Constitutional Court Nkandla judgment implications for NA Rules, Amendment of Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, Portfolio Committee for Presidency Budget Vote request; Review of Rules Subcommittee Report

Meeting report

The Chairperson said she wanted to raise a few issues which were not on the agenda, and asked the Secretary of Parliament to take Members through these.

Rule 53A (12) of the Rules of the National Assembly: Removal of Members from Chamber
Mr Masibulele Xaso, Secretary of the National Assembly, said that rule 53A (12) of the Rules of the National Assembly (the Rules) indicated that whenever a Member is removed from the Chamber under this rule, the circumstances of such removal must be referred to a multi-party Committee within 24 hours. After the incident on 4 May 2016, the ATC had, on the same day, referred the matter to the Rules Committee of the National Assembly. The understanding was that when the matter comes up before the Committee for consideration, a report will be made available, and there was a report signed off by the Speaker, so that the matter was technically before the Committee for consideration.

Mr J Steenhuisen (DA) noted that when this matter was referred to the Rules Committee, there were a number of other matters also referred, which included unrevised Hansards, video recordings and a report. This was not on the agenda for this meeting, and as a Member of the Committee he was not privy to the information and could not have applied his mind to it, although he accepted that the Committee could now make a ruling on how to proceed.

The Chairperson took the point, and said that she had, in this instance, dealt with the matter immediately by agreeing to it being on the ATC. The practicalities may be removed from the ideal situation. She asked that Members apply their minds; at the moment the Committee had proceeded with this in accordance with previous decisions.

Mr Xaso said there were three of these matters before the Committee, which were:
- The removal of Members when Ms M Boroto (ANC) was the presiding officer (PO)
- Ms Didiza (ANC) had ordered removals during the budget adjustment appropriation
- The most recent incident, when the Speaker was presiding

The last time this matter was put before the Committee, there was a further discussion on an appropriate structure to deal with these matters. The Rules referred to a multi-party Committee. These were referred to the Committee, in the absence of a different structure. The current version of the draft Rules had a proposal that a subcommittee of the Rules Committee is to deal with these matters. The Committee has to decide whether to proceed with the matter or whether to await the creation of a subcommittee.

The Chairperson said she could not see the present Committee adding such matters on to its already voluminous own agenda, and she suggested that having another structure or a substructure would be more consistent.

Mr Steenhuisen said there was discussion on this in the Subcommittee on the Review of the National Assembly Rules (the Subcommittee). There was a suggestion that it must be a subcommittee of the Rules Committee. In the interim the Committee should set up a subcommittee to dispose of these three matters, prior to the adoption of the new rules, to ensure that no processes were carried over once the new rules were passed. In order for this to happen, the Committee should resolve to form a subcommittee, before the Draft Rules are adopted.
 

Mr J Mthembu (ANC) wanted to stress that all Members were being transparent on the issue. If Members were in agreement that a body needs to be created, then he agreed that a subcommittee of the current Committee would be appropriate and he felt, unlike Mr Steenhuisen, that the creation of such a body would not preclude the Committee from taking the Draft Rules to the Chamber. He did not think that the matters arising from the rule 53A removals would necessarily be a prerequisite to passing the Draft Rules, particularly since the old Rules were not catering for the situation.

Mr M Mdakane (ANC) said as this was part of the proposal put forward, the Rules Committee has to determine what the functions of that body will be, but did not think it was ideal to take an in-principle decision before deciding what the multi-party Committee had to do. This matter should be dealt with  before the end of the meeting as it formed part of the sub-Committee's report. A decision should be taken whether to take this to the Chamber for adoption in the meantime or wait for the conclusion of the entire Rules review process. The Rules Committee had agreed in principle on the establishment . of a multi-party team should be established, but the Rules Committee has not yet determined what exactly its functions and powers should be.

The Chairperson asked whether this subcommittee would necessarily be different from the Subcommittee on the Review of the Rules of the National Assembly.

Mr Steenhuisen thought it did not have to be a different subcommittee. That team had worked particularly well and understands the new dynamic and terrain in which Members are forced to work, in this Parliament. He would like the reports dealt with, lest Parliament run in to a situation where “justice delayed is justice denied”. He reiterated that he would like to see these matters dealt with before the final adoption of the Rules, because there may well be lessons learnt which would inform a change of the process, or allow the new rules to be fine-tuned to make sure that they worked properly.
The Chairperson said she felt the initial issues were now understood. Given the proposal by Mr Mdakane, these issues would be looked into before the end of the meeting.

Deputy Speaker's ruling on quoting court judgments: Steenhuisen request to consider
Mr Xaso reported that a letter had been addressed to the Committee by Mr J Steenhuisen (DA) about the ruling made by the Deputy Speaker relating to the quoting of judgements of courts of RSA. Mr Steenhuisen was referring the principle of the matter for consideration by the Committee. The question was whether to consider it at present or in the future.

The Chairperson said the letter relates to a ruling handed down by the Deputy Speaker on 12 May 2016. A copy of the ruling was attached to the letter.
 

Mr Xaso said the issue was that a ruling was made on quoting court judgements or orders, as well as quoting newspapers and other material. Mr Steenhuisen did not agree with the principle of the ruling. Under established practice in Parliament, in a situation where Members disagree with a ruling made in the House, they would accept it in that venue but may raise the principle in the Rules Committee. This is what Mr Steenhuisen was doing. He asked whether this Committee wanted to deal with the matter now, or at a future meeting.

The Chairperson noted that now that the matter was before the Committee, Members needed to decide whether to deal with it now, or whether a different mechanism for consideration of the principle should be used.

Mr Mdakane proposed that this discussion be referred to the Subcommittee, which could work out the concerns and then present to the Rules Committee, whenever it sits. He thought that it would be difficult to hold a thorough discussion, because some research needed to be done on the matter.

Mr Steenhuisen said he was not comfortable with that. He very seldom referred points to the Rules Committee. The DA regarded this as a very serious infringement on the rights of Members which affected the privileges granted to Members of Parliament. The Deputy Speaker ruled that Members cannot quote from judgements of the court if these are in any way casting aspersions on a Member. However, he made the point that judgements of the court are not aspersions, but they are findings following a due process in which both parties were heard. It would “simply be absurd” that Members were not allowed to quote from Constitutional Court judgements, merely on the basis that these might be uncomfortable for Members of the House. There is some urgency with this matter, and the DA is regarding it as a serious matter and an assault on freedom of speech in the House. The House is due to rise for three months the following week, and the DA was of the view that this ruling should not stand. The matter would be taken further, if need be. Whilst he would be happy to refer the principle to the Subcommittee, he noted that in the meantime Members’ rights in the House were being infringed upon.

Mr Mthembu agreed that the matter needs the attention of the Rules Committee. The Subcommittee should be involved and it could fast-track. Members did need clarity and this should be received sooner rather than later. He thought, however, that it should be referred back to the Subcommittee; it could not be dealt with today because neither the ruling nor the origins of the quotations were before the Committee. Some work needed to be done at any rate. He would concur that the matter should go to the Subcommittee, but it needed to be done urgently. It may be possible to deal with this before Parliament rises.

The Chairperson said Members should perhaps decide that the Subcommittee meet urgently; this was not the only matter before it and she agreed it would be desirable to get a report back before Parliament rises.

Mr Steenhuisen said if there is a commitment that the Subcommittee is to deal with this, before Parliament rises, then he would be comfortable with the proposal. The Subcommittee is not meant to apply its mind to the facts, but merely to consider the principle of the ruling that it is not acceptable to use quotations from court judgments in the House. He would not want Parliament to reconvene with Members’ hands still shackled in such an unconstitutional way.

The Chairperson noted the comments, which would be put to the Subcommittee.

Mr M Waters (DA) referred to Mr Mthembu's comment that the Committee does not have the judgment in the matter of Economic Freedom Fighters v Speaker of the National Assembly and Others (Nkandla judgement) before it, but he wanted to point out that this ruling does not pertain to one judgment only but to every single judgment which has ever been given by a court in this country, so there was a profound and deep assault on freedom of speech, which emphasised the importance of dealing with the matter urgently.

Ms D Dlakude (ANC) agreed with Mr Mthembu. The ANC had interjected when Members were misquoting and misleading the public, and it was possible that Members might not have wanted others to not correct what they were saying; if so, then they could be misleading the public and the House, and that could not be accepted. She agreed that the matter should be referred to the Subcommittee.

The Chairperson said that she wanted the matter, the evidence and Members’ submissions to be put before the Subcommittee. She told Mr Steenhuisen that she did not think it was apposite to have further discussions now.

Mr Steenhuisen said he needed clarity, because there are implications for this decision. He questioned – and it was confirmed – that the Rules Committee was deciding that his query should be referred to the Subcommittee, and that it would try to dispose of the matter before the House rises.

Report of the Subcommittee on the Review of the Rules of the National Assembly
Mr Mdakane set out the background to the matter. On 18 and 20 November 2015 the Rules Committee considered Draft 8 of the Rules of the National Assembly (the Rules) and broadly accepted what was proposed. Some parties had raised objections, the EFF in particular. The principles behind the Rules were generally accepted and it was agreed that the language issue could be worked out. The Subcommittee was today proposing was that Draft 8 be transformed into Draft 9. There were some outstanding issues referred to the Subcommittee, which were around the nature and functions of the rule 53A multi-party committee, the recusal of the presiding officer from the Chair if there is a conflict of interest, the removal of the President from office under section 89 of the Constitution,  and the draft guidelines.

Mr Mdakane firstly dealt with the recusal of the presiding officer (PO) and said that rule 19A dealt with this. It related to the declaration of a Member’s private interest. The Subcommittee had worked on this and decided to present an option which read:
“A presiding officer must recuse themselves from presiding at a meeting of the House, when there is a reasonable apprehension of bias on the grounds of direct personal interest in the business before the House”.

He explained that a direct personal interest was distinct from a political interest. If this happened, then the PO should recuse themselves and allow another PO to chair. He noted that the appointment, functions and authority of the Speaker and Deputy Speaker have already been accepted. 

Mr Mdakane then moved to the section 89 rules for removal of the President. The Subcommittee felt this was a much broader issue than previously thought. It therefore made a proposal, which should be taken to political parties. There was a discussion about whether this responsibility could be given to judges or other people who are not Members, but the senior legal advisors had recommended that Members have to deal with this themselves. A case in point is the Brazilian situation, although section 89 is not an impeachment. The Subcommittee is not recommending any adoptions on this point at present, because it is a issue which needs clarity and discussion by parties.

Mr Mdakane said the Subcommittee has looked at the draft guidelines, and as far as he was aware the Subcommittee was happy with them, as they were in line with the Draft Rules. There are guidelines which require approval of the Rules Committee, including those under Chapter 3, 5, 7 and 10. The Subcommittee thought that it was not necessary to analyse every guideline in depth, because the Rules have been broadly agreed upon in principle, but that they were correct because they will assist in the application of the Rules.

Mr Mdakane said that one area of the guidelines where there has been no agreement relates to the dress code. Rule 45, as agreed to in the Subcommittee, requires that Members at all times should accord the PO and other Members due respect, and conduct themselves with dignity, in accordance with the decorum of the House. They are also required to dress in a manner befitting the dignity of the House, provided that no party symbol is displayed. This may be further provided for in guidelines approved by the Rules Committee. The view was that if there were attempts to detail all of this in the Rules, it would be difficult to amend, but guidelines may be changed more easily. The guidelines can then state that Members are not allowed to wear certain things. He had, for instance, seen that a hard hat could be dangerous if thrown at the Parliamentary Protection Services (PPS) in a certain manner. These were the types of things to be dealt with in the guidelines. At the same time, it was not desirable to constrain freedom of expression. He believed that the current rule was correct, and the guidelines could be developed immediately after the rule had been accepted.

Mr Mdakane said there had been adjustments in rule 45(9) on the issue of weapons. It indicates that Members are required not to bring weapons of any kind, dangerous or threatening articles or objects, or replicas of any such article or object into the Chamber, excluding a cultural object, but then it must be with the prior approval of the Speaker. The Subcommittee felt that Parliament should be strict about what is brought into the Chamber.

Mr Mdakane said another area discussed and now being presented related to the information required to be presented by the executive. This related to the duties of Cabinet Members and Deputy Ministers under rule 316. Rule 316(a) requires the leader of government business (LOGB) to inform the Speaker in writing without delay of the appointment of Deputy President, other Cabinet Members and Deputy Ministers, when these are made or changed under sections 91 and 93 of the Constitution. Rule 316(b) requires the details of functions formally assigned or delegated to each at the time of appointment or thereafter also to be given to the Speaker. Upon receipt of such information, the Speaker must table it without delay. It is important for Members to know what is delegated to the Cabinet Members.

Mr Mdakane turned to the proposed setting up of the rule 53A multi-party Committee. Rule 174A dealt with the composition of committees. The Subcommittee took the view that this multi-party committee should be chaired by the Deputy Speaker, provided that person had not been presiding during the removal. Furthermore, it should include a senior whip from each party in the National Assembly, as well as any other Member who may be designated by the Speaker. An option for specific composition has also been presented, being three ANC Members, two DA, one EFF and two Members representing other smaller parties. The view was that there this should rather be a small Committee which would meet, consider and report to the Speaker. Another view was that perhaps there would be no harm to have this composition, but allow other parties in the NA to attend. If a Member of the IFP is removed, then a whip from the IFP should be allowed to attend, even if not part of the formal composition.

He turned to the functions and powers of the subcommittee. Under subrule (2) it must consider the circumstances of the physical removal of a Member as reported to it by the Speaker under rule 53A (12). It must take into account all relevant aspects, including the conduct of the Member concerned, the ruling by the relevant presiding officer and the manner in which the removal was carried out. In carrying out its functions the Subcommittee may exercise powers as contained in rule 138. The Subcommittee’s mandate does not extend to a disciplinary procedure. The intention is a form of peer review. Furthermore, it would not formally reconsider the PO’s ruling, but would consider all factors, and then present to the Rules Committee for a decision. The Subcommittee must report its finding and any recommendations to the Rules Committee within ten days. In line with rule 152 the Subcommittee will, at some times, meet in public and at other times it will not be in public.

Mr Mdakane then said that public access was an issue to be considered by the Rules Committee, because members of the public are themselves part of the problem when Members are removed. That is a bigger issue, because they could be armed and could join Member in causing havoc. This was something that would need to be considered as to the best way to prevent such a situation.

Further adjustments were also proposed to rule 53A. There had been a long discussion with the Chief State Law Advisors on subrule (10). Given the events of that day, the subrule ought to be retained. The Subcommittee wanted to propose retaining subrule (11) which reads: “In the event of violence, or a reasonable prospect of violence or serious disruption ensuing in the Chamber as a result of a member(s) resisting removal, the presiding officer may suspend proceedings, and members of the security services may be called upon”. In a situation where the public becomes involved in a disturbance, the security services or police may be required, since it would be very difficult for the Parliamentary Protection Services (PPS) to deal with members of the public who might become involved in the disruptions.

In summary, the Subcommittee was proposing that the Rules Committee should retain subrule (11) as initially proposed, and thus re-instate subrules (10) and (11) as described.

Mr Mdakane said a cleaned-up draft has been circulated and if the Rules Committee accepts the proposals listed in the Report of the Subcommittee, the above issues would be included in Draft 9. This draft would not yet contain the powers and functions of multi-party committees, but they would be included once the Rules Committee had approved the powers and functions. He added that further proposals related to corrections and improvements to language in various rules, as indicated in Appendix B of the Report of the Subcommittee.

Discussion
Ms N Mazzone (DA) said that Mr Mdakane was used to Members getting along in the Subcommittee, and commented that he used the word “agree” quite loosely in his summary. She had been the Member who initially proposed the recusal of the PO from the chair. There were two reasons for this. Firstly, the Speaker must at all times be completely neutral and have no bias when something is being discussed in the House. South Africa was one of the few, if not only, parliaments where the Speaker is not required to resign from their political party. In judgments such as the Nkandla judgment, the Speaker was mentioned personally and it would thus be humanly impossible to not expect some kind of emotion or bias on the part of the Speaker. It was interesting to note that the one option reads “apprehension of bias on personal grounds”. She noted that whilst Mr Mdakane had attempted to differentiate personal bias and political bias, unfortunately the two cannot be separated. It is a very personal thing to belong to a political party and is part of who Members are. The Speaker, in her personal capacity, is the chairperson of the ANC National Executive Committee. Therefore, political affiliation would be a personal interest.

She added that the Subcommittee’s report indicated that options with different wording could be considered. She herself had noted that she would be bringing this argument to the Rules Committee. She repeated that it was, in her view, impossible to separate the political party to which a Member belongs from personal interests, because the two are intrinsically intertwined. This could be seen on the occasion when the Speaker was asked to recuse herself, in which the Speaker had hesitated for a time and eventually did recuse herself. It was undeniable that tensions were immediately diluted because the Speaker had taken herself out of the situation. It is human nature to distance oneself when a matter linked to yourself in some way is being discussed. She strongly felt that the reference to direct, personal qualifications should be removed, leaving just apprehension of interest as a ground.

She added that the Speaker acts on behalf of Parliament, when it is taken to court, and is cited in the proceedings, and that is all the more reason why the Speaker should recuse himself or herself because it was very difficult to be impartial when the Speaker was the subject of legal action.  Someone who has not been involved in the court proceedings can take the chair and have a more objective view of the matter. She was pre-empting the response that the Speaker will always be the respondent in court matters, and here would argue that the Speaker must always recuse themselves.

The Chairperson said she was surprised the issue had been put in the way it was, suggesting that there was anything personal about her own position. She felt that this was not the case at all. She was cited as a respondent, because she held the position of Speaker She had indicated this when she met with the political parties and was pleasantly surprised by the civil manner in which she was approached for that meeting. It would have been good if they had started to engage in that manner, rather than insulting her, questioning her integrity and creating the impression in the minds of the public that there had been some kind of “crime” in relation to the Nkandla judgement. She had already indicated clearly that in fact the opposite was true. All that the Speaker or any PO does is to maintain order and ensure the proceedings of the plenary proceed in an orderly manner. She did not vote on the adoption of the resolution that the judgement refers to, so that any suggestion that she had been personally involved and had personal reflections upon her is a distortion of the true position. The Speaker is also the person called upon to sign court documents and who gives permission that papers must be served and that was not in any way linked to any direct actions of the Speaker.

Ms Mazzone said the DA maintained that the other option for the recusal of the PO should be considered. She then wanted to mention the further adjustments to rule 53A, and insertion of subrules (10) and (11). Considerable time had been spent on this point, because the Subcommittee had to ensure that Members’ rights and the floor of the Chamber remain sacrosanct. The Subcommittee discussed the point that the public gallery cannot be considered part of “the floor” of Parliament, where Members sit and debate, where they are under the authority of the Speaker, and which ought to be sacrosanct. Armed police could be in the public gallery, because this is an area distinct from the floor of Parliament. She did not think there had ever been any doubt that PPS would not apply to the public, but to Members only. This point had been strongly felt and was justified by the judgment in the case of Democratic Alliance vs Speaker of the National Assembly.  A Member of Parliament should  never be removed by a member of the security services. She had seen the video footage of what had happened that day and had seen people from the public gallery running down the stairs to become involved in the removal of Members. She had then seen members of the security services stepping in to control the public, which was correct. However, at no time should a Member be handled by the security services, and it would be setting a very dangerous precedent if this were to happen. The Rules are being created for the not just for the current Parliament, but for the future. Another government may, in theory, want to remove Members whenever they said anything controversial in the House, and she was concerned about the insertion of subrules (10) and (11), which she felt might verge closely on being unconstitutional.

Mr B Mashile (ANC) spoke to the recusal of the PO. Reference had been made to the Speaker being the chairperson of the ANC NEC, and the desire to remove on the basis of personal interest. He made the point that if it was argued each time that the Speaker has an interest on behalf of the ANC, there would be no matter discussed in the House as the ANC clearly had an interest in everything. That would amount to removing the Speaker by any means possible. The Constitution does not require the Speaker to resign from their political party, and in his view it would be unconstitutional to try to create a rule that imposed a requirement additional to what the Constitution expected.

Mr Mdakane pointed out that the interim rule 53A was adopted by the National Assembly, so that it was the current rule and it had been applied. The point raised in the Report of the Subcommittee was that the Chief State Law Advisor had proposed some wording, but the Subcommittee was instead recommending that the current wording be retained, because the multi-party subcommittee would deal with all peripheral issues. He did not think there would ever be a situation where Members would be ejected by security services and therefore the rule should be accepted as is. A long discussion should not be re-opened on a matter which had already been accepted. The rule was already presently being applied, and if it turned out to be unconstitutional, then Members could amend it.

The Chairperson said the disadvantage of not having been part of the Subcommittee discussion was that the Subcommittee Members knew what had been agreed to, and so Mr Mdakane’s intervention was useful. Therefore, this Committee should not reopen the matter. She suggested that this Committee should leave subrules (10) and (11) as they stood.

Mr C Frolick (ANC) said a substantive requirement was required around PO recusal. The last thing Members wanted would be a purely ceremonial Speaker, or the situation where anything could be interpreted to require the Speaker to recuse themselves from discussion of any matter. He thought that as this matter deals directly with the election of the Speaker, the Constitutional Review Committee should apply its mind, and this was not something which the Rules Committee can decide upon, because it would be in direct contravention of the Constitution.

The Chairperson noted that there had been a meeting of leaders of political parties held after the delivery of the Nkandla judgment. She had said there that this was a question of revisiting the constitutional provisions around the office of the Speaker.

Mr Steenhuisen wanted to place on record that the DA had never proposed a constitutional amendment, did not support the proposal for constitutional amendment, and believed that the present that the present constitutional provisions were sufficient. There is a difference of political opinion. While the ANC has taken a political decision to allow the Speaker to “wear two hats”, the DA has taken a political decision that that is inappropriate. The DA would not support a constitutional amendment, but did require that the Speaker display impartiality when presiding, and the DA would continue to call out the Speaker if this did not happen.

He noted that it was quite correct that the Speaker did have ex officio duties. However, his point was that the Speaker was also the political head of the parliamentary administration, and at some point a decision is made about whether to oppose a matter and the legal strategy to follow. The Speaker, as political head, would be abrogating responsibilities if they were not at the heart of those decisions. The DA contended that it was that decision-making locus that put the Speaker in a position of conflict of interest. A judgment call was being made when the Speaker decided to depose to certain affidavits that then became part of the court record. Mr Mashile's argument could be taken to an illogical conclusion, that every time an ANC MP spoke in Parliament, the Speaker should recuse themselves. That was not the intention. Recusal should happen when there was a conflict of interest and a direct causal link, in order to ensure a fair wicket and debate in the House, and to ensure that the person presiding over the debate does not have a vested interest, whether inherent or less overt.

The Chairperson said it would be awkward if she kept answering for herself and would refrain from doing so.

Mr Mthembu said Members enjoyed privilege n the House and an say whatever they want, without being threatened with court action. For this reason, he did not see anything wrong with rules 53A(10) or (11). The court had indicated that security services cannot be used in the House. However, if a Member were to be party to any other criminal conduct anywhere else, the same would not apply and the police would be called in, even if the person to be arrested was a Member. Having said that, he agreed that the Speaker did not have a personal interest regarding the Nkandla judgement. She had acted as head of the institution. The Speaker was a respondent because of what Parliament had done and the resolution which it passed. The Speaker did not even vote. It was incorrect for anyone to create the impression that there was any personal interest.

Mr Mthembu added that there was a broader issue: namely, what type of Speaker does Parliament want?  If it is to be a Speaker who is from a political party, as it is in the Western Cape Provincial Legislature, that should be accepted. The Speaker is still expected to be non-partisan when handling the business of the House, when giving people time to speak and when maintaining order. The ANC believed that this had been done. Any other notions on how to elect a Speaker, and where that Speaker should come from, were a matter for other debate. The ANC was not happy with suggestions around recusal, and this begged the question also of when this would be done? Mr Steenhuisen and Mr Waters know that this debate was had when the Speaker was requested to recuse herself. The Speaker does not determine the party line along which Members are to vote, as it is the Chief Whip who does this and enforces the party line, so that is the person to whom that responsibility attaches. If the Speaker continues to be elected in the present way, as the Constitution requires, there is no basis for recusal, and the ANC was not convince that there was anything wrong with the present way.

Ms A Didiza (ANC) said that any discussion around the recusal of the Speaker should deal with the office rather than the person. The office and its responsibilities require that the Speaker exercise fiduciary duties. Members would not have been happy had the Speaker not responded in the way that was done. Similar requirements attached to other positions requiring administrative work, such as Members sitting on the board of ParMed, and thus having to respond to EFF challenges around that institution. There is no way that a Speaker would, on every occasion, call upon Members to decide whether Parliament should respond. This role also was similar to the President taking a decision on behalf of the executive. She thus agreed with her colleagues from the ANC. She also agreed to the views expressed around the subrules (10) and (11). While the precincts are Parliament, there are responsibilities for the executive branch of state, because it is also a national key point. Therefore, if the institution is under threat the security services must intervene. These are tensions which Members have to appreciate. Unless there is any violent behaviour once the Member is removed, security services will not be called, unless in exceptional circumstances. The subrules could be retained.

Mr M Booi (ANC) said there were implications around subrule (10) in a court judgement and it should be removed, leaving subrule (11) only in the Rules.

Mr Steenhuisen said Mr Booi was correct and there is a court judgement dealing with the use of security services to remove Members. He could see that there would be challenges as soon as the Rules were adopted, and the Committee must be circumspect and not allow any “easy wins”. He believed that it was incorrect to include this subrule as it could fall foul of the judgment.

The Chairperson stressed that she had been referring to subrule (10).

Mr Mdakane clarified that the proposal was to remove subrule (10), because security services should not be used to remove a Member. Subrule (11) could be left as it was in the interim rules, because that does not cause any problems.

The Chairperson said the law does allow security services to become involved in certain circumstances and subrule (11) indicates that they could become involved where there is a threat of violence.

Ms Mazzone said the concern was then to decide what is a reasonable prospect of violence? She had not expected anyone to use a hard hat as a weapon. Every time that a person was removed and there might be a fist fight, did this mean a reasonable apprehension of violence? Even though there was a scuffle, she was still glad that no gun was used and that armed security services were not involved. It was impossible to reasonably foresee what might happen, because this was not a reasonable situation.

The Chairperson said she did not foresee any situation where she would need to call upon the police to enter the Chamber, because there was already the PPS.

Mr Mdakane repeated his view that subrule (10) should be removed and subrule (11) retained.

Mr Waters referred back to the court judgments. The Court clearly stated that no security services may enter the Chamber. In subrule (11), the fifth line referred to “chamber”. If security services were thus allowed to come on to the Chamber floor that would be contrary to the Constitutional Court judgment. He would suggest the removal of the word “Chamber” although “precinct” would be acceptable.

The Chairperson said the precinct was where the security services had a responsibility by law. This would not include the chamber.

Mr Booi suggested that  subrule (11) should be retained, which reads “in the event of violence, a reasonable prospect of violence or serious disruption”.

Mr Xaso clarified what was being proposed and read out the current wording of the subrules.

The Chairperson said the issue is that the Constitutional Court judgements are about “the Chamber” and the focus is inside the House. If the intention is to retain subrule (11) it must be ensured that it is clear that security services are not allowed into the Chamber. Any reference to the contrary must thus be changed, so as to reflect what the Committee had in mind. She confirmed, to Mr Xaso, that (10) should be removed.

Ms J Kilian (ANC) said that the Draft Report of the Subcommittee contained some proposed wording which reads “where there is immediate danger to life or the safety of any person or damage to any property the Speaker may (a) suspend proceedings, and (b) authorise members of the security services to act in accordance with section 4 of the Powers and Privileges Act”. She suggested that this wording would be preferable as it did not refer to the Chamber itself, but did refer to immediate danger to life or property.

The Chairperson said that could be an option, because by that time the PO is no longer dealing with Members in the House. Security forces would be called in where the dangerous situation so demanded.

Mr Kasper Hahndiek, Former Secretary to the National Assembly and Consultant to the Committee, said that section 4 (2) of the Powers and Privileges Act specifically provides that where there is immediate danger to life or property, members of the security services may, without obtaining permission from the PO, enter upon the precincts to take action. The precincts include the Chamber. They may take action insofar as it is necessary to avert the danger. Such action must be as soon as possible reported to the Speaker. This contemplated an extraordinary set of circumstances, where the security services had to make an assessment to decide whether they should wait for authorisation of the PO, or act. That applied to the precincts, which included the Chamber.

Mr Waters said what Mr Hahndiek said may hold water, but there had been a court judgement dealing with what was now permissible. He would argue that it would be completely inappropriate for any security services to enter upon the floor of Parliament without the permission of the Speaker. The parliamentary tradition of not using the security services dated back to when kings would order such people into Parliament to silence Members. The PPS was more than capable of dealing with the removal of Members from the Chamber. Rather than run the risk of an easy court victory to overturn the section, Members should compromise.

The Chairperson said it should be agreed by Members that no security services should be allowed in the Chamber. The formulation should be revisited, to ensure it is consistent with the rulings and with the Committee’s understanding. On a particular day, the precincts were attacked and there was destruction of property. Members must be conscious of their responsibility.

Mr Mdakane said if that approach was taken, then perhaps the Committee should consider what the Chief State Law Advisor was suggesting, which was the following wording: “When there is immediate danger to life or the safety of any person or damage to any property the Speaker may (a) suspend proceedings, and (b) authorise members of the security services to act in accordance with section 4 of the Powers and Privileges Act”.

The Chairperson said her experience of these situations is that the Members get disrupted from focussing on the work and the priority is getting back to work as soon as possible. She did not want to have to go out into the passages, looking to authorise security services, and would thus imagine that the security services themselves would be seized with the situation and deal with it.

Mr Booi said he thought the matter had been resolved. It is clear that security services are instructed by the Constitution to protect life and property. They should not be in the House, unless a crime had been committed against which there was no way that the PPS could act alone.

The Chairperson said the security services should be left to ensure that they fulfil their constitutional role.  Members must ensure that Parliament had rules which are in line with the law and Constitution, but also enable the removal of any obstacles to the work in the Chamber.

Ms M Boroto (ANC) said while she agreed with the sanctity of the Chamber, and the matters are escalating. She did not want to be reliant only on the PPS if there was violence inside the Chamber. She suggested that perhaps the drafters could create something to deal with violence, as Members needed to be protected from weapons and violence.

The Chairperson noted that the law already allows the security services to deal with a situation of violence.

Mr Mdakane said the issue is how Members would be protected. It would clearly not be desirable to have to wait for PPS if there were a criminal with a gun in the Chamber – and the intention of the rule was to come up with a way to assist the security services; if something was not in the rules it would be difficult to judge when it came to court. He suggested again that as a minimum compromise position, subrule (10) should be retained and subrule (11) removed.

Mr Hahndiek said that in line with the separation of powers, the only person with authority over the security services is the Speaker. The South African Police Services (SAPS) never has its own authority within the precincts of Parliament, and therefore any actions they take must be authorised by the Speaker.

The Chairperson said the intention is to not call the security services, because PPS is available in the Chamber. Removal of Members from the precincts is a different matter.

Mr Mdakane said it is agreed that security services should not be allowed to remove people from the Chamber, but that security services would be required to remove people from the precincts. If the rule does not provide for this, then security services may face the problem of people suing them in court. 

Dr A Lotriet (DA) said Members should be careful about using the word “precincts” and to make sure what it would include. There was a need to use terminology that was consistent across the Powers and Privileges Act and the Rules. In her view wording such as “precincts, excluding the Chamber” would be acceptable.

Mr Mdakane said this could be done by removing subrule (11) and retaining subrule (10), with the qualification that precincts excludes Chamber.

Ms Dlakude said while she agreed with what is said, she was concerned with what could happen. The EFF has indicated that it will no longer lay charges, and will fight back  and there had already been instances of private bodyguards fighting with PPS. If the fight is intensified, this might involve weapons; one Member had already threatened to use a stapler on a PPS official. If Members could vandalise the property of Parliament, they could also bring weapons into the House, and she was worried about the safety of other Members if security services could not be called in to deal with dangerous situations.

Mr Hahndiek said the Committee is focusing on the experiences of members of a party that was not cooperating. One has to look more broadly at possibilities. A party may be voted in which is very militaristic, brings weapons into the Chamber and decides to fight it out with PPS, or there could be an attempted coup. In exceptional circumstances there should be the ability to call in security services to protect life and limb.

Ms N Mokoto (ANC) agreed with the proposal that security services should not remove Members, but also agreed that in extraordinary circumstances where there was danger, even from a Member, the institution must be protected. If the police come in, in extraordinary circumstances, without this being provided for in the Rules, there could be the possibility of litigation. Former Prime Minister H Verwoed was murdered in the Chamber, so this was objectively a possibility. She would agree that the rule on  “immediate danger” should be retained and the Subcommittee should refine this rule.

Ms C September (ANC) suggested that no final resolution be taken on the issue now. There were still further thoughts needed. Members were speaking to the police not being called to the Chamber, but that did not mean that the Speaker's powers were limited to that; the only place where the Speaker does not have authority within the precincts is at Tuinhuis. During a strike at Parliament, security services acted  on permission from the PO. It was clear that matters could not stay as they were and so she would agree that more thought was needed.

Mr L Mpumlwana (ANC) said the proceedings may be suspended and therefore the Chamber is not the Chamber in session. He wondered whether the court’s interpretation of Chamber applied to a Chamber in session. When a session was suspended, he thought that it would be regarded as any other part of the precinct. He thought that the wording referring to “Chamber” should be retained, but specify that the session must be suspended.

The Chairperson noted that although the rule would not be re-drafted immediately, valid points were being made.

Mr Mashile said banning police from the Chamber would not be a good idea. All that is required is to properly craft the circumstances around when they enter. When the President is in the Chamber, Presidential Protectors will be forced to keep Members away from the President, and this could involve a scuffle. The Committee should be aware that there may be circumstances which would warrant security services coming into the Chamber, so he felt that the circumstances must be specified but they should not be banned completely.

 All that is necessary is to specify the circumstances, but banning them completely may be problematic.

Dr Lotriet concurred with Mr Hahndiek, saying that different issues were being conflated. One related to removal of Members. The Constitutional Court judgement is based on the privileges of a Member, and this would not extend to having a gun or shooting someone. .Section 4 of the Powers and Privileges Act allows for the security services to intervene when there is threat to life or property. The drafting should focus on the removal of a Member, not threats.

The Chairperson ruled that there did not need to be any further discussion; the main issues had been isolated and there would be a re-draft taking those points into consideration.

Powers and functions of Rule 53A multi-party committee
Mr Mdakane said the next matter to be determined is the powers and functions of the rule 53A multi-party Committee.

The Chairperson said the first proposed composition is agreed to and the Chief Whip must apply his mind to that, so that the Subcommittee could sit the following day. This Committee would require a report in the following week.

Mr Mdakane said that if the powers and functions of the Committee are agreed to then the Subcommittee could move forward.

Guidelines
Mr Mdakane said that the guidelines are presented for consideration. In his view they are not contentious. 

Mr Xaso clarified that the Draft Rules must still be adopted by the House. Therefore, his understanding was that the current Subcommittee would undertake the task.

The Chairperson asked when the Rules would be presented to the House for adoption.

Mr Xaso said rule 53A must be redrafted, and therefore, the Rules Committee must reconvene to consider it.

The Chairperson added that the Committee must reconvene, also to get the reports on the removal of Members.

Mr Xaso said the remainder of the Rules are adopted, subject to the minor adjustment. The Committee would meet the following week.

Implications of the Nkandla Judgment
Mr Steenhuisen said he had raised some points at the last Subcommittee meeting, around the implications of the Nkandla judgment. The agreement reached in the Speaker’s boardroom was that the Rules would be one of the primary areas to be checked, to see if the requirements have been met. He would like to see improvements to Committees, and recommendations of the Corder Reports, among others. Simply ignoring the ruling of the Constitutional Court would be problematic.

The Chairperson asked whether Parliamentary Legal Services was prepared to give the Rules Committee a report arising out of the discussions after the Nkandla judgement was delivered. The Speaker did undertake to check the judgement and see what Parliament, as an institution, is required to do, and what rules in particular needed to be amended arising out of that judgment.

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, said he was asked to look at the Nkandla judgement and the implications for the Rules. The judgement was founded on respect for the separation of powers, and the Court explicitly stated that it does not have the competency to direct Parliament as to what is to be done by Parliament. Paragraph 4 of his opinion (see attached document) indicates which parts of the judgement speak to the procedures of Parliament. He had found nothing in the judgement which requires Parliament to look at the Rules. He had compared this judgment with two other judgements which had dealt with the Rules explicitly. One was the Oriani-Ambrosini judgement, relating to private Member’s Bills, where the Constitutional Court held that Parliament’s rules were wrong and struck some rules down. In the Mazibuko judgement the court found that the Rules unconstitutionally omitted to set out a procedure for a vote of no confidence. The Nkandla judgement  did not make any similar ruling. This does not mean that Parliament should not consider changes to the Rules.

The Rules Committee has suggested considering a Committee dedicated to the Presidency, which could be an option. Mr Steenhuisen had referred to the Corder Report. Parliament had adopted an accountability model and implementation plan, and the administration was busy on that point. It is within the power of the House to adopt further rules, but this Nkandla judgement does not in fact require it.

The Court found that the resolution which was adopted did not meet the constitutional and legislative requirements as they related to the powers allocated to the Public Protector. A rule could be drafted which requires reports by a Chapter Nine Institution to be dealt with in a certain manner, but that was already the law and will not change, regardless of the rule produced.

Discussion
Mr Steenhuisen said he fundamentally disagreed with the opinion of Adv Jenkins. He thought that the judgment had in fact called into question Parliament’s ability to hold the executive and President to account. Adv Jenkins was correct that the court did not prescribe how that should be done, but it certainly did point out the shortcomings. Adv Jenkins had chosen to rely on paragraphs 93 and 99 of the judgment. However, he believed that the portion of the judgement dealing with the National Assembly’s obligation to hold the executive accountable started at paragraph 84, and went right through to paragraph 99. It had pointed out failings by the National Assembly to hold the President and executive accountable.

The NA had a profound obligation to fulfil, in scrutinising the President’s conduct under section 42 of the Constitution, and as required by the Public Protector. The report was a high priority matter, which ought to have triggered the NA’s obligation to scrutinise and oversee executive action. With respect, he thought Adv Jenkins was looking at the issue far too simplistically. This was really a question as to what accountability is and how Parliament exercises oversight. The Court had also indicated, at paragraph 97, that Parliament acted unlawfully, by choosing its preferred course of action and second-guessing remedial action. The judgment clearly pointed out severe shortcomings. In his view this was a powerful judgment that was an indictment on Parliament’s ability to hold the executive accountable and fulfil its constitutional obligations. If Parliament were to now sit idle, it would be failing in its duties to uphold the Constitution and the electorate.

The Corder Report made some interesting recommendations, which could be dealt with in the Rules, and this would include matters such as how the Rules required Chapter 9 institutions’ reports to be processed, whether Parliament had a special Committee to process Chapter 9 institution reports. The Corder Report makes it clear that there is a synergy between the Chapter 9 Institutions and Parliament, with a dual oversight role in holding the executive and the President accountable.

It was suggested that the Rules could also introduce mechanisms, such as questions without notice, which could assist with accountability.

With respect, he did not think that the legal opinion went far enough into the profound effect the judgement had on Parliament’s role. If Members fail to rise to the occasion presented by the judgement, he was worried about their ability to perform the job in the future. He submitted that the Corder Report and its recommendations, the Nkandla judgment and other items be served before the Subcommittee, as a delegated responsibility from this Committee, with the Subcommittee being asked to go through the report and the judgment in detail, and then to determine which rules should be amended.

The Chairperson said perhaps a written submission should be made, because a number of matters had been raised.

Ms Didiza said the Rules as they presently are should be taken forward, as agreed. She noted the matter raised by Mr Steenhuisen and agreed that it is important for Parliament to reflect on what the implications are.  It may indeed be that the Rules need to be revised, but this might depend on how Members apply the existing mechanisms. She would argue that there had to be some space. She knew the Speaker had initiated a process with political parties immediately after the judgement was delivered. The ACDP requested a debate to reflect broadly and determine how Parliament’s image could be revived. There is indeed a need for a conversation. That should not be confined to a matter of Rules only. Members need to reflect on the mechanisms already available and at the rulings on how Parliament dealt with the report of the Public Protector, including whether the failings were due to a lack of mechanisms. She was concerned that the matter be confined to a rules issue alone.

The Chairperson said instead of having a lengthy debate around this, political parties should seize the opportunity to engage again- not only on this point, but the other issues too such as decorum, self-respect and respecting each other. The best way to deal with these matters was not to try to have rules alone, but to engage. In respect of the Powers and Privileges Act, there has also been a judgement.

Consideration of Judgement regarding the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act

Adv Jenkins cited the case that dealt with section 11 of the Powers and Privileges Act and the crisp issue is that it was too wide. It allowed a Member to be arrested and removed for something which was said or submitted in the House, which goes against Members' constitutional immunities and privileges. In the worst case scenario, no matter what rule is formulated, the security services have a right, under section 4(2) of the Powers and Privileges Act, to enter the Chamber if there is a danger to life or property, without the Speaker’s permission. That is a policing function and even if the Rules  bar them, the statutory obligation and power remains.

The issue of a Member saying something which is disrespecting the PO’s authority is the area where the judgment indicates a certain amount of patience required on the part of POs. The disregard for the PO would have to degrade to such chaos that the House cannot reconvene within a reasonable time. That was quite a high bar . The Court had given opinions around this but the real matter was the constitutionality of section 11. The issue of values was raised and discussed, and this would need to be reflected upon.

The point was made that this is s not a policing function which is being carried out, so the security services are not there to remove Members from the Chamber at any time. The Constitutional Court agreed with the Supreme Court of Appeal in the De Lille case, that there could be a time when removal is necessary, and it should be possible to define when exactly that was. There are various views and he could only repeat what the Constitutional Court had held. That needs to be concretised into examples which have occurred or could occur. The point of guidance would be the values, including constitutionality, people-centeredness, accountability, openness and transparency in crafting that rule. He repeated that a high bar had been set for the point at which Members may need to be removed.

Discussion
The Chairperson said that the Parliamentary Legal Advisors would be in a position very soon to present a possible response to this judgment to the Subcommittee. 

Mr Xaso said the Act did need to be amended, and for that reason a motion had been prepared for the establishment of an Ad Hoc Committee which will attend to the review of the Act. A copy had been circulated and it is hoped that the National Assembly would adopt it the following Thursday.

Mr Mashile said currently the Court has provided a “read in”, into the Powers and Privileges Act, stating that Members are excluded from section 11. Parliament must still confirm that but the read in had no time limit attached and was effective from the date of the judgement. 

Adv Jenkins, at the request of the Chairperson, explained that a “read in” was where the Court reads legislation in such a way that it will be constitutional. It is a quasi-legislative function, because it is effectively writing legislation, in the Court order. Sometimes a suspended order would be given and Parliament would be given time to correct it. In this case, this was not done. The Court held that in future, section 11 would be interpreted in future to mean “a person, other than a Member”, This prevented a Member being arrested or removed for creating a disturbance while the House or a Committee was meeting.

The Chairperson agreed that what Mr Xaso said still stands and the matter would be dealt with on that basis.

Further business would not be dealt with today, but it included the request that a new Committee must be established to exercise oversight over Budget Vote 1: The Presidency.

The meeting was adjourned.