ATC081118: Report Rules Establishment of a Committee
FIRST REPORT OF THE RULES COMMITTEE OF THE NATIONAL ASSEMBLY, 2008
The Speaker of the National Assembly presents the First Report of the Rules Committee, dated 14 November 2008.
The Rules Committee, on 13 November 2008, agreed to the adjustment of the National Assembly Rules, as follows:
A. RULES FOR THE ESTABLISHMENT OF A COMMITTEE IN TERMS OF SECTION 12 OF THE POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES ACT OF 2004
The following definitions are to be inserted in the correct alphabetical position under Rule 1 (Definitions):
“Act” means the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004
“misconduct” means a breach of the standing rules of Parliament by a member, except a breach of the Code of Conduct contained in the Schedule to the Joint Rules or conduct amounting to contempt of Parliament as defined in the Act.
Current Rules 191 to 194 under Part 7: Disciplinary Committee of Chapter 12: Committee system are to be replaced with the following new rules and the part renamed accordingly:
Part 7: Powers and Privileges Committee
191. There is a Powers and Privileges Committee as required by section 12 of the Act.
192. (1) The Committee consists of the number of Assembly members that the Speaker may determine with the concurrence of the Rules Committee, but must have no fewer than 13 members and no more than 40 members.
(2) The Committee must elect a chairperson, and may elect an acting chairperson when the chairperson is not available.
193. (1) The chairperson of the Committee convenes meetings of the Committee.
(2) Meetings of the Committee must be held in closed session when the Committee considers a matter affecting a specific member or members, unless the Committee decides to open a meeting in accordance with Subrule(3).
(3) The Committee may decide to open a closed meeting if –
(a) all parties to the proceedings agree; and
(b) it is in the public interest.
194. (1) The Committee must consider any matter referred to it by the Speaker relating to contempt of Parliament or misconduct by a member or a request to have a response recorded in terms of section 25 of the Act, except a breach of the Code of Conduct contained in the Schedule to the Joint Rules.
(2) (a) Upon receipt of a matter relating to contempt of Parliament or misconduct by a member, the Committee must deal with the matter in accordance with the procedure contained in the Schedule to the Rules.
(b) The Committee must table a report in the Assembly on its findings and recommendations in respect of any alleged contempt of Parliament, as defined in section 13 of the Act, or misconduct.
(c) If it found that a member is guilty of contempt or misconduct, the Committee must recommend an appropriate penalty from those contained in section 12(5) of the Act.
(d) The Assembly may impose the recommended penalty, an alternative penalty contained in section 12(5) of the Act, or no penalty.
(3) The Committee may on its own initiative or upon request by the Speaker conduct research relating to, and comment on matters relating to the powers, privileges and immunities of Parliament.
(4) (a) After receiving the request to have a response recorded referred to in (1) above, the Committee must without delay, inform the member or witness concerned that a request to have a response recorded has been received, and thereafter consider the request in accordance with criteria that the Committee approved.
(b) In considering the request the Committee may invite verbal or written submissions by the member, witness or any other person concerned.
(c) After considering the request to have a response recorded, the Committee must publish the response in the ATC, refer it back to the person for amendments, or not publish the response.
Current Rules 320 to 323 under Part 3: Contempt of Chapter 15: Miscellaneous are to be replaced by the following new rules and the part renamed accordingly:
Part 3: Abuse of privilege
Abuse of privilege
320. (1) The Assembly may make a finding that a breach or abuse of the privilege provided for in sections 45(2) and 58 of the Constitution, or as set out in rule 44 of these Rules, is contempt of Parliament as envisaged by section 13(d) of the Act, in accordance with the Subrule (2).
(2) [Rule 320 is suspended until the formulation and adoption of Subrule (2)]
321. The amount of a fine that can be imposed under the Act for each of the offences mentioned therein, and for each offence referred to in these Rules or any resolution of the Assembly, must be determined in every case by a resolution of the Assembly; but such fine may not exceed the amounts provided in the Act.
Recovery of fines
322. All fines must be recovered by the Secretary and paid into Parliament’s bank account.
323. A fine or portion thereof may be remitted by resolution of the Assembly.
Request to have a response recorded by persons other than members
323A. The Secretary must refer a written request to have a response recorded by a person, other than a member, regarding a statement or remark made by an Assembly member or a witness in or before the Assembly, a committee of the Assembly, or in or before a joint sitting of the Houses or joint committee, to the Speaker.
The following Schedule pertaining to the Powers and Privileges Committee is to be inserted in the Rules:
Procedure to be followed in the investigation and determination of allegations of misconduct and contempt of Parliament:
Notification to member
1. A member charged with misconduct or contempt must receive written notice of all allegations and charges against him or her. The notification must be delivered to the member at least five working days before the hearing. The notice must also clearly indicate the date, time and venue of the hearing, that the member is entitled to be assisted by a fellow member and that the member may request the Committee to allow legal representation by a person who is not a member.
2. If it is not possible to serve the notice personally on the member, the Sheriff may be requested to serve such notice.
Outside legal representation
3. In complex cases or cases involving complicated evidence or legal issues, and where the Committee is of the view that such legal representation might be essential for a fair hearing, the Committee may allow the member charged to be represented by a legal practitioner who is not a member.
Explanation by member
4. If the member wishes to give an explanation after receiving the notice, he or she may do so either verbally or in writing. Such explanation may also be presented at the hearing.
5. The Committee must nominate a member or a person who is duly qualified, but who is not a member of the Committee, to act as the initiator for the duration of the hearing. The initiator presents the evidence regarding the allegations and may cross-examine the member and any witness giving evidence on behalf of the member. At the conclusion of the hearing, the initiator may address the Committee on the evidence presented before it and may also propose a penalty to be recommended by the Committee in its report.
Plea to charge
6. The initiator must put the charge(s) to the member and the Chairperson must request the member to plead to the charge(s). If the member so wishes, he or she can also give a plea explanation. If the member refuses to enter a plea, the Chairperson must enter a plea of not guilty.
7. The member has a right to be present at the hearing. The Committee, initiator and the member may call witnesses and these witnesses may be questioned by the Chairperson, initiator, the member or the legal representative, either directly or through the fellow member. Members of the Committee may also put questions to the member, but only through the Chairperson or with the permission of the Chairperson. After all the witnesses have been called, the member or fellow member may sum up the evidence and make a presentation to the Committee.
8. If after receiving the notice the member fails, without just cause, to attend the hearing, the Committee may proceed in the absence of the member.
9. If the Committee finds the member guilty of misconduct or contempt, the member, fellow member or legal representative must be given an opportunity to present mitigating factors to the Committee before the Committee reports to the House. Such representation may be verbal or in writing. The initiator may also address the Committee on aggravating or other factors.
Suspension of member
10. In order to facilitate an investigation in terms of section 12 of the Act against a member in circumstances where there is a possibility that the member may interfere with evidence or witnesses or in circumstances where the allegations are of a very serious nature, the Speaker may request the House to suspend the member. Such suspension may be with or without remuneration and may not be for longer than 14 days. A member who has been suspended must leave the parliamentary precinct, and may not, during the period of suspension, without the permission of the Speaker –
· enter the precinct for whatever purpose; or
· participate in any activity of Parliament or any committee.
11. Before the Speaker requests the House to suspend the member, the member must be informed in writing of the request and must be afforded an opportunity to give reasons within a reasonable period why he or she should not be suspended.
12. After the House has resolved to suspend the member, the Speaker must inform the member in writing of the suspension and the period of its operation prior to it taking effect.
B. RULE AMENDMENTS TO ALLOW FOR JOINT REPORTING BY ASSEMBLY COMMITTEES
The following new Subrule is to be inserted under Rule 139 (Conferring powers of committees):
(4) Committees conferring in terms of Subrule (1) may report jointly, subject to the provisions of Rule 202(2).
Current Rule 202 (Decisions) is to be replaced by the following augmented Rule:
202. (1) A question before a portfolio committee is decided when a quorum in terms of Rule 133 is present and there is agreement among the majority of the members present.
(2) A question before two or more conferring Assembly committees is decided when a majority of members of each of the conferring committees is present and there is agreement on the question between the conferring committees.
Paragraph (b) under Subrule (3) of Rule 303 (Referral of written instruments to committees) is to be amended as follows:
(b) which of them must report if a report is required or whether they must report jointly.
C. RULE AMENDMENT TO BRING RULE 21 (Leader of the Opposition) IN LINE WITH CONSTITUTIONAL PROVISION
Rule 21 (Leader of the Opposition) is to be amended as follows:
21. The leader of the largest opposition party in the Assembly must be recognised as the Leader of the Opposition.
Subrule (a) under Rule 60 (Time limits for speeches) is to be amended as follows:
(a) the President, Deputy President, the Leader of the Opposition and the member in charge of the business before a meeting, shall not be restricted in regard to the length of time they may speak; and
Report to be considered.
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