1. Opening and welcome

The Chairperson of the National Council of Provinces opened the meeting at 10:10.

2. Apologies (Item 1 on agenda)

Apologies were tendered on behalf of Mrs S V Kalyan, Ms W S Newhoudt-Druchen, Ms N D Ntwanambi, Ms A N D Qikani, Ms C C September, Ms E Thabethe, Ms P Tshwete, Ms A van Wyk, Kgoshi M L Mokoena, Dr F J van Heerden and Messrs F Bhengu, D H M Gibson, L T Landers, L J Modisenyane, N M Nene, S J Njikelana, S Shiceka, W D Spies and J H van der Merwe.

3. Consideration of agenda (Item 2 on agenda)

On the proposal of the Chairperson of the NCOP, it was

AGREED: To deal with Item 5 (Consideration and adoption of vision and mission statements) before Item 3 (Introduction by Presiding Officers).

On the proposal of Mr Tsenoli, seconded by Mrs Seaton, the agenda, as adjusted, was adopted.

4. Consideration and adoption of vision and mission statements (Item 5 on agenda)

The Secretary to Parliament explained that his presentation represented the culmination of a process that had started much earlier. What he was presenting had been compiled from work that had been done by the two Houses of the previous Parliament. In crafting the vision, a process of consultation with the Presiding Officers, members of Parliament and the management had taken place.

The proposed vision statement was: "To build an effective people’s Parliament that is responsive to the needs of the people and that is driven by the ideal of realising a better life for all the people of South Africa."

The Secretary mentioned that an attempt had been made to remain within the confines of the Constitution and in line with the Government’s commitment to a people’s contract. The vision, therefore, was aimed at establishing a people’s Parliament, creating a better life for all. The Secretary to Parliament proceeded to set out the strategic objectives around the crafting of a vision.

Following the presentation, Dr Mulder said that the terminology used in the proposed vision statement was very close to that used by the governing party. He asked whether Parliament’s vision should not be more than merely the vision of the party that was in government. That could be achieved by moving closer to the provisions in the Constitution itself, for example in the Constitutional Principles or the preamble.

Mr Ellis said that the DA understood and supported the principle of a vision for Parliament, but had difficulty with the fact that the proposed vision statement contained slogans used by a political party, as that made the document itself insensitive.

Mr Goniwe said that he understood the views expressed, but a vision statement was not static and would inevitably reflect the focus of the party driving the programme of the institution. The vision that had been presented was a firm basis for further engagement and discussion until agreement could be reached about a final product.

Mrs De Lille said that it was necessary to determine the purpose behind designing and determining a vision for Parliament. The proposed vision contained too much jargon. It should be based on the Constitution and understood by all. Therefore the content of the proposed vision statement had to be streamlined and put in plain, simple language. The participation of people had to be real, not just on paper. However, the intention of the proposed vision was good.

Mrs Seaton said that she agreed with other parties that there was political bias in the proposed vision. She suggested that the vision statement should be reworded on the basis of the Constitution, since her party could not accept a party-biased vision.

Mr Sithole said that Parliament was a political institution and all parties had made a contract with the people, each in its own way. He said that the vision reflected the contract members of Parliament had entered into with the people.

Mr Windvoël said that Parliament was not exclusive to any electorate. It was a people’s Parliament and that should not be misunderstood. Parliament should be responsive to the needs of the people and that was not exclusive to any political party. He added that it was in the preamble to the Constitution, which was not aligned to a particular political party.

The Chairperson of the NCOP said that she was deliberately allowing discussion on the matter, as it was necessary to reach a joint understanding.

Dr Mulder said that if all parties had made a contract with the voters, as was being alleged, the voice of FF supporters also had to be reflected in the vision statement, and it was not. Parliament was more than just an instrument for the majority. It represented the views of the total electorate. He asked members to look at the preamble to the Constitution. He added that only the National Assembly represented the people, while the NCOP represented the provinces. The vision of Parliament should not have to change every five years; it should be more than that.

Mr Mfundisi said that the wording and expressions used in the vision statement should accommodate all in Parliament. He said that it was necessary to set aside majoritarianism and suggested that the vision statement could rather reflect that it was necessary to build an effective Parliament, responsive to the needs of all the citizens of South Africa. He said that the word "people’s" was redundant.

Ms Rajbally thanked the chairpersons for the files members of the Committee had received. She said that members of Parliament should make an input in determining the vision of Parliament, which should show that they as members took care of the needs of the people of South Africa.

Mr Setona said that the preamble to the Constitution reflected the sentiments contained in the Freedom Charter, which was no longer an ANC document but a document that had been adopted by the people. He reiterated that all parties had made contracts with their voters and proposed a discussion that would determine where the points of difference were, so that they could be resolved.

Mr Baloyi said that those members opposed to the proposed vision statement had not indicated to which words in particular they were objecting. He suggested a process whereby members could submit their inputs to the Secretary to Parliament.

Mrs De Lille asked whether the whole document was being discussed or only the boxed part which contained the vision statement. The Chairperson of the NCOP said that the boxed vision statement was central to the discussion, but the whole document could be addressed.

Mr Green said that much in the document was good. He suggested flagging the issues on which there was not agreement. He said that an attempt should be made to find commonality by identifying the core values and then a technical team could iron out the differences.

Mr Godi said that they should first look at the fundamental thrust of the document and then at the specifics and issues of semantics. He said that the document was a political statement, reflective of a particular ideological inclination, but his party agreed with the content. The wording of the vision statement had to show how Parliament intended relating to the people of the country.

Mr Durr said that the term "people’s parliament" was emotive and reminded of a certain era in Central Europe. The vision should be neutral on a party-political level, but should be politically inspirational.

Ms Rxewana said that all parties had gone to the voters a few months earlier and promised a better life for all South Africans. The proposed vision was straightforward and clear and could be translated into all languages, so the lay person could understand it.

Mr Nel congratulated the presiding officers, the Secretary to Parliament and staff on their role in coming up with the proposed vision. He reminded members of the Committee that there had been two workshops on the vision of Parliament the previous year and members had largely been in agreement. He said that the focus should be on underlying basic concepts of universal application. Parties could then indicate what areas had not been covered and only then should semantics become an issue. In response to a point raised by Dr Mulder, he pointed out that the NCOP represented the people in the provinces.

Mr Ellis asked whether the intention was to adopt the vision statement that morning. He said that many of the concepts had been discussed at the workshop and many principles had been agreed, but some statements had connotations that ought to be explored. The document had just been received, dated 27 July. He asked whether the "people’s contract" existed and whether there was a delivery plan in respect of it. He argued that the vision had to be made acceptable to 100% of the people, not only to 70%. He suggested that parties needed an opportunity to look at the document to see how it could be improved.

Mrs Seaton said that she agreed with Mr Ellis. She suggested that parties should be allowed an opportunity to discuss the matter in their caucuses. The whips could then engage the Secretary to Parliament on the matter.

The Speaker said that it was important for members to try to agree on the vision statement, as Parliament was a collective, entrusted with a task by the electorate. She reiterated that the discussion had a long history and urged members to retain the spirit in which previous engagements had taken place. She warned, however, that it should not become a long, drawn-out process. The process of engagement should have tight timeframes and in that time a shared vision should be formulated which could be adopted. The document was an explanatory one, so whips should engage on the contents and then focus on the vision statement in the box.

Mr Mahlangu reminded members of the Committee that Parliament had been without a vision for 10 years and the lack of a vision had had an impact on the parliamentary budgeting process, as the National Treasury required a budget based on a vision and strategic plans. He proposed that parties should be given a period of 30 days in which to come up with a shared vision, so that it could be tied in with the budgetary cycle.

On the proposal of the Chairperson of the NCOP, it was

AGREED: That –

• parties would take the proposed vision statement to their caucuses for discussion;
• party whips and the Secretary to Parliament would meet to discuss the proposed vision statement;
• deliberations on it had to be finalised by 31 August 2004; and
• a special meeting of the Joint Rules Committee would then be convened to adopt the vision statement.

1. Introduction by Presiding Officers (Item 3 on agenda)

The Speaker said that there had been a request earlier for members of the Committee, particularly new members, to be eased into an understanding of the role of the Joint Rules Committee and its functions. There was also an intention to change some of the rules because of the difficulties that had been experienced with the Committee’s functioning in the past.

The Rules Committees of the respective House and the Joint Rules Committee were the highest policy-making bodies and looked, inter alia, at the institution and its functioning. However, what had had happened in the past was that everything came to the Joint Rules Committee, including matters not linked to the core business of Parliament. She emphasised that the role of the Joint Rules Committee was to focus on substantive issues linked to the core business of Parliament and the transformation of society and not to focus on administrative issues.

Furthermore, the Committee had not been submitting reports to the Houses, whereas the final authority actually resided in the Houses. The Houses had to agree to the policy positions processed by the Committee. In the past there were also far too many subcommittees, many of them dysfunctional. She said that it was necessary to revisit the issue, identify the problem areas and improve the situation.

2. Briefing on role of Joint Rules Committee (Item 4 on agenda)

Mr Hahndiek gave a brief presentation of the role of the Joint Rules Committee. He said that the Committee was established in terms of section 45 of the Constitution to make rules and orders concerning the joint business of Parliament, particularly with regard to the passage of legislation and the establishment and regulation of joint committees. In the establishment of the Joint Rules Committee (JR 53), its functions and mandate broadly extend beyond Parliament’s core business to include all aspects of the management and administration of Parliament. Further, a range of subcommittees are established, the majority of which focus on domestic matters related to the management and administration of the institution.

In practice, this model gave rise to numerous difficulties. The distinction between practical, detailed management issues and policy-making became blurred and as a result the subcommittees and the Joint Rules Committee itself ended up devoting much of their time to issues of micro-management. As a result, issues of policy and the core business of Parliament were largely sidelined. However, proposals for a new governance model was on the agenda of the meeting.

Parliament was still developing practices to carry out its core functions effectively. Some issues related to the core functions appeared on the agenda as legacy reports from the Second Parliament, for example the oversight and acountability recommendations and the scrutiny of delegated legislation. All those, and more, required the attention of the Joint Rules Committee.

Mrs Seaton, with reference to the Subcommittee on the Parliamentary Budget, expressed concern about issues of policy being removed from the Joint Rules Committee. She said that the blame for the nonfunctioning of the subcommittees, for example the Subcommittee on Members’ Support, should not be placed on the Joint Rules Committee, but on the fact that implementation did not take place. The idea behind the directing authority was for it to ensure that the implementation of Joint Rules Committee decisions took place.

The Chairperson of the NCOP said that she agreed that there had been problems with implementation, but administrative issues should not be in the domain of the Joint Rules Committee. She said that members should look at the governance model and see whether it could be linked to the work previously done by the subcommittees.

The Speaker said that the Constitution showed what the focus of the Joint Rules Committee ought to be, namely the core business of Parliament. Parliament had adopted Rules that had led to a different focus and the main issues became marginalised. The aim was now to redirect the focus of the Joint Rules Committee, as provided for in the Constitution.

Mrs Seaton suggested that they should first deal with the issue of the directing authority.

Mr Nel said that there was agreement that members were in Parliament first and foremost to execute a political mandate, and they had to organise themselves for that purpose. Their prime reason for being there was to represent the people, not to run Parliament. Parliament had to be run in such a way that it enabled members to do what they had to do. Therefore no decision was required. He suggested that the issue of the Joint Rules Committee and its functions could be revisited later.

On the proposal of the Chairperson of the NCOP, it was

AGREED: That the role and functions of the Joint Rules Committee would be revisited once a decision had been taken about the proposed directing authority.

3. Consideration and adoption of governance model (Item 5 on agenda)

The Secretary to Parliament presented the proposed governance model.

Mrs Seaton said that the proposed model was good in the main. She expressed concern, however, at the fact that the policy-making function was being shifted from the Joint Rules Committee to the directing authority and only nine people would be making decisions on behalf of Parliament. She said that it was still the responsibility of the Joint Rules Committee to set policy guidelines, while the directing authority ought to be responsible only for administering matters and ensuring that decisions were implemented.

Also, with the exception of the three whips serving in the directing authority, there was a lack of involvement by the whips. That was cause for serious concern, particularly when it came to the directing authority receiving inputs from the quarterly forum on matters pertaining to members’ facilities and interests. Whips dealt with the day-to-day problems of members and were best positioned to provide input on that.

She said furthermore that it would inappropriate for the directing authority to set the parameters and determine policy with regard to the budget. All policy matters had to be dealt with by the Joint Rules Committee before they went to the Houses for a final decision.

Regarding the composition of the proposed directing authority, Mr Watson pointed out that only the Chairperson of the NCOP and the Chief Whip of the Council had been included. He objected to the fact that no opposition parties from the NCOP would be represented.

The Chairperson of the NCOP said that members of the NCOP in the first instance represented provinces and not political parties.

Mr Nel said that he did not want to curtail discussion. However, unlike the vision and mission statement on which there had been substantial discussion, the current discussion represented the first opportunity members had of interacting with concrete, direct and well-considered proposals with regard to a structure that would facilitate the running of the institution. The ANC had therefore not yet formulated its position on the different proposals. He suggested that questions of clarity be allowed, but that the Joint Rules Committee should agree on a process for taking the matter forward, subject to an adherence to tight deadlines.

Mr Nel said that he had a question regarding the relationship between the two Houses, the directing authority and structures such as the Joint Rules Committee. He asked the Secretary to Parliament to elaborate on how he saw Parliament, ie the two Houses as component parts, making policy. The impression was created that all 400 members of the National Assembly would make policy. In terms of the proposals, the directing authority would report directly to the policy-making body. Mr Nel said that though it was clear that accountability was vested in Parliament as a whole, he wanted to know what mechanisms were being envisaged in practice to facilitate that.

Dr Mulder expressed concern about the fact that the proposed governance model made no provision whatsoever for the Chief Whips’ Forum. He asked for clarity on the role of the Forum. He further asked whether the reference to "caucus chairpersons" had a bearing on all parties in Parliament. If that were the case, why had it been decided to opt for caucus chairpersons and not a representative designated by a party.

Mr Windvoël explained that there was a standing arrangement in the NCOP that the Chief Whip of the Council met with all nine provincial whips. There was also a multiparty whips’ forum which could take on board the inputs from all parties.

Mrs De Lille asked what impact the new proposal would have on the provision in section 45 of the Constitution in terms of which the Joint Rules Committee is established. She enquired whether the proposed new governance model was in line with what section 45 intended.

Regarding the composition of the directing authority, she said that there was no way in which one opposition party would ask another opposition party to take issues to the directing authority on its behalf. She said that the ID would not ask the DA to speak on its behalf. Each party wanted to speak for itself. Representation was therefore required on the directing authority for all recognised whips.

Mr Godi said that his concerns had been covered by Mr Nel and Mrs De Lille.

Mr Doman asked why the Secretary to Parliament was a member of the directing authority, as all the other members of the decision-making body were politicians. He suggested that the Secretary to Parliament could provide administrative support, but that he should not necessarily be a member of the authority.

Mr Hahndiek explained that section 45 of the Constitution provided that a joint rules committee be set up to take care of the joint business of the Assembly and the Council. It also outlined what kinds of joint business it had intended. He said that he did not think that it was contrary to the Constitution for the Joint Rules Committee to agree, as it was doing, to set up a directing authority. There was also the option of introducing legislation. Various other parliaments had done that when they established their parliamentary commissions, as they were called.

Mrs Seaton asked whether it was not necessary for the chief financial officer also to be a member of the executive committee.

Regarding the issue of policy formulation, processes and bodies that existed in Parliament at present, the Speaker explained that the new model would not detract from those. The Chief Whips’ Forum, for example, was an important forum where concensus was sought and common approaches developed with regard to parliamentary business.

She said that part of the earlier discussion on the directing authority had been whether a consultative forum of ordinary members was desirable, so that the input of ordinary members could be gained. That proposal had been scuttled, but there was a need for input that was informed by the experience of ordinary members, not chief whips, as they were leaders and had their own focus. That was the reason for the inclusion of caucus chairpersons, one of the issues that had to be looked at. Regarding policy formulation, inputs would come to the directing authority and the authority would then take matters to the House for adoption.

The Speaker added that generally directing authorities were not big structures. It should be a structure that took away from the Joint Rules Committee the management and administration aspects of its work. It should therefore be a streamlined structure. If parties agreed that they wanted all parties to be represented, the Joint Rules Committee would have to be guided by that. The idea, however, was always that the directing authority would not be party-political in the manner in which it dealt with issues, but would assist with the implementation of policy.

Because of the nature of the business of the directing authority, it was not possible to exclude the Secretary to Parliament, as he headed the management structure of Parliament. She added that the executive committee would consist of the Secretary to Parliament, the deputy secretary and the assistant secretary, who would meet with the presiding officers. The management would consist of the secretaries to the respective Houses and the chief financial officer. Meetings between the presiding officers and the management would then include the chief financial officer.

Mr Tsenoli said that his understanding was that the directing authority would be a creature of the Joint Rules Committee. He asked whether the directing authority would report directly to the Houses or whether it would report to the Joint Rules Committee. From the explanation of the problems encountered by the Joint Rules Committee previously, it appeared that it was intended that the directing authority would deal with such problems expeditiously, but from a mandate given by the Joint Rules Committee, which would be the body reporting to Parliament.

Regarding the planning with regard to establishing the directing authority, Mrs De Lille asked whether it had been determined if the establishment of the directing authority would have an impact on the parliamentary budget. She said that she could understand the need to empower the Secretary to Parliament, but it was necessary to explore the relationship between the Secretary to Parliament and the presiding officers, as someone eventually had to be accountable and accept overall reponsibility.

She also asked, in view of the proposed establishment of the directing authority, what was being done to empower ordinary members of Parliament to enable them to fit into the new governance model. There was no provision in the document for that.

Mr Nkompfe pointed out that the governance model also proposed the establishment of a remuneration committee and an audit committee. He asked whether they were substructures of the directing authority. If they were, he suggested that the linkages of accountability ought to be clearly indicated on the organogram.

Mr Green said that the introduction of a new governance model was a positive step and proposed that it should be supported in principle. He agreed with the view expressed by Mrs De Lille that other political parties should also be represented in the directing authority.

Ms Kondlo said that her point had been covered by Mr Tsenoli, particularly with regard to the relationship between the directing authority and the Joint Rules Committee and the fact that the directing authority would be established by the Joint Rules Committee. Regarding paragraph 6.5, she said that it was necessary for parties to discuss whether the directing authority would determine its own procedures or whether it would be developed by the Joint Rules Committee, so that Parliament did not have a directing authority that drove itself and accounted to itself. She supported the proposal by Mr Nel that the matter be taken back to parties for discussion.

Mr Ellis said that the points raised by Mrs De Lille were important. Although the concept was good, there was a certain vagueness about the document, particularly with regard to the relationship between the directing authority and other structures of Parliament. He said that he was glad the Speaker had said that there was a role for the Chief Whips’ Forum. He expressed concern about the manner in which ordinary members would fit into the proposed governance model and asked that it be attended to.

The Secretary to Parliament explained that the Houses gave powers to the presiding officers and the proposed governance model required them to exercise that power as part of a collective, namely the directing authority. The latter would focus on directing policy formulated at one level or at the other. The original power for policy formulation vests in Parliament and is exercised by the presiding officers. Policy could therefore be made in the Joint Rules Committee or in the directing authority. The directing authority, however, would focus mainly on management and administrative matters with regard to policy formulation and for directing the management to implement policy.

The directing authority itself would not get involved in management matters, but would only ensure that the policy formulated and developed was acted upon by the management. That was an important distinction. Members of Parliament were there to represent the people of the country and the management of Parliament had to ensure that they had the required environment, facilities and resources to enable them to do their work and focus on the core business of the institution.

The Secretary to Parliament said that the establishment of the directing authority would not add to the parliamentary budget, but it could be that matters flowing from the vision put pressure on Parliament’s resources, for example the oversight exercise and public participation.

Mr Coetzee explained that what the proposed model had attempted to do was to separate management issues from the core business of Parliament. Previous experience had shown that the Joint Rules Committee had neglected looking at the content of core business and giving effect to the issues outlined in section 45 of the Constitution. The proposed governance model was premised on a whole range of experiences across the world. Most parliaments were now organised in that manner, also some of the provincial legislatures. Some of the elements driving the model were contained in the Public Finance Management Act and some were principles of corporate governance described in the King Report.

The key to the directing authority was its composition. However, that had to be resolved politically. The directing authority was accountable to the Houses and the mechanism of accountability could take any form. It could, for example, be in the form of an annual report. He added that the Constitution and the Rules gave the authority for the control and management of Parliament to the presiding officers and made them accountable to the Houses.

The intention was not to have the directing authority as a subordinate or co-governing component of the Joint Rules Committee, but to let the Joint Rules Committee focus on the core business and to steer management and administrative processes through the directing authority.

On the proposal of the Chairperson of the NCOP, it was

AGREED: That -

• parties would take the document on the directing authority to their caucuses for discussion; and
• party inputs would be considered at a special Joint Rules Committee meeting at the end of August.

A document entitled "Overview of Joint Committees – Status of Joint Committees as at 19 July 2004" was distributed to members and presented by Mr Mansura.

The Speaker said that the establishment of the subcommittees of the Joint Rules Committee could only be finalised once a decision had been taken about the proposed governance model.

She urged members seriously to seek a solution for the dysfunctionality of the Constitutional Review Committee.

Mr Nel said that the majority party was not in a position to bring a clear proposal, but there were two areas which required consideration. Firstly, did members feel that it was appropriate for the Constitution to be reviewed annually. At present that was what the Constitution enjoined Parliament to do, unless the committee that had to review the Constitution annually came up with a proposal to the Houses that it should not do so any longer. The other problem area was the sheer size of the Constitutional Review Committee, which had made it impossible for that committee to work. He asked whether consideration could not be given to making it the same size as, for example, other joint committees.

Mrs Seaton agreed with Mr Nel’s proposal that the Constitutional Review Committee should be made smaller. She proposed that the membership could be reduced to 17 members. As long as the committee was representative, there would not be a problem.

Mrs De Lille said that she was not in favour of a constitutional amendment, but would support making the committee smaller to enable it to function.

Mr Doidge proposed that the committee could be reduced to the same size as the joint monitoring committees. He added that it was important for the committee to be established, as it had work to do.

In response to a question by Mr Doidge, Mr Hahndiek explained that when the new Joint Rules were passed in June 1999, a proposal was submitted by the Joint Subcommittee on Review of the Joint Rules and adopted by the Houses that a joint committee on security structures could be set up. At present Parliament was bound by the Constitution, which carried forward as transitional arrangements certain sections of the Interim Constitution of 1993. That specifically provided for a joint committee on defence. The new Constitution was more open on that. With that in mind it had been proposed at the time that there could be one committee on security structures which would also deal with defence issues. It would, however, require reviewing the provisions of the Interim Constitution that were still in place.

The Speaker said that the establishment of that particular joint committee could only be considered once attention had been given to the provisions of the Interim Constitution that were still in place. She proposed that the Legal Support Office draw up a document, setting out such provisions. In the meantime, the Joint Standing Committee on Defence would be established.

In response to a question by Mr Tsenoli, Dr Palmer explained that certain provisions of the Interim Constitution had been carried over in the transitional arrangements in Schedule 6 to the Constitution. There was no sunset clause built into that provision, so it would require a constitutional amendment to Schedule 6.

The Speaker said that the Joint Rules made provision for a Joint Monitoring Committee on Reconstruction and Development. It had not been operationalised in the previous Parliament, but parties could give consideration as to whether it should be established and express their views at the next Joint Rules Committee meeting.

On the proposal of the Speaker, it was

AGREED: That –

• the size of the Constitutional Review Committee would be reduced to the size of joint monitoring committees, namely 13 National Assembly members and 9 NCOP members;
• the matter of whether it is appropriate to continue with an annual review of the Constitution, as required by the Constitution, could be placed on the committee’s agenda for consideration;
• the Joint Standing Committee on Defence would be proceeded with and possibly operationalising the Joint Committee on Oversight of Security Matters, as proposed in the Joint Rules, would be flagged for further consideration;
• the law advisers would prepare a memorandum on provisions from the Interim Constitution that remained in place in the current Constitution; and
• parties would consider the establishment of the Joint Monitoring Committee on Reconstruction and Development as provided for in Joint Rules 133 to 137.

9. Implementation of Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, Act No 4 of 2004 (Item 8.1 on agenda)

A legal opinion and a document entitled "Action required in the implementation of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act" were distributed to members of the Committee and presented by Ms Z Adhikari.

Mr Mahlangu asked whether the sections requiring Rule changes also affected the provinces. He proposed that if they did, the provinces should be advised so that they could adjust their Rules accordingly.

Ms Chohan-Khota said that the audit before the Committee was adequate with regard to the areas in which Rules needed to be formulated. She cautioned, however, that the document had been developed in a very specific mode. She referred to section 16 as an example. She said that it was a very broad clause about the powers of Parliament vis-à-vis taking evidence from someone and denying them the constitutional protection against self-incrimination. It meant that someone could come before a committee and be forced to make a self-incriminating statement on the basis that he or she would not be criminally prosecuted. What the drafters had in mind was to enhance the parameters of Parliament’s powers, if and when necessary. It was not sufficient to say that Rules had to be formulated only to provide that witnesses be informed of that right. A regime had to be set out in the Rules to ensure that when section 16 was applied the National Director of Public Prosecutions, for instance, had to be consulted on whether the person would face criminal charges or not. The issue of public interest had to be taken into account. The role of the presiding officers should also be spelt out in the Rules. It was not accurate, therefore, to refer to it as merely drafting a Rule to provide that the person had to be informed of his or her right. That applied equally to some of the other sections mentioned in the document. She proposed that the entire Act be referred to the Joint Subcommittee on Review of the Joint Rules in order for that subcommittee to apply its mind to which Rules changes were required and report to the Joint Rules Committee.

Mrs De Lille said that normally regulations were made to regulate the implementation of Acts of Parliament. In the case of the Act in question, Parliament would be making Rules to guide its implementation. She asked what the difference was.

Mr Tsenoli said that it was not correct to assume that members of Parliament were necessarily familiar with all aspects of the Act. He asked for members to be informed about its implications and to be properly briefed, so that they would be aware of consequences of what they said or did not say and what recourse they had in the event of situations anticipated by the legislation occurring.

The Speaker said that the Act was the single, most critical piece of legislation for Parliament in terms of its functioning, what informed it with regard to the role of members of Parliament and various other aspects. She suggested that the Act itself could be the subject of training.

Adv Masutha said that the Act had far-reaching implications for members of Parliament and somehow it should become part of the handbook that members were furnished with and taken through when they came to Parliament. He explained that the Constitution anticipated Parliament determining its own internal proceedings by way of its Rules, while regulations were usually made by members of the executive. He said that in order for the Joint Subcommittee on Review of the Joint Rules to deal with the issue of implementation, it was necessary for the subcommittee to be appraised of whether the Act had come into operation and, if so, what administrative and other arrangements, apart from the Rules, had been put in place to ensure its effective implementation.

Mr Nel said that the Committee was in a position to refer the Act to the Joint Subcommittee on Review of the Joint Rules to look more comprehensively at what was required to operationalise certain aspects of the legislation effectively. Referring to Mrs De Lille’s question, he said that for the purpose of that particular legislation the Rules would enjoy more or less the same status and function as regulations would in terms of another Act.

Mr Hahndiek alerted members to the fact that in terms of the legislation a standing committee had to be set up which would last for the duration of a parliament and all matters of powers and privilege would automatically be referred to that committee. The Speaker agreed that it was a very important matter that had not been mentioned in the document before the Joint Rules Committee. She said that the structure had to be operationalised and could even be involved in drafting the Rules required for implementation of the Act. She said that the role of the subcommittee was not to think for the Joint Rules Committee. The Joint Rules Committee would decide on a position and then required the subcommittee to draft Rules accordingly.

Dr Palmer reported that the Act had come into operation on 7 June 2004.

Ms Adhikari said that the extent to which the Act would require Rule changes in the provincial legislatures would depend on their existing Rules. Their legal advisers would probably appraise members of the required Rule changes, if any. She said that there was a Legal Advisers’ Forum where the matter would also be discussed.

The Chairperson of the NCOP suggested an exchange of information between the national Parliament and provincial legislatures with regard to the implementation of the Act.

On the proposal of the Speaker, it was

AGREED: That -

• the Act would be referred formally to the Joint Subcommittee on Review of Joint Rules for drafting of the necessary Rules; and
• the parliamentary law advisers would facilitate an exchange of information between legislatures on the implementation of the Act.

10. Implementation of oversight and accountability recommendations (Item 8.2 on agenda)

A document entitled "Implementation plan in respect of recommendations of the Joint Ad Hoc Subcommittee on Oversight and Accountability" was distributed to members of the Committee and presented by Mr Hahndiek.

On the proposal of the Speaker, it was

AGREED: That House Chairperson Mr N P Nhleko and the Deputy Chairperson of Committees of the NCOP, Mr T S Setona, would immediately proceed with setting up the Task Team and driving the process of implementation of the oversight and accountability recommendations.

11. Interim report on scrutiny of delegated legislation (Item 8.3 on agenda)

On the proposal of the Speaker, it was

AGREED: That the report would be considered by the end of August at a special meeting of the Joint Rules Committee.

12. Problems with language practices in Parliament in relation to bills and amending bills (Item 8.4 on agenda)

A draft bill entitled Language Practices Relating to Parliamentary Acts Bill was distributed to members of the Committee and presented by Adv Gordon.

Mr Nel said that members of the Committee would benefit from an executive summary of the legislative proposal and its intention. He also asked for an indication on a way forward in respect of the draft bill.

Dr Palmer said that the whole process had been left in the air at the end of the last Parliament. It had been driven by Mr J H de Lange, as the chairperson of the Joint Subcommittee on Review of the Joint Rules, but now had to be taken over by a political body.

The Speaker said that once more clarity had been provided on the legislative proposal, including the earlier decisions of the Joint Rules Committee, the Committee could decide on the way forward.

Mr Tsenoli emphasised that it was necessary for Parliament as an institution also to abide by the constitutional provision with regard to the recognition of 11 official languages. He asked that it be taken into account in the preparation of the legislative proposal.

Mr Jeffery suggested that the state law advisers could be approached for comment on the draft bill.

On the proposal of the Speaker, it was

AGREED: That -

• staff would prepare an explanatory document on the legislative proposal, including an executive summary and relevant Joint Rules Committee decisions of 2001; and
• the state law advisers would be approached for comment on the legislative proposal.

13. Designation of committee to receive quarterly reports on national arms control in terms of the National Conventional Arms Control Act (Item 8.5)

A document entitled "Designation of committee to receive quarterly reports on national arms control in terms of National Conventional Arms Control Act" was distributed to members of the Committee and presented by Mr Hahndiek.

Mr Nel said that the task could be designated to the Joint Standing Committee on Defence as it had the necessary degree of knowledge and insight and was a joint committee. He added that although the Joint Rules Committee might not want to formally designate the Portfolio Committee on Foreign Affairs to consider the report, a way should be found of involving the committee, for example by conferring.

The Speaker said that the Portfolio Committee on Trade and Industry could possibly also be involved.

Mrs De Lille said that the Joint Standing Committee on Defence was a committee set up in terms of the Constitution. She asked whether the Joint Rules Committee would not be extending the mandate and terms of reference of that committee if the reports in question were referred to it.

Mr Jeffery said that it should not be a problem, as the Joint Rules Committee was not taking anything away from the Joint Standing Committee on Defence that had been determined by the Constitution. He also asked whether there were any other committees of Parliament which should be receiving reports or any other committees which needed to be established in terms of legislation. He suggested that an audit could be done to determine that.

Dr Palmer, after reading the constitutional provision relating to the functions and mandate of the Joint Standing Committee on Defence, said that it would be an appropriate committee to send the quarterly reports to.

On the proposal of the Speaker, it was

AGREED: That quarterly reports received in terms of the National Conventional Arms Control Act will be referred to the Joint Standing Committee on Defence, the committee to confer with other committees such as the Portfolio Committees on Foreign Affairs and on Trade and Industry when necessary.

14. Closing (Item 9 on agenda)

The Chairperson of the NCOP adjourned the meeting at 14:45.