NA Rules Chapter 12: Committees: Continuation of deliberations from Rule 152

Meeting report

National Assembly Rules : Chapter 12: Committees: Continuation of Task Team deliberations
Chairperson’s opening remarks
The Chairperson welcomed all Task Team Members to the meeting and asked that they continue with their discussion on Chapter 12 of the National Assembly (NA) Rules, which had to do with Committees. He noted that when revising the rules it was important to ensure that the rules were flexible enough to stand the test of time and capture the essence of the new South African culture which had been developing for the past nineteen years. The rules needed to be representative of the South African National Assembly and Parliament, and a multi-faceted approach was needed to cater for the South African multiparty institution of democracy.

Part 4: Rules Applicable to both Committees and Subcommittees generally
Rule 152: Admission of the Public
Mr Perran Hahndiek, Committee Secretary, said Rule 152 needed to have some grammatical errors corrected, but there were no other substantive concerns.

Adv Charmaine van der Merwe: Senior Parliamentary Legal Advisor, said that this rule stated that any reason put forward for closing a meeting, or withholding public admission, needed to be reasonable and justifiable in an open and democratic society. Alternatively a meeting could be closed if the meeting was of a private nature that was prejudicial to a particular person, or if the meeting was protected under parliamentary privilege, or for any other reason privileged in terms of the law, or was confidential in terms of legislation.

She noted that Rule 152(4) stated that the Speaker may take reasonable measures to regulate public access, including access of the media, to the committees and subcommittees, may prevent and control misconduct of the public in committee rooms, and may require the searching of any person, including that person’s vehicle or other property in that person’s possession. Where appropriate, the refusal of entry to, or the removal of any person from a meeting needed to be used in conjunction with Rule 152(1),(2) and (3).

Ms J Kilian (COPE) said that by adjusting the layout of Rule 152, the Committee was making Rule 152(4) more applicable to the preceding sub-rules. She asked where the NA Rules dealt with the search element, which was dealt with in the Constitution.

Mr P Hahndiek said the search element was addressed in the same Rule 152(4).

Mr Kamal Mansura, Consultant, Former Secretary to the National Assembly, said that page 15, which covered the issue of public access would further answer Ms Kilian’s inquiry.

Mr Kasper Hahndiek, Consultant, former Secretary to the National Assembly asked, with reference to Rule 152, whether, in the circumstances where a decision was taken by the committee to close a meeting for grounds that were reasonable and justifiable in an open and democratic society, the minutes taken would still be made available to the public.

Mr Perran Hahndiek said minutes taken in a closed meeting would remain confidential unless they were framed in a way which did not compromise confidentiality.

The Chairperson said he was not sure why the rules made reference to “an open and democratic society” because he had never heard of democratic society that was not open. This was tautologous and he suggested that the reference could simply be to “a democractic society”.

Ms van der Merwe said the NA Rules had taken the reference directly from the Constitution, and that she could not give the Chairperson an answer on the difference between an open and democratic society.

Ms Kilian asked if Rule 152(2) was stating that it was a Chairperson’s right to rule a meeting as closed, but that after consultation or deliberation with Committee members, those members had the power to overrule the Chairperson’s decision. If that was the case, then she felt that it was important to rephrase the sentence to make it clearer.

The Chairperson said that it was important to use plain language for the greater clarity and simplification of the rules.

Mr Mansura agreed it was important to get these rules solidly stated, and avoid ambiguity. He said Rule 152(2) made provision for two scenarios. The first was that it would be decided, before the start of the meeting, that the meeting must take place in closed session, but the committee or subcommittee may at any time after the start of the meeting later open the meeting. The second scenario was that the meeting could be closed for the purpose of a decision being reached by the committee or subcommittee whether the matter should be considered in closed session.

Mr P Hahndiek said part of the issue of dealing with public admission was being able to convey closure of meetings to the public in an acceptable and justifiable manner. Problems could arise if meetings were closed in an undemocratic manner. The decision to close meetings also depended on the stewardship of the presiding Chairperson. A powerful Chairperson was important, but the Chairperson could not overrule the Committee. In answer to the query on Rule 152(2), he confirmed that if the Chairperson wanted to close a meeting he or she needed to have the support of the other committee members to do so.

Mr M Ellis, Consultant, former DA Member of Parliament, said many committees did not have the benefit of having a powerful Chairperson. Meeting closures were contentious and the issues needed serious consideration.

Mr P Hahndiek said that furthermore, if a committee decided to close a meeting, a record needed to be provided of the reasons behind closing the meeting. He said another option would be to look into an appeal process. If a committee was not in favour of closing a meeting there should be a Rules Committee or a Sub Committee where an appeal could be made, and from whom guidance could be sought.

The Chairperson said the rules that were being drafted should give a broad framework and guidelines of how members needed to act in their committees, but rules should not be drafted to try and achieve political management.

Mr K Hahndiek asked if there were any court cases around the issue of closure. If so, these could be referenced to determine what the Courts deemed as reasonable and justifiable.

Mr M Booi (ANC) said the reasoning behind the closure of a meeting was subjective, in all committees. He would support the creation of a Sub-Committee because it would be able to address such subjective issues on a less biased level.

The Chairperson said that it was a question of political management when trying to persuade other political members to a particular viewpoint.

Ms S Kalyan (DA) said most meetings would be closed spontaneously and committee members had no time to consult their parties when this happened. She said the timing of a closed meeting was important, and asked whether the decision to rule a meeting as closed would be notified in the morning prior to a meeting, or when members received documentation, if the information in those documents was classified.

Ms Kilian said that an appeal mechanism should not be required as long as it was understood by all Chairpersons that it was the exception rather than the rule that a meeting be closed. She said that having good legal advisers would also be beneficial, as they could inform committees that proper deliberation needed to take place before the closure of a meeting. She noted that the issue of all documents presented to committees being marked as confidential had to be addressed, to stop overly-frequent closures.

Ms Z Naidoo, National Assembly Procedural Officer, said she understood that Rule 152(2) was not read in isolation and that it gave a committee the power to rule in favour of the Chairperson’s decision, but also gave the Chairperson discretion to make a ruling.

Ms van der Merwe said it was difficult to have a standardised criteria for all cases, because the instances were very subjective. However, as a first principle, it should be ensured that meetings were generally open. If they were closed it would be an exception. In the case of closure it was important for committees to seek advice, because most documents marked as confidential were only confidential to a certain point, and in fact tended to lose their confidentiality once they came into the hands of committee members. A committee could not use the term “Confidential” to justify closure. In order to ensure that closures were done in “a reasonable and justifiable manner in an open and democratic society” a record should be kept in place of all the closed meetings.

With reference to Rule 152(2), she said there needed to be a simpler way of wording sub-Rules 152(2)(a) and (b).

Mr Booi said the South African democracy was a constitutional democracy, and the rules needed to protect members. He said any member had the right to ensure that his or her constitutional right was not violated, so there needed to be a provision in the Rules which took into consideration the protection of members and the roles and rights of individuals.

Mr Mansura said that currently, in order for a meeting to be a closed, a committee had to apply to the Speaker. He said Rule 152(1) had now become overly restrictive. The Joint Rules also had similar rules which may also need to be amended.

The Chairperson said the Committee needed to reach closure on Rule 152, and suggested that the necessary changes be made. He again emphasised that rules needed to be drafted in a way that they would be effective in Parliament.

Mr Booi said it was easy to access information in Parliament because of the openness of the South African democracy, which recognised public accessibility as crucial.

Rule 153: Presence of other Assembly members  
Mr P Hahndiek read out Rule 153(2)(b), which stated that a member mentioned in sub-rule (1), who was present at a meeting of a committee or subcommittee, may not vote except when the vote was cast in his capacity as an alternate or as a co-opted member, in terms of Rule 127. He noted that the reference to “134 or 142” needed to be deleted.

The Chairperson agreed to the deletion of those references.

Rule 155: Exclusion of other persons from meetings
Mr P Hahndiek said although Rule 155 dealt with the exclusion of other persons from meetings, it was important that the Committee Secretary was present during closed sessions, because a minute taker was still required.

Ms Kilian said the inclusion of other members could be extended to legal advisers. She said Rule 154 and 155 referred to the Chairperson as the presiding individual, but this was not consistent throughout the document. She suggested that consistent and standard terminology when referring to the Chairperson was required.

Mr Booi said Rule 155 was inconsistent because it lumped everyone under the same category. He believed that there should be a distinction made between MPs and those who were working in the administration.

Ms S Seaton, Consultant, Former Member of Parliament, suggested that there was a need to be  more open minded about Rule 155. A decision was needed on which staff members would be allowed into closed meetings, as well as who would take that decision.

Mr Ellis said if the Chairperson did not have the right to exclude Members of Parliament who were not part of a specific committee during that meeting, this would give leeway for political members from different parties to come into meetings unregulated.

Ms Kilian said Rule 153 addressed Mr Ellis’s concern. She said if Rule 155 was approved, and MPs were excluded from meetings in the same way as members of staff, it would defeat the purpose of electing MPs as representatives of the people.

Mr Booi said staff members should not be allowed to tell Parliamentarians what or what not to do.

Ms Seaton thought the wording of Rule 155 was correct, and all the persons mentioned in that rule were expected to leave a meeting if circumstances so dictated. 

Mr P Hahndiek said it was left to the discretion of the Chairperson to decide whether non-members of Parliament should leave a meeting. He said the rule should be amended to make the distinction that exclusion of other persons from meetings “may include any member who is not a full time member of the Committee”.

The Chairperson said all MPs were honorary members, and that it was unacceptable for such Members to be excluded from meetings.

Rule 157: Publication or disclosure of proceedings, evidence, reports, etc.
Ms van der Merwe said Rule 157(4)(e) should be removed, so that sub-rule 157(4) could be made applicable to Rule 157(1),(2) and (3).

Mr Mansura said Rule 157 was bedeviled with many procedural hiccups. He asked whether the Committee thought the rule was comprehensive enough in granting members the right to see confidential matters, and whether, in general, there were enough rules around allow MPs to have access to confidential information. He said that the omission of Rule 157(4)(e) would only allow the Committee to look at documents mentioned In 157(1),(2)and (3), instead of allowing them to look at all documents presented in general.

Ms Kilian said she did not know if a Committee could declare a document confidential without going through a process to deem it so. The challenge with the South African democracy was its openness, which had certain implications. She was concerned about the issue, and thought that there needed to be another process in place to assist Committees before they could declare documents as confidential.

Mr K Hahndiek said the current rule gave committee members the authority to deem certain documents as confidential. However, committee members were now suggesting that the Speaker should be given the opportunity to apply his/her mind to the document, before applying the question of confidentiality to the committee.

Mr P Hahndiek said the Constitution stated that when documents were submitted to Parliament they were sent to the Speaker, whose role was simply to receive the document. The Speaker did not have the authority to deem documents as confidential. It was correct to say that, from a constitutional viewpoint, any confidential document presented to Parliament or to a Committee of Parliament was presented to that institution collectively. He said he was reluctant to recommend that the Speaker play a political management role in deciding what documents may or may not be received. It was clear that Parliamentarians could receive any documents classified as confidential, but they also had to exercise their public responsibility to respect the confidentiality of such documents.

Ms Seaton said disclosure was the function of the committee, as it would be in a better position to decide whether a matter should be kept confidential or made public. She said the biggest problem with the Rules of Parliament was their application.

The Chairperson said the lack of rules was not a problem, but the challenge was how the rules were applied politically.

Mr Booi noted that the wording of Rule 157(1)(c), stating “Any document placed before or presented to the committee or subcommittee as a confidential document and declared by it as a confidential document” was cumbersome to the committee and subcommittee. He said the word “declare” was also problematic, because it did not clarify who did the declaring.

Mr P Hahndiek said it was lawful for anyone or any institution to challenge Parliament and usually the Speaker was cited as the First Respondent. For this reason, he believed up to the Speaker to become the agent of Parliament in judicial engagement.

Ms Seaton said although the Chairperson represented the committee, the committee members also had to take equal responsibility. The institution had to back its Chairperson, even if the decisions were wrong; and in the case of frequent wrongful decisions, more training needed to be provided to members and their Chairpersons.

The Chairperson said that the Rules Committee should not weaken the committees of Parliament, but rather enhance the work of committees and make them more considerate. It was important to clarify the application of rules and deal with party management. When revising the NA Rules it was important to consider how to ensure that committees worked in a manner that was democratically sustainable. Those who assisted in Parliament needed to know the rules, but could not take any decisions that impacted upon Parliamentary members. It was important for Parliamentary interactions to be enhanced, rather than reduced because of fear of what might happen.

Ms Kilian said Rule 157(1)(d) was a risky right, which gave the Chairperson autocratic power in deciding on the confidentiality of a document. She asked whether this rule would withstand being tested in Court.

Mr Booi said that the Speaker needed to have a role, since the Speaker was a politician. He said the NA Rules needed to be framed in a manner that would protect minority parties, and they also had to be politically sensitive.

Ms van der Merwe said that in practice, a Chairperson would not act alone when making decisions. She commented that involving the Speaker was not so much a legislative issue as a practical one. Rule 129(1) gave the right to a committee to elect a Chairperson. If members felt their Chairperson was making wrong decisions, they had the option of electing another Chairperson.

Mr K Hahndiek said the issue of disclosure was addressed in Rule 157(1)(d), which allowed for a Chairperson to order a document to be kept confidential. However, the committee had final authority.

The Chairperson said it was important to balance majority decision-making with minority protection, and it was desirable to avoid one person having sole decision-making authority.

Mr P Hahndiek said Rule 157(1)(c) related to documents that had been placed before the committee at the committee meeting, and Rule 157(1)(d) related to documents that were circulated and submitted before the committee meeting. Before the meeting, any document submitted to committee members could be declared confidential, until the Committee decided otherwise. He said the Rule should be clarified, using the wording “until such a time that the Committee has taken a decision” since this would prevent a person having sole decision-making power.

NA Rules: Part 5: Rules Committee
Rules 158 to 186
Mr K Hahndiek noted that Part 5 of the NA Rules, covering Rules 158 to 186, dealt with the rules that were specific to the Rules Committee as it was established at that time. He described the Rules Committee as the “senior committee” that was responsible for the core business of the National Assembly, as well as the administration and the budget. However, that had led to practical problems and about ten years ago the decision was made to split these two responsibilities. The core business of the NA remained the responsibility of the Rules Committee, but the administration roles were passed over to the Parliamentary Oversight Authority (POA).

For this reason, he noted that it would be necessary to remove Rules 158-186, since the responsibilities described in them were now  in the hands of the POA. Clearly, all that remained under the responsibility of the Rules Committee were the core business issues, which, as with any other Parliament, were of great significance.

The Chairperson noted the proposal for the removal of all the rules that dealt with the administrative matters. He suggested that discussion on Part 5 stand over for the next meeting.

Mr Booi sought clarity on where the decision-making roles rested, given this change in responsibilities.

Mr K Hahndiek replied that the intention was that any decision-making rested with the National Assembly, and that any issues related to procedural matters or core business decisions must be approved by the NA. The Rules Committee was responsible for making recommendations to the NA in formal reports, but the NA made all final decisions.

Mr Booi referred the Committee to Rule 164 on decisions, and asked for clarity.

Mr K Hahndiek replied that this Rule related to decision-making on Bills. The Committee made decisions on proposed Bills, and then presented these decisions to the House.

The Chairperson emphasised the importance of a quorum within this Rule. It was a requirement that even the Rules Committee had to adhere to.

Mr K Hahndiek agreed with the Chairperson and stated that it was important to distinguish between regular committees and the Rules Committee. All political parties were required to formally belong to the Rules Committee. Whilst the majority party had to have majority representation on this Committee, all other parties still were required to belong to the Committee and to be represented. This was of particular importance, as the Rules Committee was the senior committee responsible for making recommendations on all issues.

Mr P Hahndiek noted that there were recent changes made with regards to the size and function of the Programme Committee. The major change was that the Programme Committee used to make decisions by consensus, but now decisions were made on a majority vote. The size of the Programme Committee was also changed to 14 members. He proposed that he should circulate the changes to Members.

Mr Booi reiterated the importance of a quorum and equal representation for the minority parties, especially with regards to legislative decisions.

The Chairperson replied that the Rules Committee was not responsible for political management but rather for making rules. As the Rules stood, no decisions could be made without a quorum and meetings also could not start without a quorum.

Mr P Hahndiek retrieved the minutes of the National Assembly that outlined the Rules changes he had referenced earlier. He stated that the new Rule 188 set out the new composition of the Programme Committee. It did not outline how many members were on this committee, but it did set out the office bearers. Sub-rule 188(1)(g) then stated that, apart from those office bearers, the committee also included “the number of whips and party representatives that the Speaker may determine with the concurrence of the Rules Committee”. The report also outlined that the decisions made were no longer by consensus, but rather by majority. The report then detailed that the Programme Committee was to consist of 14 members for the remainder of the Fourth Parliament and was to consist of the following:-
Speaker of the National Assembly
Deputy Speaker of the National Assembly
House Chairperson
Leader of Government Business or designated representative
Chief Whip of the Majority Party
Deputy Chief Whip of the Majority Party
Programme Whip of the Majority Party
Chief Whip of the Opposition
Deputy Chief Whip of the Opposition
Chief Whip of the second largest opposition party
Two representatives elected by and representing the opposition parties, other than the largest and second largest opposition parties in the National Assembly.

Mr Masibulele Xaso, Secretary, National Assembly, stated that members of the Programme Committee had been appointed. He also noted that when the new composition was designed, the intention was that the presiding officers would comprise part of the quorum, and would vote on a needs basis.

Mr Booi wanted to raise the issue of alternates and their place within the new composition. He stated that it was difficult to appoint alternates, given the specific roles within the Programme Committee.

Ms Kalyan agreed that it was difficult to have alternatives, as there were no neutral Speakers. At this stage, the only way to be fair was to have a quorum with only those people listed above. She believed the committee should be just limited to these individuals, without appointing anyone else.

Ms Kilian also asked why the original Programme Committee was meant to be a committee that reached consensus, and why then it was necessary to have this changed. It was unfortunate to adjust a functioning committee structure that had worked for a long period of time, to answer to  one problem. She wondered if it was within the mandate of the Rules Committee to look at the reason for adjusting the composition and functions of the Programme Committee. Furthermore, she wondered if the new composition was capable of withstanding a test against section 57 of the Constitution. It was argued that the new composition did not provide adequate participation of all the parties and did not conform to the pre-requisites of the Constitution.

Mr Xaso outlined that one way to protect the presiding officers was to increase the composition of the committee. There was a new version in the pipeline, that would allow for 17 members on the Programme Committee. This Committee was originally not meant to vote, and with 17 members, it would not need to. It was noted that when the Court decided on the motion of no confidence, the Court had stated that a motion of no confidence should be subject to a vote within a committee. However, even with the change in the composition of the Programme Committee, it was never intended that it would vote on a motion of no confidence, as this was properly to be done by the House. With regard to section 57 of the Constitution, Mr Xaso replied that the Court was ultimately responsible for making a decision on this point, but he believed that the composition was broadly in alignment.

Mr Mansura argued that if alternates were excluded from the application to this committee then it was problematic. He also brought attention to the proper title of one of the members in the new composition. The document, the member was referred to as “Leader of Government Business” but the correct title was “Leader of Government Business in the National Assembly”.

Mr K Hahndiek explained that it had been specifically intended that the Programme Committee should, firstly, be fully representative and secondly, should include all office bearers in relation to programming. Speaking to the composition, he said it was very clear that the Committee was never meant to proceed to a vote, because if a vote was taken when all members were present, then the minority parties would comprise the majority of the vote. As for the Speaker and Deputy Speaker, they were not party representatives but rather the heads of the institution. As such, their primary responsibility was to protect the institution of Parliament, and to ensure that all parties complied with the rules. They had been elected by the House to perform certain functions.

Mr Hahndiek also noted that sub-Rule 188(3) was deleted, which meant that Rule 125, on composition, now applied to the Programme Committee.

Mr Hahndiek expressed that he did not agree with the point that two representatives were appointed to represent all other minority parties.

Ms Seaton commented on the representation of minority parties, and stated that there was a convention that had been accepted for a long time, which was to the effect that the smaller parties decided amongst themselves on representation. It was always understood that the smaller parties were in agreement on this issue.

Ms Kilian suggested that a procedure should be agreed upon, which could be used if there was no consensus.
 
Mr Xaso pointed out that if all parties were to be represented based on the principle of proportionality, then this would require a total of 34 members, which would pose problems from the point of view of the quorum.

The Chairperson added that if,  in future, more parties were to be represented in Parliament, they could not be denied representation.

Mr Booi and Mr Ellis raised concern on the role of the Leader of Government Business, asking if it was intended to be one member on the Programme Committee, exercising one vote.

Mr P Hahndiek referred to Rule 190(e), which set out that the Leader of Government Business had a very important role in the decision-making process. This rule did not answer what the status of the member should be on the Programme Committee, but placed him or her in a very powerful position. The Leader of Government Business had equivalent power to the Committee.

The Chairperson told the Committee that the points made in the discussion were duly noted, but asked that discussion now proceed to other matters.

Rule190
Mr Mansura said that a review was needed for Rule 190(e), on concurrence.

Rule 192
Ms Seaton referred to the numbers referred to in Rule 192 – “no fewer than 13 and no more than 40 members” as a good range for composition. She asked if the reports that emerged out of a closed meeting were published.

Ms Kilian explained that her understanding was that a report must be tabled, regardless of the open or closed status of a meeting.

The Chairperson noted that “no less than 13 and no more than 40” was agreed upon.

Mr Ellis argued that these numbers should not be part of the rules.

Several members spoke to the issue and suggested that the composition of the different committees should be decided at a later stage, individually, but based on a proportionately principal.

Mr Xaso further explained that the Rules made reference to numbers based on substantially the same proportion and not strict proportional representation, so long as it was consistent.

The Chairperson stated that this was in the best interest of minority parties. He also reiterated the importance of clarifying this matter in the Rules.

There was agreement amongst most of the members present that there were significant issues of enforcement contained in many of the rules.   

Rule 305
Mr Mansura raised discussion on rule 305, which dealt with reporting by Committees. He asked if rules 303(3) and 305 needed to be repeated elsewhere, in order to increase their effectiveness.

Roles of members
The Chairperson noted that every full-time Member of Parliament must belong to one Committee.

The Chairperson stated that the next meeting would cover the discussions on the remainder of the rules.

The meeting was adjourned.