraph (a).

  1. Amendment of section 24 of Act 4 of 2004. Clause 7 was adopted.

7. Section 24 of the principal Act is hereby amended by the substitution for paragraph (a) of the following paragraph:

‘‘(a) the registrar or clerk of the court sentencing that [person] member or that permanent delegate must in writing inform the Speaker or the Chairperson, as the case requires, of the nature of the offence and the sentence imposed; and’’.

  1. Amendment of section 25 of Act 4 of 2004. Clause 8 was adopted.

8. Section 25 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection:

‘‘(2) The committee referred to in section 12(2) must, subject to the standing rules, consider the request and, if approved, publish the response of the aggrieved person in the appropriate parliamentary paper.’’

  1. Amendment of section 28 of Act 4 of 2004. Clause 9 was adopted.

9. Section 28 of the principal Act is hereby amended—

(a)  by the substitution in subsection (2) for the full stop at the end of paragraph (f) of ‘‘; and’’;

(b) by the addition in subsection (2) after paragraph (f) of the following paragraph:

‘‘(g) disturbance, must be construed as excluding an act committed by a member of a provincial legislature or the province’s permanent delegate to the National Council of Provinces in the exercise of his or her privilege contemplated in section 117(1) of the Constitution.’’; and

(c) by the addition after subsection (2) of the following subsection:

‘‘(3) For the purposes of section 12(2), a provincial legislature may choose to either appoint a standing committee or establish an ad hoc committee.’’

  1. Insertion of section 28A in Act 4 of 2004. Clause 10 was adopted.

10. The following section is hereby inserted in the principal Act after section 28:

‘‘Control over precincts of provincial legislature

28A. The Speaker of a provincial legislature, subject to this Act and that legislature’s rules and resolutions, exercises control and authority over the precincts on behalf of that legislature.’’

  1. Amendment of section 29 of Act 4 of 2004. Clause 11 was adopted.

11. Section 29 of the principal Act is hereby amended by the insertion in subsection (2) of the word ‘‘or’’ at the end of paragraph (a).

  1. Amendment of section 30 of Act 4 of 2004. Clause 12 was adopted.

12. Section 30 of the principal Act is hereby amended by the substitution for paragraph (a) of the following paragraph:

‘‘(a)     the registrar or clerk of the court sentencing that [person] member must in writing inform the Speaker of the provincial legislature of the nature of the offence and the sentence imposed; and’’.

  1. Substitution of section 32 of Act 4 of 2004. Clause 13 was adopted.

13. The following section is hereby substituted for section 32 of the principal Act:

‘‘Short title

32.   This Act is called the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, [2003] 2004.’’

  1. Short title. Clause 14 was adopted.

14. This Act is called the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Act, 2018.

  1. Memorandum on the objects of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill, 2018 was unanimously agreed to by the Committee. The Committee considered the entire Bill. Out of seven members present, six members voted for adoption of the Amendment Bill and Dr Lotriet reserved her position. The Bill was accordingly agreed to on 9 May 2018.
  2. Recommendation

The Committee recommends that the Assembly passes the draft Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill, 2018.

  1. Acknowledgement

The Committee wishes to express its profound gratitude to Ms Rita Felgate who took time to make a submission, thus contributing to the development of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill, 2018.

Report to be considered

 

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