Presentation by Legal Services Office of Parliament on Draft Rules resulting from Powers, Privileges & Immunities of Parliament

MINUTES
Draft Rules framed under the Powers and Privileges Act of 2004
Adv F Jenkins of the Parliamentary Legal Services Office, informed Members that he would be addressing the questions raised by Members during the last meeting of this Committee on 14 November 2005.

Disadvantages and advantages of having either a single committee or separate disciplinary and contempt Committees
He stated that this was dealt with in paragraph 2.5 of the Draft Rules framed under the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act of 2004 (document attached). The National Assembly has a general disciplinary Committee that deals with disciplinary matters excluding the Code of Conduct, which was considered by the Joint Ethics Committee. The Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act of 2004 (the Act) envisaged the establishment of a specific Committee that would deal with contempt of Parliament.

The Chair asked whether the general disciplinary issues referred to by Adv Jenkins were clearly listed.

Adv Jenkins replied that it was based on matters as they arose, and was based on everything except breaches of the Code of Conduct, which was considered by the Ethics Committee. This was the situation that was currently provided for in the Joint Rules. He stated that the National Council of Provinces (NCOP) dealt with disciplinary matters by forming Ad Hoc Committees, and this has also been done in the National Assembly on occasion to deal with a specific issue. Section 12 of the Act requires the establishment of a Standing Committee to deal with all issues of contempt. A decision would then have to be made as to whether a specific Section 12 Committee would be established, whatever name it is given, or retain the disciplinary Committee which would now also consider issues of contempt. The NCOP would also have to create a Section 12 Committee, and it could then also decided whether it preferred to deal with the other disciplinary matters on an ad hoc basis or whether it would include in the mandate of the Section 12 Committee issues dealing with misconduct generally.

The advantages and disadvantages were relatively straightforward. The disadvantage was the danger of further proliferation of Committees, whereas the advantage of having two Committees would be a specialist Committee dealing with contempt and abuse of Parliament.

The Chair requested clarity on the forms of conduct that would be covered by the Section 12 Committee.

Adv Jenkins responded that issues of contempt were mentioned in Section 13, although it merely referred to other provisions in the Act that dealt specifically with contempt. It includes all forms of contempt contained in the 1963 Act and furthermore allows Parliament and provincial legislatures to establish further forms of contempt, including abuse of privilege. These would however have to be captured in the standing rules and cannot happen on an Ad Hoc basis.

The forms of contempt broadly included instances in which a Member obstructed or interfered with another Member, or a Member of the service of Parliament. This included taking bribes or being influenced in any way to ask certain questions in the House, as well as failure to obey any resolution of any of the Houses.

The Chair sought clarity on the distinction between the mandates of the disciplinary Committee and the Section 12 Committee.

Adv Jenkins replied that the Section 12 Committee’s specific function was clearly spelt out in Section 12 of the Act, but that provision did not prohibit the extension of its mandate beyond the enabling provision.

Ms C Seaton (IFP) [NA} stated that it made more sense to have one Committee that dealt with all the breaches and offences by Members, as Parliament was already struggling to get its current complement of Committees meeting regularly. Although it has been asserted that separate Committees would allow for specialisation in a certain area, Ms Seaton was of the view that a single Committee could specialise in all aspects of discipline and would recommend that one Committee be established to deal with the lot.

Adv H Schmidt (DA) [NA] agreed with Ms Seaton, because there was a blurring of distinction between the disciplinary, ethics and Section 12 Committees.

The Chair stated that he could not understand why the Joint Ethics Committee was not a Joint Committee comprising both Houses, because the rules governing disclosure of Members interests were uniform and covered both Houses. It was also not clear to him why the two Houses have chosen to follow different approaches to the Disciplinary Committee.

The Chair sought clarity on the dangers of having separate Committees.

Adv Jenkins replied that the advantages were that a separate Section 12 would create specialised expertise with regard to contempt matters, but the Legal Office’s views were not strong on this point. He stated that the Legal Office was of the view that it made more sense to have one Committee that dealt with all the breaches.

The Chair asked whether the Section 12 Committee covered witnesses or Members of the public who were in violation.

Adv Jenkins responded that Section 12 referred to Members alone.

The Chair stated that the Legal Office must now finalise a draft rule regarding the establishment of a single Committee, which would then be forwarded to the Joint Rules Committee as a recommendation.

Manner in which contempt matters are referred to the Section 12 Committee
The Chair noted that this has been dealt with under the previous item.

Adv Jenkins agreed. The first draft of the Rules stipulated that a matter would be referred to the Section 12 Committee by the Speaker. This matter was raised again during the previous meeting and, following discussions on the Comparative Study of the Roles and Functions of Disciplinary Committees in Bicameral Parliaments (document attached), the amended position is that only the House by resolution can refer the matter to the Disciplinary Committee. This was the international standard and made more sense, and was reflected in paragraph 3.3 of the Draft Rules document.

The Chair stated that there should be one central point to which all complaints could be directed, and this should be clearly specified in the rules. The best option would be the Speaker, who would then initiate the necessary processes. He stated that he was not sure whether the Speaker would then have to table the matter in the House so that the House could then refer the matter to the Committee, or whether the Speaker would simply refer the matter to the Committee directly.

Adv Jenkins replied that the final referral to the Committee must be done via a resolution of the House. How the resolution was initiated within the House was not spelt out in the Rules. Rules could however be drafted to specifically spell this out.

Ms Seaton stated that the Speaker should refer the matter directly to the Committee because, in the past, irrelevant matters have been investigated and highlighted.

Adv Schimdt agreed because the person’s reputation would be severely damaged by unfounded allegations. Secondly, the Speaker should be neutral in such matters and thus the decision to refer a Member to a Disciplinary Committee must not be a political decision.

Ms S Botha, NCOP Deputy Chairperson, agreed with Adv Schmidt that the Speaker be allowed some discretion to refer the matter to the Disciplinary Committee.

The Chair noted that the Committee was of the view that complaints must be forwarded to the Speaker who must then refer them to the Disciplinary Committee, and it was only when the Disciplinary Committee has made a finding that the matter would be referred to the House for a decision.

Adv Jenkins stated that he would formulate two different options: the first would stipulate that the House can refer the matter to the Committee after taking a resolution. This was not however the preferred option of this Committee, which was instead for the complaint to be sent to the Speaker of the National Assembly or Chairperson of the NCOP in writing who would then decide whether it should be sent to the Section 12 Committee or the Disciplinary Committee. It was only the recommendations of that Committee that would then be referred back to the House for a decision.

Table staff report on Comparative Study on Disciplinary Committees
The Committee Clerk presented the document (attached) which considered the occurrence, status, composition and mandate of disciplinary in the Australian, English, New Zealand, Indian and Canadian jurisdictions.

The Chair asked whether the Committee should even recommend in its report to the House the appropriate penalty to be imposed.

Ms Seaton answered in the affirmative, and suggested that this should even be considered with regard to the Code of Ethics.

The Chair opened discussion on the composition of the disciplinary Committee.

Ms Seaton responded that she has always felt very strongly on this matter. The current Disciplinary Committees consisted mainly of a representative from each party and two other Members, as determined by the Speaker. This was the correct route to follow. She stated that she felt very strongly that it be recommended to the House that it is wrong to have any Committee that was dealing with disciplinary and Code of Conduct issues to consist of such a vast majority of the ruling party Members. It has been proven before that the majority in the current Committee simply railroaded disciplinary matters through on the basis of political strength, which was wrong. The Committee cannot be ruled by politics, as its sole focus should be on the Code of Conduct and obeying that Code. Thus the Committee should consist of a representative per party or, alternatively, there should never be more than one additional Member from the ruling party. Her party would not be able to agree to the current setup.

Adv Schmidt agreed with Ms Seaton.

The Chair requested the Legal Office to reduce the various options available here to writing, as well as the various issues associated with each option.

Possible inclusion of additional forms of contempt
Adv Jenkins stated that this question was aimed at the recent De Lille case, and whether the issues raised there were covered by the Act. The Committee decided on a previous occasion that it was not the right time to consider additional forms of contempt, but decided instead to gauge the success of the extensive forms of contempt contained in the Act. The question was thus whether the De Lille case was covered by the Act.

This matter was addressed in paragraph 3 of the Draft Rules document. The De Lille case was unique, but the Legal Office was of the opinion that it was covered by the Act. The issue in the De Lille case involved not a breach of privilege, but there was in fact an instruction by the House to withdraw statements made which Parliament considered abusive. The court found that there was nothing in the Rules, the Act or the Constitution that allows Parliament to proceed as it did by suspending Ms De Lille. This was addressed in the present Act as it contained a penalty of suspension for contempt.

The court did however decide that freedom of speech in the House was a constitutional right and nothing prevents the suspended Member from approaching the courts for a review of the decision of the Section 12 Committee and the House.

Legal representation at disciplinary hearings
Adv Jenkins reminded Members that at a previous meeting the Legal Office voiced its opinion that it was uncommon to have legal representation in internal disciplinary hearings. Members of Parliament understand the institution of Parliament very well, and many Members were legally trained and thus the securing of assistance from such a Member would be sufficient. He stated that Mr J Jeffrey (ANC) then sought clarity on the fate of single Member parties if this position were adopted, and the answer was that those Members could still be represented by another party.

It could also be that the Member could no receive any legal representation and in this regard Adv Schmidt referred the Committee to the Hamata v Peninsula Technikon Internal Disciplinary Committee case, which dealt with the question as to whether legal representation was owing in such cases. The court held that there was no absolute right to legal representation in an internal disciplinary hearing, and the constitutional right only applied to arrested, accused or detained persons. Secondly, the court held that a fair procedural hearing was mandatory in any event, and the issues could be so complicated that the case could per se be unfair without legal representation. Thirdly, the court held that the question to be decided was really whether the internal rules of the technikon allowed or prevented external legal assistance. It held that the rules did not prevent external legal assistance, and thus nothing prevented the internal disciplinary committee from considering a request for legal representation. It held that the failure of the committee to entertain such a request would make the hearing unfair. This was then enshrined in the procedural guidelines annexed to the Draft Rules document which stipulated that it must be clearly indicated that the Member is entitled to be assisted by a fellow Member. The rule thus did not exclude the discretion to allow legal representation in complicated cases.

The Chair requested Adv Jenkins to specifically include that the Committee has the discretion to consider a request for legal representation.

Adv Jenkins agreed, as this would clarify the matter completely.

Draft Rules – 12 September 2003
Adv Jenkins stated that neither the current version of the Rules nor the Act made provision for the suspension of the Member during the course of the investigation into the matter by the Section 12 Committee. Provision was however made for this in the then Interim Rules, and perhaps it should be resurrected. The Comparative Study document indicates that it was quite common in other jurisdictions to suspend the Member. Normal disciplinary hearings in South African law allow for the suspension of a Member, and this could be expressly stated in the Draft Rules.

Adv Schmidt stated that the decision to suspend the Member should not be taken as a matter of course, but only for serious offences.

The Chair asked whether there were any rules which dealt with the suspension of Members with or without pay. He asked whether separate rules for suspension should be drafted for offences relating to breach of privilege, contempt and ethics.

Ms Seaton stated that there must be separate rules for the different offences. A suspension of a maximum of 30 days was the norm, and a fine of half a month or one month’s salary. These options need to be widened for the offence of contempt.

The Chair asked whether these funds would be claimed by Parliament or National Treasury.

Ms Seaton was of the opinion that it was a debt against Parliament, but a legal opinion was sought on this.

Confidential documents
The Committee Clerk replied that this was covered in the previous meeting of the Committee.

Adv Jenkins replied that this related to Section 15 of the Act which granted the Section 12 Committee the power to limit the publication of certain documents before it. It granted Parliament the power to adopt standing rules that would limit the type of material would be question about. Parliament has to date adopted rules that limit the publication of confidential documents, as was done during the Arms Deal. He stated that he briefed the Committee during its previous meeting on this matter, as contained in paragraph 7 of the Draft Rules document which deals with exemption in terms of the Promotion of Access to Information Act. This essentially dealt with the circumstances in which Parliament would be prohibited from publishing certain documents.

The Promotion of Access to Information Act contains its own categories of information that cannot be made public, which were listed in the document. However Parliament receives information pursuant to its oversight or accountability functions not in terms of the Promotion of Access to Information Act, but rather in terms of the Constitution. Unless legislation clearly stipulated that such documents were confidential for certain aspects, there should not be a need to in general begin to classify documents as confidential or not. It was however possible for someone to request certain confidential information from Parliament in terms of the Promotion of Access to Information Act. Parliament could then assert that the information was provided to it in terms of a confidentiality clause and thus, in terms of the Promotion of Access to Information Act, it could refuse to provide that information. The person seeking the information could then appeal against Parliament’s decision.

The Chair sought clarity on the relationship between the Promotion of Access to Information Act and other Acts dealing with disclosure of confidential information.

Adv Jenkins responded that legislation indicates that the Promotion of Access to Information Act does not repeal all other Acts regarding information, but insofar as the others are more restrictive, the Promotion of Access to Information Act will have precedence. It thus overrides previous legislation, but does not repeal it.

The Chair asked whether Parliament was restricted in requesting certain information.

Adv Jenkins replied that Parliament would be so restricted if the legislation stipulated that Parliament could be denied access to such information. Parliament would have to abide by that law.

The Chair asked whether the Members of the Section 12 Committee would have to be sworn to secrecy in the same way as the Ethics Committee, and whether it should conduct its proceedings strictly in camera..

Adv Jenkins responded that he has not picked up a specific need for that in Section 12.

Ms Seaton stated that the main reason why the Ethics Committee was held in camera was because it dealt with the personal and private details of Members. It was decided that meetings of the Ethics Committee would not be held in public unless a substantial discrepancy was proven, because the Member’s reputation could be severely tarnished if s/he was brought before the Committee in public only for the allegations to be found to be untrue.

Adv Schmidt agreed that the Section 12 Committee should have the discretion to hold meetings in camera.

The Chair questioned whether the proceedings should be held in an accusatorial manner.

Adv Jenkins replied that the current Rules did provide the discretion to sit in camera, and applied to the Section 12 Committee as well. The procedural schedule provided in the document allowed for the appointment of an initiator who would set out the charge, lead witnesses as well as cross examine the defence witnesses. This indicates that it was an accusatorial system., but whether its as conflictual as a courtroom is another matter.

Leave policy of Members
The Chair stated that the Committee was requested to formulate a rule relating to penalties for a absenteeism of Members, which would have to include a rule on the disciplinary structure to process such a charge.

Ms Botha stated that she had conducted some research on this issue, and she believed that it required additional thought. Firstly, the leave policy applying to annual and sick leave, which is the norm and had strict rules that applied to it. The second is attendance in Parliamentary Committees and in plenary, which is a different kind of leave as it is discretionary to a large extent. The second related to that which different political parties expected of their Members, and was not clearly spelt out in the document. Thus clarity was needed on this before sanctions could be imposed.

Ms Seaton stated that when the policy on leave of Members was drafted the feeling was that the Member’s first obligation was to Parliament. Political parties however saw it differently. The drafting Committee was of the view that the request for leaves of absence from Committee meetings and proceedings in the House, as this would be sought internally through the party whips. The applications for leave however were separate and must be made to Parliament, and it is this that must be included in the Rules of Parliament and this Committee must then provide the mechanics to enforce the Rules.

The Chair stated that this Committee’s mandate was not to create a leave structure as this was already in place.

Ms Seaton proposed that the chief whips should serve on the leave Committee, and should include the presiding officers as well. Parliamentary sanctions must be imposed on the offending Member, and those are over and above the disciplinary sanctions that might be imposed by the political party itself. There was however a dilemma as to whether Parliamentary Committee work takes precedence over political party responsibilities. Parties will have to consider the Parliamentary programme and arrange their meetings and conferences during constituency periods.

Ms M Gribenouw, Senior Procedural Officer: National Assembly Table, stated that the draft leave policy only applied to Members of the National Assembly, and the document should thus go to the National Rules Committee because the leave requirements in the two Houses are completely different. This Committee could then make recommendations to the Joint Rules Committee which it would in turn refer to the Leave Committee, and for the NCOP to be included in the process.

Ms Botha stated that it has to be ascertained whether the Leave Committee referred to is still in existence. The current document cannot be put to either the Joint Rules of National Assembly Rules Committee as a final recommendation.

The Chair agreed and stated that the Committee has identified certain legal matters that need an opinion from the Legal Office before the Committee can decide on the penalties to be imposed for abscondment. Secondly, the Legal Office must formulate draft Rules for consideration, taking into account some of the concerns that have been raised. Thirdly, clarity was sought as to whether the Committee should also impose penalties for the NCOP.

Referral of Bill to House of Traditional Leaders
Adv Jenkins informed Members that his office was presently finalising a memorandum. Mr Handiek, Secretary to the National Assembly, had drafted a document which set out guidelines, and Adv Jenkins was busy drafting rules for the referral based on those guidelines. There was no requirement that Parliament must draft rules on this matter, but was instead an option that Parliament could choose to exercise. The document would be finalised by next week.

The Chair sought clarity on the situation should customary law issues arise after the Bill was referred to a Parliamentary Committee.

Adv Jenkins responded that the details could pose problems that he was not completely aware of. He stated that he had drafted a rule that allowed the Joint Tagging Mechanism, in the same fashion as the normal classification of a Bill, to also reconsider and reclassify a Bill as to whether it was subject to Section 18 of the Local Government: Traditional Leadership and Governance Framework Amendment Act of 2003.

The meeting was adjourned.