From :Clive Rubin

 

To: Chair Mr S L Tsenoli of the Portfolio Committee On Local & Provincial Government and all committee members,

Would the Portfolio Committee please take the following into consideration;

Was 12th Amendment Constitution act (and related acts incl; Cross Boundary Municipal repeal act) ever passed?

The facts: Votes for 265 (altered 266, no signature appended) votes against 65.

As stipulated In the Constitution - an Amendment to the Constitution requires 267 votes or a two thirds majority. When the 12th Amendment to the Constitution act and the cross boundary municipality repeal act came before the National Assembly on the penultimate sitting of 2005, according to both the Voting Summary and the Hansard, the figure announced and recorded by both, never exceeded the figure of 266 votes (with 65 against).

According to the Hansard, this figure was repeated twice, yet It is one vote short of the minimum required and the figure of 267 or above was never mentioned.

At some stage either before or after the Chair added her vote, as is permitted, the electronic printout with a printed figure of 265 was manually altered and an additional vote was added going from an Insufficient 265 to a critical 266

It entirely but irregularly altered the outcome. This is not in conformity with the rules of parliament and in breach of practice (recognized, routine and best). The rules of parliament (Rule 88) entities changes to be made but stipulates that the signature of the Whip "must" appear - It does not feature anywhere on the voting summary (copy provided).

The rules of parliament have been ignored and the role of law has been disregarded

It is - however - accepted practice that In the event of a voting console not functioning, that if announced to the chair and presiding officer and the entire house -any unrecorded votes can be added. Yet there is no mention or documentation demonstrating that either an mp, whip (chief or other), the chair or any office bearer announced or was Informed that any or a member was unable to vote on 15/11/05, during or after the vote took place or at any other time.

Recently (and not uncommonly) when as the current minister of Housing (the Hon. L. Sisulu) was unable to record a vote that merely needed a simple majority to be carried, the minister in question, still felt the need to inform the deputy speaker that she had been unable to cast her vote and this was duly noted (Public service administration amendment vote 2007).

(Should the committee wish, other similar examples can be furnished to the committee).Yet in this case, being a far more sensitive issue involving the amending of the Constitution, that depended and turned on a single vote to make a difference between happening or not proceeding to the NCOP, no announcement was made and no one in the house was informed and yet the Voting Summary was altered regardless and unannounced.

If the rules of parliament are not followed, then they are being broken (Regardless of the Public Protectors, legally non-binding, contortions and contentions). It would set a precedent that would allow any shortfall, concerning any vote, in the future, to be made up simply by compiling a tally of names, of allegedly non voters, to ensure that any vote could be passed regardless of the figure captured by the electronic voting summary. It is hoped that all members would disapprove and abhor this prospect.

At issue is whether the National Assembly abides by the rules it has drawn up for itself or whither it can foreswear the rules and ignore the law when making the law or altering the Constitution or merely when it so pleases.

What sort of example can the citizenry be expected to follow, if the law makers Ignore their laws and rules. By imposing this illegitimate act it has forced peoples otherwise well disposed to the elected government to oppose it. This cannot have been the Intention of the amendment and related acts

Is there a recording in the house?

Despite repeated requests telephonically, then written as per requests from the National Assembly, then written on my behalf (Public Protector), then requested by the Parliamentary Monitoring Group, then latterly In conjunction with the Freedom of Expression Institute a legal request was delivered via the - Promotion of Access to Information Act (PAIA, 27/6/7) to the National Assembly and yet to date, despite all these entreaties, no extant filmed recording of the vote In the National Assembly has been forthcoming - a further and final Internal review request now has been lodged with the National Assembly (4/9/7) and consistent with the PAIA.

Once again It is requesting a copy of the (routinely) filmed vote, that continues to be withheld. If the recording continues to be withheld, there is the prospect that the National Assembly will be, in due course, Judged to be in contempt of the PAIA. Effectively denying this committee and all the members who sit on it too - an opportunity to view, the recording of a vote that many participated in.

Why? Has the National Assembly something to hide?

The question remains as to whether the correct procedure or any procedure was in place when the 12th amendment was voted on in the National Assembly and what exactly transpired on the 15/11J5.

Would the committee consider that;

The 12th Amendment never happened because iIt fell short of the Constitutionally required two thirds and no recording of the events surrounding the vote exists In the National Assembly. It then follows that all subsequent votes In the NCOP, rulings, amendments and all related articles, laws and bills simply never existed too and have no home here In records of Parliament and are similarly Invalid. Similarly on the 23rd of December when enacted by acting President Z Skewyla the 12Amendment was sigend "Ultra Vires".. As the 12th Amendment was not, in the first place properly procedurally passed on 15/11/05.,

I hope that the committee will take Into consideration all the above pronouncing on the Cross Boundary Municipal repeal act and related articles.

C Rubin.

Documents:

Voting summury 15/11/5

Hansard

15/11/5

PAIA - Internal Appeal 4/9/7