12. (1) Subject to this Act, a House has all the powers which are necessary for inquiring 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 inquiries 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-

(a) Enquire into the matter in accordance with a procedure that is reasonable and procedurally fair; and

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

(4) The fact that the standing committee is inquiring 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;

(c) an order to apologize to Parliament or the House or any person, in a manner determined by the House;

(d) the withholding, for a specified period, of the member's right to the use or enjoyment of any specified facility provided to members by Parliament;

(e) the removal, or the suspension for a specified period, of the member from any parliamentary position occupied by the member;

(I).a fine not exceeding the equivalent of one month's salary and allowances payable to the member concerned in terms of the Remuneration of Public Office Bearers Act, 1998 (Act No.20 of 1998);

(g) the suspension of the member, with or without remuneration, for a period not exceeding 30 days, whether or not the House or any of its committees is scheduled to meet during that period.

(6) When a House finds a member guilty of contempt, the House may, where 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-

(a) by deducting installments from the members' salary, as specified by the House in imposing the fine; or

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

(8) All fines under subsection (5)(I) 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-

(a) enter the precincts for whatever purpose;

(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 members 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);

(c) willfully fails or refuses to obey any rule, order or resolution of a House or the Houses; or

(d) commits an act which in terms of the standing rules constitutes-(I) contempt of Parliament; or

(ii) a breach or abuse of parliamentary privilege.

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.

OPTION I

(2) A person who is being examined under oath or affirmation in terms of section 15 is not entitled to refuse to answer a question put to him or her in connection with the subject of the inquiry, and to produce a document that he or she is required to produce under that section, on the ground 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.

(2) A person who is being examined under oath or affirmation in terms of section 15 may be required to answer a question put to him or her n connection with the subject of the inquiry, and to produce a document that he or she is required 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.

OPTION 3 (combination of sub-clauses (1) and (2))

(1) 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, except that such a person is not entitled to refuse to answer a question put to him or her in connection with the subject of the inquiry, and to prod 'ice a document that he or she is required to produce under that section, on the ground 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).

25.(I) A person, other than a member, who feels aggrieved by an adverse 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 person in the appropriate parliamentary paper.

DRAFT REPORT OF THE AD HOC COMMITTEE ON POWERS AND PRIVILEGES OF PARLIAMENT

The Ad Hoc Committee on Powers and Privileges of Parliament reports as follows

1. The Committee was established pursuant to a resolution of the House on 5 April 2001. It was tasked to consider the recommendations of the Joint Subcommittee on Powers and Privileges and the draft Bill prepared by the Subcommittee, and to introduce a Bill in accordance with chapter 13 of the Rules of the National Assembly.

2. A copy of the draft Bill was published for comment in the Government Gazette of 11 July 2001. Two workshops were held at which Members and members of the public could make inputs. The Committee considered no less than twelve drafts of the Bill over a period of more than two years. Initially the Committee held conferring meetings with the Ad Hoc Select Committee on Powers and Privileges of Parliament of the National Council of Provinces but that Committee had to withdraw from the process due to the nature of the Council’s programming.

3. On the 25^th November 2003 the Committee agreed on the Bill, after which the Bill was introduced in terms of rule 243.

4. With regard to the contents of the Bill, the Committee wishes to draw attention to the following:

(1) The Constitution provides for freedom of speech in Parliament and provincial legislatures, subject to the rules and orders. Therefore, the Bill does not deal with aspects such as the manner and form in which Members are to exercise their freedom of speech as Members and the limits of their freedom of speech. The Committee recommends that the respective Rules Committees should ensure that these aspects are adequately dealt with in the relevant standing rules and orders. In particular, it is recommended that the rules should as far as possible codify behavior that is regarded as unparliamentary.

(2) The Committee noted that there are two apparent lacunae in the Constitution with regard to freedom of speech. Firstly, the Constitution does not specifically provide for freedom of speech in joint sittings of the two Houses of Parliament. Clause 6 of the Bill seeks to address this issue. Secondly. there is no provision in section 4D of the Constitution that a Deputy Minister who is not a Member has freedom of speech in a joint committee. It is recommended that these aspects be referred to the Constitutional Review Committee for attention.

(3) A further matter that should be noted with regard to the constitutional provisions relating to freedom of speech in Parliament is that an official in the national or a provincial executive has freedom of speech in the National Council of Provinces and its committees, but not in the National Assembly or before a committee of the Assembly or a joint committee (section 71, read with section GG, and sections 45 and 58 of the Constitution). In the Committee's view it is advisable that there should be consistency in the freedom of speech provisions for the Houses; accordingly, it is recommended that this aspect should also be referred to the Constitutional Review Committee.

(4) The Committee was requested to consider whether the Bill should deal with the question of reflections upon members of the judiciary and the institutions mentioned in Chapter 9 of the Constitution. In the Committee's view this is also a matter that should be dealt with in the standing rules, since any restriction in this regard would amount to a limitation of Members' freedom of speech, which is a matter for the rules and orders in terms of sections 58(1), 71(1) and 117(1) of the Constitution.

(5) The Committee considered whether the Bill should make provision for privileges and immunities relating to the Pan-African Parliament and the SADC Parliamentary Forum. In the Committee1 5 view that matter should be addressed in separate legislation.

(6) Clause 12(2) provides that a House must appoint a standing committee to deal with enquiries relating to disciplinary action against Members for contempt. In terms of clause 12(3), the standing committee must conduct its enquiries in accordance with 3 procedure that is reasonable and procedurally fair. It is recommended that the procedure should be set out in the relevant rules, and that those rules should be in place when the legislation takes effect.

(7) Clause 13(d) envisages that the rules will provide which acts, in addition to those specified in clause 13(a) (b) and(c), constitute contempt (or a breach or abuse of parliamentary privilege). It is recommended that the Rules Committees consider, amongst others, whether reflections on members of the other House or of other legislatures and the deliberate misleading of the House or a committee should be declared contempt.

(8) In the light of the provisions of the Bill relating to penalties for contempt, Part 3 of Chapter 15 of the National Assembly Rules will have to be reviewed, amongst others in relation to the commitment of Members to the custody of the Sergeant-at Arms (rule 320) and the maximum amount of a fine (rule 321).

(9) The Committee considered whether the Bill should provide for loss of membership or other sanctions for non-attendance of meetings of the Houses or committees. However, in the Committee's view this matter should be dealt with in the respective rules and orders, as envisaged by sections 47(3) (1)), 62(4) (0) and 106(3) (b) of the Constitution and sections 3(5) and 6(6) of the Remuneration of Public Office Bearers Act, 1998.

(10) The Committee also considered whether provisions of the draft Code of Conduct for Members should be incorporated into the Bill, but in the Committee's view it would not be advisable to do so. Therefore, it is recommended that matters such as Members' conflict of financial interests should be dealt with in the Code of Conduct.

(11) The Bill does not make any provision with regard to the financial arrangements of Parliament and provincial legislatures since the Committee has been informed that the matter is to be dealt with in separate legislation. It is proposed that in the interim, section 31 of the existing Powers and Privileges of Parliament Act, 1963, which regulates Parliament's financial arrangements, should remain on the statute book (clause 31 of the Bill, read with the Schedule).

(12) Chapter 8 of the Bill provides for the application of the legislation to provincial legislatures. Provincial legislatures will have to establish in how far their own legislation and rules need to be adapted or supplemented. In particular, attention is drawn to the fact that Chapter 5 (Witnesses) will not be applicable to provincial legislatures since section 115(c) of the Constitution requires this aspect to be dealt with in provincial legislation or the rules and orders of the respective provincial legislatures.

(13) In addition to the above-mentioned cases that require new or amended rules, arising from the legislation, provision will have to be made in the Rules in respect of the following, amongst others:

a) The procedure for initiating disciplinary action against a Member (clause 12);

b) witness fees (clause 14(6));

c) limitations as to the type of subject matter about which a witness may be questioned or the type of document that a witness may be required to produce (clause 15(b);

d) the broadcasting or televising of proceedings (clause 21);

e) the recording of responses of members of the public (clause 25).

Report to be considered