Eleventh Draft of Powers and Immunities of Parliament and Provincial Legislatures Bill: consideration

Meeting report

AD HOC COMMITTEE ON POWERS AND PRIVILEGES OF PARLIAMENT
17 March 2003
ELEVENTH DRAFT OF POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES BILL: CONSIDERATION

Chairperson: Mr PC Hendrikse (ANC)

Documents handed out:
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill
Civil Proceedings against Legislatures or Committees [two options] (Appendix 1)
State Liability Act 20 of 1957 (Appendix 2)

SUMMARY
The Committee considered the eleventh draft of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill. The Bill aims to define certain powers, privileges and immunities of Members of the National Assembly, delegates to the National Council of Provinces and Members of Provincial Legislatures. In their discussion the Committee highlighted issues from the previous meeting. These pertain to the distinction between offences and misconduct; protection of witnesses and a clause that specifies which clauses did not apply to the provincial legislature.

Certain areas of the Bill were redrafted. These relate to disciplinary action against Members for contempt of the Legislature, clarity on the privileges and immunities of members of the Pan-African Parliament and SADC Parliamentary Forum.

MINUTES
The Chairperson highlighted the issues that were raised in the previous meeting:
-A need to distinguish between offences (which are given a public hearing) and misconduct (which is heard by peers).
-The protection of witnesses.
-A clause stipulating the specific clauses which are not applicable to the provincial legislature.

The Committee had also considered the privileges of MP's at the Pan African Parliament and
whether legislation similar to the State Liability Act applied to MP's.

Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill
Adv A Meyer presented the revised Bill to Members. The following are the new changes in the eleventh draft.

Definitions
The definition of a 'member of parliament' is revised as being a Member of the National Assembly or the delegate of the National Council of Provinces. The Pan- African Parliament means the Pan African Parliament established by Article 2 of the Protocol.

Adv Meyer pointed out that the reference to 'Protocol' is defined as the Protocol to the Treaty Establishing the African Economic Community, relating to the Pan-African Parliament.

Clause 2: Application of the Act
This Clause was added because the Constitution stipulates that the Provincial Legislatures have complete autonomy. The previous draft of the Bill, added Adv Meyer, went too far.

Clause 4: Control over Precincts of Parliaments
A Clause on the control over precincts of Parliament was added. The change reflected in this draft is that the previous subclause 2 was removed, as it appeared to interfere too much, stated Adv Meyer.

Chapter 3: Disciplinary Action against members for contempt of legislature and other punishable misconduct
The word 'misconduct' was added, and therefore misconduct is also punishable.

In previous discussions, the issue of a fine was contested as the previous amount of R 1000 was considered too low. The current draft stipulates a fine as not exceeding 'the equivalent of one month's salary and allowances payable to the member…' In addition a Member may now be suspended "with or without pay" for a period not exceeding 30 days…' This has to be read with subclause 10.

Adv Meyer added that the Rules would also have to reflect this new state of affairs. The existing amount, as specified in the Rules, was a mere R 200.

In addition, if a Member is found guilty of contempt or punishable conduct, the House may impose a penalty and/or refer the matter to the National Director of Public Prosecutions.

Adv Meyer referred Members to the handout on Civil Proceedings against Legislatures or Committees and highlighted the two proposed options. Members were asked to decide on the most appropriate option. This Clause would have to be inserted in the draft. The Members decided on Option 2.

Mr M Cassim (IFP) asked how Committees could maintain proper records in the event of civil litigation.

Adv Meyer suggested that these should be undertaken by the internal arrangements of the Legislature, or the Rules ought to specify this.

Mr Cassim thought it best to add this query, whether the Rules ought to serve as a guide, in the upcoming report to Parliament.

The Chairperson added that at the next meeting of the Committee, Members should discuss items that should be included the Report.

Clause 10: Immunities relating to Pan-African Parliament and SADC Parliamentary Forum
This Clause is taken from the Protocol and the Constitution of SADC. These clauses co-incide with section 58 of the South African Constitution.

Clause 12: Persons creating disturbance
Continuing his presentation, Adv Meyer highlighted the changes to the wording in Clause 12. What used to be 'legislatures' is replaced by 'parliament'. The inclusion of 'security services' would now permit the SAPS and other security personnel.

Clause 19: Privilege of witnesses
This clause has seen some substantial redrafting. In the previous draft it was felt that provisions relating to witnesses were too lenient. The new addition is subclause 2, which is similar to the Truth and Reconciliation Act. Here the ordinary privileges that a witness has remains, while the protection against self-incrimination no longer exists in this draft.

Previously subclause 3 referred to all evidence irrespective of whether that evidence was given under oath or not. Now, evidence is limited to that given under 'oath or affirmation'. This clause is extended to include a reference to civil proceedings for defamation.

Clause 20: Offences relating to witnesses
Adv Meyer added that here the structure of the wording was changed to clarify that Members are not included here. Clause 8(2) (b) refers to Members.

Clause 24: Broadcast of proceedings
The broadcasting of proceedings was a matter that has to be determined internally.

Clause 25: Speaker, Chairperson or committee may act on behalf of House
The provisions of this Clause, clarified Adv Meyer, were an inheritance from the 1963 Act.

Clause 28: Offences
Pre-empting future criticism, this draft is unequivocal that Members are included in its scope of application. Generally, it would be redundant to specify 'including a member'. However, the drafters thought this was necessary.

Subclause 3 should be altered - instead of section 11(2); it should read section 13(2).
Adv Meyer highlighted that the Corruption Bill also extends to Members, albeit to a limited extent. It was open to debate whether these provisions should be included here as well.

Discussion
Mr Cassim (IFP) noted that the AU agreement was ratified and wondered whether the provisos sufficed.

Adv Meyer responded that perhaps some mention ought to be made in the draft that, should further amendments be made to the SADC Protocol, these should be reflected accordingly in the draft.

Adv Schmidt (DP) said it appeared as if the draft was trying to regulate affairs that other forums should be discussing. In other words, South Africa was ostensibly regulating the affairs of another institution - SADC, for example.

Adv Meyer stated that with regard to immunity of members of the Pan African Parliament/SADC, this was covered in their Protocols. While these Protocols were ratified, they were not in operation in SA yet.

Adv Schmidt wondered whether SA had incorporated the SADC Protocol into SA by implication in referring to these unincorporated regional documents.

Intervening, the Chairperson added that it seemed as if this was a technical issue, best left to the lawyers. This was not a policy consideration.

The Chairperson referred to Clauses 7(2) and 7(3). He asked whether these clauses excluded the Provincial Legislature as well.

The Legislatures were not given a choice of punishment, added Adv Meyer.

Mr Cassim added that the KZN Parliament, for instance did not have any Powers and Privileges Act yet. How would they deal with their transgressions?

Adv Meyers explained that they have an ethics committee and any transgressions were dealt with by this committee.

Mr Cassim felt that there was a need to indicate what would be a maximum fine, as Parliament was a conservative institution.

Agreeing, Adv Schmidt asked why Parliament does not have the right to expel members for, inter alia, non-attendance.

Issues concerning attendance and the like should be set out in the Rules, added Adv Meyer. The National Assembly Rules have not changed. With regard to the expulsion of Members, that was the exclusive domain of the party. It would be unconstitutional for Parliament to expel a Member.

The meeting was adjourned.

Appendix 1:
CIVIL PROCEEDINGS AGAINST LEGISLATURES OR COMMITTEES

OPTION 1

Civil proceedings against Legislatures

1. (1) In any civil proceedings arising out of a contract lawfully entered into on behalf of a Legislature or a wrong committed by a staff member of the Legislature acting within the scope of his or her authority as a staff member, the State Liability Act, 1957 (Act No 20 of 1957). applies, with the necessary changes.

(2) In such application a reference in the State Liability Act, 1957, to

"Minister" must, where appropriate, be interpreted as referring to the Speaker or the Chairperson, as the case may require.

OPTION 2

Civil proceedings against Legislatures or committees

1. (1) In any civil proceedings against a Legislature or any of its committees, the State Liability Act, 1957 (Act No 20 of 1957), applies, with the necessary changes.

(2) For the purposes of subsection (1), where appropriate, a reference in the State Liability Act, 1957, to "Minister", must, where the proceedings are against-

(ASSENTED TO 26 MARCH, 1957]

[DATE OF COMMENCEMENT: 5 APRIL, 1957]

(Afrikaans text signed by the Governor-General)

as amended by

Legal Succession to the South African Transport Services Act, No. 9 of 1989

[with effect from 6 October, 1989-see title RAILWAYS AND HARBOURS]

Constitution Consequential Amendments Act, No. 201 of 1993

ACT

1. Claims against the State cognizable in any competent court. - Any claim against the State which would, if that claim had arisen against a person, be the ground of an action in any competent court, shall be cognizable by such court, whether the claim arises out of any contract lawfully entered into on behalf of the State or out of any wrong committed by any servant of the State acting in his capacity and within the scope of his authority as such servant.

2. Proceedings to be taken against Minister of department concerned.- (1) In any action or other proceedings instituted by virtue of the provisions of section one, the Minister of the department concerned may be cited as nominal defendant or respondent.

(2) For the purposes of subsection (1), "Minister" shall, where appropriate, be interpreted as referring to a member of the Executive Council of a province.

lSub-s. (2) added by s1 of Act No. 201 of 1993.]

3. Satisfaction of judgment.-No execution, attachment or like process shall be issued against the defendant or respondent in any such action or proceedings or against any property of the State, but the amount, if any, which may be required to satisfy any judgment or order given or made against the nominal defendant or respondent in any such action or proceedings may be paid out of the National Revenue Fund or a Provincial Revenue Fund, as the case may be.

4. Savings.-Nothing in this Act contained shall affect any provision of any law which-

6. Short title.-This Act shall be called the State Liability Act, 1957.