New Part 9A (Finance and Appropriation committees)adoption; amendment of Rules 211 and 235, adoption of new Rule 235A; Portfolio Committee on Mining name change; Speaker's rights and powers

Meeting report

Subcommittee on Review of National Assembly Rules: Part 9A
Adv M Masutha (ANC) noted that he had chaired the Subcommittee on the Review of the National Assembly Rules, and outlined its mandate. The sub-committee had held various meetings, and had been following the process of the Money Bills Amendment Procedure and Related Matters Act (MBPRMA), but was mindful of the need not to overly complicate the processes under this new Act at present. The draft Rules now presented for the Standing Committee on Finance and Standing Committee on Appropriations therefore did not represent everything that would eventually be required for the implementation of the MBPRMA, but concentrated on the institutional arrangements and followed an incremental approach.

He indicated that the draft Rules therefore confirmed the establishment of the Finance and Appropriation Standing Committees. The draft Rules included the principle of conferral between committees in each House, and also covered issues relating to mediation, consultation with other committees on matters specified, and public involvement. He noted the unique feature relating to mediation, if conflicting amendments were proposed by portfolio committees. Mediation was currently regulated by the Joint Rules. The sub Committee felt that the way the Joint Rules dealt with this as a closed matter should not be followed, and therefore the draft Rules now provided for public involvement. He mentioned that in future Parliament may want to review the closed natures of mediation committees under the Joint Rules.

Adv Masutha noted that all parties in the subcommittee were fully in support of the draft now tabled.

Mr N Koornhof (COPE) requested if the two committees would be allowed to sit jointly.

Adv Masutha replied that all committees of Parliament could already sit jointly.

Ms S Tsenoli (ANC) agreed that the draft rules for Part 9A were acceptable, and proposed their adoption.

Adv Masutha asked that it be placed on record that throughout, the principles of the multi-party character of the subcommittee had been observed, and all parties were in agreement.

Mr M Ellis (DA) appreciated that this had been mentioned, and confirmed that all parties were in agreement.

Members agreed to adopt the new draft Rules

Proposed rule adjustments for Committee on Private Members’ Legislative proposals and special petitions
Adv Masutha tabled the report of the subcommittee on the proposed rule adjustments for the Committee on Private Members’ Legislative proposals and Special Petitions. In a meeting on 22 May, Dr M Oriani-Ambrosini, who was not able to be present today, had contended that there was a need to review the rules relating to the establishment of functions of the Committee on Private Members’ Legislative Proposals and Petitions (CPMLPP). His main contention was that that the committee was a barrier against individual members exercising their constitutional right to introduce legislation. He had submitted that the CPMLPP should be done away with, and that private Members should be permitted to introduce a bill directly to the portfolio or standing committee.

Adv Masutha noted that the three categories of people who could introduce motions were the executive, committees of Parliament and individual Members in their private capacity. It was noted that for some years the CPMLPP had been functioning. Other subcommittee members believed, firstly, that the existence of this Committee was constitutional and secondly, that it was indeed useful to retain it. Dr Oriani-Ambrosini had asked for his objection to this to be noted. The Members of the subcommittee did, however, agree that the current rules did not provide sufficient clarity on the terms of reference, and there were no guidelines to inform the decisions of the CPMLPP. Therefore the subcommittee was now tabling a set of adjusted rules for the functioning of that Committee (see document marked Annexure B).

There were quite a number of matters raised, and the particular objections were dealt with, and the Subcommittee agreed to the draft now being tabled. However, on 15 November 2010 Dr Oriani-Ambrosini wrote a letter to the Speaker raising further points, and on 16 November 2010 Mr J van der Merwe, noting that neither he nor Dr Oriani-Ambrosini would be able to attend the current meeting, also raised some further suggestions for adjustment of those rules. Adv Masutha believed that since Dr Oriani-Ambrosini had been at virtually all the meetings of the subcommittee where this was discussed, he had had every opportunity to raise those matters earlier. He thought it problematic that he should be attempting to effect further changes outside the workings of the subcommittee. For his part, and he thought that most of his colleagues on the subcommittee would agree with him, he would like to suggest that the draft amendments now tabled be accepted in that form, to try to reach finality. Dr Oriani-Ambrosini had also raised a point whether the subcommittee was mandated to draft rules, and had contended that this was done only after he had initiated litigation against Parliament. However, Adv Masutha said that the transcripts of the meetings were available, and the record clearly showed the discussions of the full subcommittee around the drafting and its mandate to attend to this.

The Chairperson noted that unfortunately Dr Oriani-Ambrosini was not present, but referred Members to the full report of the subcommittee.

Mr M Ellis (DA) echoed his disappointment that Dr Oriani-Ambrosini could not be present, because he was attending the funeral of a close family member. It would have been useful to hear his input. He also said that there were some useful points raised in the letter from Mr J van der Merwe. However, he agreed that it was too late at this stage to introduce them. He noted that the issue of private members’ legislative proposals had been a bone of contention with the opposition parties for some time. Although the proposals might be worth looking at for the future, he noted that the DA, during the subcommittee meetings, had committed itself to the approach outlined by Adv Masutha, and the draft Rules now presented. It was not possible to go back on this process now.

Mr C Frolick (ANC) supported the report of the subcommittee, and took note of the letter from Mr van der Merwe. However, the ANC also believed that the submissions could not be taken into account but did require some further discussion. The suggestion raised by Mr van der Merwe relating to finalisation of deliberations within three months did not take into account how the National Assembly operated. Certain parties had expressed their views about the frequency of the meetings of the CPMLPP and the failure to reach a quorum, and this did need to be improved. More recently, that Committee had started to operate more efficiently and had been able to process various matters. He urged all parties to ensure that their Members attended the meetings so the Committee was able to deal with the matters at hand.

The Chairperson said that that Committee would return to full functionality in future.

Mr P Pretorius (DA) confirmed that he was a member of the CPMLPP, and that he was happy with the proposals made by the sub committee, which would go far to improving the processes and procedures.

The Committee adopted the amendments to Rule 211 and 235, and the new Rule 235A

Name change of Portfolio Committee on Mining
The Chairperson noted that the portfolio committees of Parliament were established by rules, but it was a practice that the names assigned to these committees corresponded to the names of Ministries and Departments over whom they exercised oversight. After the establishment of the Fourth Parliament, the name of the Ministry and Department of “Mining” were changed to “Mineral Resources”. There was thus a proposal that the Portfolio Committee on Mining be renamed as the Portfolio Committee on Mineral Resources.

The Committee approved the change of name.

Constitutional status of Speaker
Adv A Gaum (ANC) noted that Dr Oriani-Ambrosini had lodged an application with the Cape High Court to challenge the Speaker’s decision not to allow him to introduce a certain Bill, and other matters. He had subsequently questioned whether the decision to oppose the Court application was a matter of policy that should have been made in terms of Rule 163(1), and whether the Speaker was empowered to appoint the State Attorneys to represent him, as the State Attorney could only represent “the government of the Republic”, which he submitted was limited to the Executive.

Adv Gaum noted that the Supreme Court of Appeal, in the matter of Gauteng Provincial Legislature v Kilian matter, had held that the Speaker was the spokesperson of the House in a collective capacity. The ANC believed that the Speaker of the National Assembly held a similar position, was the interpreter and custodian of the rules, and in this capacity had the authority to oppose the application of Dr Oriani-Ambrosini.

Rule 163(1) noted that certain matter of policy were to be decided by the Rules Committee and said that a Speaker must, if Parliament was not in session, convene a meeting with office bearers to make these type of policy decisions. However, Rule 162(1) confirmed that the responsibility for implementation of policy vested in the Speaker, and this confirmed the position of the Supreme Court of Appeal that the Speaker, as the custodian of the rules, was charged with protecting them, which by implication meant that the Speaker had the authority and jurisdiction to make the decision to oppose an application challenging the rules. He thus did not agree with the contentions of Dr Oriani-Ambrosini on that point.

In relation to the point whether the Speaker had the authority to brief the State Attorney, Adv Gaum noted that Dr Oriani-Ambrosini thought that “government” meant “the Executive”. However, he indicated that Section 43(a) of the Constitution said that legislative authority “of the national sphere of government” was vested in Parliament, so the Constitution did not support the view that only the executive was synonymous with government. In relation to the argument that it was in conflict with the principles of separation of powers for the Speaker to appoint the State Attorney, Adv Gaum said that the Constitution also determined that the spheres of government were interrelated and inter dependent. Where there was a conflict of interest, the State Attorney would not act as this would not be ethical, and in such cases private attorneys would be appointed. However, there was no apparent conflict here.

Mr Ellis repeated that it was a great pity that Dr Oriani-Ambrosini was not able to be present to take part in the debate, as he felt very strongly about the points raised. He noted that Dr Oriani-Ambrosini and his colleague, Mr van der Merwe, both had very valid reasons why they could not attend. Although the DA did not share all of Dr Oriani-Ambrosini’s concerns he wondered whether it was correct for the meeting to proceed when he could not be present.

Mr Tsenoli noted that although the ANC had some sympathy for this view, it nonetheless felt that the matter must proceed and the decisions of the Committee were based on policy, rather than sentiment, the meeting had been properly convened, and the views had been set out in writing.

Mr N Koornhof (COPE) concurred with the views of Mr Elllis. Although written submissions had been made, he noted that oral statements were more powerful, and he thought that Dr Oriani-Ambrosini should have the opportunity to be present when this was debated. Dr Oriani-Ambrosini had obtained the views of Senior Counsel on the matters he had raised, which carried some weight, so there was certainly room for debate on the points about the State Attorney. He pointed out that in a previous matter the Court had decided that it was incorrect that the State Attorney should act, and it had withdrawn. He also thought it desirable that this matter should stand over.

Ms J Fubbs (NC) said that it would be virtually impossible to find a situation where different lawyers did not hold different opinions, and she did not believe that the fact that there were opposing opinions meant that the matter needed to be postponed.

She agreed that, whatever the sentiments as to why Dr Oriani-Ambrosini was not present, nor was another member of the IFP, she noted that the rules themselves dealt with the issues. One of the reasons why the work of Parliament was so often delayed was that meetings were constantly postponed for the proposer to arrive. Regrettable as it was that Dr Oriani-Ambrosini was not present, she did not believe that it was necessary to halt the process and the Committee should proceed.

Mr Tsenoli agreed that the matter should proceed. He thought that the Committee could proceed on the opinion expressed by Adv Gaum on the principles as to the Speakers’ position.

Adv Masutha took note of the comments in favour of and against postponing the matter to a later date. However, he cautioned that the litigation was scheduled to be heard before the Court in March 2011. This matter would need to be resolved prior to that, and he was worried that if this Committee postponed the matter now it might not be able to deal with it before then, given that the Parliamentary programme was already set. He pointed out that this meeting had been duly constituted, and that the IFP could have made other provisions for another person to represent Dr Oriani-Ambrosini if he was not able to attend. He thought that this Committee was dealing with the matter in the best possible manner, and there was a real danger that a future meeting could also be postponed if Members were not able to attend.

The Chairperson noted that all the Committee were aware of the reasons why Dr Oriani-Ambrosini could not be present. He noted that although he personally would not have felt strongly about postponing or holding the meeting, it was clear that the majority of Members felt that the matter could be dealt with, and the majority agreed with the opinion expressed by Adv Gaum on the Speaker’s ability to act as he had. He would therefore convey this to Dr Oriani-Ambrosini and would also brief him on the discussions.

Approval of Minutes
The Chairperson tabled the minutes of the last meeting of the Committee, which were approved.

The meeting was adjourned.