The Committee had a brief discussion about five matters that had been referred to the Powers and Privileges Committee. One of the matters concerned Mr N Paulsen (EFF). Other matters concerned the events that occurred on 9 and 10 June 2022; as well as 30 August 2022 and the State of the Nation Address 2023. There was also a matter concerning Mr M Zwane (ANC). Members agreed that the Powers and Privileges Committee must be called to order, as the matters have been outstanding for almost a year. Members were informed that the Chairperson of the Powers and Privileges Committee expressed commitment to prioritise and finalise the matters before the end of the year.
In its previous meeting, the Committee was of the view that there was no need to establish a committee to oversee the Ministry of Electricity. In today’s meeting, there was unanimous agreement that the Ministry of Electricity should account to the Portfolio Committee on Public Enterprises, given that Eskom accounts thereto.
The Committee had further received a legal opinion on how to meet the Public Protector’s directive to ensure that Parliament’s rules and orders regulating political party funding are in line with section 57 of the Constitution. The Committee adopted a rule amendment that would satisfy the constitutional requirement. At a later stage, the rule may be amended to incorporate Independent Candidates.
The Committee also agreed that three matters: Executive undertakings, Petitions and Rule amendments in respect of the Money Bills Amendment Procedure and Related Matters Act would be referred to the Subcommittee to develop guidelines.
Adoption of minutes
The Committee considered its minutes of 25 April 2023.
Ms M Boroto (ANC) referred to a section in the minutes titled “Minister in the Presidency for Electricity”. She recalled that there was a recommendation for the Rules Committee to deliberate on whether there should be a portfolio committee established for the Ministry of Electricity. She asked for an update on the matter.
Mr Masibulele Xaso, Secretary of the National Assembly, replied that the Committee would deal with the matter under the next agenda item, “matters arising”.
Mr C Frolick (ANC) moved for the adoption of the minutes; Ms P Majodina (ANC) seconded this.
The minutes were duly adopted.
Mr Xaso said that the Committee dealt with the issues emanating from the State Capture report. Parliament would continue to implement the recommendations thereof.
There are currently five matters before the Powers and Privileges Committee. One of the matters concerned Mr N Paulsen (EFF). Other matters concerned the events that occurred on 9 and 10 June 2022; as well as 30 August 2022 and the State of the Nation Address (SONA) 2023. There was also a matter concerning Mr M Zwane (ANC) who was not available for the resolution of the House to be implemented on two occasions; he had since been referred to the Powers and Privileges Committee.
There was concern about the amount of time it took to process matters before the Powers and Privileges Committee. Mr Xaso confirmed that he had engagements with the Chairperson and administrative staff of the Powers and Privileges Committee, that indicated a commitment to finalise the matters by the end of this year. He reminded Members that the Powers and Privileges Committee did not have a Chairperson for about a year, as its former Chairperson Mr P Mapulane moved on to the Executive.
Mr Xaso recalled that the view of the Rules Committee was that there was no need to establish a committee to oversee the Ministry of Electricity.
The Chairperson thanked Mr Xaso for highlighting the matters arising. She invited Members to comment.
Ms Majodina agreed that Parliament was working in its own way to process the matters emanating from the State Capture report. She noted the criticism from the public stating that Parliament had “filed all the findings”, which is not true. She hoped that the Programming Committee would assist in terms of scheduling a date for the State Capture report to be tabled in the House so that the nation can see that Parliament is doing its work in terms of implementing the recommendations of the State Capture report.
She said that the Powers and Privileges Committee must be called to order. It cannot use the excuse of not having a Chairperson for matters to have taken that long to be finalised. Political will is required from those who participate in the Powers and Privileges Committee.
She believed that instead of establishing a new Committee, the National Assembly Rules must locate the oversight of the Ministry of Electricity in one of the existing committees, either the Portfolio Committee on Mineral Resources and Energy or the Portfolio Committee on Public Enterprises.
Mr H Papo (ANC) concurred with Ms Majodina. He proposed that the Ministry of Electricity should account to the Portfolio Committee on Public Enterprises, given that Eskom accounts thereto.
Dr A Lotriet (DA) agreed with Ms Majodina’s sentiments on the Powers and Privileges Committee. She said that if Members are deemed to be in contravention of the Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Act, then the Powers and Privileges Committee should act swiftly. It should not leave matters outstanding for more than a year. She urged that pressure be put on the Chairperson of the Powers and Privileges Committee to convene a meeting so that its Members can address the matters before it.
The Chairperson agreed that there are serious matters before the Powers and Privileges Committee, some of which have not been attended to for more than 11 months. She requested Mr Xaso to inform the Powers and Privileges Committee that some of the issues must be finalised before the end of this year. She asked Mr Xaso to respond to this.
Mr Xaso replied that the directive had been conveyed to the Chairperson of the Powers and Privileges Committee. He also committed to assist the Chairperson of the Powers and Privileges Committee with any additional support that might be required. The Chairperson of the Powers and Privileges Committee expressed commitment to prioritise and finalise the matters. Evidence leaders have been secured to assist the Powers and Privileges Committee with three of the matters, and meetings have been scheduled to deal with those matters.
He said that the Ministry of Electricity fell under Cluster 4, which included Mineral Resources and Energy. Public Enterprises fell under Cluster 5. Cluster 4 and 5 are both in the Economics Cluster. He suggested that the Committee ought to make a clear resolution on the oversight of the Ministry of Electricity.
The Chairperson recalled that in terms of clustering of Ministers for questions, the Committee decided that the questions to the Ministry of Electricity fell under the Economic Cluster. However, the Committee did not resolve which of the departments within the Economic Cluster would the Ministry of Electricity be allocated to. She said that the Ministry of Electricity should perhaps be allocated to Mineral Resources and Energy.
Mr Papo said that Eskom reports to Public Enterprises, it does not report to Mineral Resources and Energy. He therefore proposed that the Ministry of Electricity be accountable to Public Enterprises.
Ms Majodina agreed that it would make perfect sense for the Ministry of Electricity to account to Public Enterprises, as it would bring synergy in dealing with matters of Eskom and electricity.
Mr Frolick said that he fully supported Mr Papo’s proposal because the generation of electricity falls squarely within the oversight of the Portfolio Committee on Public Enterprises.
Ms Boroto asked which cluster within the Economic Cluster the Ministry of Electricity falls under.
Mr Xaso replied that both Mineral Resources and Energy, as well as Public Enterprises fell under the Economics Cluster. So it can be left as it is.
The Chairperson asked if there were any other matters arising.
Mr Xaso asked Mr Frolick to provide an update on the study tour to the United Kingdom parliament regarding the establishment of a committee overseeing the Presidency.
Mr Frolick said that the study tour was very successful. A draft report has been circulated amongst the delegation that were part of the study tour. He will convene a meeting early next week so that the delegation can process and adopt the report.
The Chairperson said that she hoped the report of the study tour would be adopted as early as possible. The Committee is eagerly waiting for the report to be presented to it. Some of the issues need to be finalised before the end of the year.
Mr Papo confirmed that the draft report of the study tour had been circulated. He said that the delegation was well-led and very disciplined.
Legal opinion on rule amendment for party funding
Mr Michael Prins, Parliamentary Legal Adviser, Constitutional and Legal Services Office, said that legal services had been asked to provide an opinion on the legal framework regulating political party funding for parties represented in Parliament and to provide recommendations on how to deal with a Public Protector’s report relating to whether Parliament has failed and/or duly delayed to put adequate control regulatory measures in place to ensure transparency, accountability and sound management and expenditure of its finances.
In light of the Public Protector’s directive related to the regulation of funding of represented political parties, Parliamentary Legal Services found that there was possible confusion between the funds envisaged by the Constitution in section 57 and the additional source of funding in terms of section 34 of the Financial Management of Parliament and Provincial Legislatures Act (FMPPLA).
The Constitution provides two types of funding regimes for political parties represented in Parliament and its Members. Parliament provides an additional source of funding in terms of section 34 of FMPPLA.
The two sources of funding that the Constitution provides for are section 57 funding, which is internal sources of funding provided by Parliament itself; and the second source of funding is section 236 funding, which is provided by the Independent Electoral Commission (IEC).
Section 57 funding must be provided for in terms of the rules and orders of Parliament. Parliament does not currently have any rules and orders that provide for funding of political parties and their leaders. The funding that Parliament currently provides to political parties and their leaders is provided in terms of a policy on political party funding.
Considering case law, Parliamentary Legal Services found that neither the policy nor section 34 of the FMPPLA gives effect to section 57 of the Constitution, which provides that such funding must be provided in terms of the rules and orders of Parliament. It is therefore recommended that the standing rules of the National Assembly be amended to provide that the House must adopt a policy regulating funding as envisaged in section 57 of the Constitution. It is further recommended that the updated policy that Parliament is currently utilising be adopted as an order of the House, as this would align Parliament’s funding with section 57 of the Constitution.
Mr Xaso asked that the proposed rule amendment be flighted on the screen. He read, “The Assembly must, in accordance with Section 57 of the Constitution, 1996, provide for financial and administrative assistance to each party represented in the Assembly in proportion to its representation, as well as to Independent Candidates, to enable the party and its leader, as well as Independent Candidates, to perform their functions in the Assembly effectively and may review that policy whenever required”. He said that it was thought to include Independent Candidates because the rule must be forward-looking. The adoption of this rule should satisfy the constitutional need.
Ms Majodina said that she was uncertain whether the Committee should adopt the rule at this stage, because the matter of Independent Candidates is still before the court, and there are pending consequential amendments in terms of the Electoral Amendment Bill. She asked about the implications if the Committee did not adopt the proposed rule at this stage.
Mr Xaso replied that there was a need for Parliament to comply with the Constitution because it is currently non-compliant with Section 57. He said that Parliament should also be cautious and not move ahead of itself. He suggested that Independent Candidates could be removed from the proposed rule so that Parliament could deal with the current scenario. At a later stage, the Subcommittee on the Review of the National Assembly Rules can be directed to look into incorporating Independent Candidates once there is legal clarity on where the matter stands.
There has been a commitment to the Public Protector that the matter would be finalised by the end of September. He therefore suggested that the Committee adopt the proposed rule with the amendment to omit Independent Candidates.
The Chairperson noted that Mr Xaso proposed that the Committee adopt the rule for purposes of compliance, with the amendment that Independent Candidates be excluded at this stage because the matter is still before the court.
Mr Frolick said that he had the same concern as Ms Majodina on the inclusion of Independent Candidates because the Public Protector’s directive particularly pertains to the current situation. He believed that Mr Xaso had provided the Committee with the correct approach and wording so that Parliament could comply with the directive of the Public Protector. The issue of Independent Candidates can be included at a later stage, once the matter has been resolved.
Ms Majodina agreed that the Committee adopt the rule with the amendment to exclude Independent Candidates at this stage.
The Chairperson said that the Members agreed that the rule amendment for party funding must be tabled in the House for the purposes of compliance. The rule will omit Independent Candidates until the matter is out of court.
Matters to be referred to the Subcommittee on the Review of Assembly Rules
Mr Xaso said that in terms of the oversight and accountability model, there is a need to monitor the undertakings by Members of the Executive. Undertakings refer to commitments that are made by Members of the Executive in the House or in committee meetings. It is proposed that the Subcommittee on the Review of Assembly Rules deal with the processes and establish guidelines on how these undertakings and commitments should be monitored.
Guidelines for petitions
The National Assembly Rules provide for petitions. The petitions process is not as widely used by Members of Parliament as it ought to be. The rules state that guidelines for petitions must be developed. It is therefore proposed that the Subcommittee on the Review of Assembly Rules be empowered to develop these guidelines to present to the Rules Committee.
Rule amendments in respect of the Money Bills Amendment Procedure and Related Matters Act
Clarity is needed on certain aspects of the amendments of Money Bills, especially as it relates to consultations between committees where a particular committee is of the view that a budget should be amended and the need for that committee to confer with another committee. This process is currently not regulated. It is therefore proposed that the Subcommittee on the Review of Assembly Rules be empowered to develop these regulations for consideration by the Rules Committee.
The Chairperson thanked Mr Xaso for presenting the proposed matters to be referred to Subcommittee on the Review of Assembly Rules. She asked if Members agreed.
Ms Boroto and Ms Majodina agreed that the matters be referred to the Subcommittee.
The Chairperson noted that the matters will be referred to the Subcommittee.
The meeting was adjourned.
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