Draft rules resulting from Powers, Privileges & Immunities of Parliament & Provincial Legislatures Act: briefing

Meeting report

JOINT SUBCOMMITTEE ON REVIEW OF RULES
22 October 2004
DRAFT RULES RESULTING FROM POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES ACT: BRIEFING

Co-Chairpersons: Adv M Masutha (ANC, NA) and Kgoshi L Mokoena (ANC, NCOP)

Document handed out:
Memorandum on Draft Rules resulting from Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act

Relevant document:
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act [No 4 of 2004]
National Assembly Rules
National Council of Provinces Rules
Joint Rules

Summary
The Legal Services Office of Parliament was tasked with drafting rules for both Houses of Parliament in terms of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004. The Subcommittee on Review of Rules were briefed on the Memorandum that Legal Services had drawn up about rules arising from this new Act.

Minutes

Parliament Legal Services briefing
Adv F Jenkins (Parliamentary Legal Adviser) noted that the Legal Services Office of Parliament had been requested to develop draft rules as required by the newly enacted Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act. At this meeting, Legal Services presented a Memorandum which identified those provisions of the Act that require or authorise new Rules. It was noted that the Memorandum consolidates some provisions of the 1963 Act with the 2004 Act (see presentation).

Discussion
Kgoshi Mokoena (Co-Chair) said that the meeting was supposed to deal with the Rules of both Houses and he voiced his discontent that the Memorandum dealt with a review of the Rules of only one of the Houses.

Adv M Masutha (Co-Chair) on behalf of the National Assembly formally apologised to the National Council of Provinces (NCOP) component of Parliament, noting that this emanated from an administration error which resulted in the NCOP not being represented at the previous meeting of the Sub-Committee where these issues were first dealt with.

Adv Jenkins also apologised and noted that every reference to the National Assembly should be read as also referring the NCOP, with the necessary changes.

Possible jurisdictional overlap
Mr J Jeffery (ANC, NA) noted that two committees were being proposed, namely the Disciplinary Committee in the Rules, and the Standing Committee referred to in Section 12 of the Act. He proposed that they should recommend to the Joint Rules Committee that one committee would suffice. He also asked what was the reasoning that led to the proposal in paragraph nine that Rule 191(b) of the NA Rules be amended and the composition of the Disciplinary Committee be extended.

Mr K Hahndiek (Secretary: NA) sais he was not sure whether it would be proper to separate these two committees since they would be dealing with totally different issues that were complex.

Mr Jeffery said that the creation of two separate committees in each House might prove to be too burdensome on the NCOP (more so than might be the case with the NA), considering the smaller membership of the NCOP. He thus proposed that this committee be given the composition structure of the existing NA Disciplinary Committee and Ethics Committee, together with their functions and procedures, in place of the proposed Section 12 Standing Committee.

Mr J Le Roux (DA, Eastern Cape, NCOP) felt that it would be proper to have a Joint Standing Committee, instead of having a separate Standing Committee in each House. He asked if an amendment to the Act would be a prerequisite before such a Joint Standing Committee could be established.

Mr Jeffery said that since the answer falls squarely within the ambit of the Joint Rules Committee, it would be proper if each House were to discuss the matter separately and thereafter bring its resolution to the Joint Rules Committee for consideration by both Houses.

Kgoshi L Mokoena (Co-Chair) noted the point raised by Mr Jeffrey and said the NCOP would take up the matter accordingly.

Mr Hahndiek commented that although the idea of a joint standing committee was very attractive, it could have constitutional implications since it was doubtful whether one House could have jurisdiction over the members of another House. They would have to look at the legal aspects involved in this matter.

Schedule: Procedure to be followed in the investigation and determination of allegation…
Mr Jeffery (ANC){NA} asked whether would it not be unconstitutional to restrict the member's entitlement to be represented by a fellow member as long as the representative was not a qualified lawyer.

Adv Masutha (Co-Chair) was of the view that the precedent in internal disciplinary matters is that a person does not necessarily have an automatic right to legal representation, except in exceptional circumstances, taking into account the complexity of the matter, amongst others.

Adv H Schmidt (DA){NA} concurred with the Co-Chair noting that this is the same conclusion that was reached by the High Court in the Cape Technikon case. He was however concerned that the Schedule to the Rules seemed to clump together all the provisions of Act. This might be procedurally proper but it could lead to substantive or construction problems in law.

Draft rule as envisaged by Section 12(9) of the Act
Adv Masutha (Co-Chair) noting the uniqueness of the provision and asked whether has the Legal Services Office had looked at other practices, such as the one used in judicial circles.

Adv Jenkins replied that although they had thought about such, they had not undertaken a detailed study in this regard.

Adv Masutha (Co-Chair) suggested that those areas which had been identified as requiring closer scrutiny should be flagged for further study to determine whether this proposed policy would be in line with practices in other jurisdictions.

Adv H Schmidt (DA){NA} while agreeing that such a study might be necessary, cautioned that Members of Parliament are not the employees of Parliament and therefore the proposed policy would not in anyway relate to either labour law or administrative law.

Adv Jenkins acknowledged the concerns raised by the members and said that this provision would be flagged accordingly.

Draft rule as envisaged by Section 13(d) of the Act
Adv Masutha (Co-Chair) asked how these rules related to the issues covered in the repealed Act of 1963.

Adv Jenkins replied that even though the 2004 Act dealt with issues of contempt thus repealing those contained in the 1963 Act, Section 13 of the Act did permit the House to revive them if it desired this to form part of contempt.

Adv Masutha (Co-Chair) echoed that this then authorises Parliament to re-enact those provisions in the 1963 Act into its Rules as if they were not repealed by the 2004 Act.

Mr Jeffery (ANC){NA} agreed in principle that the term "contempt" need to be properly defined, however repetition of the provisions contained in the Act should be avoided in the draft Rules. He wondered if it would be proper for the Committee to re-enact provisions which had been done away with by Parliament on the basis that they were obsolete, especially as some of the restrictions contained in the 1963 Act were really outdated.

Adv Masutha (Co-Chair) proposed that the Committee flag this discussion on whether it is appropriate or not to resurrect repealed provisions. The Legal Services Office could research the matter so as to advise the Committee accordingly.

Draft rule as envisaged by Section 15(b) of the Act
Mr Jeffery (ANC){NA} proposed that the Legal Services Office should, in collaboration with the staffing component of the Joint Standing Committee on Intelligence, identify which categories of documents have to be excluded as being classified information. In so doing they have to take into account the provisions of the Promotion of Access to Information Act.

Adv Masutha (Co-Chair) noting that this might have constitutional implications, asked Mr Jeffery if he proposes the formulation of a list of categories of documents or the formulation of an approach in determining when a document should be excluded from the list of categories.

Mr Jeffery (ANC){NA} acknowledged the impact which the classification might have on a constitutional right of access to information. He said that the list of possible categories of documents should be identified for exclusion and the Committee thereafter should consider the formulation on how to exclude them.

Draft rule as envisaged by Section 25(2) of the Act
Adv Masutha (Co-Chair) asked how far would information given in confidence be protected, under this provision, from being published.

Adv Jenkins replied that a statement made in a closed meeting falls outside the protection of this provision. A statement made in confidence would definitely be protected under S25. Only statements made in open proceedings would be covered under this provision as members of the public would normally not be aware of statements made against them in closed sessions.

Mr Jeffery (ANC){NA} believed that it was their duty as Members of Parliament to protect the integrity of all Chapter 9 institutions. He felt they should propose to the Joint Rule Committee that these institutions be treated a little differently from other members of the public. This would restrain Members of Parliament from saying things in Parliament about non-members, who are in no position to defend themselves or take legal action since Members of Parliament are protected by parliamentary privilege.

Mr Hahndiek agreed and noted that they needed to put in place some mechanisms to ensure that should a Member say something critical about a non-member that a response would be issued.

Kgoshi Mokoena (Co-Chair) acknowledged the concern but warned that Parliament should be cautioned against opening a flood of requests for apologies by non-members against Members and in the process compromise the privilege of Members in parliamentary proceedings.

Mr Jeffery (ANC){NA} noted that the Committee would be there to consider each complaint on its merit and give its decision accordingly. He proposed that the revised draft of the Rules be presented to the Committee before the end of this last session in 2004.

Adv Masutha (Co-Chair) agreed and called on the sub-committee members to deliberate this draft with their respective parties whilst awaiting the revised document.

The meeting was adjourned.