Draft National Assembly Rules: Party inputs

Meeting report

The Chairperson said that the process of reviewing the Rules of the National Assembly had begun two years ago and he hoped this meeting would be very fruitful. He was sure Members were now exhausted and it needed to be finalised this week in time for presentation to the Rules Committee. He was sure the Rules Committee would appreciate the efforts of the Sub-Committee.  

Apologies were noted from Deputy Chief Whip, Ms D Dlakude (ANC), Ms C September (ANC) and Mr L Mashile (ANC).

All parties had been invited to make proposals to the Sub-Committee, so this was an important opportunity not to be missed because it would be difficult to influence the Rules Committee. The Sub-Committee was almost at a finalised draft. Issues to be finalised included motions without notice, and the removal of the President in terms of section 89 of the Constitution. The detail had been discussed so it was important to agree on the final drafting of the rules.   

The Chairperson would assume that Members had read the rules and the Committee could then focus on those areas to be finalised. He wanted the Committee to finalise its work today and tomorrow, for the Joint Rules Committee to meet on Wednesday.

The Chairperson then went through the chapters, highlighting key areas which were discussed and considered by the Committee. The Sub-Committee had applied its mind as far as possible.  

Mr Kasper Hahndiek, Consultant to the Sub-Committee and former Secretary to the National Assembly, noted that the contextual and narrative explanations for the rules were in draft five, and not draft six.

The Chairperson thought it best to start with the issues which had stood over.  

Mr N Matiase (EFF) pointed out that three days had been set aside for the meeting. He proposed the committee discussed the draft page by page, so that no one was lost.

Ms N Mazzone (DA) said that the Committee had met for very long marathon meetings two weeks ago where draft five had been completed, so draft six was available. She agreed the Committee should continue as the Chairperson had suggested. The documents had been distributed over the two week period for Members to study in anticipation of today’s meeting.   

Rule 45 (f): Dress Code of Members
The Chairperson said this would be done, but he would try to accommodate other issues raised. He turned to outstanding issues, beginning with Rule 45 (f), which dealt with the dress code of Members.

Mr K Hahndiek noted that he had been asked to work within paragraphs one and two of the ANC document to reach the current drafting of the rule.

Ms Mazzone recalled that at the time this issue was discussed, there had been no agreement or consensus regarding the dress code. She had a problem with ANC documents being worked into the Committee’s documents – the ANC was not the only party to make a submission. The ANC document had certainly not been agreed to by any stretch of the imagination. Perhaps the Constitutional Court needed to be approached to get an opinion as to what they considered appropriate dress codes for an institution such as Parliament. Mr Patekile Holomisa had appeared before the Constitutional Court wearing his traditional wear and, quite rightly so, not an eyelid had been batted. Members had the right to express themselves through what they wore and it would be a big bone of contention for the Committee to sit as if there was agreement on the dress code. She did not think there would ever be mutual consensus on this issue.    

Mr Matiase thought the SA public should be reminded that former President Nelson Mandela had said in 1994 that if the ANC did unto you what the apartheid government had done unto you, you should do to the ANC government what you had done to the apartheid government. What was it that disturbed the ruling party about choices of Members to dress as they wished, or what they felt was comfortable? The EFF found the proposed amended rule about the dress code outrageous, and must be rejected. This rule, and many others, would not go unchallenged.

The Chairperson emphasised more time could not be wasted. A proposal should then be made.  

Ms Mazzone said the DA took serious umbrage with the fact that the ANC-designed dress code got put into the draft six as it if had been commonly agreed on by the Sub-Committee when it had not been. There had been no agreement whatsoever at the last meeting regarding Rule 45 (f). At the last meeting she had vociferously spoken out against Ms J Kilian (ANC) about what was considered revealing and what was not. She, as a representative of the DA, did not agree to have this paragraph put into the draft as if it were something she had agreed to. She understood that the only things which should be incorporated into the draft were either options or something the Committee had agreed to. It was most unfortunate that something which most certainly had not been agreed upon had been included in the document as if it were the feeling of the Committee – it had been the feeling solely of Ms Kilian, who was the only representative of the ANC at the time this had been discussed.

The Chairperson took the point that other parties were still looking at the issue, but the ANC proposal would be put to the Rules Committee. The emphasis was on developing the guidelines.

Mr K Hahndiek asked if the paragraphs should be presented as options, and that the rule should revert to what had been there before.

The Chairperson said that where there was no agreement, options must be put forward for the Rules Committee to make the final decision. The Rules Committee would also have to decide on the guidelines for an appropriate dress code and what was not allowed in the Chamber. If Members wished to take the matter to court, they should do so.

Ms E Louw (EFF) asked the Chairperson what his personal understanding was of “appropriately dressed”.

The Chairperson said any options should be brought forward, but the Committee should not consume itself too much with the issue of dress code.

Ms Mazzone pointed out there was currently a court case concerning the dress code and the outcome should be awaited before the rule was finalised.

The Chairperson understood this concerned the EFF in the Gauteng legislature, but the Committee could not await the outcome of the court, therefore options should be presented for the Rules Committee to take an appropriate decision. The rule was not protecting anyone – it was a dress code for all Members to appreciate. The dress code had first been discussed in 1997 so it was not something new. The existing option and all others would be put to the Rules Committee.

Mr K Hahndiek asked if the EFF wanted rule 45 (f) deleted, or whether they wanted the rule to remain as it was before.

Mr Matiase replied that the choice of dress should remain a personal choice, and that this should be a constitutionally guaranteed right. This was crystal clear.

The Chairperson commented that he had never observed the EFF at an event where the dress code was formal wear. He wondered how they would dress for such an event.

Mr Matiase replied that his party were not invitees of the ruling party to Parliament – they had been elected to come to the institution, and one could not prescribe how its Members should dress.

The Chairperson said options could be presented and Members would then sit down to finalise them from the options presented to the Rules Committee.       

Rule 102A: Motion remove President
Mr K Hahndiek noted that research had indicated that the proposals on the table were not wrong. For instance, Zambia relied on an external tribunal being appointed by the Chief Justice to make a finding and bring it to Parliament. In India, if one House brought the motion, the other House had to deal with it – there were also certain margins, where one-third of Members must initially support the referral of charges, and two-thirds thereafter. In the UK, there had been a recent review of the rules on this matter – it also spoke to charges and sufficient grounds. Even in the US, where the deposition was different, the Senate was the sole court for impeachment trials, while crimes committed during office were left to civil courts. In Canada, the Speaker could disallow a motion only on technical grounds. It was important to remember SA had a different Constitution to other countries, and it spoke to the separation of powers. He thought the proposal made to the Committee at a previous meeting was still on target with what could be done. There should be clear cases of misconduct or violation for the committee set up to decide if the case was serious enough for the House to remove the President from office. The emphasis was on establishing the seriousness of the case, rather than if there was misconduct.

Ms Mazonne was concerned about 102A (3), as the ANC maintained the majority of the Rules Committee and so had the most votes. This essentially meant that any party which brought a motion of no confidence would have it voted down by the Rules Committee. The Committee was now stuck between a rock and a hard place, where it seemed as if the rules were democratic and holding the top echelons to account, when in fact such a motion would not go through the Rules Committee – this was a fact. Members of the governing party had blatantly said they held the weight of the vote. It actually seemed superfluous to have this rule, as a motion of no confidence would never pass because it would never get approved by the Rules Committee.    

The Chairperson said a motion of no confidence was a closed matter – the court ruled on it. The issue under discussion was in fact the removal of the President (previously referred to as impeachment). The proposal was that all motions for the removal would go to the Speaker to look at the reasons for the motion and prima facie evidence, and based on that the Speaker would then decide if the motion should be debated in the Chamber. This was a complicated process, so the rules could not be too prescriptive. If the Speaker also agreed, a committee would be set up to look at the details of the case before the Chamber took a final decision. This was a long process. The Speaker had referred this matter to the Committee because there were no guidelines currently.

Mr K Hahndiek clarified that 102A (3) was for the Rules Committee to set up guidelines for the Speaker to use if there was a motion for removal of the President from office. The Rules Committee would develop the criteria for the Speaker to apply objectively. To leave the rule as it was previously would mean the Rules Committee would not finalise the guidelines. Details and guidelines could be discussed exclusively by the Rules Committee and did not need approval by the House – much like the regulations of an Act. This was the change contained in sub (3). 

Ms Mazonne thought the rule should then be clear on this. The guidelines should be attended to urgently – what happened if the rules were approved and the very next day a Member brought a motion for removal? This was her concern – the Committee was approving things in the anticipation of there being guidelines.  

Mr K Hahndiek agreed that guidelines needed to be approved urgently on a range of issues. When the rules were approved, all the guidelines must be brought before the Committee on all these issues. He would go through the rules and identify every area where guidelines were required, and make a list of those for the Rules Committee to address as a matter of priority.

The Chairperson thought the Committee should also begin working, on them because the Rules Committee was very large.

Mr Matiase thought any motion for removal of the President could not be approved by the party from which the President came, so the wording of the rule was problematic and any attempt to tamper with the current arrangement would be unconstitutional. Section 89 of the Constitution was clear on what grounds were needed for the removal from office of the sitting President. The Constitution was the supreme law of the land. Any guidelines developed should be consistent with the Constitutional provisions. As long as the motion met the guidelines set out in Section 89, a party could bring a motion.

Mr Enver Daniels, Chief State Law Advisor, said he would provide a memo on comparative cases.

The Chairperson said the guidelines would be drafted, and they would surely not violate the Constitution.

Mr K Hahndiek pointed out that the Speaker assessed the motion based on her responsibilities – any motion for the removal of the President needed to present grounds, substantiation or support for the claims. Other countries did not allow claims to be made without some support. Such claims could not be made simply on the basis of a newspaper report. The issue was whether the Speaker should be the one to apply the guidelines to a proposed motion, or whether there should be a different process – it might be the Rules Committee to decide whether the grounds were sufficient to take the process forward. It was probably better to rely on the Speaker as an objective office bearer as opposed to the Rules Committee or the House itself, where one party had a majority. This was why other countries made use of the Speaker. 

The Chairperson said that proposals would be made to the Rules Committee, which was also where the guidelines would be developed. The rules also dealt with the role and responsibility of the Speaker as the head of the institution.  

Mr K Hahndiek asked if this should be included in draft seven of the rules, or put in a separate document.

The Chairperson thought it should be included in the rules, as the Speaker had requested the Committee to consider this matter. There had been a long discussion on the matter at a previous meeting. A motion of no confidence was a political statement more than anything else, and so was different to a motion for removal of the President from office. The latter was much more serious and required prima facie evidence for the House to consider and to set up a committee to look at the evidence.

Rule 110: Deputy President’s Question Time
Mr K Hahndiek took the Committee through the rule.

The Chairperson said the point was to remove the Deputy President from answering questions in the cluster. Six questions would be posed to the Deputy President, with the session not exceeding three hours. There was a discussion whether such a session should be monthly -- but then what would happen if Parliament was in recess. There had been consideration of whether such a session should then be retained on a fortnightly basis.   

Mr Matiase did not agree with 110 (1A): “Questions to the Deputy President must be limited to matters of national and international importance as assigned to him or her by the President”. He thought questions should be broad and deal with issues of government in general.

Mr K Hahndiek said that the responsibilities of the Deputy President were outlined in the Constitution. It had always been the case that questions about specific departments should be posed to the responsible line function Ministers, and not be asked directly to the President or Deputy President. The objective was to have questions to the President or Deputy President to be about broad national issues, and not line function responsibilities.

The Chairperson agreed and thought the rule was not in violation of anything.  

Rule 158: Rules Committee
Mr K Hahndiek explained the existing rule was that all parties were part of the Rules Committee, but the new proposal was to have office bearers and party representatives, along with alternate members and other members who could attend and participate, but could not vote.

The Chairperson thought Mr Hahndiek had done a wonderful job on this matter. He was happy with what had been drafted. The party representatives would now be six from the ANC, two from the DA, one from the EFF and two Members representing the smaller parties. All other Members could participate but could not vote.  

Mr K Hahndiek was concerned that this rule only covered the current Parliament and so with a new Parliament after the next national election, this rule would have to be reviewed.

The Chairperson took the point – it was possible that the current parties could collapse after 2019 and return with only two Members.

Mr Daniels observed that 163A could be misconstrued – it could mean one-third of each of the party representatives. He thought the word “party” should come after “representatives” to make the rule clearer.

Mr Perran Hahndiek, Committee Secretary, asked if the Rules Committee met first before the House sat, following an election.

Mr K Hahndiek responded that this was part of the dilemma -- there was an election, but then there was no other composition of a Rules Committee unless the House by resolution decided otherwise. This was the one problem with the rule, in that it was bound to the current Parliament.

The Chairperson said all the rules being drafted currently were very progressive and there was flexibility. He was pleased with the way this rule was drafted – it helped a lot.

Mr Daniels suggested the word “party” also be deleted in 164, to be consistent with 163.

Rule 97: Motions without Notice
The Chairperson said the Committee had had a long discussion on the matter in previous meetings and now there was a very progressive proposal on the matter. The guidelines would also be drafted to assist the presiding officers. It was important to tighten this rule to ensure Members did not use motions without notice for other reasons, like making a political statement.

Mr Matiase said the ruling party could not short-circuit the democratic culture of Parliament in dealing with motions without notice. The democratic culture should be promoted and maintained and it should be up the House itself to agree whether a motion stood or did not. The proposed rule sought to undermine and erode this democratic culture, and the EFF rejected any attempt to erode the democratic culture of Parliament.  

The Chairperson responded that motions without notice were meant for Members to congratulate individuals or to express condolences. It was not meant for political point scoring – other motions served these purposes. Motions without notice were serious and needed to be separated from political grandstanding. To reject a notion conveying condolences in respect of a deceased Member of Parliament was just unheard of. He took the view of the EFF, but the Committee had had a long discussion on this issue to ensure democracy was combined with order, because the two could not be divorced. He did not think the rule undermined any democratic process of Parliament.

Members then began working through the changes that had been made in draft six.  

Rule 1: Definitions
Mr K Hahndiek said that definitions had been added for “Parliamentary Protection Services,” while the definition for “substantive motion” had been simplified.

Mr Matiase was of the view that each new Parliament should be empowered to develop its own conventions and practices to guide how things were done.

Mr K Hahndiek responded that there were many practices where one would not even know exactly when they had come about, nor were they written rules – this was something that just happened. There were so many such instances that one could not begin to write them all down in the rules. An example was the Speaker’s procession – sometimes the Speaker walked in the House, and at other times came from behind the chair. It could be very problematic to write all these millions of practices down and then review them with every new Parliament. Informal arrangements had been agreed to, but none of them were enforceable and they often went beyond the rules.

Mr Matiase noted this was precisely his concern. Unenforceable conventions could not be used to hold Members back. Such conventions should lapse each time there was a new Parliament. Such conventions stalled progress and were used to intimidate those who had different views.

The Chairperson noted the view, but said many of the practices were not even written down so it was difficult to delete them completely. Some conventions had been developed over time and if they were backward they would surely have been scrapped. Some of the conventions were progressive and showed respect and honour. Respecting Parliament also showed respect to those people who had elected the Members to Parliament.  

Mr K Hahndiek added that in 1994, all previous conventions had rightly been rejected so all current conventions and practices had been developed post-1994.

Ms Louw thought the conventions needed to be documented somewhere. Without this, new parties could not challenge conventions.

The Chairperson thought it would be useful for the Table to do that, and capture some of the conventions for future generations to consider.

Mr K Hahndiek provided the example of maiden speeches, where the convention was for the new Members to not raise any controversial issues and for other Members not to heckle or disrupt the maiden speech.

The Chairperson said this was clearly not the case anymore, but there many such other conventions.

Mr Daniels did not understand what “self-contained proposal...for separate consideration by the House” meant under the definition of substantive motion.

Mr K Hahndiek explained that all motions were really substantive, apart from amending motions. It had over time developed a particular meaning in terms of Rule 63A.

Rule 21 CC: Absence from sittings of the House
Mr Matiase felt that any rule which prescribed that Members must seek approval for leave of office from the Speaker was problematic.

The Chairperson said this rule had been deleted because there was a standing policy in Parliament now on leave of absence.

Mr K Hahndiek added the new policy was for parties to manage the leave of absence of their Members.

Rule 23: Working days and hours of sitting
Mr K Hahndiek said that in sub-rule (2), reference to Rule 190B had been added.

Mr Matiase said as long as the Speaker did not have the exclusive right to determine operations, he agreed with the rule. This was also so in terms of Rule 24A.

Rule 31: Business of mini plenary sessions
The Chairperson said all Members agreed that mini plenaries were very important for debate, and this rule covered their operation.

Mr K Hahndiek said the rule made it clear no more than three mini plenaries may take place simultaneously, to be fair to smaller parties.

Rule 35: Speakers’ List
The Chairperson noted sub-rule (2) had been adjusted and an option had been added after sub-rule (3).

Mr K Hahndiek added that 35 (2) made provision for when a Speakers’ list was not used.

Mr Matiase suggested 35 (2) (a) make reference to a “in a fair and impartial manner” instead of “in a balanced manner”.

Mr K Hahndiek said this was dealt with in a separate rule dealing with the authority of the Speaker to act in a fair and impartial manner.

Mr Matiase asked that this provision also be inserted into rule 35 (2) (a).

The Chairperson thought this was an issue of language which could be looked into.

Rule 59: Recognition of Members to speak
Mr K Hahndiek noted that 59A -- control of microphones in the Chamber -- was a proposed new rule.

Mr Daniels highlighted that switching the microphone of a Member off was a very serious issue and could infringe on freedom of speech. As he had mentioned at a prior meeting, if a microphone was going to be switched off, the Member should be informed.

Ms Mazzone responded that this was already being practiced in the House. There was freedom of speech in Parliament but according to the Constitution, all rights were limited. This was why she did not think switching off of the microphones could be constitutionally challenged.

Ms Louw added the presiding officers had never informed any of the EFF Members that their microphones would be switched off – it had just simply been done.

The Chairperson said there would be no need for the presiding officers to do so if Members followed the rules. The rules said Members could not just get up and talk without first being recognised by the Speaker or presiding officer. Naturally when the Speaker spoke, the Member should take his/her seat. Without the rules, the House would be in a state of havoc, so this was why the rules were important for all Members. The rules protected Members and therefore they should be respected.

Rule 64A: reflections upon the House and its proceedings and discussions
Mr K Hahndiek noted this was a proposed new rule where no Member may reflect, in a disrespectful manner, on the House and its forums and committees, or their proceedings and decisions.

Rule 81: Declaration of vote
Mr K Hahndiek outlined 81 (1A) provided an option for relevant Ministers to also be allowed to express a view, and also that notice must be given in advance for a request for a declaration of vote.

Proposed Interim Rule 97: Motions without notice
Mr Matiase was of the view that motions should not be bureaucratised, as this would take away the right of Members to speak and formulate their own opinions and place it in the hands of the staff of Parliament. The right of Members to express what had been gathered in constituencies should not be mediated by unelected officials, particularly partisan presiding officers of Parliament, who would always be partisan and seek to suppress critical opinions. 

The Chairperson said the Whippery would deal with some of these issues. The intention of the rule was to ensure motions without notice remained motions without notice -- to convey congratulations and express condolences. Since 2009, Members had started using these motions for political grandstanding and not for expressing condolences or congratulating anyone. Many other motions could be used to make political statements along with debates. One of the options was to do away with motions without notice completely, but the view was that there might be a situation where someone needed to be congratulated or condolences made known. If the motions without notice remained, guidelines would be developed by the Rules Committee to assist the presiding officer. If the motion without notice was not within the guidelines, the Member would be notified and the Member would have to rework the motion.

Rule 111: Questions to the President
Mr K Hahndiek said the rule had been adjusted in terms of the notice period – questions now needed to be submitted to the Speaker at least 16 days before question day. The concern was that questions became stale if they were submitted too far in advance.

Rule 113: Times allotted and time limits
Mr K Hahndiek explained this was an important adjustment in that time for questions had been increased from two to three hours – this meant more questions could be dealt with. Also in 113 (3), the reply to a question had been increased from three to four minutes for the first reply to the original question.

Rule 114: Unanswered questions for oral reply
Mr K Hahndiek said this was only a technical adjustment to the rule.

Rule 117: written reply not given
Mr K Hahndiek said 117 (3) had been adjusted by inserting a reference to the Leader of Government Business. If a written reply had not been received within ten working days or within the period of an extension approved by the Speaker in terms of Rule 116 (5), subject to sub-rule (1) of the Question Paper, the Speaker must inform the Leader of Government Business accordingly.

Rule 194A: Disciplinary Committee
Mr K Hahndiek said the concern was that the Disciplinary Committee should not be limited to infringements of an administrative nature, but should also deal with broader issues. In terms of 194E, the Disciplinary Committee (a) at the Speaker’s request, must investigate any alleged infringement by a member except: (i) a charge against a member of contempt of Parliament in terms of the Powers and Privileges Act; (ii) a breach of the Code of Conduct contained in the Schedule to the Joint Rules. This meant any other issue of conduct, beside the two outlined above, could be referred to the Disciplinary Committee.

The Chairperson thought this rule was very helpful.

Mr Daniels alerted the Committee to an issue he had raised before – that of the fine. He thought it was useful to look at the mechanism for a fine. It would be useful to also look at defining calendar -- sitting and working days -- so that a technicality did not work against the rules.

Mr Matiase said no EFF Member would come before a Disciplinary Committee until such time that the ANC acted on its own Members and their contraventions.

The Chairperson said the Disciplinary Committee would start sitting after the House accepted the proposals of the Rules Committee.

Mr K Hahndiek pointed out the Disciplinary Committee was the one Committee where membership was not proportional to what it was in the House ,which emphasised it would look at contraventions in a different kind of way.

The Chairperson knew Mr Matiase would not be the first Member before the Disciplinary Committee, because when the Speaker asked him to take his seat, he would. It was to the benefit of all Members to have an orderly and respectful Parliament. This did not mean there should not be engagement – Parliament was about politics, but it should be conducted with respect to the views of other Members. The Disciplinary Committee would look at a host of issues, like parliamentary language.

Mr P Hahndiek asked if there was a provision explaining how decisions would be reached if the majority in the House was not the majority in the Disciplinary Committee.

Mr K Hahndiek responded that the Speaker would refer a matter to the Disciplinary Committee (a multi-party Committee without a majority) to consider the issue and talk to the Member in contravention, and then report back to the Speaker with recommendations. The Speaker would then inform the House of the decision she had taken, based on the recommendations. All parties would be represented in the Disciplinary Committee, so all parties would be aware of the issues.

Mr Matiase said the presiding officers were like all other Members of Parliament – they were players, partisan and politicians. His proposal was for the Disciplinary Committee to be chaired by a retired judge.

The Chairperson said this could be an option. The Disciplinary Committee would be different to the Powers and Privileges Committee, where there would be no lawyer or charge sheet. The Disciplinary Committee was almost a form of political management – it had worked in previous Parliaments and had not caused many problems.

Mr Daniels said he would provide the Committee with a memo on comparative cases, but in many other countries there was a role for the Chief Justice. He said the Constitutional Court had struck down the Heath Commission because Judge Heath was a member of the judiciary, and he was almost certain such a case would arise with the above proposal by the Member. There would also need to be a procedure in place for who appointed the judge. He would look at the issue more carefully to provide a view.

The Chairperson said this would be useful. The emphasis was on a quick way of managing politics, rather than going the legal route.

Rule 231: Initiation of legislation by national executive
Mr K Hahndiek said the reference to Finance Minister had been adjusted to “Cabinet member responsible for national financial matters”.

Rule 251: Committee’s report
Mr K Hahndiek explained 251 (3) (e) had been adjusted for non-unanimous reports to (i) specify why there was no consensus and (ii) to convey views of the minority in the committee, in addition to the view of the majority in order to facilitate debate when the report came before the House.

Rule 286: Introduction of Money Bills
The reference to the Minister of Finance had been adjusted to be consistent with Rule 231.

Rule 307: Tabling and referral to committee  
Mr K Hahndiek pointed out the reference to “foreign affairs” in 307 (2) (b) had been changed to “international relations”.

Rule 315: Referral of petitions to committees
Mr K Hahndiek said that the referral of special petitions in Rule 315 (a) had been changed from the Committee on Private Members’ Legislative Proposals and Special Petitions, to the Portfolio Committee on Public Finance.

The Chairperson asked if there were any other outstanding issues or rules which Members wanted to raise. The Committee had completed most of its work and just needed to work on developing the guidelines where they were needed. The intention was to adopt the Rules before the end of the year. The Committee would be meeting again tomorrow at the same time and in the same venue.

The meeting was adjourned.