REPUBLIC OF SOUTH AFRICA

POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES BILL

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(Ad Hoc Committee on Powers and Privileges of Parliament)

[B - 2003]

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B I L L

WHEREAS the Constitution of the Republic of South Africa, 1996, sets out certain powers, privileges and immunities of Parliament and provincial legislatures and their members;

AND WHEREAS sections 58(2), 71(2) and 117(2) of the Constitution provide that other privileges and immunities of the respective legislatures and their members may be prescribed by national legislation;

AND WHEREAS it is considered essential to provide for such further privileges and immunities in order to protect the authority, independence and dignity of the legislatures and their members and to enable them to carry out their constitutional functions;

AND WHEREAS it is expedient to regulate certain other incidental matters relating to the functioning of Parliament and provincial legislatures:

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:-

1. Definitions

2. Description of precincts of Parliament

3. Control over precincts of Parliament

4. Presence of security services in precincts of Parliament

5. Execution of process and arrest of persons within precincts of Parliament

6. Freedom of speech in joint sittings

7. Prohibited acts in respect of Parliament and members

8. Improper influence of members

9. Attendance of members before court

10. Giving evidence of proceedings

11. Persons creating disturbance

12. Disciplinary action against members for contempt

13. Conduct constituting contempt

14. Summonsing of witnesses

15. Examination of witnesses

16. Privilege of witnesses

17. Offences relating to witnesses

18. Protection in respect of publications

19. Unauthorised publishing

20. Admissibility of journals as evidence

21. Broadcasting of proceedings

22. Liability for acts done under authority of Parliament

23. Civil proceedings against Parliament

24. Duty of criminal courts in respect of members

25. Protection of members of public

26. Hindering or obstructing staff members

27. Offences

28. Application of Act to provincial legislatures

29. Civil proceedings against provincial legislatures

30. Duty of criminal courts in respect of members of provincial legislatures

31. Repeal of laws

32. Short title

1. In this Act, unless the context indicates otherwise-

1. the National Council of Provinces, means-

and includes the Deputy President, a Minister and a Deputy Minister;

'precincts', means the precincts of Parliament referred to in section 2;

'the Constitution' means the Constitution of the Republic of South Africa, 1996.

2. (1) The precincts of Parliament is the area of land and every building or part of a building under Parliament's control, including-

(2) In so far as it may be necessary for the achievement of the objects of this Act in a case where a House or committee convenes beyond the seat of Parliament, this Act applies as if the premises where the House or committee is sitting were within the precincts of Parliament.

3. The Speaker and the Chairperson, subject to this Act, the standing rules and resolutions of the Houses, exercise joint control and authority over the precincts on behalf of Parliament.

4. (1) Members of the security services may-

(b) perform any policing function in the precincts,

only with the permission and under the authority of the Speaker or the Chairperson.

(2) When there is immediate danger to the life or safety of any person or damage to any property, members of the security services may without obtaining such permission enter upon and take action in the precincts in so far as it is necessary to avert that danger. Any such action must as soon as possible be reported to the Speaker and the Chairperson.

5. A person may not within the precincts-

(b) except as authorised by section 4 or 11, arrest another person,

without the express permission of, or in accordance with the directives of, the Speaker or the Chairperson or a person authorised by the Speaker or the Chairperson.

6. The President and members have the same privileges and immunities in a joint sitting of the National Assembly and the National Council of Provinces as they have before the Assembly or the Council.

7. A person may not-

8. (1) A person may not by fraud, intimidation, force, insult or threat of any kind, or by the offer or promise of any inducement or benefit of any kind, or by any other improper means-

(a) influence a member in the performance of the member's functions as a member,

(b) induce a member to be absent from Parliament or a House or committee; or

(2) A member may not ask for, receive or accept any fee, compensation, gift, reward, favour or benefit, for the member or another person, for or in respect of-

(c) making a representation to a House or committee.

9. (1) When a member is required to attend a court as a witness in any civil or criminal proceedings, or as a defendant in any civil proceedings, the Speaker or the Chairperson or a person designated by the Speaker or Chairperson may issue a certificate stating that the member is required to attend to business in Parliament.

(2) Such a certificate is sufficient proof that the member is in attendance on Parliament, and the member shall be absolved from attending the court pending completion of that business.

10. (1) No member or staff member may give evidence in any court or place outside Parliament regarding the contents of the journals or the evidence given before, or any document submitted to, Parliament or a House or committee, without first having obtained the leave of the Houses or the House concerned.

(2) During a recess or adjournment of a House the Speaker or the Chairperson or a person designated by the Speaker or Chairperson may give such leave.

11. A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.

12. (1) Subject to this Act, a House has all the powers which are necessary for enquiring into and pronouncing upon any act or matter declared by or under section 13 to be contempt of Parliament by a member, and taking the disciplinary action provided therefore.

(2) A House must appoint a standing committee to deal with all enquiries referred to in subsection (1).

(3) Before a House may take any disciplinary action against a member in terms of subsection (1), the standing committee must-

(b) table a report on its findings and recommendations in the House.

(4) The fact that the standing committee is enquiring into a matter or that a House has taken disciplinary action against a member does not preclude criminal investigation or proceedings against the member in connection with that matter.

(5) When a House finds a member guilty of contempt, the House may, in addition to any other penalty to which the member may be liable under any other law, impose any one or more of the following penalties:

(a) A formal warning;

(b) a reprimand;

(6) When a House finds a member guilty of contempt, the House may, when appropriate, instead of or in addition to the imposition of a penalty under subsection (5), refer the matter to the National Director of Public Prosecutions.

(7) A fine payable under subsection (5)(f) may be recovered-

(b) if not so recovered, by means of civil action in a competent court.

(8) All fines under subsection (5)(f) which are paid or recovered must be paid into Parliament's bank account.

(9) A member may not be suspended under subsection (5)(g) unless the House has found that-

(a) the member is guilty of a serious or repeated contempt; and

(b) none of the other penalties set out in subsection (5) will be sufficient.

(10) A member who has been suspended under subsection (5)(g) must leave the precincts, and may not, during the period of suspension, without the written permission of the Speaker or the Chairperson-

(b) participate in any activity of Parliament or any committee.

(11) Despite the Remuneration of Public Office Bearers Act, 1998, a member who has been suspended without remuneration under subsection (5)(g) is not entitled to any salary or allowances under that Act for the period of suspension.

(12) Except as provided in the Constitution, a House does not have the power to terminate a member's membership of the House.

(13) This section does not affect the power of a person presiding at a meeting of a House or a committee, or a joint meeting of the Houses, to maintain order and discipline in the meeting.

13. A member is guilty of contempt of Parliament if the member-

(a) contravenes section 7, 8, 10, 19, 21(1) or 26;

(b) commits an act mentioned in section 17(1)(a),(b),or(c) or (2)(a),(b),(c),(d) or (e);

14. (1) A joint committee may-

(b) require any person or institution to report to it.

(2) A summons in terms of subsection (1), or section 56(a) or 69(a) of the Constitution, to appear before a House or committee to give evidence or to produce documents must be issued by the Secretary on the instructions of-

(a) the Speaker or the Chairperson; or

(a) the name of the person summonsed;

(b) the name or designation of the person who must serve the summons;

(c) the time, place and venue at which the person summonsed is required to appear;

(d) the subject of the enquiry;

(e) the purpose for which the evidence of that person is required; and

(4) The summons must be served by the Sheriff, or by a person designated by the Secretary, by delivering a copy of the summons-

(a) to the person mentioned in the summons; or

(5) A return by the person who served the summons that service thereof has been effected in accordance with subsection (4) is prima facie proof of the service.

(6) A person summonsed in terms of this section or requested by a House or committee to attend a meeting of the House or committee, is entitled to be paid an amount for his or her expenses as approved by the Speaker or Chairperson in accordance with the standing rules.

15. When a House or committee requires that anything be verified or otherwise ascertained by the oral examination of a witness, the person presiding at the enquiry may-

16. (1) Subject to subsection (2), the law regarding privilege as applicable to a witness summonsed to give evidence or to produce a document before the High Court of South Africa applies to the examination of a person in terms of section 15.

(2) A person who is being examined under oath or affirmation in terms of section 15 is may be required to answer any question put to him or her in connection with the subject of the enquiry, and to produce any document that he or she is requested to produce under that section, despite the fact that the answer or the document would incriminate him or her or would tend to expose him or her to criminal or civil proceedings, or damages.

(3) Evidence given under oath or affirmation by a person before a House or committee may not be used against that person in any court or place outside Parliament, except in criminal proceedings where the person concerned stands trial on a charge of perjury or a charge contemplated in section 17(1)(c) or(2)(d) or (e).

17. (1) A person who-

(i) to attend at the time and place specified in the summons; or

commits an offence and is liable to a fine or to imprisonment for a period not exceeding 12 months or to both the fine and the imprisonment.

commits an offence and is liable to a fine or to imprisonment for a period not exceeding two years or both the fine and imprisonment.

(3) Subject to section 13(b), subsections (1) and (2) do not apply to a member.

18. (1) No person is liable to civil or criminal proceedings in respect of the publication of any report, paper or minutes of Parliament or a House or committee by order or under the authority of the Houses, or the House or committee concerned.

(2) No member or staff member is liable to civil or criminal proceedings in respect of the publication to a member of a document that has been submitted to or is before Parliament or a House or committee.

19. No person may wilfully publish-

20. In any proceedings before a court or any other tribunal in which the proceedings of Parliament or a House are relevant, a copy of the journals printed or purporting to have been printed by order of the Houses or the House concerned or the Speaker or Chairperson, is admissible as evidence of the journals without any proof being given that the copy was so printed.

21. (1) No person may broadcast or televise or otherwise transmit by electronic means any part of the proceedings of Parliament or of a House or committee except by order or under the authority of the Houses or the House concerned, and in accordance with the conditions, if any, determined by the Speaker or Chairperson in terms of the standing rules.

(2) No person is liable to civil or criminal proceedings in respect of the broadcasting, televising or electronic transmission of any part of the proceedings of Parliament or a House or committee if it has been authorised under subsection (1) and complies with the conditions, if any, determined under that subsection.

22. No person is liable in damages or otherwise for any act done in good faith in terms of this Act, or under the authority of a House or committee and within the legal powers of the House or committee, or under any order or summons issued by virtue of those powers.

23. (1) In any civil proceedings against Parliament or a House or committee, the State Liability Act, 1957 (Act No 20 of 1957), applies, with the necessary changes.

(2) For the purposes of subsection (1), where appropriate, a reference in the State Liability Act, 1957, to the Minister of a department must, where the proceedings are against-

(b) a committee, be construed as a reference to the chairperson of the committee.

24. When a member of the National Assembly or a permanent delegate to the National Council of Provinces has been convicted of an offence and sentenced to more than 12 months' imprisonment without the option of a fine-

25. (1) A person, other than a member, who feels aggrieved by a statement or remark made by a member or a witness in or before a House or committee about that person, may submit a written request to the Secretary to have a response recorded.

(2) The committee referred to in section 12(2) must, subject to the standing rules, consider the request and, if approved, publish the response of the person in the appropriate parliamentary paper.

26. A person may not hinder or obstruct a staff member in the execution of the staff member's duties or while the staff member is proceeding to or going from Parliament or a committee in the course of or in connection with his or her duties.

27. (1) A person, including a member, who contravenes section 7 or 8(1) commits an offence and is liable to a fine or to imprisonment for a period not exceeding three years or to both the fine and the imprisonment.

(2) A person, including a member, who contravenes section 19, 21(1) or 26 commits an offence and is liable to a fine or to imprisonment for a period not exceeding 12 months or to both the fine and the imprisonment.

(3) A member who contravenes section 8(2) commits an offence and is liable to a fine or to imprisonment for a period not exceeding 15 years or to both the fine and the imprisonment.

28. (1) Sections 2, 4, 5, 7, 8, 9, 10, 11, 12, 18, 19, 20, 21, 22, 23, 25, 26, and 27 apply, with the necessary changes, to provincial legislatures as well.

(2) In such application, a reference in those sections to-

(d) a member, must be construed -

5. the Secretary, must be construed as a reference to the Secretary of the provincial legislature;
6. standing rules, must be construed as a reference to the rules made by the provincial legislature in terms of section 116 of the Constitution.

29. (1) In any civil proceedings against a provincial legislature or any of its committees, the State Liability Act, 1957 (Act No 20 of 1957), applies, with the necessary changes.

(2) For the purposes of subsection (1), where appropriate, a reference in the State Liability Act, 1957, to the Minister of a department must, where the proceedings are against-

(a) a provincial legislature, be construed as a reference to the Speaker of the legislature;

30. When a member of a provincial legislature has been convicted of an offence and sentenced to more than 12 months' imprisonment without the option of a fine-

31. The laws mentioned in the Schedule are repealed to the extent specified in the third column.

32. This Act is called the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2003.

1. The Constitution of the Republic of South Africa, 1996, sets out the most significant powers, privileges and immunities of Parliament and provincial legislatures and their members that are necessary to enable them to carry out their constitutional functions. Some of these powers, privileges and immunities are traditional in parliamentary systems of government, namely:

• The power of a Legislature to determine and control its own proceedings;
• Freedom of speech of members of Legislatures; and
• Members' immunity from civil and criminal proceedings for anything said in a Legislature or a committee of the Legislature.

1. The Constitution provides that "other privileges and immunities" may be prescribed by national legislation (sections 58(2), 71(2) and 117(2)). The applicable legislation in respect of Parliament, namely the Powers and Privileges of Parliament Act, 1963 (Act 91 of 1963), is dated and in some respects inconsistent with the Constitution. Most of the provincial legislatures have their own legislation on this matter, adopted under the interim (1993) Constitution. But the validity of that legislation is in doubt, since it is not national legislation.
2. The Bill is the product of a parliamentary process that started in 1997 with the appointment of the Joint Subcommittee on Powers and Privileges of Parliament (a subcommittee of the Joint Rules Committee), whose main function was to make recommendations to transform the existing law and practice on parliamentary powers and privileges. The Subcommittee prepared a draft Bill, which was referred by each of the Houses of Parliament to an ad hoc committee. A copy of the draft Bill was published for comment in the Government Gazette of 11 July 2001. The Ad Hoc Committee on Powers and Privileges of Parliament (National Assembly) prepared an amended draft of the Bill for introduction in the National Assembly.
3. The main object of the Bill is to enact legislation envisaged in sections 58(2), 71(2) and 117(2) of the Constitution. In addition the Bill also seeks to regulate certain incidental matters relating to the functioning of Parliament and the provincial legislatures.
4. In summary the Bill provides as follows:

Powers & Privileges Bill [Draft 14] 25 Nov 2003