2. The Joint Subcommittee on Review of the Joint Rules (the Committee), during its meeting on 12 October 2005, requested advice on:

• the definition of misconduct as well as penalties for misconduct to be specified in the National Assembly Rules;

• the composition of the Section 12 Committee in the Assembly in regard to an option in which the majority party has a majority on the committee; and

• draft rules for the Assembly and the Council specifying that abuse of privilege amounts to contempt of Parliament.

3. The attached Schedule makes provision for suspending a member, with or without remuneration, pending disciplinary action for up to 14 days. A question was asked whether such suspension must adhere to the audi alteram partem principle.

4. Although labour law does not regulate the position of members, the court decisions mentioned hereunder provide a useful analogy to deal with the question above.

5. The Labour Court has found that suspension pending disciplinary action, whether with or without remuneration, is an administrative action and must be in accordance with the principles of natural justice, including the audi rule (see Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC) at para [34]). However, in Mabilo v Mpumalanga Provincial Government the same court seemed to have indicated that it is not essential to hold a hearing prior to suspending an employee pending disciplinary action ([1999] 8 BLLR 821 (LC) at para [13]). However, in my view those suggestions are not part of reasons of the court as the plaintiff in that matter was in fact afforded an opportunity to give reasons why he should not be suspended.

6. Firstly, section 3(5) of the Remuneration of Public Office Bearers Act, 1998 provides that the payment of salaries and allowances of members of the NA and permanent delegates to the NCOP is subject to the rules and orders of the respective Houses. It follows that it would not be inconsistent with this Act to provide in the respective rules that a member can be suspended without remuneration.

7. Secondly, by analogy and following the principles of natural justice that are also contained in section 3 of the Promotion of Administrative Justice Act, 2000, a member should be allowed to give reasons why he or she should not be suspended pending disciplinary action. The Schedule provides accordingly.

8. A further question was asked concerning the effectiveness of the provision in the Schedule dealing with serving of the notice in regard to disciplinary hearings. In my view the provision as it stands means that the Sheriff may be asked to serve the notice in accordance with the applicable rules pertaining to serving of court papers. Therefore I am of the view that the provision is adequate.

9. Attached please find the proposed rules.

Adv F S Jenkins Parliamentary Legal Adviser

Draft rules pursuant to the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004 Assembly Rules

Rule 1 to be amended to include the following definitions in the appropriate alphabetical position:

"Act" means the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004

"misconduct" means a breach of the standing rules of Parliament, as defined in the Act, by a member, except a breach of the Code of Conduct contained in the Schedule to the Joint Rules or conduct amounting to contempt of Parliament as defined in the Act.

Establishment

191. There is a Powers and Privileges Committee as required by section 12 of the Act.

Composition

192.

(1) Every party represented in the Assembly may nominate one member to be appointed by the Speaker. The majority party may nominate one additional member.

(2) The chairperson is a member of the majority party, elected by the Committee. The Committee may elect an acting chairperson when the chairperson is not available.

This option allows for representation of all represented parties, but does not reflect the proportionate representation in the House.

(1) The Committee consists of the Deputy Speaker, who is the chairperson, two senior whips from the majority party, a senior whip from each of the three largest opposition parties and one whip representing the rest of the parties represented in the Assembly.

(2) The Committee may elect an acting chairperson when the chairperson is not available.

This option does not allow all the minority parties represented in the Assembly representation in the Committee, but is more reflective of the proportional representation in the House.

(1) The Committee consists of the number of Assembly members that the Speaker may determine with the concurrence of the Rules Committee, but must have no fewer than 13 members and no more than 40 members.

(2) The Committee must elect a chairperson, and may elect an acting chairperson when the chairperson is not available.

This option allows flexibility and is largely a copy of rule 200 relating to the composition of portfolio committees.

193. The chairperson of the Committee convenes meetings of the Committee.

194(a) The Committee must consider any matter referred to it by the Speaker relating to contempt of Parliament or misconduct by a member or a request to have a response recorded in terms of section 25 of the Act, except a breach of the Code of Conduct contained in the Schedule to the Joint Rules.

(b)(i) Upon receipt of a matter relating to contempt of Parliament or misconduct by a member the Committee must follow the procedure contained in the Schedule to the Rules.

(ii) The Committee must table a report in the Assembly on its findings and recommendations in respect of any alleged contempt of Parliament, as defined in section 13 of the Act, or misconduct.

(iii) If it found that a member is guilty of contempt or misconduct, the Committee must recommend an appropriate penalty from those contained in section 12(5) of the Act.

(iv) The Assembly may impose the recommended penalty, an alternative penalty contained in section 12(5) of the Act, or no penalty.

(c) The Committee may on its own initiative or upon request by the Speaker conduct research relating to, and comment on matters relating to the powers, privileges and immunities of Parliament, and report to the Assembly.

(d)(i) The Committee must consider a request to have a response recorded in terms of section 25(2) of the Act.

(ii) After receiving the request referred to in (i) above, the Committee must, without delay, forward a copy of the request to have a response recorded to the member or witness concerned, and thereafter consider the request.

(iii) In considering the request the Committee may invite verbal or written submissions by the member, witness or any other person concerned.

(iv) After considering the request to have a response recorded, the Committee must recommend to the Assembly whether to publish the response, refer it back to the person for amendments, or not to publish the response, having regard to the all relevant circumstances, including

• Whether the statement could be defamatory if it was not protected by parliamentary privilege;

• Whether the statement was made wilfully;

• Whether the statement was withdrawn;

• The time elapsed since the statement was made;

• The content of the requested response; and

• Whether the statement amounts to abuse of privilege.

(v) If approved, the response must be recorded in the ATC.

Abuse of privilege

320. Abuse of the privilege provided for in sections 45(2) and 58 of the Constitution, or as set out in rule 44 of these Rules, is contempt of Parliament as envisaged by section 13( d) of the Act.

Fines

321. The amount of a fine that can be imposed under the Act for each of the offences mentioned therein, and for each offence referred to in these Rules or any resolution of the Assembly, must be determined in every case by a resolution of the Assembly; but such fine may not exceed the amounts provided in the Act.

322. All fines must be recovered by the Secretary and paid into Parliament's bank account.

323. A fine or portion thereof may be remitted by resolution of the Assembly.

Additional draft NA rule 332:

Request to have a response recorded by persons other than members

332. The Secretary must refer a written request to have a response recorded by a

person, other than a member, regarding a statement or remark made by an Assembly member or a witness in or before the Assembly, a committee of the Assembly, or in or before a joint sitting of the Houses or joint committee, to the Speaker.

Draft rules pursuant to the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004 - Council Rules

NCOP rules in respect of having a committee to deal with matters relating to contempt of Parliament and a written request to have a response recorded b a person other than a member:

Rule 1 to be amended to include the following definition in the appropriate alphabetical position:

"Act" means the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004

129C.

(d) The Subcommittee must consider any matter referred to it by the Chairperson of the Council relating to contempt of Parliament or a request to have a response recorded in terms of section 25 of the Act, except a breach of the Code of Conduct contained in the Schedule to the Joint Rules.

(e)(i) Upon receipt of a matter relating to contempt of Parliament by a member the Subcommittee must follow the procedure contained in the Schedule to the Rules.

(ii) The Subcommittee must table a report in the Council on its findings and recommendations in respect of any alleged contempt of Parliament, as defined in section 13 of the Act.

(iii) If it found that a member is guilty of contempt, the Subcommittee must recommend an appropriate penalty in accordance with section 12(5) of the Act.

(iv) The Council may impose the recommended penalty, an alternative penalty provided for in section 12(5) of the Act, or no penalty.

(f)(i) The Subcommittee must consider a request to have a response recorded in terms of section 25(2) of the Act.

(ii) After receiving the request referred to in (i) above, the Subcommittee must, without delay, forward a copy of the request to have a response recorded to the member or witness concerned, and thereafter consider the request.

(iii) In considering the request the Subcommittee may invite verbal or written representations by the member, witness or any other person concerned.

(iv) After considering the request to. have a response recorded, the Subcommittee must recommend to the Council whether to publish the response, refer it back to the person for amendments, or not to publish the response, having regard to the all relevant circumstances, including

• Whether the statement could be defamatory if it was not protected by parliamentary privilege;

• Whether the statement was made wilfully;

• Whether the statement was withdrawn;

• The time elapsed since the statement was made;

• The content of the requested response; and

• Whether the statement amounts to abuse of privilege.

(v) If approved, the response must be recorded in the A TC.

Abuse of Privilege

245. Abuse of the privilege provided for in sections 45(2) and 71 of the Constitution, or as set out in rule 30 of these Rules, is contempt of Parliament as envisaged by section 13(d) of the Act.

Fines

246. ...

248. A fine or portion thereof may be remitted by resolution of the Council.

Additional draft NCOP rule 254(3) as envisaged by section 25(2) of the Act

254(3) The Secretary must refer a written request to have a response recorded by a person, other than a member, regarding a statement or remark made by a Council member or a witness in or before the Council or a committee of the Council, or before a joint sitting of the Houses or joint committee, to the Chairperson.

Annexure

Procedure to be followed in the investigation and determination of allegations of misconduct and contempt of Parliament

Notification to member

1. A member charged with misconduct or contempt must receive written notice of all allegations and charges against him or her. The notification must be delivered to the member at least five working days before the hearing. The notice must also clearly indicate the date, time and venue of the hearing, that the member is entitled to be assisted by a fellow member and that the member may request the Committee to allow legal representation by a person who is not a member.

2. If it is not possible to serve the notice personally on the member, the Sheriff may be requested to serve such notice.

3. In complex cases or cases involving complicated evidence or legal issues and where the Committee is of the view that such legal representation might be essential for a fair hearing, the Committee may allow the member charged to be represented by a legal practitioner who is not a member.

Explanation by member

4. If the member wishes to give an explanation after receiving the notice, he or she may do so either verbally or in writing. Such explanation may also be presented at the hearing.

5. The Committee must nominate a member or a person who is duly qualified, but who is not a member of the Committee, to act as the initiator for the duration of the hearing. The initiator presents the evidence regarding the allegations and may cross-examine the member and any witness giving evidence on behalf of the member. At the conclusion of the hearing, the initiator may address the Committee on the evidence presented before it and may also propose a penalty to be recommended by the Committee in its report.

6. The initiator must put the charge(s) to the member and the Chairperson must request the member to plead to the charge(s). If the member so wishes, he or she can also give a plea explanation. If the member refuses to enter a plea, the Chairperson must enter a plea of not guilty.

7. The member has a right to be present at the hearing. The Committee, initiator and the member may call witnesses and these witnesses may be questioned by the Chairperson, initiator, the member or the legal representative, either directly or through the fellow member. Members of the Committee may also put questions to the member, but only through the Chairperson or with the permission of the Chairperson. After all the witnesses have been called, the member or fellow member may sum up the evidence and make a presentation to the Committee.

8. If after receiving the notice, the member fails, without just cause, to attend the hearing, the Committee may proceed in the absence of the member.

9. If the Committee finds the member guilty of misconduct or contempt, the member, fellow member or legal representative must be given an opportunity to present mitigating factors to the Committee before the Committee reports to the House. Such representation may be verbal or in writing. The initiator may also address the Committee on aggravating or other factors.

Suspension of member

10.ln order to facilitate an investigation in terms of section 12 of the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act, 2004 against a member in circumstances where there is a possibility that the member may interfere with evidence or witnesses or in circumstances where the allegations are of a very serious nature, the Speaker of the Assembly I Chairperson of the Council (delete which is not appropriate) may request the House to suspend the member. Such suspension may be with or without remuneration and may not be for longer than 14 days. A member who has been suspended must leave the parliamentary precinct, and may not, during the period of suspension, without the permission of the Speaker / Chairperson (delete which is not appropriate)

• Enter the precinct for whatever purpose; or

• Participate in any activity of Parliament or any committee.

11. Before the Speaker of the Assembly I Chairperson of the Council (delete which is not appropriate) request the House to suspend the member, the member must be informed in writing of the request and must be afforded an opportunity to give reasons within a reasonable period why he or she should not be suspended.

12. After the House resolved to suspend the member, the Speaker I Chairperson (delete which is not appropriate) must inform the member in writing of the suspension and the period of its operation prior to it taking effect.