Eighth Draft of Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill: consideration

Powers and Privileges on 30 July 2002

CLAUSE 6(3)(a): PROCEDURE IN DISCIPLINARY HEARINGS

The view was expressed that the reference to the Promotion of Administrative Justice Act, 2000, should be omitted, since that Act applies only to officials.

1. Reword clause 6(3) as follows to spell out aspects of a fair procedure:

2. Simply state the committee must follow a procedure that is "reasonable and procedurally fair" (the words of section 33 (1) of the Constitution), and leave it to the relevant House or committee to determine the procedure.

CLAUSE 7: PUNISHABLE OFFENCES BY MEMBERS

Some members felt that the "offences" for which a member can be punished by a Legislature should include matters such as contravention of the Code of Conduct, sexual harassment and cheating with travel vouchers, etc.

1. In a separate clause list the other conduct or actions of members that can be punished by a Legislature.

2. Define those actions in a generic term such as "misconduct" or "an offence against the Legislature".

[Note: Any of these options would require several consequential amendments to the draft Bill.]

CLAUSE 16: SUMMONSING POWERS OF JOINT COMMITTEES

The Committee noted that neither the constitutional provisions referred to in clause 16(1) [sections 56(a) and 69(a)] nor any other provision of the Constitution cover the summonsing of persons to appear before a joint committee. However the Joint Rules do make provision for joint committees to summons persons.

1. In subclause (1), omit the words "in terms of section 56(a) or 69(a) of the Constitution", and refer in a footnote to the fact that the Joint Rules authorise joint committees to summons people.

2. Insert the following subdause [following the wording of sections 56(a) and 69(a) of the Constitution] before the existing subclause (1), and renumber the subclauses:

(1) A joint committee may-

CLAUSE 18: PRIVILEGE OF WITNESSES

The view was expressed that the protection granted to witnesses is too broad, and that witnesses before Parliament or a parliamentary committee should not necessarily have (all) the privileges of witnesses before the courts.

1. Omit subclause (1) of clause 18, which would mean that a witness would not be able to claim any of the privileges enjoyed by persons giving evidence in a court. Given that the Bill provides that it will be a criminal offence not to answer all questions "fully and satisfactorily" the constitutionality of such a provision is doubtful.

2. Make provision in subclause (1) that the (other) privileges of witnesses before courts are applicable (eg legal professional privilege), but not the privilege against self-incrimination. For this option to pass constitutional muster it will have to be established that the limitation of the infringement of the rule against self- -incrimination, and therefore the right of an accused person to a fair trial in terms of section 25(3) of the Constitution, is justified under section 36 of the Constitution. If this option is accepted, clause 18(1) could be worded as follows, based on the wording of section 8 of the National Prosecuting Authority Act, 1998:

3. As in option 2, but add certain requirements, as follows [based on the wording of section 31 of the Promotion of National Unity and Reconciliation Act, 1995]:

[Note: The issue of statutory provisions that oblige persons to give self-incriminating evidence has been the subject of several judgments of the Constitutional Court and other courts. See, eg, Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO 1996 (1) SA 984 (CC); Parbhoo and Others v Getz NO and Another 1997 (4) SA 1095 (CC); Park-Ross v Director: Office for Serious Economic Offences 1995 (2) SA 148 (CPD); National Director of Public Prosecutions v Rebuzzi 2002 (1) SACR 128 (SCA). Consequently, it is recommended that the Committee obtain a legal opinion on the constitutionality of the provisions proposed above.]

CLAUSE 22: BROADCASTING OF PROCEEDINGS

Following a query as to whether the provisions of the Draft Bill give effect to Parliament's Broadcast Policy, the NA Table has confirmed that it does.

REPORTING REQUIREMENTS OF THE PFMA

The question has been raised whether the draft Bill should deal with the enforcement of provisions of the Public Finance Management Act that require the submission of reports to Parliament. This issue is addressed in a separate document attached hereto.

Appendix 2:
DRAFT POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES BILL: PROVISION FOR COMPLIANCE WITH THE REPORTING REQUIREMENTS OF THE PFMA

1. The Ad Hoc Committee on Powers and Privileges of Parliament has requested advice as to whether the draft Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill should provide for the enforcement of the reporting requirements of the Public Finance Management Act, 1999 (PFMA).

2. From the brief discussion in the Committee I got the impression that there is a misconception that Parliament has not made any provision in this regard. In fact the PFMA contains definite provisions aimed at ensuring that reports are submitted to Parliament as prescribed. The PFMA even provides for a parliamentary procedure (tabling of reasons) in the event of non-compliance.

3. Firstly, there is section 40, which deals with the reporting responsibilities of the accounting officers of departments, trading entities and constitutional institutions. In terms of section 40(1 )(f) the accounting officer is responsible for the submission of all reports to Parliament as may be required by the PFMA, ie including the Treasury Regulations (see the definition of "this Act" in section 1).

3.1 Section 81(1) provides that an accounting officer who wilfully or negligently fails to comply with a requirement of section 40 commits an act of misconduct. Section 84 makes provision relating to disciplinary proceedings against such an accounting officer, while section 65(1)(b) requires the findings at such proceedings to be tabled in the National Assembly.

3.2 Furthermore, section 86(1) provides that an accounting officer who wilfully or in a grossly negligent way fails to comply with a provision of section 40 is guilty of a criminal offence and liable on conviction to a fine, or to imprisonment for a period not exceeding five years.

4. Secondly, there is section 65, in terms of which the annual reports and financial statements of a national department and a national public entity must be tabled in the National Assembly within a prescribed period by the relevant executive authority, ie the Cabinet member who is accountable to Parliament for that department or public entity.

4.1 If such annual report and financial statements are not tabled in the Assembly within six months after the end of the financial year, the executive authority must table a written explanation in Parliament setting out the reasons why they were not tabled (section 65(2)). Section 8(5)(a) has a similar provision with respect to the tabling of the annual consolidated financial statements by the Minister of Finance.

5. Should reports not be tabled as required by the PFMA it is open to Parliament to take steps to ensure that the above measures are put into practice, for example by asking the Cabinet member concerned for an explanation in terms of section 65(2) or by recommending criminal or disciplinary steps against the accounting officer.

6. In so far as the view might be held that the PFMA does not go far enough to ensure compliance with its reporting requirements, I would recommend that that Act should rather be amended to provide for more stringent measures, instead of including further (conflicting) provisions in another piece of legislation. It makes the statute book messy and inaccessible.

7. If there is a need for a mechanism for Parliament to deal with cases where reports are not tabled (in time), I would suggest that it should be done by or in terms of the rules or internal procedures. A simple procedure would be, for example, to report in the ATO when a report is not received in time, and then to require the Minister concerned, in addition to the written explanation in terms of the PFMA, to explain the position to the House. To exert more (political) pressure, the Minister and/or the accounting officer could be asked/summonsed to appear before the relevant committee for examination. As pointed out by Members at the Committee1s meeting of 30 July 2002, there are also other political steps possible under the Constitution.

8. If the Bill is to make provision for further measures to compel the responsible persons (ie the Cabinet Member and accounting officer concerned) to comply with the reporting requirements of the PEMA, the question arises what sanctions should be provided for. It would not fit into the agreed scheme of the Bill to make provision for Parliament itself to take disciplinary or other punitive steps against non-members. In any event, the PFMA already makes provision for sanctions against accounting officers (see paragraphs 4 and 5 above). With respect to Cabinet members it could perhaps be considered to provide that they commit contempt of Parliament (or a criminal offence) if their departments' reports are not submitted in time, but such a provision would not seem to be advisable in the circumstances.

9. I cannot think of anything else that could or should be included in the Bill that is not or could not be sufficiently dealt with by or under existing legislation or the rules and internal procedures of Parliament.

10. In conclusion I should point out that besides the PFMA there are many other statutes that require a variety of reports to be tabled in or submitted to Parliament or parliamentary committees. I doubt very much whether it would be possible to formulate a single, uniform, effective and enforceable provision, consistent with all those statutes, to ensure that all those reports are tabled or submitted as required.