ATC090127: Report: Oversight & Accountability Model

Joint Rules

 CONTENTS

Chapter 1: Introduction

1.1   Constitutional precepts guiding the vision and mission of Parliament

1.2                        Constitutional requirement for mechanisms on oversight

1.3                        Composition and mandates of Parliament

1.4                        Mandates of focus groups

Chapter 2: The role of Parliament in relation to oversight and accountability as mandated by the Constitution

2.1            Defining oversight

2.2                           Defining accountability

2.3                           Constitutional provisions expressing powers and functions of Parliament on oversight and accountability

Chapter 3: Institutional characteristics of oversight and accountability and existing mechanisms utilised by Parliament

3.1                           Current mechanisms for oversight and accountability

3.2                           Tools for oversight and accountability

 

Chapter 4: New mechanisms for oversight and accountability

4.1                           New mechanisms

4.2                           Maximising current mechanisms

4.3                           General recommendations

Chapter 5: Procedure for amending money bills

5.1                           Terms of reference of Budget Focus Group

5.2                           Recommendations

Chapter 6: Co-ordination amongst the spheres of government on oversight

6.1                           Co-operative government

6.2            Values and principles guiding institutional oversight

6.3      Introducing the parliamentary oversight cycle as a guide for oversight processes

 

Chapter 7: Increasing the capacity of committees and members

7.1                            Training                                                                        

7.2                            Additional support

Chapter 8: Best Practice Guide

8.1      Best Practice Guide (BPG)

Chapter   9: Projects Focus Group [Constitutional Landscape Governing Oversight]

9.1      Introduction

9.2                           Audit of bodies performing public functions                                      

9.3                           Constitutional landscaping                                                               

9.4                           Review of the rules                                                                        

Chapter 10: Conclusion                                                                              

References

Annexures

 

 

National Assembly and National Council of Provinces

 

1.         The Speaker and the Chairperson

 

(a)     The Speaker of the National Assembly and the Chairperson of the National Council of Provinces, as co-chairpersons of the Joint Rules Committee, present the Second Report of the Joint Rules Committee for 2008, as follows:

 

SECOND REPORT OF JOINT RULES COMMITTEE, 2008

 

The Joint Rules Committee, having on 19 March 2008 considered the report of the Task Team on Oversight and Accountability in regard to the Oversight and Accountability Model and having agreed to the model in principle, recommends the model for consideration by the Assembly and the Council:

 

 

 

CHAPTER 1: INTRODUCTION

1.1     Constitutional precepts guiding the vision and mission of Parliament

Parliament's strategic vision is to build an effective people's Parliament that is responsive to the needs of the people, and that is driven by the ideal of realising a better quality of life for all the people of South Africa and its mission is to represent and act as a voice of the people in fulfilling Parliament's constitutional functions of passing laws and overseeing executive action.

Based on the vision and mission of Parliament and the constitutional requirements Parliament hereby develops mechanisms to guide its work on oversight in the form of an oversight model.

Historically, the 1994 elections ushered in a new democratic order in South Africa. The extraordinary participation by South Africans showed that we desired an end to the divisions of the past and a move towards establishing a society based on democratic values, social justice and fundamental human rights. The process of negotiations, which preceded the 1994 elections, resulted in the drafting of a new Constitution, as adopted on 8 May 1996 by theConstitutional Assembly.

The mandate of Parliament is achieved through passing legislation, overseeing government action, and facilitating public participation and international participation. The role of Parliament includes the promotion of the values of human dignity, equality, non-racialism, non-sexism, the supremacy of the Constitution, universal adult suffrage and a multi-party system of democratic government. It upholds our citizens' political rights, the basic values andprinciples governing public administration, and oversees the implementation of constitutional imperatives.

Much of Parliament's focus in the first decade of democracy was on ensuring the transformation of South Africa's legislative landscape, in line with the country's first democratic Constitution, Act 108 of 1996. In this process, Parliament's oversight function received less attention, and was compounded further by the reality that the Constitution deals with Parliament's legislative authority in more detail compared to its oversight role.

In giving credence to its increasingly important oversight role, Parliament's new strategic vision, namely to build an effective people's Parliament "... that is driven by the ideal of realising a better quality of life for all the people of South Africa", underpinned the manner in which the organisation began engaging on the need to institutionalise public participation as an integral part of its oversight function. The motivation for political delegations to undertake the management of the legislative and oversight programme of Parliament demands capacity, competence and collective action.

1.2     Constitutional requirement for mechanisms on oversight

Against this backdrop, and in the context of sections 42(3) and 55(2)(b) of the Constitution, as well as various provisions that imply oversight functions of the National Council of Provinces, Parliament through the Joint Rules Committee established a Task Team on Oversight and Accountability comprising members of both Houses of Parliament, which studied the mandates relating to oversight emanating from the Constitution. The task team established three focus groups, that of, the Projects Focus Group, the Budget and the Committees. The objective was to develop an oversight model for Parliament in line with the Constitution and Parliament's new strategic vision, together with the realignment of resources to fulfil its mandate with greater efficiency.

 

The model's primary objective is to provide the framework that describes how Parliament conducts oversight. It seeks to improve existing tools of parliamentary oversight, streamline components of the new oversight model with existing components, and enhance Parliament's capacity to fulfil its oversight function in line with Parliament's new strategic direction.

Furthermore, the rationale for the Oversight and Accountability Model was to scrutinise existing practices and/or mechanisms used as a prototype, something to be measured or standardised, and thereafter interrogate and offer alternatives that could be utilised in the future. An oversight and accountability model must therefore comprise the most important, features, which include -

•        the values and principles by which Parliament conducts oversight;

•        the mechanism or framework to conduct oversight; and

•        the processes and resources required for conducting oversight.

The model is not dogmatic and will adapt from time to time depending on the context and circumstances.

1.3     Composition and mandates of Parliament

Parliament consists of two Houses, namely the National Assembly (NA) and the National Council of Provinces (NCOP).

Section 42(3) of the Constitution provides that the National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the president, by providing a national forum for public consideration of issues, by passing legislation and by scrutinising and overseeing executive action. The Assembly is further required in terms of section 55(2) to provide mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it; and to maintain oversight of the exercise of national executive authority, including the implementation of legislation, and any organ of state.

The National Council of Provinces represents the provinces to ensure that the provincial interests are taken into account in the national sphere of government as stated in section 42(4) of the Constitution. The Council does this mainly by participating in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces. The Council's role is to exercise oversight over the national aspects of provincial and local government. It contributes to effective government by ensuring that provincial and local concerns are recognised in national policy making and that provincial, local and national governments work together effectively.

In addition, Parliament -

•        facilitates public participation, involvement and transparency;

•        facilitates co-operative government;

•        facilitates international participation; and

•        represents the interests of the people.

Based on these mandates, the Constitution further requires Parliament to develop mechanisms for oversight.

 

1.4     Mandates of focus groups

1.4.1     Projects Focus Group [Constitutional Landscape Governing Oversight]

The terms of reference of this group were to -

•        conduct constitutional landscaping;

•        conduct an audit of bodies performing public functions;

•        analyse the oversight role of institutions supporting democracy; and

•        review rules on oversight.

1.4.2                Committees Focus Group

The terms of reference of this group were to -

•        draft the best practice guide in respect of oversight practices of committees;

•        draft guidelines for portfolio and select committees to allow for joint planning and oversight

work;

•        draft guidelines on joint planning on protocols for structured communication between the two Houses of Parliament;

•        draft recommendations for capacity development of committees; and

•        draft recommendations on appropriate record-keeping systems and monitoring mechanisms in the Committee Section.

1.4.3                Budget Focus Group

The terms of reference of this group were to -

•        develop procedure for the amendment of money bills; and

•        draft legislation on the amendment of money bills.

CHAPTER 2: THE ROLE OF PARLIAMENT IN RELATION TO OVERSIGHT AND ACCOUNTABILITY AS MANDATED BY THE CONSTITUTION

2.1       Defining oversight

The conventional Westminster view on oversight, as inherited by many former British colonies, is often rather adversarial and in some instances oversight is professed to be the purview of opposition politicians and not the legislature as an institution. The emphasis is placed on the oversight role of legislatures, especially as it relates to ensuring government compliance with approved public spending. The task team adopted the following definition of oversight:

In the South African context, oversight is a constitutionally mandated function of legislative organs of state to scrutinise and oversee executive action and any organ of state.

 

It follows that oversight entails the informal and formal, watchful, strategic and structured scrutiny exercised by legislatures in respect of the implementation of laws, the application of the budget, and the strict observance of statutes and the Constitution. In addition, and most importantly, it entails overseeing the effective management of government departments by individual members of Cabinet in pursuit of improved service delivery for the achievement of a better quality of life for all citizens.

In terms of the provisions of the Constitution and the Joint Rules, Parliament has power to conduct oversight of all organs of state, including those at provincial and local government level.

The appropriate mechanism for Parliament to conduct oversight of these organs of state would be through parliamentary committees. In conducting oversight, the committee would either request a briefing from the organ of state or visit the organ of state for fact-finding, depending on the purpose of the oversight. The committees would have to consider the appropriate means for conducting oversight to cover all organs of state.

One of the most important aspects of the oversight function is the consideration by committees of annual reports of organs of state and the Auditor-General’s reports.

2.1.1    Functions of oversight

The concept of oversight contains many aspects which include political, administrative, financial, ethical, legal and strategic elements. The functions of oversight are:

•        To detect and prevent abuse, arbitrary behaviour or illegal and unconstitutional
conduct on the part of the government and public agencies. At the core of this
function is the protection of the rights and liberties of citizens.

•        To hold the government to account in respect of how the taxpayers’ money is used. It
detects waste within the machinery of government and public agencies. Thus it can
improve the efficiency, economy and effectiveness of government operations.

•        To ensure that policies announced by government and authorised by Parliament are
actually delivered. This function includes monitoring the achievement of goals set by
legislation and the government's own programmes.

•        To improve the transparency of government operations and enhance public trust in
the government, which is itself a condition of effective policy delivery.

2.2       Defining accountability

Accountability can be broadly defined as -

a social relationship where an actor (an individual or an agency) feels an obligation to explain and justify his or her conduct to some significantother (the accountability forum, accountee, specific person or agency).

Ghutto. S

Accountability is the hallmark of modern democratic governance. Democracy remains clichéd if those in power cannot be held accountable in public for their acts or omissions, for their decisions, their expenditure or policies. Historically, the concept of accountability was closely linked to accounting in the financial sense. It has however moved far beyond its origins and has become a symbol of good governance both in the public and private sectors.Accountability refers to institutionalised practices of giving account of how assigned responsibilities are carried out.

 

2.2.1    Functions of accountability

The functions of accountability include the following:

•        To enhance the integrity of public governance in order to safeguard government against corruption, nepotism, abuse of power and other forms of inappropriate behaviour.

•        As an institutional arrangement, to effect democratic control.

•        To improve performance, which will foster institutional learning and service delivery.

•        In regard to transparency, responsiveness and answerability, to assure public confidence in government and bridge the gap between the governed and the government and ensure public confidence in government.

•        To enable the public to judge the performance of the government by the government giving account in public.

Notwithstanding the fact that section 55 of the Constitution enables the National Assembly to maintain oversight over all organs of state and section 92 which enables Parliament to hold the Cabinet accountable operationally, organs of state at national level and Ministers and their departments are generally held to account by Parliament. At national level, there is direct accountability to Parliament by national departments, national public entities and national bodies such as commissions.

The National Assembly does however have the right to call organs of state at provincial and local level to account, but does not do so operationally unless there are issues of public importance, national interest and shared competencies. Accountability to Parliament by organs of state at provincial and local level must be conducted through observance of the Intergovernmental Framework Relations Act and the principles of co-operative government.

When national departments account to Parliament by means which include the submission of reports, for example annual reports etc, Parliament needs to be informed of the complete picture of the performance of the functions reported on. The consideration of the annual report of the department alone may not give the complete picture of the performance of the functions. This is so because national departments have public entities that are agencies ofimplementation of their functions, and their activities may not be reported in the annual report of the national department.

The annual reports of organs of state that report to national departments must be considered when evaluating the annual report of the national department for Parliament to have a complete picture of the performance of the functions reported on.

If further accountability is required, committees could use the power provided in the Constitution to access information even from public bodies that are at provincial or local government level in order that the committee has complete information and details on the public function reported on. Where a parliamentary committee is reviewing the performance of a national organ of state, the committee must ensure that the performance of its other entities, ie subsidiaries of the main organ of state, is included in the report to Parliament. If this is not included in the report, Parliament should in terms of sections 56(b) and 69(b) of the Constitution require of the entity to report to it so that Parliament has the complete picture.

In conducting oversight and accountability, the principles of co-operative government and intergovernmental relations must be taken into consideration, including the separation of powers and the need for all spheres of government and all organs of state to exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere.

 

The illustration (Figure 1) below depicts the linkages in creating efficiency and ensuring co-ordination on co-operative government which ultimately lead to oversight and accountability at national, provincial and local levels of government.

 

 

Figure 1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2.3       Constitutional provisions expressing powers and functions of Parliament on oversight and accountability

The relevant constitutional provisions that refer directly and indirectly to oversight and accountability are the following:

 

Section 41(2)	An Act of Parliament must establish or provide for structures and institutions to promote and facilitate intergovernmental relations and must provide for appropriate mechanisms and procedures to facilitate settlement of inter­governmental disputes.
Section 42(3) & (4)	(3) The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinising and overseeing executive action. (4)  The National Council of Provinces represents the provinces to ensure that provincial interests are taken into account in the national sphere of government. It does this mainly by participating in the national legislative process and by providing a national forum for public consideration of issues affecting provinces.
Section 55(2)	The National Assembly must provide for mechanisms – (a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and (b) to maintain oversight of - (i) the exercise of national executive authority, including the implementation of legislation; and (ii) any organ of state.
Section 56	The National Assembly or any of its committees may - (a) summon any person to appear before it to give evidence on oath or affirmation, or to produce documents; (b) require any person or institution to report to it; (c) compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and (d) receive petitions, representations or submissions from any interested persons or institutions.
Section 66(2)	The National Council of Provinces may require a Cabinet member, a Deputy Minister or an official in the national executive or a provincial executive to attend a meeting of the Council or a committee of the Council.
Section 67	Not more than 10 part-time representatives designated by organised local government representing the different categories of municipalities may participate in the proceedings of the National Council of Provinces when necessary, but may not vote.
Section 69	The National Council of Provinces or any of its committees may – (a) summon any person to appear before it to give evidence on oath or affirmation, or to produce documents; (b) require any person or institution to report to it; (c) compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and (d) receive petitions, representations or submissions from any interested persons or institutions.
Section 70(1)	The National Council of Provinces may – (a)    determine and control its internal arrangements, proceedings and procedures; and (b)    make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.
Section 89	(1) The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of – (a) a serious violation of the Constitution or the law; (b) serious misconduct; or (c) inability to perform the functions of office. (2)  Anyone who has been removed from the office of President in terms of subsection (1)(a) or (b) may not receive any benefits of that office, and may not serve in any public office.
Section 92	(2) Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions. (3) Members of the Cabinet must … provide Parliament with full and regularreports concerning matters under their control.
Section 93(2)	Deputy Ministers … are accountable to Parliament for the exercise of their powers and the performance of their functions.
Section 100(2)	If the national executive intervenes in a province by assuming responsibility for the relevant obligation which that province cannot or does not fulfil, the national executive must submit a written notice of the intervention to the National Council of Provinces within 14 days after the intervention began. The intervention must end if the Councildisapproves the intervention within 180 days after the intervention began or by the end of that period has not approved the intervention. The Council must, while the intervention continues, review the intervention regularly and may make any appropriate recommendations to the national executive.
Section 102	(1) If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the Cabinet excluding the President, the President must reconstitute the Cabinet. (2) If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.
Section 114(2)	A provincial legislature must provide for mechanisms – (a) to ensure that all provincial executive organs of state in the province are accountable to it; and (b) to maintain oversight of - (i) the exercise of provincial executive authority in the province, including the implementation of legislation; and (ii) any provincial organ of state.
Section 125(4)	Any dispute concerning the administrative capacity of a province in regard to any function must be referred to the National Council of Provinces for resolution within 30 days of the date of the referral to the Council.
Section 133 (2) & (3)	(2) Members of the Executive Council of a province are accountable collectively and individually to the provincial legislature for the exercise of their powers and the performance of their functions. (3) Members of the Executive Council of a province must provide the provincial legislature with full and regular reports concerning matters under their control.
Section 139(2)	If a provincial executive intervenes in a municipality which cannot or does not fulfil an executive obligation by assuming responsibility for the relevant obligation in that municipality, the provincial executive must submit a written notice of the intervention to the Cabinet member responsible for local government affairs and the relevant provincial legislature and the National Council of Provinces within 14 days after the interventionbegan. The intervention must end if the Cabinet member responsible for local government affairs disapproves the intervention within 28 days after the intervention began or by the end of that period has not approved the intervention, or if the Council disapproves the intervention within 180 days after the intervention began or by the end of that period has not approved the intervention. The Council must, while the intervention continues, review the intervention regularly and may make any appropriate recommendations to the provincial executive.
Section 139(3)	When the relevant provincial executive intervenes in a municipality which cannot or does not fulfil an executive obligation by dissolving the Municipal Council, the provincial executive must immediately submit a written notice of the dissolution to the Cabinet member responsible for local government affairs and the relevant provincial legislature and the National Council of Provinces. The dissolution takes effect 14 days from the date of receipt of the notice by the Council unless set aside by that Cabinet member or the Council before the expiry of those 14 days.
Section 139(6)	If a provincial executive intervenes in a municipality in terms of subsection (4) or (5), itmust submit a written notice of the intervention to – (a)    the Cabinet member responsible for local government affairs; and (b)    the relevant provincial legislature and the National Council of Provinces within seven days after the intervention began.
Section 146(6)	A law made in terms of an Act of Parliament or a provincial Act can prevail only if that law has been approved by the National Council of Provinces.
Section 154(1)	The national government and provincial governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions.
Section 155(6)	Each provincial government must establish municipalities in its province in a manner consistent with the applicable national legislation and, by legislative or other measures, must - (a) provide for the monitoring and support of local government in the province; and (b) promote the development of local government capacity to enable municipalities to perform their functions and manage their own affairs.
Section 155(7)	The national government, subject to section 44, and the provincial governments have the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in Schedules 4 and 5, by regulating the exercise by municipalities of their executive authority.
Section 194(1)	The Public Protector, the Auditor-General or a member of a Commission established by this Chapter may be removed from office only on – (a)    the ground of misconduct, incapacity or incompetence; (b)    a finding to that effect by a committee of the National Assembly; and (c)    the adoption by the Assembly of a resolution calling for that person's removal from office.
Section 199(8)	To give effect to the principles of transparency and accountability, multi-party parliamentary committees must have oversight of all security services in a manner determined by national legislation or the rules and orders of Parliament.
Section 201(3) & (4)	(3) When the defence force is employed in co-operation with the police service; in defence of the Republic or in fulfilment of an international obligation, the President must inform Parliament promptly and in appropriate detail. (4) If Parliament does not sit during the first seven days after the defence force is employed as envisaged in subsection (2), the President must provide the required information to the appropriate oversight committee.
Section 203	(1) The President as head of the national executive may declare a state of national defence, and must inform Parliament promptly and in appropriate detail of - (a) the reasons for the declaration; (b) any place where the defence force is being employed; and (c) the number of people involved. (2) If Parliament is not sitting when a state of national defence is declared, the President must summon Parliament to an extraordinary sitting within seven days of the declaration. (3) A declaration of a state of national defence lapses unless it is approved by Parliament within seven days of the declaration.
Section 206(9)	A provincial legislature may require the provincial commissioner of the province to appear before it or any of its committees to answer questions.
Section 210	National legislation must regulate the objects, powers and functions of the intelligence services, including any intelligence division of the defence force or police service, and must provide for - (a) the co-ordination of all intelligence services; and (b) civilian monitoring of the activities of those services by an inspector appointed by the President, as head of the national executive, and approved by a resolution adopted by the National Assembly with a supporting vote of at least two thirds of its members.
Section 216(3) & (4)	(3) A decision to stop the transfer of funds due to a province …. may be enforced immediately, but will lapse retrospectively unless Parliament approves it. (4) Parliament may renew a decision to stop the transfer of funds for no more than 120 days at a time.
Section 231(2), (3) & (4)	(2) An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3). (3) An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Councilwithin a reasonable time. (4) Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.

 

In the context of the constitutionally mandated provisions of accountability and oversight as listed above, the chapters below detail the existing processes undertaken by the South African Parliament to fulfil its constitutional oversight and accountability obligations. The focus is also placed on the gaps in current rules pertaining to oversight, and some mechanisms are recommended to address these challenges.

CHAPTER 3: INSTITUTIONAL CHARACTERISTICS OF OVERSIGHT AND ACCOUNTABILITY AND EXISTING MECHANISMS UTILISED BY PARLIAMENT

3.1     Current mechanisms for oversight and accountability

Parliament has established mechanisms to fulfil its oversight and accountability mandates in terms of the Constitution and under the rules established by the two Houses, individually and jointly. Committees can interact with civil society organisations, organised business, experts and professional bodies as a way of enhancing accountability and can call Ministers and departmental heads to account on any issue relating to any matter over which they are effecting accountability within the ambit of the provisions of sections 56 and 69 of the Constitution and legislation. Current practices and oversight mechanisms include the committees of Parliament (with their associated practices) and plenary processes as listed below.

3.1.1   Practices of committees to effect oversight and accountability

The mandates of the committees are provided for in the rules of each House and the Joint Rules. Committees offer a setting which facilitates detailed scrutiny of legislation, oversight of government activities and interaction with the public and external factors. Consideration of committee reports is necessary because committees work as intermediary bodies between interest groups and government and are an entry point for citizens to the work of Parliament. In addition, the work of committees include study visits that entail physical inspections, conversing with people, assessing the impact of delivery and developing reports for adoption by committees which contain recommendations for the Houses to consider. In exercising oversight, committees often obtain first-hand knowledge from people engaged in the direct implementation of specific programmes and/or who are directly responsible for service delivery. In order to evaluate the work of government from a broader perspective, committees may invite experts from outside government to provide background knowledge and analysis on relevant issues.

 

Reports and mandates of committees

Parliamentary committees are established as instruments of the Houses in terms of the Constitution, legislation, the Joint Rules, Rules of the NCOP, Rules of the NA, and resolutions of the Houses to facilitate oversight and the monitoring of the Executive, and for this purpose they are provided with procedural, administrative and logistical support - they are regarded as the engine rooms of Parliament.

Parliamentary committees have various tools of oversight as listed above, including departmental briefing sessions, annual and departmental budget analyses, calls for submissions and petitions from the public, the consideration of strategic plans and annual reports, and public hearings.

Whilst committees have established ways of conducting their oversight functions, their business generally runs parallel to government's political cycle, unless there are specific "ad hoc" oversight functions that are required. In programming their oversight activities, they would thus act in a responsive/reactive manner.

A committee conducts its business on behalf of the House and must therefore report back to the House on matters referred to it for consideration and report. A committee may also report on any other matter within the scope of its mandate that it considers necessary in terms of NA Rule 137(2) and NCOP Rule 102(2).

When a committee reports its recommendations to the House for formal consideration and the House adopts the Committee report, it gives the recommendations the force of a formal House resolution pursuant to its constitutional function of conducting oversight. The House then also monitors executive compliance with these recommendations.

The following types of committee reports are presented to the House:

1.            Legislation (in terms of sections 74, 75, 76 or 77 of the Constitution);

2.            Study tours;

3.            Oversight activities of committees, including responses to annual reports and financial
statements of departments;

4.            International agreements;

5.            Private members’ legislative proposals;

6.            Budget votes;

7.            Petitions;

8.            Statutory provisions (for example the filling of vacancies in a statutory body);

9.            Annual reports of committee activities and performance against their strategic plans;

10.      Any matter referred to committees for consideration and report in terms of NA Rule 137 and NCOP Rule 102.

Once a report has been adopted by the House, the Speaker communicates the recommendations of the House to the relevant Minister and copies the relevant House Chairperson, portfolio committee Chairperson and Director-General. The Speaker also requests the Minister to direct his or her responses to the Speaker for formal tabling.

The Secretary to Parliament communicates with the Director-General in the Presidency on all resolutions.

Portfolio committees of the NA and select committees of the NCOP

The mandate of oversight resides with the NA and the NCOP and through their respective rules, the NA establishes portfolio committees and the NCOP establishes select committees. Portfolio committees mirror portfolios in government whilst select committees mirror the clusters in government. Due to the fact that committees conduct their business on behalf of their respective Houses, they report to the relevant House individually and separately on matters referred to them to ensure that each House may make any decisions it deems necessary.

Joint committees

Joint committees are committees that are established in terms of the Joint Rules and have similar powers to portfolio committees and select committees, except that they have specific mandates relating to transversal issues, such as women, children, youth and disability.

Ad hoc committees

When necessary, Parliament establishes ad hoc committees to assist in its investigation of transversal issues.

Joint standing committees

Parliament, in accordance with the Constitution, legislation and the rules, can establish standing committees. Two joint standing committees currently exist in Parliament through legislation, namely the Joint Standing Committee on Intelligence and the Joint Standing Committee on Defence.

 

Specialised committees

The NA Rules and the Public Audit Act (No 25 of 2004) establish the Committee on the Auditor-General with a mandate to maintain oversight over the Auditor-General and perform functions in terms of the Public Audit Act. The Joint Committee on Ethics and Members' Interests is established by the Joint Rules (Rule 121) to implement the Code of Conduct for Assembly and permanent Council members and develop standards of ethical conduct for Assembly and Council members. The Committee on Public Accounts is established by the NA Rules (Rule 204) and is tasked with considering financial statements of all executive organs of state and constitutional institutions, any audit reports issued on those statements as well as any reports issued by the Auditor-General on the affairs of any executive organ of state or other public bodies or any other financial statements or reports referred to the committee in terms of the rules.

 

3.1.2          Plenary processes for effecting oversight and accountability

Budget Votes

Budget votes occur when the Minister of Finance announces the budget projections for the next financial year, as well as the budget votes of each Minister (department). In the Budget the Minister of Finance sets out how much money the government will spend in the following year. Parliament must approve the Budget. Subsequent to the presentation of the Budget by the Minister of Finance, each parliamentary committee has hearings with the government department over which that committee exercises oversight and can also check whether the department kept the promises of the previous year and spent taxpayers’ money properly. The budget votes are debated in the National Assembly and the National Council of Provinces once committees have finished discussing the different budget votes.

Questions

Section 92 of the Constitution stipulates that members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions. The procedure of putting questions to the Executive is one of the ways in which Parliament holds the Executive to account.  Questions can be put for oral or written reply to the President, the Deputy President and the Cabinet Ministers on matters for which they are responsible. Question time affords members of Parliament the opportunity to question members of the Executive on service delivery, policy and other executive action on behalf of both their political parties and the electorate.

Members’ statements

This is the process whereby members of Parliament are afforded the opportunity to make statements on any matter in the House.

 

Statements by Cabinet members

Ministers may make factual or policy statements in relation to government policy, executive action and other similar matters of which the Assembly should be informed. The Minister asks the Speaker for the opportunity to make such a statement, which should not be longer than 20 minutes.

Notices of motion

Motions are one of the mechanisms available to members of all political parties which can be used to help fulfil their oversight responsibilities in Parliament by bringing issues to Parliament for debate. Notice must be given of a motion unless it is by way of an amendment to a draft resolution, raising a point of order or a question of privilege, the postponement or discharge of or giving precedence to an order for the day, referring a bill to a committee, the proposal of a draft resolution on the report of a committee immediately after a debate on the report has been concluded, or in regard to which notice is dispensed with by the unanimous concurrence of all the members present. Notice must be given of every motion since in principle the House must be informed in advance of any substantive motion so that members and parties have time to prepare to debate it. Notices of motion are therefore a vital tool which can be used by members to bring matters of political importance before Parliament for debate or a decision.

Motions without notice

Motions which require notice may be moved without notice provided no single member present objects. It is therefore common practice for parties to be consulted before the House meets when seeking to move a motion without notice, and to inform the presiding officer of the intention to do so. Motions without notice are moved when the presiding officer calls for any formal motions, usually near the beginning of the day’s sitting. Thismedium allows for consultation between parties to obtain consensus on issues that must be brought to the attention of the House.

Plenary debates

Plenary debates are a further means to bring important information to the attention of the Executive regarding specific government programmes and legislation required to improve service delivery. In plenary debates, certain mechanisms for conducting oversight are used. These include question time, the consideration of committee reports, showcasing, scrutinising and debating the implementation of policy and budget votes, members’ statements and questions by members of Parliament, which draw the attention of the Executive to the concerns of members’ constituents.

 

3.1.3    Use of activities and reports from state institutions supporting constitutional democracy to enhance Parliament's oversight functions

 

These institutions have particular mandates as provided for in the Constitution and by way of additional Acts of Parliament that prescribe their functions and powers. The institutions are independent and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice. In terms of section 181(3) of the Constitution other organs of state, through legislativemeasures, have to assist and protect the aforementioned institutions to ensure their independence, impartiality, dignity and effectiveness.

In terms of section 181(5) these institutions are accountable to the National Assembly and must report on their activities and the performance of their functions to the Assembly at least once a year.

The institutions are:

•              The Auditor-General (AG);

•              The Commission for Gender Equality (CGE);

•              The Public Protector (PP);

•              The Electoral Commission (EC);

•              The South African Human Rights Commission (SAHRC); and

•              The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission).

The task team considered the views and concerns raised by state institutions supporting constitutional democracy during the interviews and in their submissions. Weaknesses were identified in the current parliamentary mechanisms. However, concomitant to the work conducted by the task team, Parliament established the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions. The committee's mandate was broader than that of the task team and as a result it was agreed that direction would be obtained from the outcomes of that process.

It is recommended that Parliament develop clear mechanisms to enable the reporting by state institutions supporting constitutional democracy on their activities and the performance of their functions as prescribed in the Constitution and related Acts of Parliament.

The second recommendation is for Parliament to put in place processes in order to allow the reports to be referred to committees for consideration, oversight, and reporting back on issues to plenary sessions.

3.1.4    Other statutory institutions supporting democracy

Financial and Fiscal Commission (FFC)

The FFC is an advisory body and has a mandate to make recommendations on financial and fiscal matters to Parliament, the provincial legislatures, and any other institutions of government when necessary. The FFC is separate from government and is therefore able to perform impartial checks and balances between the three levels of government. It facilitates co-operative government on intergovernmental fiscal matters. At least 10 months before the start of each financial year, the Commission must submit recommendations for that financial year to both Houses of Parliament and the provincial legislatures, with particular regard to:

•              An equitable division of revenue raised nationally, amongst the national, provincial and local spheres of government;

•              The determination of the equitable share of each province when revenue is divided between the nine provinces; and

•              Any other allocations to provinces, local government or municipalities from the national government's share of that revenue, and any conditions on which those allocations should be made.

 

National Youth Commission (NYC)

The National Youth Commission is a statutory body of government established through the National Youth Commission Act, No 19 of 1996. TheCommission consists of five full-time members, five part-time members and nine commissioners, nominated by Premiers of each province and appointed at national level. The National Youth Policy has been designed to address the major needs, challenges and opportunities of young men and women.

Pan South African Language Board (Pansalb)

The purpose of the Pan South African Language Board is to promote multilingualism in South Africa by:

 

•              creating the conditions for the development and equal use of all official languages;

•              fostering respect for and encouraging the use of other languages in the country; and

•              encouraging the best use of the country's linguistic resources to enable South Africans to free themselves from all forms of linguistic discrimination, domination and division, and to enable them to exercise appropriate linguistic choices for their own well–being, as well as for national development.

Public Service Commission (PSC)

The PSC derives its mandate from sections 195 and 196 of the Constitution. The PSC is tasked and empowered, amongst others, to investigate, monitor and evaluate the organisation and administration of the public service. This mandate also entails the evaluation of achievements, or lack thereof, of government programmes. The PSC also has an obligation to promote measures that will ensure effective and efficient performance within the public service and to promote basic values and principles of public administration, as set out in the Constitution, throughout the public service.

Independent Communications Authority of South Africa (Icasa)

The Independent Communications Authority of South Africa derives its mandate from several statutes: The Independent Communications Authority of South Africa Act of 2005, the Independent Broadcasting Authority Act, the Broadcasting Act and the South African Telecommunications Regulatory Authority Act and the Icasa Amendment Act. The Electronic Communications Act substantially amended the IBA Act of 1993 and the Broadcasting Act of 1999. The Authority regulates the telecommunications and broadcasting industries in the public interest. Its key functions are to:

 

•              make regulations and policies that govern broadcasting and telecommunications;

•              issue licences to providers of telecommunications services and broadcasters;

•              monitor the environment and enforce compliance with rules, regulations and policies;

•              hear and decide on disputes and complaints brought by industry or members of the public against licensees

•              plan, control and manage the frequency spectrum; and

•              protect consumers from unfair business practices, poor quality services and harmful or inferior products.

Organs of state

An "organ of state" is defined in section 239 of the Constitution as –

(a)               any department of state or administration in the national, provincial or local sphere of government; or

(b)               any other functionary or institution –

(i)                  exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii)                exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer ….

 

Section 239 divides organs of state essentially into two categories. The first category is descriptive in terms of which organs of state are defined as any department of state or administration in the national, provincial or local sphere of government. This category is, we believe, self defining. For example, in its interpretation of this first category, the Corder Report (1999: 13) included bodies represented in Cabinet as comprising "national executive authority", where accountability is vested at the political level via the doctrine of ministerial responsibility (section 92(2)). The terms “any department of state or administration" can further be traced to the Public Service Act (No 103 of 1994), which refers specifically to national and provincial "departments", and other departments. Finally, the inclusion of the term "local" in this category in section 239 must also logically include municipalities, as these constitute administrative bodies operating in the local sphere of government.

The second category in section 239 is subdivided, and focuses on the conduct or activity of the organ of state and on the empowering provisions. These two subcategories are:

•        section 239(b)(i): any other functionary or institution exercising a power or performing a function in terms of the Constitution or any provincial constitution; and

•        section 239(b)(ii): any other functionary or institution exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer.

If the institution or functionary is exercising a power or performing a function in terms of the Constitution or a provincial constitution, then it is an organ of state. The nature of the power exercised or the function performed is irrelevant. In this category, the source of the power is the determining criterion.

All organs of state in the national sphere of government must account to the National Assembly and they do this mainly by way of the submission of annual reports. As per section 55(2)(b)(ii), the Assembly has power to conduct oversight over all organs of state.

There is an increasing number of listed organs of state, of which only national organs of state are required to submit their annual reports to Parliament as part of their accountability to Parliament, based on sections 55(2)(a) and 69(b) of the Constitution in that the executive organs of state in the national sphere of government account to Parliament.

Other public bodies and institutions listed as national organs of state include institutions such as universities and business units or subsidiaries of other national organs of state. These institutions do not have to table their annual reports in Parliament because their activities are reported on in the annual reports of the main public entities they belong to. For example, Intersite Property Management Services (Pty) Ltd is a subsidiary of the SA Rail Commuter Corporation Ltd and should be reported on in the annual report of the SA Rail Commuter Corporation Ltd.

Information in relation to public bodies as commissioned from the Human Sciences Research Council (HSRC) Report will be used as the main source to establish which institutions are required to report to Parliament. In this regard, Parliament will know which institutions are supposed to table annual reports as required by the Public Finance Management Act and related legislation.

It is important when departments or public entities at national level account to Parliament through the National Assembly and when provinces report to the National Council of Provinces that both Houses are informed of the complete scope of the function that the department or public entity is reporting on.

 

It is therefore recommended that the performance of these other public bodies and institutions be included in the reports to Parliament. If not, Parliament can, in terms of sections 56(b) and 69(b) of the Constitution, require of the entity to report to it in order that Parliament has the complete picture of the function reported on. In this regard, the mandate of the National Assembly by virtue of section 55(2)(b)(ii) entitles it to exercise oversight over all organs of state. A list of all organs of state, public bodies and institutions are attached hereto for reference purposes to assist portfolio and select committees to identify which institutions are required to report and be accountable to them.

3.2       Tools for oversight and accountability

Currently South Africa has designed the following tools in relation to oversight and accountability. For ease of reference, these tools have been split into four categories: Category 1 lists tools of established legislation and long-term plans; Category 2 contains tools relating to annual, monthly and weekly activities; Category 3 lists financial instruments; and Category 4 relates to issues arising from institutions supporting constitutional democracy.

Category 1:

•        Constitution of the Republic

•        Legislation

•        Government Programme of Action [5-year plan].

Category 2:

•        State-of-the-Nation Address

•        Questions (written and oral)

•        President

•        Deputy President

•        Ministers

•        Members’ statements

•        Ministerial statements

•        Debates in the House

•        Matters from constituency work

•        Private member’s bills

•        Individual member’s oversight

•        Committee reports on legislation and oversight activities

•        Committee reports on international agreements

•        Departmental strategic plans

•        Departmental current and past annual performance plans

•        Annual  reports   (including  annual  financial statements,  statements  on  programme performance and human resource information)

•        Performance contracts

•        Departmental compliance with parliamentary committee recommendations.

Category 3:

•    Budget Speech

•        Estimates of National Expenditure (ENE)

•        Division of Revenue Bill

•        Estimates of National Revenue

•        Budget Review

•        Ministers' budget vote speeches

•        Departmental budget votes

•        Treasury Regulations relating to strategic planning

•        Reports of the Auditor-General (including performance reports)

•        Treasury reports (monthly and quarterly reports)

•        Audit Reports (Scopa)

•        Medium-Term Budget Policy Statement (MTBPS)

•        Adjusted Estimates of National Expenditure

•        Intergovernmental Fiscal Relations report

•        Public Finance Management Act (PFMA)

•         Financial  statements  (monthly  financial  reports  and  quarterly  performance reports)

•        Statistics South Africa reports.

Category 4:

•    Reports on investigated matters of relevance by institutions supporting constitutional democracy (ISDs)  and  other  statutory  institutions supporting  democracy for  consideration  by Parliament.

CHAPTER 4: NEW MECHANISMS FOR OVERSIGHT AND ACCOUNTABILITY

4.1       New mechanisms

The previous sections outlined the current parliamentary oversight and accountability mechanisms and practices. The sections below highlight potential mechanisms to further strengthen oversight and accountability:

4.1.1     Institutional mechanisms

Notwithstanding the existing rules on conferral, it is proposed that where committees are clustered for oversight and other legislative work, they should be able to report jointly on matters that are transversal and for the House to adopt such a cluster report.

Reports and matters arising from the same delegations representing Parliament at organisations, such as the Commonwealth ParliamentaryAssociation, Inter-Parliamentary Union, Pan African Parliament, SADC Parliamentary Forum, Africa Caribbean and Pacific-European Union Joint Parliamentary Assembly and others, should also be tabled and be programmed for consideration by the relevant committees and, where necessary, should be debated in the relevant Houses.

It is recommended that the rules be amended to facilitate the referral of matters arising from reports of international bodies to which Parliament is affiliated to committees for consideration, where necessary, and for debate in the relevant Houses.

It is recommended that sectoral parliaments such as the Women's Parliament, Youth Parliament, People's Assembly and other such assemblies should be formally recognised in the rules and that provision be made for their procedures, powers and functions and for the formalisation of recommendations to be submitted to the relevant committees, where necessary, and to the relevant Houses for consideration.

 

Parliament currently attends to special petitions through the Committee on Private Members’ Legislataive Proposals and Special Petitions. However general petitions, representations and submissions as specified in sections 56 and 69 of the Constitution are not adequately addressed through institutionalised mechanisms.

 

Sections 56 and 69 require Parliament or its committees to accept petitions, representations or submissions from any interested persons or institutions.

It is therefore recommended that mechanisms be put in place to facilitate the processing, referral and guidance on attending to petitions, representations and submissions. Best practices have already been established in various provinces, including the establishment of petitions offices and in some instancesbudget committees to assist those offices. The effectiveness of these offices can be investigated by Parliament in the process of developing mechanisms.

It is proposed that rules be amended and developed to accommodate Sub-Plenary Sessions of the National Assembly which will purport to provide an extended avenue for the debate and consideration of issues referred to it by the House which are of national concern. It is further proposed that resolutions reached and issues arising from these sessions be tabled in the House for final consideration. It is recommended that consideration be afforded to the development of mediums for deliberation, engagement and debates on broader and complex issues in traditional South African channels which include Lekgotleng, Inkundleni and Bosberaad. This will lead to a move away from the Westminster system and place greater impetus on the transformation of Parliament in the South African context.

4.1.2     Joint Parliamentary Oversight and Government Assurance Committee

In identifying mechanisms for Parliament to effect its oversight role, a gap was identified which necessitated that consideration be given to theestablishment of a Joint Parliamentary Oversight and Government Assurance Committee. The committee should have some powers governing the work and function of committees of Parliament.

Its main purpose and mandate will be to consider and deal with broader, transversal and cross-cutting issues. It will furthermore pursue all assurances, undertakings and commitments given by Ministers on the floor of the House(s) and the extent to which these assurances etc have been fulfilled.

The Inter-Parliamentary Union presented a study which was a compendium of parliamentary practice as it applies to oversight. lt elaborated on a broad range of tools that parliaments have at their disposal or may want to develop. It acknowledged that parliaments can establish a general oversight committee which co-ordinates the oversight work of other permanent committees. An oversight committee can recommend that other permanent committees investigate specific problems that it has identified. Other permanent committees can also bring matters before the general oversight committee.

It is recommended that the rules be developed to accommodate and furthermore express the functions, powers and objectives of the proposed committee. The recommended committee will be one of the subcommittees of the Joint Rules Committee chaired jointly by designated House Chairpersons and its membership will be based on the issues before it within the cluster or multi-cluster group of portfolio and select committees, and therefore it will have a rotational membership. Secretarial support will be provided by the Oversight Advisory Section and the Table staff of both Houses.

 

4.1.3   Treaties, Conventions and Protocols - Compliance including oversight on development aid

An international agreement binds the Republic only after it has been approved by resolution in both Houses, unless it is an agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, in which case the agreement must be tabled in the Houses within a reasonable time.

The recommendation is that Parliament ought to be robust and proactive in the negotiations that are conducted relating to international agreements prior to the signing of these agreements, as well as in relation to oversight on allocations per programme and expenditure from overseas development aid (ODA)extended to the Republic. A mechanism needs to be established to ensure that Parliament engages with the stakeholders involved in the negotiation teams.

It is further recommended that there ought to be a mechanism to oversee compliance with international agreements and that this matter should form part of the programme of Parliament for effecting oversight and accountability. Rule 306 of the NA Rules stipulates when the Assembly's approval is sought for an international agreement in terms of section 231(2) of the Constitution, the agreement must be submitted to the Speaker with an explanatory memorandum. The NCOP rules do not stipulate that the agreement should be submitted to the NCOP with an explanatory memorandum in the instance where matters of provincial interests are addressed in the agreement.

It is recommended that when a matter of provincial interest is addressed in the agreement, the NCOP should be provided with the agreement and an explanatory memorandum and further that the rules of the NA and the NCOP be developed to enable the presentation of reports to Parliament by the Executive prior to their presentation to international bodies to enable Parliament to assess the compliance aspects in the reports.

4.1.4   Oversight Advisory Section

In developing the oversight model, the need was identified for support services relating to the monitoring and tracking of issues between Parliament and the Executive, and on all other related matters within Parliament's broader mandate. An Oversight and Advisory Section ought to be created in response to the need identified. Its main functions will be to provide advice, technical support, co-ordination, and tracking and monitoring mechanismson issues arising from oversight and accountability activities of members of Parliament and the committees to which they belong. The work of this section should also include the archiving of relevant information to facilitate the retention of institutional memory.

The foreseen objectives of the Oversight Advisory Section encompass the following:

•              Providing information and advisory support to parliamentary oversight activities as an information management section;

•              Tracking and monitoring Executive compliance in respect of issues, that individual MPs raised flowing from constituency work;

•              Assisting with tracking, monitoring and following up issues raised through the Parliamentary Democracy Offices;

•              Ensuring a more co-ordinated, integrated and holistic approach to parliamentary oversight;

•              Assisting with co-ordinating all oversight-related information gathered through Parliament's public participation activities;

•              Analysing substantive reports by institutions supporting constitutional democracy to advise the Houses on issues for referral to committees for consideration and report;

•             Assisting with monitoring and tracking Executive compliance with House resolutions;

•             Assisting with monitoring and tracking of government assurances and commitments that emanate from the floor of the Houses; and

•             Monitoring and analysing debates, discussions and comments made by the public and participants in the sectoral parliaments with a view to advising the Houses on issues for consideration.

In the establishment of the Oversight and Advisory Section, the following subdivisions can be created:

•       Financial Scrutiny Unit, which will develop systems for the scrutiny of finances, for instance:

 

•             the   planning   cycle   which   will   include   aspects   on   performance and expenditure targets for departments and spending reviews;

•             the budget cycle which will include aspects of how government makes its assessment on the state of the economy and how it plans to raise revenue the following year;

•             the estimates cycle which is the process by which departments' resources and cash for the year is approved; and

•             the reporting cycle which involves the reporting by departments through reports.

This will assist the committees responsible for Finance and the portfolio committees to enhance their oversight activities and tracking of issues that are addressed in monthly reports to Parliament and those that would have been raised by the Committee on Public Accounts.

•             Tracking and Monitoring Unit, which will address decisions in the House(s) and at committee level, as well as issues from emanating from the floor of the House(s) and from committee reports that get tabled in the House(s).

 

•             Advisory Unit, which will identify issues from sectoral parliaments, other assemblies, international bodies and compliance with international protocols, treaties and conventions as well as petitions.

It is therefore recommended that Parliament must speedily establish this section with full resources, capacity and personnel for the efficient fulfilment of the objectives of oversight and accountability.

4.1.5   Reserve Bank

The South African Reserve Bank Act (No 90 of 1989) regulates the South African Reserve Bank. Section 37 of the Act requires the Minister of Finance in the case of non-compliance by the Bank with the Act or any regulation under the Act to give notice to the board of directors of the Bank of non-compliance and the requirement of compliance within a specified time. In the event that the non-compliance is sustained, the Minister can apply to a division of the High Court to compel compliance. Whilst section 224 (2) of the Constitution stipulates that the Reserve Bank is independent, as an organ of state, it is accountable to Parliament in terms of sections 55 and 69. The exercise of its powers and functions and conditions attached to it must be determined by an Act of Parliament in accordance with section 225. In this regard, it is recommended that the Reserve Bank Act of 1989 should be reviewed and revised for purposes of aligning the act with the Constitution in order that Parliament may exercise oversight over it

4.1.6   Issues from constituency work

In the course of their constituency debates, issues of concern to the public are brought to the attention of members of Parliament. These issues, once introduced in Parliament, can be formally channelled through the parliamentary processes for executive responses.

 

4.1.7   Appointments to institutions supporting constitutional democracy and other specialised institutions which fall under the mandate of Parliament

The procedural aspects of appointments to Chapter 9 institutions and specialised institutions are assigned to committees. After considering the matter, the committees report their recommendations to Parliament for a decision. The weakness is the lack of co-­ordination in handling these very important appointments, and therefore mechanisms in the rules are needed to assist Parliament to give effect to this important mandate.

It is recommended that an ad hoc committee be set up to receive and hear the presentation on the Audit of Statutes and make recommendations that it deems necessary to the presiding officers for consideration.

4.1.8   Public participation

The need to have public participation is required in section 42 of the Constitution. The task team considered the matter of how the public can engage through involvement and participation in parliamentary processes. Amidst the research conducted by the task team and the recent Constitutional Court cases on public participation, the task team identified that the need for public participation and involvement cannot merely be addressed in a chapter of the model but ought to be included in a separate model on public participation, which will be interlinked with the Oversight and Accountability Model. Research, ideas and best practice will be provided to the necessary process that will be established for the development of the model.

4.1.9   Sanctioning non-compliance by the Executive

It is recommended that Parliament develop rules to assist it further in sanctioning Cabinet members for non-compliance after all established existing avenues and protocols have been exhausted, for example naming the Cabinet member by the Speaker of the National Assembly or the Chairperson of the Council based on a full explanation.

4.2       Maximising current mechanisms

4.2.1    Reporting by committees to the Houses

A mechanism for evaluating annual reports from government departments does exist. This is one of the procedures through which Ministers are held to account. Ministers, as the executive authority in terms of section 65 of the Public Finance Management Act (PFMA) have to table annual reports of departments and public entities for which they are responsible within six months after the end of the financial year (30 September). The Speaker’ immediately refers all annual reports to the relevant portfolio committee and the Committee on Public Accounts for consideration and report. Late submission requires a written explanation by the Minister providing reasons for the delay. The Committee on Public Accounts reviews the audited financial statements and the audit reports of the Auditor-General and indicates to the relevant portfolio committee which specific issues they should be aware of with regard to oversight. The committee has to evaluate thoroughly the technical quality and the performance information presented in the annual report.

Members should have a clear understanding of the portfolio over which they are conducting oversight and what it is they want to achieve (improve service delivery). There are different phases which lead up to the final reporting, namely:

•    Oversight preparation phase:

This starts six to eight weeks prior to 30 September each year. Members need to have access to and interrogate documents which include current and previous annual reports for comparison purposes, strategic plans and Estimates of National Expenditure of related years, State-of-the-Nation Address, Budget Speech, budget vote speeches, division of revenue information   and   related   policy   documents,   quarterly   performance  reports, previous oversight reports and House resolutions.

 

•        Oversight hearing phase:

Ideally during the last two weeks of October each year, public hearings are conducted to gain clarity/input into the areas that should be addressed in the annual report.

 

•        Oversight report-writing phase:

A report for each of the entities reviewed must be tabled in the House (by the second week in November). The report should contain comments with regard to compliance, spending patterns, a general information section in the annual report, reported performance, key issues of the previous year and recommendations.

It is recommended that a system for tracking resolutions until the matter has been dealt with or an adequate response has been received must be instituted.

A need to strengthen Parliament's mechanisms for evaluating annual reports was identified as it is a critical mechanism through which Ministers are held to account and is dealt with in 3.1.1 above. However there is a need to improve on mechanisms that would ensure that there is reporting on responses by the Executive on resolutions adopted by Parliament.

It is recommended that the current system be improved in the following manner:

•        Where a response is required, the House resolution with its date of adoption must be appended to the Order Paper until such response has been received. The Minister's formal response must be addressed to the Speaker or Chairperson of the Council.

•        If no response is received within a reasonable time or within the period specified by the House  resolution,  the  House  Chairperson  should notifiy the  Speaker or Chairperson, who should then write to the Minister requesting compliance within 14 days or a written explanation of the delay.

•        In the event of sustained non-compliance by the Minister, a written complaint by the Speaker or Chairperson may be sent to the Leader of Government Business, and in exceptional circumstances the Minister may be called to account in the House (e.g. during question time).

•