Draft Bill: consideration by the Constitutional and Legal Services Office

Meeting report

Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill

Ms Daksha Kassan, Parliamentary Legal Advisor: Constitutional and Legal Services Office, presented the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill, drafted as per the instructions of the National Assembly to the Committee on 19 May 2016, following the Constitutional Court judgment.   

She said the first page, among other things, reflected the name of the Bill, which was still open to revision by the Committee, pending which it remained the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill. It also indicated the process which the Constitutional and Legal Services Office thought the Bill should go through, which was a section 75 process, as it was not a Bill that dealt with issues affecting the provinces.

By way of introduction, she said her office had decided to include a preamble to the Bill, the purpose of which was to set the context of the law, the legal basis for the Act, and the reasons for its adoption. While amendment bills did not usually have preambles, her office thought it necessary to include a preamble in this instance, as it would give the reader the basis for why this particular Act was being introduced. It would also set the legal basis by highlighting the key findings of the Constitutional Court judgment

Constitutional Court judgment

The work of the Constitutional and Legal Services Office was guided by the two key findings of the Constitutional Court judgment:

• Freedom of speech in the National Assembly (NA) and the National Council of Provinces (NCOP) as contemplated in sections 58(1) and 71(1) of the Constitution was subject only to the relevant Houses’ respective rules and orders and could not be regulated in an act of Parliament; and
• The immunities provided for in section 58(1)(b) of the Constitution were absolute.

Ms Kassan pointed out that, firstly, the ConCourt had indicated that the word ‘person’ in the Act included a Member, unless the context dictated otherwise or the provision itself excluded reference to a Member. Secondly, Parliamentary free speech -- contained in sections 58 and 71 -- was subject only to the rules and orders. Any limitation of this privilege may only be limited in the rules and orders and may not be regulated in an act. To the extent that it applied to Members, the ConCourt had held that section 11 was constitutionally invalid, as it allowed for the arrest of a Member and therefore it constituted an infringement of Parliamentary free speech and also immunity from criminal proceedings and imprisonment.

She referred to the amendment envisioned in section 1 of the principle Act (Clause 1), which involved the substitution of the definition of ‘disturbance’ with the proposed definition (see document).

Discussion

Ms J Kilian (ANC) voiced her discomfort at the “fuzziness” around what was classified as ‘freedom of speech’ and what could be classified as a ‘disturbance.’ There was a need for clarity and fine tuning of the wording of the insertion to the existing act, which was formulated as follows:

‘…but does not include an act committed by a Member in the exercise of his or her privilege contemplated in sections 58(1) and 71(1) of the Constitution.’

She asked whether ‘privilege’ ought not to be qualified as ‘privilege of freedom of speech.’ There was also a need to discuss the definition of ‘precinct’ and how this definition compared with that of other jurisdictions. She had not looked at how ‘precinct’ was defined in other jurisdictions. In relation to the question whether ‘privilege’ ought not to be specified or referenced as ‘privilege of freedom of speech,’ the Constitutional and Legal Services Office had been reluctant to fine tune the wording to that extent, as the headings of sections 58(1) and 71(1) of the Constitution referred to two privileges: freedom of speech in the National Assembly, and immunities.  The current wording did, therefore, cover Parliamentary free speech. However, this was a matter that could be discussed further by the Committee.

Mr M Booi (ANC) asked if there was need for clarity as to who was protected by the privilege in question, and also as to what Parliamentary ‘precincts’ actually referred to.

Ms Nombongo Mongo, Committee Secretary, reminded Members that at their last meeting, a comparative study had been done. She then proceeded to present the definition of the Parliamentary ‘precinct’:

‘A Parliamentary precinct was generally defined as a designated area … the part of the buildings under Parliament’s control, including the chambers, every part of the building in which the chambers were situated, Members’ offices and any … garden, enclosure, or open spaces provided for the purposes of that Parliament.’

Ms Kilian said that ‘Parliamentary precinct’ was already defined in the principle Act, section 2, which was titled ‘Precincts of Parliament.’ She felt comfortable that this Parliament was in line with what other jurisdictions were doing. There was no need to adjust the existing definition.

Ms A Lotriet (DA), referring to sections 58(1) and 71(1) of the Constitution, said she was hesitant to define ‘freedom of speech,’ as this was a very philosophical concept. Secondly, the principle Act did refer to all the different sections that were also applicable to legislatures, but it did not refer to section 117(1) of the Constitution, which contained the definitions. Therefore, when a definition was given of ‘disturbance,’ and where it was limited, such as in section 28 of the principle Act, it should also include section 117(1) of the Constitution.

Ms Kassan reiterated that section 28 dealt with the application of the principle Act in provincial legislatures, and highlighted that section 28 (9b) of the draft Bill included a reference to 117(1) of the Constitution, and could be utilised when applying the definition of ‘disturbance’ to the provincial legislatures.

The Chairperson commented that the Act had to be read as a whole to really make sense of it.

In response to Mr Booi concerning how ‘Parliament’ was defined, Ms Kassan said that the principle Act defined Parliament as encompassing the National Assembly and the National Council of Provinces. Section 58(1) of the Constitution referred to privilege in relation to Members in the National Assembly and the Assembly’s Committees. Section 71(1) was in relation to the Members of the National Council of Provinces and the Council’s Committees. Echoing Ms Killian, she said the ‘precincts’ covered the buildings and the forecourts as defined in section 2 of the principle Act. It did not cover the buildings of the Executive, as this Act was limited to regulating the powers and privileges of Members of Parliament, even though the privilege in section 58(1) of the Constitution did extend to Cabinet members as well.

Mr Booi (ANC) stressed that clarity was still needed as to who was protected by the privilege in question.

Ms Kassan responded that the existing definition of ‘disturbance’ was found to be in line with the findings of the ConCourt. However, nothing stopped Parliament from providing for other privileges in an Act. This was within the competence of this Committee, which was still open to amending other parts of the Act.          

Mr Booi (ANC) argued, however, that given the revised definition of ‘disturbance,’ it did create a problem of how to apply it so that it covered everybody.     

The Chairperson stressed that the Committee should confine itself to what the ConCourt’s findings had been.

Ms Kassan said that at the previous meeting, the other option that had been discussed was to leave the definition of ‘disturbance’ as it was, and then to amend section 7, where the Committee would exclude the Members from the application of 7(e) and then stipulate that that conduct would not include the protected conduct. However, this would have created consequential amendments. In the final analysis, the Constitutional and Legal Services Office thought this was the ‘neater’ option.

The Chairperson advised Ms Kassan that, in the revision, it was important for the Constitutional and Legal Services Office to take note of any other amendments in this regard.  

Amendment of section 7 of Act 4 of 2004

Ms Kassan clarified the amendment of section 7 of Act 4 of 2004 (Clause 2) by the substitution for paragraph (f) with the paragraph as indicated in the document.

Mr Booi asked whether, for the sake of consistency, the term ‘person’ also applied to members of the public in the gallery of the National Assembly. 

Ms Kassan reminded the Committee that one of the main findings of the ConCourt was that the word ‘person’ used in the Act included a Member of Parliament (MP), as well as a member of the public, unless the provision itself excluded the Member, or the provision, when read, could not possibly apply to a Member. In this instance, in relation to section 7, the use of the term ‘person’ included a member of the public as well as a Member.

Ms Kilian said that the amendment was a clever way of covering everybody, whether it was, for instance, a member of the public or a person who had been suspended as a Member of Parliament. It trod a fine line in reassuring Members that the amendment did not encroach upon Members’ freedom of speech.      

Substitution of sections 11 and 12 of Act 4 of 2004

Ms Kassan indicated the section which was to be substituted for section 11 of the principle Act (Clause 3), and the section 12 amendment (Clause 4), which entailed the insertion in subsection (5) of the word ‘or’ at the end of the paragraph (f).

Discussion

Mr Booi expressed concern as to why there were processes and mechanisms through which to hold the Members to account, while the same could not seemingly be said for members of the public.

In response, Ms Kassan said that while it was true that the public had access to Parliamentary proceedings and meetings, even this engagement was limited in a way. Section 59 of the Constitution, which speaks to public access and involvement in the National Assembly processes, provides that the National Assembly must facilitate public involvement in its processes, and that it must conduct its processes in an open manner. However, it also says that reasonable measures may be taken to regulate public access, including access to the media. It allows for reasonable measures to provide for the searching of any person, and also provides that the NA may not exclude the public unless it was reasonable and justifiable to do so. As such, public access and involvement was not unlimited or absolute. This access could be restricted, provided it was reasonable and justifiable to do so.

Amendments to Sections 22, 23, 24 and 25

She referred to the section 22 amendment of the principle Act (Clause 5) and explained the amendment of section 23 of Act 4 of 2004 (Clause 6), which entailed the insertion in subsection (2) of the word ‘or’ at the end of the paragraph (a). She also explained the amendment of section 24 of Act of 2004 (Clause 7), and clarified the amendment to Section 25 of the principle Act (Clause 8), which entailed the substitution for subsection (2) as indicated by the draft Bill.

Discussion

Mr Booi (ANC) asks for clarification of the two processes, one being the NA proceedings and the other that an aggrieved member of the public could raise issues during National Assembly proceedings. 

The Chairperson responded that an aggrieved member of the public could not raise issues during the proceedings, but outside of them, as proceedings ought to be allowed to run their course.

Mr N Matiase (EFF) asked that Ms Kassan be allowed to present the draft Bill without interjections. However, he queried whether the ‘aggrieved person’ mentioned in the draft Bill was a member of the public and, if so, what was meant when the subsection indicated that, if the aggrieved person’s request was approved, the response of the aggrieved person was to be published in the ‘appropriate parliamentary paper’?

The Secretary said that there had been instances in the past, such as when business organisations or members of the public, as ‘aggrieved persons,’ had written to the Speaker of the House to give their input on a matter.

Amendment of sections 28, 29, 30 and 32

Ms Kassan clarified the amendment of section 28 of Act 4 of 2004 (Clause 9), which entailed the three amendments to clause 9 in subsections 9 a), b) and c).

The amendment of section 28A entailed the insertion of section 2A in the principle Act as indicated in the draft Bill.

The amendment of section 29 (Clause 11) which entailed the insertion in subsection (2) of the word ‘or’ at the end of paragraph (a).

The amendment of Section 30 required the substitution of paragraph (a) with the paragraph as indicated in the draft Bill, while Section 32 involved its substitution by the section indicated in the draft Bill.

Short title

Clause 14 stipulated that, should the Act in question come into being, it would be called the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Act, 2018.

Ms Kassan said that, as per section 81 of the Constitution, an Act that did not have a commencement date would come into operation on the day it was published. The reason why there was no commencement date was because, among other things, this Act was not dependent upon, for example, regulation before coming into effect. The day this Act would come into operation was when it was assented to by the President and was published.  

Discussion

Ms Kilian drew attention to a point which she had raised in the previous meeting, when she had queried the necessity of including ‘Powers’ in the title of the Act, taking into account that, among other things, in South Africa’s constitutional democracy, Members of the National Assembly did not have inherent powers.

The Chairperson, however, said that inter alia, the inclusion reflected the powers of the presiding officers.

Ms Kilian commented that if to remove the term ‘Powers’ would remove the powers of the Speaker to exercise authority over the precincts of Parliament, so it should be verified within the Act and the reference to ‘Powers’ should be retained.

Ms Kassan said that the Chairperson’s reasoning reflected the discussion by the Constitutional and Legal Services Office about why the title of the Act was ‘Powers, Privileges and Immunities…’ The Office had decided to retain the reference to ‘Powers’ because sections of the Act spoke about the ‘powers’, for example, of members of the security services, who may enter the premises of the precinct and perform policing functions only with the permission and under the authority of the Speaker (see section 4). However, the title of Act was still open for the Committee to discuss.

Ms Kilian support Ms Kassan’s view.

Mr Matiase agreed that the title must be retained.

Memorandum of the Objects of the draft Bill 

Ms Kasan referred the Committee to the Memorandum of the Objects of the draft Bill,  which sets out what the principle Act intended to do (Introduction), how the draft Bill intended to address the Constitutional Court judgment (Objects of the Bill), the contents of each clause of the Bill, whether the Bill would have any organisational or personnel Implications (none), the financial implications for the state (none), the departments, bodies or persons consulted, and the Parliamentary procedure.

Discussion

The Chairperson said that the Committee agreed to the process proposed by the Constitutional and Legal Services Office, namely, with the procedure established by section 75 of the Constitution.

Ms Kilian asked why, in the applicable clauses, there was seemingly no reference to the ‘definitions clause,’ and whether this was captured in any other way. Was there still a need to engage on whether the Committee saw the need for a preamble?

Responding tp Ms Killian’s first question, Ms Kassan referred the Committee to section 28 (2). Section 1 was specifically excluded, since many of the definitions may not be applicable to the provinces. In response to her second question, she reaffirmed that a preamble was not necessary any more. Often it was used only in principle Acts, when the legal basis was set for why something was to be done -- for example, the Child Justice Act. The Constitutional and Legal Services Office, however, felt that because the draft Bill was in response to a Concourt judgment, having a preamble could serve the purpose of providing the reader with a perspective. It was up to the Committee to decide whether it preferred to include a preamble or not.

The Chairperson said that the preamble was necessary because it was the ‘door’ to the ‘opening’ of the Act.

Ms Kassan said that the preamble did not become part of the principle Act. It was the legal basis for the Amendment Act.

Mr Matiase asks whether, in the definition of ‘disturbance,’ ‘acts’ encompassed or included ‘verbal’ acts.

Ms Kassan said that an ‘act’ of ‘disturbance’ could include a verbal act, since ‘act’ referred to any act that could cause a disturbance.

The Chairperson asked whether this did not affect freedom of speech.  

Dr P Maesela (ANC) agreed that not acknowledging that certain types of verbal behaviour constituted a ‘disturbance’ would allow the National Assembly to descend into chaos. The House should be guided by the societal norms of ‘acceptable behaviour.’

Ms Lotriet cautioned against attempts to proscribe what was, or was not, a ‘disturbance.’ It was vital that this Act was read in conjunction with what the Constitution actually stated, which always stated that any act was ‘subject to the Rules of the House’. The ‘act’ would be subject to the Rules of the House, and it was these Rules which would determine whether it was a disturbance or not.

Dr Maesela pointed out, however, that there were certain rules that may not be spelt out in the rule book, but which had to be taken into account as they were nonetheless societal norms.

The Chairperson said that the Committee could assume that such matters had been dealt with in the Rules, and the Committee could not afford to delve into them at this juncture.

Mr Matiase responded to Dr Maesela’s viewpoint by pointing out that norms were not ‘cast in stone.’ As such, the Committee could not proscribe norms for how a constitutional democratic government should function or should carry out its functions. Principles were a much better guide as to how a constitutional democratic government should function.

The Chairperson said that since norms continually evolved, it was important for the Committee, as legislators, not to pre-empt society. For its present purposes, it sufficed for the Committee to leave these matters as they were.

Ms Lotriet asked the Chairperson whether it was possible for the Committee to go through the Act chapter by chapter, section by section, since there were questions remaining

Mr M Shelembe (NFP) referred to Section 27, Chapter 7, under ‘Offences,’ and asked whether the fine amount that had to be paid, in light of an offence, was specified anywhere.

Ms Kassan replied that there were pieces of legislation that stipulated the exact amount of the fine. Certain fines were implemented at the discretion of the courts. There was no harm in the Committee setting a particular amount, but what would it be?

Ms Kilian said that the approach was usually to refrain from specifying, the reason being that the amount set would depend on trends or the current norm.

The Chairperson recommended that determining the fine should be left to the discretion of the presiding officer. He also recommended that going section by section, as Ms Lotriet proposed, would potentially involve going beyond the scope of the ConCourt’s findings and extend the mandate of the Committee unnecessarily. The Committee was bound by, and had to bring the Act in line with. the majority judgment.

Mr Matiase asked whether the ‘person’ referred to in clause 11 in section 11 of Act 4 of 2004 referred to a member of the public. What accountability mechanisms were available in situations where a President or a Minister avoided answering, or deflected, questions put to them by the Mmembers of Parliament? These were the people who were guilty of causing a disturbance in the House.

Ms Kilian responded that Members of Parliament wanted the Act, in so far as ‘disturbances’ were concerned, to be not applicable to them. They wanted freedom of speech, but when it came to the members of the Executive, they felt that they had overreach and that they were protected. However, there was a provision within the Rules of Parliament that the rules applied to the President and to other non-members of Parliament (see Clause 11). This Act’s role was to ensure that the constitutional provisions of immunities and privileges were respected and that the rest of the conduct and proceedings of the House were regulated by the rules and that the Assembly was absolutely empowered, in terms of the Constitution, to draft its own rules. This included rules to ensure that the Executive was accountable. This was, ultimately, a political issue. It was part of the opposition’s role to exploit the situation when any member of the Executive was not answering a question. However, this would be part of a political debate and this was not within the ambit of the Committee’s work.

The Chairperson said that if that were the case, the Committee would be legislating for conduct of individuals that the Committee would not even be able to foresee.

Mr Matiase agreed with Ms Killian, but said that this fact amounted to abdicating the Committee’s responsibility. The conduct described had consequences, in that it created some form of disturbance in Parliament, so what mechanisms could be devised to prohibit such conduct?

The Chairperson said that the Rules dealt with this matter. Since the Rules were not adequate, however, the Rules Committee had to fill the gaps.

Ms Lotriet asks why Chapter 8, section 28, did not include section 14, with particular reference to provincial legislatures.

The Chairperson asked what Ms Lotriet proposed.

Ms Lotriet argued if section 14 of the Constitution was included in section 28, this might solve the problem.

Ms Kilian said that her understanding was that in the original Act, that there had been a very slight omission in the Constitution which referred to joint sessions in Parliament. There was no provision in the Constitution for privileges of Members who spoke when a joint sitting took place. As a consequence of this, joint committees had to be included in the Act. The rest was covered in the Constitution. Provincial legislators and their committees were covered in the Constitution. There was a very specific reason why joint sittings of the NCOP, the NA and the joint committees had to be brought on board in so far as privileges and immunities were concerned. At risk of duplication, the Committee could not just bring the provincial legislatures on board, because they were covered by the Constitution. 

Ms Kassan said that she would need to apply her mind to this concern. If section 14 needed to be included in section 28, she asked the Committee for permission to make the amendment.

The Chairperson supported her request.

Process for Bill’s introduction

Ms Kassan said that the next step in the process was that, before the Committee introduced the Bill, a draft Bill had to be published. If the Committee approved the draft content of this Bill, the way forward would be, in terms of the applicable rule 274 and 275 of the NA rules, to publish a draft Bill for comment and it must be published for at least three weeks. To ensure that there were sufficient comments, the period could be extended to four weeks. Once the comments were received by the Committee, it would consider them all with a view to amending the draft Bill. Once the comments had been considered, and the Committee had deliberated on them and tweaked the Bill where necessary, the Bill would then be sent to the Speaker and introduced. Since the life of the Committee was only to 29 June, time was a factor.

The Chairperson asked whether the comment period could be four weeks. This was agreed to.

Adoption of Minutes

The Committee considered the draft minutes of the meetings held on 14 September 2016 and 29 November 2017. The minutes were approved.

The meeting was adjourned.