PARLIAMENT
OF THE REPUBLIC OF SOUTH AFRICA
MEMORANDUM
[CONFIDENTIAL]
TO: Subcommittee
on the Review of the Joint Rules
CC: Secretary
to Parliament
FROM: Legal Services Office
DATE: 17 August 2006
SUBJECT: Participation of local government
representatives in joint sittings
Background
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.
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.
By
implication the abovementioned 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
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.
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.
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.
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
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.
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.
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
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-à-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