Meeting report

DELIBERATIONS

14 JUNE 2006

These minutes were provided by the National Council of Provinces Table Staff

PRESENT

Mahlangu, Mr M J (Chairperson of the NCOP)

Hollander, Ms P M (Deputy Chairperson of the NCOP)

Doidge, Mr G (House Chairperson: NA)

Goeieman, Mr C M (Northern Cape)

Kolweni, Mr Z S (North West)

Mack, Mr N J (Western Cape)

Mokoena, Kgoshi M L (Chairperson: Subcommittee on Review of

Rules)

Mzizi, Mr M A (IFP)

Nyanda, Ms F (Mpumalanga)

Ntuli, Mr Z C (KwaZulu-Natal)

Oliphant, Mrs M N (House Chairperson: NCOP)

Setona, Mr T S (House Chairperson: NCOP)

Shiceka, Mr S (Gauteng)

Sogoni, Mr E M (Gauteng)

Sulliman, Mr M A (Programming Whip)

Terblanche , Ms J F (Democratic Alliance)

Vilikazi, Ms J N (IFP)

Van Rooyen, Mr C J (Free State)

Watson, Mr A (Democratic Alliance)

APOLOGIES: Mr V V Z Windvoël (Chief Whip of the NCOP), Ms B N Dlulane, Ms. H. F. Matlanyane, Mr J O Tlhagale, Adv. L. L. Matyolo-Dube (Secretary to the NCOP). (Dr F J Van Heerden was excused to attend another meeting)

IN ATTENDANCE: STAFF: Adv. B V L Momoti, Mr S Makhasi, Mr B Nonyane, Ms J A Borien, Adv A Gordon, Mr M Tyumre, Mr M Nguqu, Mr M Tshaiviti.

1. OPENING

The Chairperson of the NCOP, Mr M J Mahlangu, opened the meeting and welcomed all to the meeting.

2. APOLOGIES

As stated above under apologies.

3. ADOPTION OF AGENDA

The agenda was adopted without additions.

4. REPORT BY THE TASK TEAM ON OVERSIGHT ON PROGRESS REGARDING

THE OVERSIGHT MODEL

The Chairperson reminded members that it was agreed in the previous meeting that the Rules Committee would receive a report from the Task Team on Oversight on the progress with regard to the Oversight Model.

Mr Setona, the NCOP House Chairperson: Oversight and Institutional Support, reported that in 1998 the Speaker and Chairperson of the NCOP commissioned a report on how Parliament could comply with its constitutional mandate of exercising oversight over the executive. Prof. Hugh Corder and other members of the academia were tasked to compile a report. A Joint Ad Hoc Subcommittee was subsequently established which interrogated the report and proposed that the recommendations in the report be implemented. The JRC then established a Joint Task Team which would advise the JRC on how to take the recommendations forward. The Task Team was appointed in 2005, headed jointly by Mr Nhleko and Mr Setona. Mr Setona said that the report of the Task Team was now in its final draft and would be presented to the JRC at a meeting which would be taking place during the coming week. Mr Setona added that it would be at the discretion of the JRC to adopt the report or to refer it back to the Task Team. He stated that it was important for the NCOP Rules Committee to look at the implications of the report on the NCOP and arrive at recommendations which could enrich the report. Also, to ensure that the NCOP prepare its position around specific matters in the report.

Mr Setona then introduced Mr Bailey, a research consultant that had been working with the Task Team, to continue the presentation on the progress with regard to the Oversight Model.

Mr Bailey tendered apologies for the Deputy Secretary to Parliament and Mr George Kunnath (Head of Projects Office and Sponsor of the project).

Mr Bailey reminded members that the Task Team consisted of the three specific Focus Groups which were looking at the specific areas of oversight. The Focus Group on Projects was mandated to look at the position of Chapter 9 institutions and their oversight role vis a vis that of Parliament, the Focus Group on Committees was mandated to look at best practices for committees and was in the process of developing a best practice guide; and the Focus Group on Budget Processes was tasked with looking at section 77(3) of Constitution which provides that an Act of Parliament must provide for a procedure to amend money Bills before Parliament. He said that the Focus Group would be presenting a draft Bill at the next JRC meeting.

Mr Bailey provided an overview of the objectives of the Oversight Model. He said that the model combines existing and new best practice into a simple framework. He said that the framework itself was greatly debated in the various Focus Groups and that the framework aimed to provide a process by which Parliament would be able to engage in oversight in the long term. He reminded members that the Corder Report as well as the Joint Subcommittee’s report emphasised that government action could not be seen as something that fits into one calendar year, especially when it related to outcomes. He said that when exercising oversight Parliament would need to have a longer-term approach to oversight and the Task Team also tried to address that concern in the model. He stated that the model also provides a tool for better management of committees’ workloads, resources and planning.

He referred to the documents that were distributed to the members and said that the constitutional principles and values, the constitutional mandate focusing on the separation of powers, the joint mandate of the two Houses and the separate mandates of the National Assembly and NCOP were used as basis. The model also looked at executive accountability and a specific protocol that could be instituted to govern executive accountability and elements of cooperative government. He said that the Task Team was also cognisant of Parliament’s mission and values and the implications of the notion of a People’s Parliament for the oversight function.

The above –mentioned elements were plotted against the core functions of Parliament as contained in Parliament’s Strategy namely the lawmaking function, oversight over executive action, the importance of public participation, the constitutional imperative of cooperative government and international participation.

The Task Team looked at those core functions in relation to the people centred approach to oversight and accountability. He said that when the Task Team designed the oversight model, it was of the view that it would be important to start with the people who express their needs through electing the representatives in the national, provincial and local spheres of government. He said that the role of the NCOP in oversight was quite unique and SALGA who was representing organised local government in the NCOP had also been taken into account.

He stated that the constitution makes clear reference as to who conducts oversight over the different spheres of government. However, although the constitution does not refer specifically to the NCOP having an oversight role, it was clear in what was expected from the NCOP, in that it should provide forum for consideration of provincial issues at national level, that the NCOP had an oversight role. He added that when integrating these elements, the Task Team looked at the values, mechanism, process and resources that would be required to conduct oversight.

In terms of the values, the Task Team looked specifically at the Strategic Plan of Parliament and the values expounded therein namely constitutionality, people centredness, cooperative government and good governance. In essence, the mechanism identified puts all the elements namely the values, Parliament’s oversight objectives and executive action together and on a conceptual level this was identified as Parliament’s oversight cycle. This again was put against the MTEF process and on the one level there was executive action and on the other Parliament’s oversight objectives which are received by Parliament via input from the people through activities such as the Peoples’ Assembly, Taking Parliament to the People, committee hearings etc. In terms of executive action, the planning processes, strategic plans of departments, the President’s speech, government fiscal review and various fiscal documents are taken into account. The planning element is then followed by the budgetary element of executive action. Mr Bailey said that the oversight cycle therefore expresses a desire to include a long-term perspective which would include a multi-year process.

Mr Bailey stated that there had been a lot of debate regarding the mechanism to be used. He said that the Task Team would be presenting three proposals to the JRC.

He reminded members that at the previous JRC meeting the Task Team proposed, when dealing with oversight on a parliamentary level, that an integrated oversight committee (IPOC) be created with a mandate to coordinate transversal oversight issues that cut across government portfolios and spheres of government and suggested that these transversal elements would on a cluster level be put together in forms of different themes and that the consolidated parliamentary priority oversight report would be submitted to the Presiding Officers.

The Presiding Officers would have the responsibility to reveal the parliamentary oversight priorities report and refer it to the various Houses for adoption. It would then be publicly launched and at committee level, it would flow back to the development of business plans, budgeting, required resources, annual programmes and oversight would be conducted in terms of the report and the best practice guide alluded to earlier. The next level would require reports to be tabled in the Houses and referred to ministers and the Leader of Government Business. A specific protocol would also track executive compliance. In terms of this option, the creation of an additional committee, a super committee was negatively received. The Chairpersons of Committees in the Task Team was of the opinion that it would take away the ability of committees to operate independently.

The alternative proposal is that an integrated parliamentary oversight committee consisting of the House Chairpersons be created. The House Chairpersons would be responsible for identifying transversal oversight issues, the development of a joint parliamentary oversight report and conferral with the JRC. The JRC would review the report and the adopted report would flow into the programming committees. Where there are transversal issues to be dealt with jointly, existing ad hoc committees would be used. This proposal mirrors the mechanism used for African Peer Review input of Parliament. The second Option to be proposed to the JRC would be the inclusion of a Committee of Chairs of Committees in the NA and NCOP.

Mr Bailey stated that there were sometimes vagueness on committee level in terms of prioritisation of committee business and one of elements of developing the integrated parliamentary oversight mechanism was to ensure greater co-ordination of activities. The idea was that the Chairpersons of Committees should be allowed to review the business plans of the various committees and flow into the mechanism of the House Chairpersons who would develop the joint oversight report and identify transversal issues, and then confer with the JRC. The two alternative models were briefly tested with other drafters and procedural staff and the concern was raised that if any one of the two alternative models were to be adopted, the multi-party nature of the oversight system might be taken away.

Mr Bailey referred to the impact of the model on Parliament and said that there would be a need to increase the research and content specialist capacity of committees. The Legislation and Oversight Division (LOD) made a proposal which was referred to by Mr Doidge in his speech the previous week. The proposal recommends a pilot programme which would include three clusters of committees consisting of five committees each. It was proposed that each committee be provided with a dedicated researcher and content specialist. That the library be capacitated with specialised librarians to assist committees. It was also proposed that the administrative and logistic functions currently residing with committee secretaries be incorporated in an administrative department within LOD that would take that responsibility to allow committee secretaries to focus on procedural maters. The first pilot phase of fifteen committees would be rolled out in this financial year.

With regard to the implementation of a system to capture and manage information within committees, Mr Bailey said that the Clerk of Papers was steering a Parliamentary Content Management System that was launched the previous week to improve the way in which Parliament had been dealing with information. It was envisaged that through the use of ICT there would be greater efficiency.

Mr Bailey stated that the development of a public participation model was desperately required for the oversight model to work. Especially greater co-ordination of public participation activities in Parliament is required so that the information coming from the different activities could effectively be filtered. The Parliamentary emphasis on public participation would also be another mechanism to be introduced this year that would allow for greater public participation. Mr Bailey reminded members that there would be changes required to policies and rules to accommodate the integration of Parliament’s oversight mechanism.

In conclusion, Mr Bailey referred to the need for continuous capacity development of members with regard to ICT, budgeting practices and other skills required for oversight. He informed members that there was a consortium of South African universities that were working on a curriculum for short courses and even postgraduate courses for members to deal with the specific skills required for oversight. Training of staff in line with the best practice guide would also be required as well as change management and the adoption of the procedure for executive compliance.

Mr Setona added that the Task Team came up with the options in the midst of heated debate. That interviews were held with people involved in the crafting of the constitution which resulted in different views, including from members of the same party. The approach of the Task Team was that there was a need to find expression in interpretation of the current practices.

Mr Setona added that the most difficult focus area was the one on Budget Processes as it was expected to come up, as per the mandate of the constitution, with legislation that will determine the procedure for amending money bills. He indicated that the Focus Group had come up with a draft Bill which would be presented to the JRC.

Mr Setona requested Mr Doidge to provide a report on the initiatives undertaken to capacitate committees.

Mr Doidge said that it was important to recognize that government was becoming complex in what it does and that as a legislature compelled by the constitution to oversee executive action, Parliament must not underestimate the workload before it. He referred to the criticism in the public domain and the comments from the Minister of Finance. He further referred to the resources that support a government department such as National Treasury and said that it was currently impossible for Parliament to conduct effective oversight over that department taking into account Parliament’s current capacity. He stated that he was in agreement with the Minister in that Treasury supplied Parliament with all the information but the question was how does Parliament use that information effectively.

Mr Doidge said that the first challenge would be to find an oversight model, and that this should be approached with an open mind. That it would not be possible to have a once-off presentation to the JRC, as this is an evolving process. Mr Doidge informed members that the Task Team had interacted with a number of parliamentary delegations and that some parliaments could not understand the process that the South African Parliament was involved in. They were of the view that it would create tension between the legislature and the executive. Mr Doidge said that the Task Team indicated to them that the South African constitution mandated Parliament to exercise effective oversight over the executive. He said that he finds the option that utilises the existing structure of the House Chairpersons the most attractive one. That it was important not to narrow the individual mandates of committees and that he was comfortable with the option that talks to a mechanism that would co-ordinate the work without going into the terrain of other committees. He acknowledged that there would be a direct impact on what happens in the provinces.

With regard to the support provided to committees, he argued that all committees should be a part of the pilot phase and not only fifteen committees as currently proposed. He said that Parliament had been talking about the lack of capacity for 12 years and he appealed to the Presiding Officers and the Secretary to Parliament to involve all the committees from the start. He challenged Parliament to put the ball back in the court of the Minister of Finance by identifying the capacity required and requesting the budget for it.

He further indicated that the support referred to was based on a holistic approach. That each committee would be provided with a researcher, a content specialist, a committee secretary and a librarian. That the administrative function of the committee secretaries would be removed to an administrative office within LOD to enable committee secretaries to concentrate on content and the provision of procedural advice. He said that the proposed support system for the entire committee structure must be funded within the current year. He informed members that a technical team consisting of Adv. Matyolo-Dube, Ms Keswa and officials from the NA Table and other sections was drafting the best practice guide. That they were nearing the end of the technical phase. He said that the best practice guide contained current practices as well as what should be best practice. He said that in the NCOP, the Taking Parliament to the People Programme had become best practice and should also be captured in detail in the best practice guide. The reason for the best practice guide was to capture the institutional memory and operations so that it is in place for use by future parliamentarians.

The Chairperson requested comment on the two alternative options to be presented to the JRC. He congratulated the Task Team on a job well done. He enquired as to how far the Task Team had gone in terms of doing comparative studies bearing in mind the view of international parliamentarians that the South African Parliament would be at loggerheads with the executive. He remarked that in some countries the executive was stronger than the legislature or the judiciary and said that the three arms of government should be in balance. That is why there were checks and balances built in the South African constitution.

Mr Setona responded that other Parliaments found it strange that the South African constitution provided these powers to Parliament. He reminded members that there were huge debate in Britain regarding the redefinition of oversight powers and the mandate of the legislature in relation to the executive. He said that the Task Team proceeded in accordance with Parliament’s constitutional mandate.

The Chairperson opened the floor for comments on the options.

Mr Shiceka referred to slide 5 which referred to the three branches of government and said that it should refer to “executive” instead of “government”. He said that the model does not refer to a system that would compel the executive to respond. He asked whether parliamentarians contributed to the prioritisation of issues for delivery, whether impact was made on the budget before it was tabled in the House.

Mr Mzizi referred to page 20 and the understanding of the oversight role of the NA and NCOP. He said that it was strange that both the NCOP and NA committees conducted oversight on the same matters on provincial level.

Mrs Oliphant, in response to Mr Shiceka’s remark, said that a number of members sat on the Task Team and the three Focus Groups. She said that Parliament conducted oversight over the executive and both Houses constituted Parliament. She stated that if the NCOP were isolated as a House it would create confusion. She requested that the slide be corrected to read that “Parliament” rather than the “NA” conducted oversight. On the issue of the IPOC, she asked whether it had not been agreed in the last meeting that it would be put on hold until clear terms of reference was provided.

Mr Van Rooyen said that there was still a fundamental problem as the model was based on the expenditure side of departments. He said that by the time committees considered the budget it was already finalised.

Mr Kolweni said that more time was needed to understand the process. He was expecting an element that talked to oversight in terms of legislation and on issues that were affecting the constituencies of members. He said that Bills were amended and regulations made but that Parliament were sometimes not involved in these processes.

Ms Vilikazi referred to page 15 and echoed the sentiments expressed by other members regarding the oversight function of the NCOP. She said that coordination and collaboration would yield better results.

Mr Hendricks remarked that the policy should be more practical. He questioned why a NA committee conducted an oversight exercise alone.

Mr Watson noted the absence of participation by opposition parties in the model.

Kgoshi Mokoena also referred to page 15 and to the constitutional provisions that provide for the oversight function of the NCOP. He quoted sec 92(2) and referred to section 42(2) and said that these sections should provide clarity in regard to the oversight function of the NCOP.

The Chairperson responded that members should refrain from taking any decisions in the meeting. He said that he would allow another discussion to take place.

Mrs Nyanda responded to Mr Hendrick’s remark by saying that the NA committee conducted oversight alone as the Select Committee was not in a position to go with them.

Mr Setona said that he welcomed all the comments and reminded members that it was important to get consensus on issues. He responded to the comment around ensuring that executive compliance was captured and said it was clearly captured but that the rules had to be amended to provide guidance as to how to deal with it. He acknowledged the lack of opposition party participation in the model and said that the Task Team was cognisant of the importance of including the multi party element. He referred to the remarks made by Mr Mzizi and Ms Vilikazi and said that the initial report referred to the inherent oversight role of the NCOP. That the report had indicated the inherent oversight role but the question was how the NCOP would play that oversight role, taking into account intergovernmental relations and the mandate of ensuring provincial interests were taken into account in the national sphere of government.

Mr Doidge responded that the powers and functions of the committees should not be underestimated. In response to the question of how Parliament influenced the budget, he said that members sat on the budget council and the joint budget committee. He said that the best practice guide should indicate what the specific tasks of members would be when they sat on specific committees. He enquired whether any committee had started with the interrogation of the coming year’s budget. He said that if oversight was done correctly and the recommendations were clear, it would mean that members had influenced the budget for the coming year. He stated that the mechanism to hold the executive accountable was already being practiced and made the example that when resolutions were passed by the House, recommendations were made to the executive. He indicated that an audit was requested of all recommendations made to the executive to see which ones were responded to. He acknowledged that the intergovernmental relations aspect was lacking but indicated that it had been addressed. That there was a need to identify its place in the model.

On the issue of the IPOC, he responded that there were already structures in place. He acknowledged the lack of opposition party participation in the model and said that Mr Gibson was in agreement that existing structures be utilised. That these issues still needed to be addressed.

Mr Doidge also said that oversight was really done ex post facto but that the constitution provided a proactive role for Parliament and therefore the model also demanded a proactive role. With regard to the issue of legislative oversight, he said that it was important for Parliament to pass good laws but also to follow up on implementation of those laws. In addition, that the sections in the constitution dealing with oversight would have to be revisited by all.

The Chairperson said that it was important to document the work of Parliament as it would be of importance for generations to follow. He was in agreement with Mr Doidge that the committees should be allowed to do their work. In response to the discussion on the oversight role of the NCOP, he said that the constitution was clear. The constitution provides that the NCOP has an oversight role and the NCOP had been exercising that oversight role. The joint monitoring committees conduct oversight and the NCOP had been part of those monitoring committees. The NCOP called the executive to respond to questions, to partake in subjects for discussion etc. He referred the members to the speech of the President wherein the President said that the NCOP was the only House that was able to operate between the three spheres of government. The Chairperson said that section 69 of the constitution granted the NCOP the power to summon anyone to report to it. That no sphere of government was independent, they were all inter-dependent and interrelated and the NCOP played a role in intergovernmental relations. However, the Chairperson added that the coordination of the work was important. He concluded by saying that the NCOP had a lot of work to do especially in the third sphere of government, that it should be biased in its oversight function towards that sphere and that it would have to get involved in Project Consolidate.

5. CONSIDERATION OF THE MINUTES OF THE MEETING OF 15 MARCH 2006

The following corrections were made to the minutes:

• That the names of Mr A Watson and Mr T S Setona be added to the attendance list.
• That the second last bullet on page 4 of the minutes be rephrased.
• That the redundant words “on the proposal” on page 7 be deleted.
• That Ms Terblanche’s initial view be inserted on page 5.

The minutes, as amended, were adopted as a correct reflection of the meeting of 15 March 2006.

6. MATTERS ARISING FROM THE MINUTES OF 15 MARCH 2006

The Chairperson referred to page 3 of the minutes and asked whether the policy guideline on fast tracking had been circulated.

Ms E van der Horst responded that she had a copy of the memorandum sent to the Chairperson in the name of the Secretary to the NCOP. She said that the guidelines had been scrutinised and that it set out broad guidelines on fast tracking. However, that it did not specifically refer to the four or six week cycle.

The Chairperson requested that a copy of the policy guidelines be submitted to him.

Mr Sulliman referred to item 6.2.1. (Protocol /Policy governing members and committee travel to Provincial Legislatures) and suggested that it be revisited at a later stage.

The Chairperson responded that a decision had been taken. That provincial Speakers discussed the matter at the NCOP and the position had been clearly stated that NCOP would not be responsible for the cost when Provincial Legislatures invited permanent delegates. The Chairperson reiterated that the matter had been finalised and would not be revisited.

Mr Kolweni requested clarity regarding item 6.1. (Four/Six week cycle) of the minutes.

The Chairperson said that the NCOP Rules Committee approved the policy that provides for the legislative cycle of the NCOP to be a minimum of 4 weeks (to deal with technical legislation) and a maximum of 6 weeks (to deal with more complex legislation). The Chairperson said that in terms of the rules the NCOP is allowed to request an extension from the JPC if it is not in a position to pass legislation within the cycle. He said that this rule had not been applied.

Mr Ntuli referred to item 6.2.1. (Protocol /Policy governing members and committee travel to Provincial Legislatures) and said that the Finance Department of his Provincial Legislature said that given that the permanent delegates to the NCOP did not belong to their persal system, they were not in a position to pay for them. He wanted to bring that to the attention of the Chairperson.

Chairperson responded that they would have to find a way to deal with the matter.

Mr Shiceka proposed that a communiqué be sent to the Provincial Legislatures which clearly set out the policy position.

The Chairperson responded that a policy decision had been taken on the matter and that all Speakers were part thereof. He failed to see the reason why a second communiqué should be sent.

The Chairperson referred to item 6.3. (Discussion on the establishment of a committee dealing with discipline of the House as well as contempt of members) and said that the matter had been referred to the Chief Whips Forum for discussion. He asked whether anyone would provide a report in the absence of the Chief Whip.

Mr Sulliman requested that matter be revisited in the next meeting.

The Chairperson said that the rules would have to be finalised before the committee could be created as certain powers needed to be granted to the committee. He asked Kgoshi Mokoena whether the rules had been drafted on the matter.

Kgoshi Mokoena responded that the rules had been drafted but that the item had been removed from the agenda of the Subcommittee. He said that it was decided that the matter would be dealt with by the Chairperson, the Chief Whip and that a multi-party structure.

The Chairperson requested Mr Nonyane to assist his office in composing a small subcommittee to deal with the matter. The Chairperson added that a report would be provided at the next meeting.

7. MATTERS ON THE AGENDA

7.1. Report by the Deputy Chairperson on the ruling made regarding the dispute between the Chief Whip and Mr Watson

The Deputy Chairperson said that Mr Sogoni requested that she make a ruling on the dispute between the Chief Whip and Mr Watson. The Deputy Chairperson said that she referred to NCOP Rule 97 (Order in meetings) and it actually referred to order in sittings. The Deputy Chairperson said that the tapes were revisited. She stated that the dispute was between the two members and there was no disrespect for meeting or the Presiding Officer and therefore there was no need to ask Mr Watson to leave the meeting. However, in order to uphold the decorum of the House, the Deputy Chairperson requested members to respect one another when dealing with political matters. She said that such incidences placed Presiding Officers in a difficult position and it was important to prevent unnecessary political tension.

Mr Watson requested that a copy of the report on the ruling be provided to him. He reaffirmed that he had the highest regard for the Office of the Chief Whip as well as for the person. He added that the interaction on that day did not reflect on the Office or the person.

The Deputy Chairperson said that she would send a second copy of the report on the ruling to Mr Watson.

The Chairperson responded that free discussion in committees needed to be allowed and that members should be careful when using points of order at committee level. He said that the rules were clear and that abusive language would not be tolerated. He requested members to respect one another and to work towards reaching consensus in committees.

The Deputy Chairperson emphasised that NCOP Rule 97 applied to situations in the House and not committees.

7.2. Deputy Chairperson to report on workshop with SARS on tax implications for members

The Deputy Chairperson said that the workshop was scheduled to take place on 19 June 2006 at 2 p.m. in the Old Assembly Chamber. She said that she had received correspondence that the Commissioner for SARS, Mr P Gordon, would address members on the tax implications on the benefits and allowances of members. She said that members would be informed regarding developments on this matter. She added that she was uncertain whether the venue would be the Old Assembly Chamber.

The Chairperson responded that he had requested the Speaker to avail the NA Chamber and that the NA would have to take a resolution in that regard. He emphasised the importance of attending the workshop and said that he had requested the Chief Whip of the NCOP and the Chief Whip of the Majority Party in the NA to allow the members to attend the workshop since it would be a party day. He said that members’ salary benefits had been highly affected by tax and that it was important for members to know what the impact would be on their salaries and allowances.

The Deputy Chairperson informed members that SARS would be distributing information packs to members at the workshop.

7.3. Discussion on the mandate of the Disciplinary Committee (its powers and functions) and its composition

The Chairperson said that the Secretary to the NCOP was supposed to provide a report on the matter. He asked whether Adv. Momoti had a mandate to report.

Adv. Momoti replied that he had no mandate to report.

7.4. Report by Subcommittee on Review of Rules on outstanding issues

Kgoshi Mokoena submitted the report of the Subcommittee and put the following proposals before the Rules Committee for consideration and approval:

(1) Amendment of definition of money bill

Kgoshi Mokoena requested that the definition of a “money bill” in the NCOP Rules be amended to read “a bill to which sec 77(3) of constitution applies” as the definition as espoused in the rules did not fully reflect the definition as provided in the constitution.

The proposal was agreed to.

(2) To amend rule 14A by inserting an additional power of the House Chairpersons namely the power “to consider and approve committee requests for travel for purposes of oversight”.

Mr Sulliman proposed that “in consultation with the Chief Whip” be added to the proposal.

Mr Van Rooyen asked if the approval applied to travel and cost.

Mr Shiceka said that in exercising a power, the authority would consult different people. He said that the financial implications would be added to the proposal and if anything needed to be done by the deciding power, it would consult with the finance people. Also, that the Chief Whip’s task would be to ascertain whether the quorum of the House would be affected.

The Chairperson said that Kgoshi had indicated that the powers of the different structures could not be mixed and that the issue of consultation would be dealt with in another rule.

The proposal was agreed to.

(3) Form of address

Kgoshi Mokoena said that it was convention for a member to be addressed by calling the member by his or her name. He said the NCOP Rules did not provide for members to be addressed in a specific way.

The Chairperson said that he would have thought that South Africans would want to use their own terminology when addressing one another. He said that members have been using different forms of address in the House. He however was in agreement with the Subcommittee’s proposal as it aimed to ensure respect and dignity between members.

It was resolved that members would address one another by using the prefix “Honourable”.

(4) Approval of committee travel

Kgoshi Mokoena explained that if a committee wanted to hold a meeting during session, it needed the permission of the House Chairpersons and also approval from the Chairperson of the NCOP. The Chief Whip of the NCOP would also be consulted to ensure a quorum in the House.

He said that the approval of this rule by the committee would be in line with its approval of Rule 14A.

The Chairperson said that the approval should be sought from the House Chairpersons and that he should only be informed.

Mr Setona was in agreement with the Chairperson in view of the fact that the Chairperson had delegated some of his functions to the House Chairpersons. He however said that it would be important to inform the Chairperson.

Mr Shiceka agreed that the Chairperson should be informed to ensure that he was aware of what was happening in the institution.

The Chairperson said that members could look at subsection (b) on their own. That it was not a question for amendment now.

The proposal was agreed to.

(5) To amend rule 232 by insertion of the following:

Kgoshi Mokoena said that the Subcommittee recommended the amendment of Rule 232 by insertion of the following subsection:

(6) Questions must be directed at the Ministry that is officially tasked with the particular area of responsibility for which information is requested.

Kgoshi Mokoena explained that it had been practice for a question which had been incorrectly directed by a member, to be referred back to the member. The proposal was that instead of the question being referred back to member, it be rerouted to the relevant minister.

The Chairperson said that if that was happening, it should be corrected. He asked whether this was a matter of a rule.

Adv. Momoti responded that the Questions Office was responsible for questions and that he would look at the procedure they followed and bring it to their attention. He responded that it was not a matter of a rule.

Mr Mzizi said that the practice was that the Questions Office would refer the question, if wrongly directed by a member, to the relevant ministry and inform the member that they had referred it.

Mr Shiceka said that whilst Mr Mzizi might have had that kind of experience, it might not hold true for other members. He said that the purpose of the rule was to ensure uniformity in the way things are done.

Mr Setona said that there were a number of shortcomings with regard to questions. He said that when a deadline was set, the Questions Office would print questions received first and questions received later in the day would not be printed. He added that the Questions Office did also not take multi-party democracy into account. He proposed that the Subcommittee relook the issue of questions and how to deal with the shortcomings that are there.

The Deputy Chairperson was in agreement with the proposal made by Mr Setona.

Agreed:

• That the Subcommittee would relook the issue of questions and that it would be considered at the next meeting.
• That Adv. Momoti would have regard to the practice and join the Subcommittee to assist with the formulation of the rule.

(6) Three-day rule

The Subcommittee proposed that Rule 172 be amended by insertion of the underlined words:

172(1) the Council may not consider or pass a bill before at least three working days have lapsed, since the committee’s report was tabled:

(i)                   unless it is a bill before the House in terms of rule 216 of the Joint Rules; or

(ii)                 an urgent bill before the House.

Kgoshi Mokoena explained that subsequent to a committee’s deliberations on a bill, a report would be tabled in the House. The proposal was that a three-day rule be applied before the Council considered the report. The three days would allow for a quality control process to take place. He added that the three- day rule could be waved in the above-mentioned circumstances.

The Chairperson agreed that the rule should be there to allow committees to prepare their reports. He said that the rules would normally be suspended if the House had to deal with an urgent matter.

Mr Setona was in agreement with the proposal and enquired whether there were systems in place to ensure that reports are scrutinised to ensure compliance. He said that it was something for a committee to pass an unconstitutional bill, but another thing for the House to do so. He asked if the necessary systems might be lacking in the House.

Adv. Momoti responded that the procedural office was not capacitated to deal with the matter at present. However, that it was the duty of the Committee Section. He said that the issue would be taken up with the management.

The Chairperson said that it was important to read the reports of committees. He referred to the report on the ICASA Bill and said that when he read it he was sure that the report had not been scrutinised.

The proposal was agreed to.

(7) Proposal on the legislative cycle

Kgoshi Mokoena referred to the policy that had been adopted by the Rules Committee regarding the legislative cycle of the NCOP. He requested that it be formalised into a rule.

The proposal was agreed to.

(8) When does a member lose his/her seat in terms of his/her absence from Parliament?

Kgoshi Mokoena said that if a member absented him or herself from the Council for 15 consecutive days, the member automatically ceased to be a member. He informed the members that the NA deemed it fit to remove the rule from their rules. He proposed that the Rules Committee discuss whether the rule would still be applicable to the NCOP and that the provinces also be brought on board.

The Chairperson said that the debate should be put into context, as it should look at members as permanent delegates from Provincial Legislatures. He said that in terms of the constitution provincial delegations as a single delegation, represented a particular provincial legislature. He said that it was important to involve the provinces when discussing the matter. He added that once a member was appointed as a permanent delegate to the NCOP, it was as if the province forgot about the permanent delegate and after five years they decided whether to retain or remove the permanent delegate without any formal discussions with the permanent delegate.

The Chairperson said that when a member absented him or herself for 15 consecutive days the member must apply for leave from the Council. He said that the question of what to do when a member absented him or herself and there was no quorum should also be addressed. He said that the matter was merely introduced and needed further discussion.

Mr Setona proposed that political parties and provincial delegations discuss the matter. He said that the question was what the standing of a member of the NCOP was vis a vis the fact that the member was also a representative of a Provincial Legislature. He said that section 62 of the constitution provides powers to the NCOP to determine its own rules as to how it deals with matters. He proposed that the Chief Whips Office be tasked with ensuring that provincial delegations and political parties discuss the matter in order to arrive at some degree of consensus.

The Chairperson referred to section 62(4)(e) of the constitution and said that that it was not a question of merely amending the rules but also looking at the constitution.

Mr Watson was in agreement that the matter had far reaching consequences. He said that it had to tie into the Electoral Act which provides for the number of members to be appointed by a province. He said that even if a member were dismissed, the province would have to ask the party to submit a name. He asked what would prevent a party to submit the same name. He agreed that parties should consult with their party leadership.

The Chairperson reminded members that it would also apply to sittings of committees.

Mr Mzizi proposed that parties should periodically be furnished with reports of members’ attendance.

Mr Ntuli highlighted that in order for committees to work effectively, provinces must be represented. He said that if members absented themselves, the province would not be represented. He agreed that the provinces should be consulted on this issue.

Agreed:

·         That the matter be discussed in the Chief Whips Forum, in party caucuses and by provincial delegations.

8. CLOSURE

The Chairperson adjourned the meeting.

_______________________

Hon. Mr. M J Mahlangu, MP

Chairperson of the NCOP Rules Committee