MEMORANDUM [CONFIDENTIAL]

TO: Subcommittee on the Review of the Joint Rules

FROM: Legal Services Office

DATE: 17 August 2006

SUBJECT: Participation of local government representatives in joint sittings

Background

1. I was requested to advise on the legal position relating to the participation of local government representatives present at a Joint Sitting of the NA and NCOP.

2. The Speaker and the Chairperson, acting jointly, made rules in terms of Joint Rule 2(1) for application in the Joint Sitting on 14 February 2006 (Announcements, Tablings and Committee Reports, dated 13 February 2006). Paragraph 3(2) of these rules provides as follows:

(2) Offensive language

No member may use offensive or unbecoming language in relation to any other member of either House, including Cabinet members and special delegates of the NCOP, and local government representatives, who are present at the Joint Sitting.

3. By implication the above mentioned rule allows local government representatives to attend a Joint Sitting. However, the crisp issue is whether this rule allows the participation of local government representatives present at a Joint Sitting?

Participation at a Joint Sitting

4. Joint Rule 13 provides that an Assembly or Council member, other than the officer presiding at a joint sitting, may speak at the sitting only if:

• invited to do so by the presiding officer, or

• he or she obtained the permission of the Speaker or the Chairperson of the Council before the meeting.

5. Joint rule 13 makes no reference to any persons other than members. Paragraphs 3(2), (3) and (5) of the rules framed for the Joint Sitting on 14 February 2006, similarly, provides only for the participation by members.

6. The Constitution provides implicitly for the participation of the President, who is not a member of either House (see section 87, read with sections 42(5) and 84(d)). Section 6 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004, in fact extends parliamentary privilege to the President and members when speaking at a joint sitting.

7. I am not aware of any provision in law that permits the participation of anybody besides members of Parliament and the President. (The issue of a member of the Cabinet who is not a member of Parliament is neither explored in nor relevant for the purpose of this memorandum.)

Participation by local government representatives

8. It follows from the wording of Joint Rule 13 and the rules framed for the Joint Sitting on 14 February 2006 discussed above that local government representatives may only participate in a Joint Sitting if they are members of Parliament. Insofar as the Constitution provides for the composition of the NA (section 46) and the NCOP (section 60), it is clear that local government representatives are not members of Parliament.

9. The Constitution (sections 67, 163), read with the Organised Local Government Act, 1997, provides for the participation, when necessary, of local government representatives in the NCOP. However, a Joint Sitting is distinct from a sitting of the NA and NCOP (see section 84(d) of the Constitution) and if the qualified right to participate in the NCOP extended also to Joint Sittings one would expect the Constitution to provide for this.

10. Therefore, I am of the opinion that these provisions neither entitle local government representatives to participate at a Joint Sitting, nor can these provisions be construed to imply that local government representatives are members of Parliament.

Conclusion

11. The question whether paragraph 3(2) of the rules referred to above entitles local government representatives to participate in the Joint Sitting must be answered in the negative. Paragraph 3(2) refers to language used by members vis-a-vis other members, including Cabinet members and special delegates of the NCOP, and local government representatives present at the Joint Sitting. Similarly, paragraphs 3(3) and (5) refer to members participating. In my opinion there is no direct or indirect provision in the rules framed for the Joint Sitting on 14 February 2006 that allows participation of local government representatives.

Adv F S Jenkins: PARLIAMENTARY LEGAL ADVISER