FIRST REPORT OF THE RULES COMMITTEE OF THE NATIONAL
ASSEMBLY, 2008
The
Speaker of the National Assembly presents the First Report of the Rules
Committee, dated 14 November 2008.
The
Rules Committee, on 13 November 2008, agreed to the adjustment of the National
Assembly Rules, as follows:
A. RULES FOR THE
ESTABLISHMENT OF A COMMITTEE IN TERMS OF SECTION 12 OF THE POWERS, PRIVILEGES
AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES ACT OF 2004
The following definitions are to be inserted in the correct
alphabetical position under Rule 1 (Definitions):
“Act” means the Powers,
Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004
“misconduct” means a breach of the
standing rules of Parliament 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.
Current
Rules 191 to 194 under Part 7: Disciplinary Committee of Chapter 12: Committee system are to be replaced with the
following new rules and the part renamed accordingly:
Part 7: Powers and Privileges
Committee
Establishment
191.
There is a Powers and Privileges Committee as required by
section 12 of the Act.
192. (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.
193. (1) The chairperson of the
Committee convenes meetings of the Committee.
(2)
Meetings of the Committee must be held in closed session
when the Committee considers a matter affecting a specific member or members,
unless the Committee decides to open a meeting in accordance with Subrule (3).
(3)
The Committee may decide to open a closed meeting if –
(a) all parties to the
proceedings agree; and
(b)
it is in the public interest.
Functions
194. (1) 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.
(2)
(a) Upon receipt of a matter relating to contempt of
Parliament or misconduct by a member, the Committee must deal with the matter
in accordance with the procedure contained in the Schedule to the Rules.
(b) 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.
(c) 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.
(d) The Assembly may impose the recommended
penalty, an alternative penalty contained in section 12(5) of the Act, or no
penalty.
(3)
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.
(4) (a) After receiving the request to have a response
recorded referred to in (1) above, the Committee must without delay, inform the
member or witness concerned that a request to have a response recorded has been
received, and thereafter consider the request in accordance with criteria that
the Committee approved.
(b) In considering the request the Committee may
invite verbal or written submissions by the member, witness or any other person
concerned.
(c) After considering the request to have a
response recorded, the Committee must publish the response in the ATC, refer it
back to the person for amendments, or not publish the response.
Current Rules 320 to 323 under Part 3: Contempt of Chapter 15:
Miscellaneous are to be replaced by the following new rules and the part
renamed accordingly:
Part 3: Abuse of privilege
Abuse of privilege
(2) [Rule
320 is suspended until the formulation and adoption of Subrule
(2)]
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.
Recovery of fines
322. All fines must be recovered by the Secretary and paid
into Parliament’s bank account.
Fines remitted
323. A fine or portion thereof may be remitted by resolution
of the Assembly.
Request to have a response recorded
by persons other than members
323A. 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.
The following Schedule
pertaining to the Powers and Privileges Committee is to be inserted in the
Rules:
SCHEDULE
Procedure to be followed in the investigation and
determination of allegations of misconduct and contempt of Parliament:
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.
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.
Initiator
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.
10.
In order to facilitate an investigation in terms of section
12 of the Act 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 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 –
·
enter the precinct for whatever purpose; or
·
participate in any activity of
Parliament or any committee.
11.
Before the Speaker requests 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 has resolved to suspend the member, the
Speaker must inform the member in writing of the suspension and the period of
its operation prior to it taking effect.
B. RULE AMENDMENTS
TO ALLOW FOR JOINT REPORTING BY ASSEMBLY COMMITTEES
The
following new Subrule is to be inserted under Rule
139 (Conferring powers of committees):
(4) Committees conferring
in terms of Subrule (1) may report jointly, subject
to the provisions of Rule 202(2).
Current Rule 202 (Decisions)
is to be replaced by the following augmented Rule:
202. (1) A question before a portfolio committee is decided when a
quorum in terms of Rule 133 is present and there is agreement among the
majority of the members present.
(2) A question
before two or more conferring Assembly committees is decided when a majority of
members of each of the conferring committees is present and there is agreement
on the question between the conferring committees.
Paragraph (b) under Subrule (3) of Rule 303 (Referral of written instruments to committees) is to be amended as
follows:
(b) which of them must
report if a report is required or whether they must report jointly.
C. RULE
AMENDMENT TO BRING RULE 21 (Leader of the Opposition) IN LINE WITH
CONSTITUTIONAL PROVISION
Rule
21 (Leader of the Opposition) is to
be amended as follows:
21. The leader of
the largest opposition party in the Assembly must be recognised as the Leader
of the Opposition.
Subrule (a) under Rule 60 (Time
limits for speeches) is to be amended as follows:
(a) the President, Deputy President, the
Leader of the Opposition and the member in charge of the business before a
meeting, shall not be restricted in regard to the length of time they may
speak; and
Report
to be considered.