Rules of the National Assembly: Chapters 1 to 9 preliminary review: Sub-committee report, debate on dress code and secret ballots

Meeting report

Introductory Remarks and Agenda
The Chairperson said that the subcommittee considering the National Assembly Rules (the Rules) had reached many areas of agreement, and the legal and advisory team to the subcommittee had been requested to draft certain rules, and in some instances provide different options, and this document would be presented for adoption. Work that remained to be finalised included the minimum dress code and the declaration of votes. It was agreed to not define anything before the work was completed. The purpose of presenting the document of the subcommittee to the full Committee on the Rules of the National Assembly (the Rules Committee) would be to reduce the work of that Committee by preventing a reopening of the debates. The subcommittee’s report of what had been done so far was completed.

He warned that the issue of dress code should not be taken out of context, because it was only one part of the issues around decorum of the House. He noted that Mr F Shivambu (EFF) had requested to, and would be permitted to give a presentation, with discussions to follow.

He finally noted that the report of the subcommittee would be presented to the Rules Committee the following week, hopefully indicating the areas of agreement and the preferred options. As the subcommittee was not a decision making body, Members should feel free to raise as many issues as possible.

Mr F Shivambu (EFF) said he thought the issue of dress code had been closed at the previous meeting and therefore did not understand why it was being reconsidered. He was concerned that the position taken at the previous meeting was being reneged upon, unless there had been “another meeting outside of what we are presently dealing with”.

The Chairperson replied that in the last meeting it had been agreed that the various parties would look at the proposals and the minimum standard which they believed to be appropriate. From there, the positions of the parties would be used as a guide to fill more detail into the rule, focusing on minimum standards. He welcomed Mr Shivambu’s input, as part of the democratic process.

He added that the subcommittee would also be expected to work together with the NCOP on the finalisation of the Joint Rules of Parliament and the various aspects would be presented to the subcommittee, representing the National Assembly, for its consideration. He noted that a brief had been circulated on this part of the business of the subcommittee.

Mr Shivambu objected, saying the subcommittee was convened by the Rules Committee, as the subcommittee to deal with the review of the Rules of the National Assembly. The subcommittee should, in his opinion, be focusing on that, and he did not appreciate the opportunistic attempt to also bring the  Joint Rules of Parliament before this body. He felt that the proposal was, in truth, “in response to the EFF’s call for the President to come and answer questions on 12 February”. It was improper to change rules in response to a political process, “merely because it suits you”. He suggested “it is utter opportunism and no different from what the pre-1994 government was doing...if there is to be a process to change the Joint Rules, let it be established”. He was aware that when the subcommittee was established by the Rules Committee, the mandate was clear: that it must review the Rules of the National Assembly.

The Chairperson said Mr Shivambu was ‘jumping the gun’ and that a point would be reached where he could properly voice this opinion.

He added that the presentation on the report would be made by the subcommittee staff, focusing on the areas of contention, rather than a full chapter by chapter analysis. He pointed out that there were substantial differences between the pre and post 1994 governments, that presently everyone has the right to be heard and pre-1994 Mr Shivambu would not have even been allowed to sit in the meeting. He added that Members should respect this forum and other Members generally. He urged the Members to continue to deal with the matter at hand.

Mr N Singh (IFP) said he would express a view on the consideration of the Joint Rules of Parliament later. However, he wanted to emphasise that this meeting was under some time constraints; he was under the impression that the meeting was intended to last for an hour and a half, as the Rules Committee was initially scheduled to meet that day. He felt it important for the subcommittee to hone in now on what it wanted to bring to the attention of the Rules Committee.

The Chairperson replied that the Rules Committee was initially scheduled to sit on 28 and 29 January, but a view had been expressed that it would be problematic to submit a report to the Rules Committee on which the subcommittee almost agreed, and for this reason the Rules Committee was persuaded to postpone its meeting to the following week. This was precisely to give the subcommittee more time to deliberate the issues, and not merely to extend the work of the subcommittee. He added that, with several chapters having been accepted, the issues were not extensive and really centred around the minimum dress code and the areas where options were being proposed. He then asked Mr P Hahndiek, Secretary to the subcommittee on the Rules of the National Assembly, to present the preliminary report of the subcommittee.

Briefing by the Committee Secretary
Mr P Hahndiek said he had attempted to address all the concerns of the subcommittee in the present document, on the basis that he would highlight some issues there was no agreement, and where options would be presented to the Rules Committee. He noted that key rules where options were now drafted included:
- Rule 24(a), on the arrangement of business, where two options had been decided, with a third being proposed in the two page addendum he had drafted
- Rule 45 , which referred to the dress code in general terms, where the Rules Committee was being presented with guidelines.
- Rule 47, dealing with Members not being interrupted, where there were options which needed to be considered
- Rule 50(a) dealt with options for gross and disorderly conduct
- Rule 81 dealt with the declaration of vote.

Mr Hahndiek added that, as the Chairperson had indicated, there was a submission by the EFF on secret votes in general, and not just for votes of no confidence. The proposal was that a secret ballot could be used where two thirds of the Members of the House agreed.

He added two further points. It would make sense to split Rule 7 separating the convening of the first meeting of the House and the oath or affirmation by Members. Secondly, for the leave policy, there was a sub-rule with definitions, and he felt these should be included rather in the definitions section.

The Chairperson said this was a summary of what the subcommittee had done so far, and was the product of hours of debate on the general structure of the rules and their general structure. As the intended purpose, language and meaning of the various rules had been discussed, these need not be redone. They included the duties of the whips, and what the Speaker of the National Assembly (the Speaker) can recommend to the leaders of parties if a whip is part of the disruption.

He suggested that the areas where options were being proposed now be revisited. He highlighted that options also existed under Rule 24, which dealt with the Programming Committee.

Ms J Kilian (ANC) said the subcommittee had worked to ensure that the structure of the rules makes sense. She suggested, in relation to the rules which deal with proceedings in the Chamber, in Chapter 3: Presiding Officers and Members, it would be useful also to capture there the admission of visitors and the public, including conduct. She felt this important, as public participation is a constitutional injunction. She said there was a good provision in the Western Cape Legislature’s rules and asked Members to consider this alongside the subcommittee’s reference to public participation in Rule 40, which, although it did contain a reference to public conduct, was a mere guideline and could be supplemented.

The Chairperson agreed, saying a proposal which would enhance democratic participation of Members and the public or the decorum of the House should not receive any objections from any Members.

The Chairperson repeated that Members would need to deal with the issue of the Programming Committee, because he felt here had been near consensus in the previous meetings. What had been decided was that all parties ought to be represented in the Programming Committee and consensus sought on the programme, but where there might be disagreement, the decision would be put to a weighted vote. He therefore asked if there was still a need for options.

Mr Shivambu said the subcommittee had not taken a position on the Powers and Privileges Committee, particularly in light of the decision handed down by the Western Cape High Court recently in favour of the EFF. He felt the judgement was indicative of the flaws in the Powers and Privileges Committee and its potential unconstitutionality. He therefore suggested that the Rules must be drafted to ensure that it was not the same political party that was both making the allegations of contempt and deciding on the outcome. Presiding officers should even be subject to a different process, because at present the Rules noted that the Speaker of Parliament was the only person capable of referring a matter to the Powers and Privileges Committee. This prevented the Speaker being subject to charges and this was a point that needed to be addressed.

Mr B Mashile (ANC) lamented that this was only a working meeting, where points of order could not be called. He felt that it would be premature to proactively change the rules now, because the court process had not yet concluded, and there was still space for the views expressed in the lower court to be turned around by higher courts. He suggested that it would be preferable for the Rules to be rectified, if needed, following the decisions of the courts.

Mr Shivambu said the matter of the Speaker being in contempt was not under any form of court process. Therefore, there was still a gap in the Rules, as there existed no avenue through which to report the Speaker for contempt. The court was presently dealing with the composition of the Powers and Privileges Committee and the gaps in the Rules needed to be addressed by the subcommittee.

Ms N Michael (DA) agreed that these issues must be addressed, but reminded Members that this subcommittee was convened to look at Chapters 1 to 9 of the Rules, and that presiding officers and their powers were dealt with in Chapter 12. It was her understanding that parties would at a later stage be able to provide their opinions on Chapters 10 to 14. It must also be remembered that a clause was added that the Speaker must be impartial and act impartially towards all parties. Furthermore,  if parties are not happy with the decision of the Speaker their concerns could be referred to the Rules Committee. Therefore, Mr Shivambu’s concern had largely been dealt with, and would receive further attention under Chapter 12.

The Chairperson said the subcommittee was engaged in a review of the Rules, which were to be completely overhauled to make them more relevant. He agreed that Mr Shivambu's concerns could be dealt with at the appropriate point.

Mr Hahndiek added that the question of removal of the Speaker had been covered under Rule18 (a). The House had the power to pass a resolution recommending any charges either to the Powers and Privileges Committee or an ad hoc committee.

Mr Shivambu said Mr Hahndiek’s summary was holding the subcommittee back, because a greater context is needed to fully deal with the problem.

The Chairperson said it was preferable for the subcommittee to deal sequentially with each Chapter. This would help ensure that when the subcommittee presented its report the Members who were part of the subcommittee would be clear on what had been decided, so that the Rules Committee could simply pose questions rather than reopen a debate. It was important that a democratic decision be taken and that once this had been done all Members of the subcommittee would be able to explain this decision.

Chapter 1

The Chairperson asked whether all Members were happy with Chapter 1 of the Rules that had been reviewed, as contained in the subcommittee’s draft report.

Mr Singh wanted to comment on Rule 5 (2) which read that a rule framed by the Speaker would remain in force until the House, based on a recommendation of the Rules Committee, had decided thereon. He was concerned about leaving the situation so open ended and suggested it be stipulated that the Rules Committee must meet once a month, to prevent the rules framed by the Speaker prevailing.

Ms Killian agreed and suggested that the suggestion be incorporated at the point when the Committee moved to discussing rules relating to committees generally.

Mr Mashile said the definitions needed to be consolidated, citing as an example Rule 21CA which contained definitions outside of Rule 1. He also wanted an explanation of what a "day" is considered to be, since ‘working day’ was defined but "day" was used in several parts of the Rules.

Mr Hahndiek said unless it was stipulated as a working day or a sitting day, a day is interpreted as a calendar day.

Mr Shivambu was concerned that the Rule which read “Any Member who…refuses to obey any ruling or order of the House may be found guilty”. He said this allowed guilt to be found without due process.

Mr Hahndiek replied that as the rule contained the word ‘may’, there must be a process.

Chapter 2

There was general agreement with Chapter 2.

Chapter 3

Ms Killian wanted to know if there was agreement from the other parties to implement her earlier suggestion to relocate the provisions on public access to this chapter, following the rules on presiding officers. She continued that there was a reference to the Speaker controlling public access, in the document before the subcommittee. In the Western Cape Legislature’s rules the provision was quite thorough, covering access to parliamentary precincts, the Assembly Chamber and committee rooms. It further stipulated the manner in which this access control could be implemented, including setting aside public access areas. She therefore suggested circulating a copy of the provincial rules, to see if Members found their structure acceptable.

The Chairperson said there would be no harm in circulating a copy.

Ms Michael wanted to know where the section about the Speaker having to be impartial was inserted.

Mr Hahndiek replied that it was in Rule 17 A (5). He explained that Chapter 3 dealt with presiding officers and Members, while Chapter 4 dealt with sittings of the Assembly. Currently, the public access provisions were contained in Chapter 4 and there was a separate provision which covered committee meetings later on.

Ms Killian said her suggestion was that there be a consolidated provision.

The Chairperson said there was space in the rules for incorporating the suggested provision, but he felt Chapter 3 was inappropriate as it dealt with things such as the Member’s oaths.

Chapter 4

Mr Singh said the meeting had started with the issue of Rule 24(a) and that a position should be taken in this regard.

Mr Hahndiek understood that Rule 24(a) was to take the form of the first option.

The Chairperson agreed, saying the Programming Committee would remain be all inclusive, with all parties represented and where consensus could not be reached a weighted vote would be the deadlock-breaking mechanism. This was to ensure that all voices would be heard in a democratic process. The track record of the previous Programming Committees had been good, with consensus generally being reached. He asked if the Members were happy with this option.

Members indicated their general agreement.

Chapter 5

Mr Shivambu said there were two important issues in this chapter. Firstly, as a matter of principle, there should not be a rule which allowed the Sarjeant at Arms to instruct the parliamentary protection services to remove a Member from the Assembly. Reminding the subcommittee that questions of decorum were at issue, he said the Rules should rather provide for the Speaker to instruct a Member to leave, and if the Member ignored this instruction, that s/he then be subjected to a disciplinary process. He did not feel it wise for Parliament to allow for physical altercations. The Protection Services should only be called on where Members physically attacked each other.

Secondly, he was concerned that Rule 54 allowed the Speaker to suspend Members arbitrarily, even extending this to remuneration and benefits. It could not be lawful or constitutional to allow suspension without some form of process. Perhaps the rule should rather provide that the Member would not be recognised in deliberations for the remainder of the session, with a disciplinary process being taken up thereafter. This would give the Member the opportunity to defend himself or herself, in circumstances where it was considered that the Speaker was mistaken in ejecting the Member.

The Chairperson said while there was limited time for a full debate, it was important that views be aired at this meeting.

Mr Singh asked Mr Shivambu what he thought would be the next step after the Speaker has ordered a Member to leave; it would give space for Members to continue being disruptive, and that could not be correct. After non-compliance with an order to withdraw, there must then be escalation.

Mr Shivambu said there should certainly be consequences to refusing to leave the House, but it must be remembered that the Speaker is not always correct. Therefore, alternatives to physical confrontation were preferable, including suspension. He referred to an incident where the Protection Services had been called on to remove Members, which had lead to a physical altercation, and he felt it was unwise to provide for this possibility to be repeated. 

Ms D Dlakude (ANC) said she did not agree with Mr Shivambu. If Members respected each other and the decorum of the House, there would be no need for anyone to be removed from the House. It was precisely due to this lack of respect that there was a need for a provision to physically remove Members from the House, especially with certain Members deliberately disrupting proceedings. She stated that she believed strongly that the Rule must therefore stay as presently stated.

Ms Michael said the DA had proposed the creation of a Parliamentary Guard. This would basically be the present Protection Services, under the Sarjeant at Arms, but with members trained in conflict management to avoid a physical confrontation, She said the DA had, in principle, agreed that no security services should be allowed  in the assembly chamber, unless life was threatened. The Rules Committee had requested guidelines and she assumed that the meetings on 4 and 5 February would include determining the guidelines for a person to be physically removed from the Chamber, specifying by whom, and defining what constituted immediate danger.

Mr Mashile said it would be out of order to create a rule which provides for anarchy in the House. He could not see the difference between the punishment of being ordered to withdraw from the House and a Member being ignored by the Speaker. Proper recourse must be provided in cases where Members acted in an unparliamentary fashion. This would ensure that the proceedings were allowed to flow and that the Chamber was not held to ransom by one Member.

Mr Shivambu wanted to record the EFF’s profound objection to a rule which provided for physical confrontation within the Chamber. His party would never support a rule which allowed physical confrontation as the recourse for mere words, and if necessary would subject the rule “to a different process”.

The Chairperson said  if Members felt aggrieved there was always the possibility of recourse to courts, which would be respected. He pleaded with Members to avoid coming to meetings with closed minds about the motive behind the review of the Rules. The subcommittee was not drafting a rule which encouraged Members to have physical altercations, but was looking at the principle why Members should remain in the Chamber once instructed to leave.

Mr Shivambu interjected, saying that on many occasions there had been “illegal instructions by the Speaker for Members to leave the House”. It could not be that when a Speaker “who in most instances is partisan” instructed Members to leave, that they must blindly comply. He cited the example of the Speaker saying “all Members who are not serious - leave the House”, asking how an MP was to comply with such an instruction. He reiterated that the EFF was opposed to the presence of any physical security in the Chamber, when life was not being threatened.

The Chairperson said the view of the EFF had been recorded. He reminded Mr Shivambu that there was also a majority view, which must also be respected. It would not be democratic to allow an individual to undermine the majority view. Everyone must be accorded the right to speak, but equally the majority had the right to make a decision which binds everyone.

Mr Singh asked to look at Rules 47 and 58, as these were identified as Rules with the options to be proposed.

Mr Hahndiek said the difference between the options for Rule 47 was that the first option allowed the presiding officer a discretion around points of order, while the other ensured that points of order were taken. He suggested the second option was preferable, because there were other methods of dealing with points of order, contained in Rule 70.

Mr Shivambu again raised his second point that he had made earlier, about arbitrary suspensions by the Speaker. He cited the example of a Member of the EFF being refused access to Parliament following a decision of the Speaker, which he felt had been based on a misunderstanding. The Speaker should be asked to prove the basis for his or her decision.

The Chairperson said Mr Shivambu was failing to persuade Members on this point. The particular Member to whom he was referring had been a part of the subcommittee since the previous year.

Mr Shivambu asked the Chairperson to not limit him from speaking, because he would have to go to the EFF caucus and explain the positions taken on the various rules under discussion. If this was done improperly the party would record its position. 

Mr M Booi (ANC) said Mr Shivambu was reading the rules piecemeal, but if they were read as a whole he would see that such a process to engage the Speaker on his or her decision was provided for. A further weakness with the argument presented was that there must be an alternative where a Member engaged in sustained unparliamentary behaviour, which is precisely what occurred in the instance cited by Mr Shivambu.

The Chairperson said the type of scenario which Mr Booi was referring to was one where the Speaker is forced to act by the extreme misconduct of a Member. He noted that Mr Shivambu’s point would be recorded.

Chapter 6

Mr Singh raised the issue of declaration of votes as contained in Rule 81.

The Chairperson said there were two positions. The first was to retain the Rules in their present form. The alternative would be to not require a declaration where a matter had been fully debated in a forum such as a mini-plenary, in which case a time slot would be dedicated for the declaration of vote in the formal Assembly programme. It would then be up to parties to decide which votes touched their priority areas, and then divide their allotted time to these votes. This was to remedy the clumsy and time-consuming procedure at present. Mr Singh had raised the point previously,and he felt it would be best to consolidate the various positions, as a full debate had already been held on this area. He then asked Mr Hahndiek to summarise the basic position.

Mr Hahndiek said the normal position was that declaration of vote would not be allowed immediately after a debate had been held. The second option now included for Rule 81 would entail the possibility of reaching an agreement that, following a mini-plenary session, time would be set aside for declaration of vote. The third option would be to reduce the time for declaration of the vote to a set time per vote, which would also reduce the total time taken for declaration of votes.

Mr Singh said Rule 34(2) must be read with Rule 81. He felt that it was generally agreed that if there was a budget vote in a mini-plenary session, since not all Members of the House were exposed to the debate, when the matter came before the House, declarations were allowed. This was not captured in Rule 34(2), because it currently stated that there should be no further debate or declaration following a mini-plenary. Perhaps this could be remedied by altering Rule 34(2). On the declarations themselves, including bills and budget votes, he felt that having a time limit would not disrupt the House a great deal, because not all the parties used this time for declarations of votes.

Mr Hahndiek said that Rule 34(2) reflected the instructions of the subcommittee, but he heard Mr Singh’s view and felt that it was strong.

Mr Shivambu spoke to Rule 61, saying that it was unnecessary to impose the title ‘honourable’ where Members refer to each other. It would be better merely to use titles such as Mr or Ms. The title "honourable" was a weighty title which implied respect, and that was at times absent. He felt that this was encouraging Members to be “untruthful” and “misrepresent reality”, and it ought not to be captured in a rule.

The Chairperson said the point was noted.

Mr Mashile returned to Rule 34 (2), saying that where a debate has ensued whether declarations were made or not should be a decision of the Programming Committee. The general rule was that where a debate had been held, declarations were not necessary, but he suggested that it would be useful to leave a discretion with the Programming Committee under persuasion from the parties.

The Chairperson noted that Mr W Madisha (ANC) agreed with the suggestion that the Programming Committee have a discretion.

Ms Dlakude said her understanding was that not all mini-plenaries were broadcast on television and Members were concerned about this. Therefore, if a matter was debated, but not broadcast, then a declaration would be appropriate, with a set time being allocated. However, if the debate was broadcast, then a declaration would be a waste of time as the views of the parties had been aired in public.

Mr Shivambu said it would be unwise to take a decision based on the broadcasting facilities of Parliament. He suggested that, rather , a principled decision should be taken for the benefit of the general public and Members. His position was that whether or not a matter was debated in a mini-plenary, broadcast or not, space must be given for declarations when the matter came before the National Assembly. This could be limited to a single declaration per political party, especially for key decisions. Perhaps a debate in a plenary session could alleviate the need for a declaration of vote.

Mr Booi said the basis for the declaration of votes was that not all parties had the capacity that the ANC had, allowing them to be present in all mini-plenary sessions and witnessing all the debates. Even one-man parties should have the opportunity to express their views in the House, as they were elected and had a right to air a view. He felt it important to give an opportunity for views to be expressed and allow other Members an opportunity to reflect on them.

The Chairperson said he was under the impression that the position being taken was that declarations would be allowed, but the Programming Committee would be responsible for allocating a time for this in the programme. Therefore, once the matter had been dealt with in the mini-plenary and was brought to the National Assembly, time would be allocated, proportionally to the various parties, to declare their votes. It would be incorrect to have declarations without having an allotted amount of time, because of the potential inefficiency.

Mr Hahndiek wanted it clarified that the only occasion when time would be allocated proportionately would be for budget votes. For bills, the standard time allocations would apply.

Ms Killian said her understanding was that proportional allocations were the rule for all matters, because it would be incorrect to have equal timeslots for all parties.

The Chairperson said the crux of the issue did lie with the budget votes, and agreed that for bills, standard time was allocated and parties generally did not value that time as highly.

Mr Hahndiek said there was a rule which stated that all Members received a minimum of three minutes. He understood Ms Kilian's point to be that the Programming Committee would decide on time for declarations, regardless of debating time, which was then split proportionally.

The Chairperson said he understood that there would be a global time for declarations, which was split in proportion. It would then be for the parties to determine on which issues they wished to make declarations and use their time accordingly.

Mr Kasper Hahndiek, Consultant to the Subcommittee on the Review of the Rules of the National Assembly, said part of the concern arose from the main budget vote and the adjustments budget vote. He suggested that it would make sense to phrase the rule so that in these instances the Programming Committee determined  the time for declarations, but when bills were considered the standard time limit applied.

The Chairperson said this was what he had intended, and to leave the rule for bills as it was currently.

Ms Dlakude said the time allocation should be proportional for all declarations.

Mr Singh said proportionality could not supplant the minimum three minutes. He added that at the moment, on adjustment budget vote declarations there was an allocation of time for questions when the schedule was put to the Members.

Ms Killian said there was a process for the budget adjustment process, and the ANC wanted to extend this to the main budget process. She picked up on Ms Dlakude’s point on proportionality, saying that with the minimum time slots, if there was no debate then the declarations worked as the ‘great equaliser’. This happened because each opposition party received its time slot, and the ruling party must respond to all the concerns raised within the same time limit (which the ANC believed is unfair). Therefore, having a minimum time slot was fine, as long as there was then a formula which brought in proportionality, to make matters fair for the ruling party.

Mr Shivambu said where there had been a debate and the ANC received a proportional amount of time, then it would not be practical to make the declarations proportionate as well. Declarations of votes were meant to be mere summaries of the reasons for voting in a particular fashion. It was part of the founding constitutional values of multi-party democracy that all parties represented have a voice in Parliament, and it would not be unfair to give the ANC an equal time in the declarations, as this party would in any event have had the opportunity to voice itself during the debate.

Mr Hahndiek understood the problem to lie with collapsing the distinction between debate and declaration of votes, because the latter is really to record the parties’ position on the vote. Therefore, if the ANC was concerned about a need for proportionality its path would be to insist on a vote, which was proportional, and then, under the present proposal, alleviate the need for declarations.

Ms Dlakude said the reason that all parties currently had three minutes was because "the ANC is a caring party”. What the ANC, as the ruling party, was saying was that it was not fair to have equal time when it must respond to several positions, and it would thus need additional time to respond fully. Where there were declarations of votes not on the budget, there would be no need for proportionality.

Mr Booi said that, of late, the opposition tended to be presenting a more unified front and the ANC was at times subjected to attacks. Therefore a proportional time needs to be retained, because the ANC could not be seen as silent where it was being challenged.

Mr P Hahndiek summarised the discussion by saying that there were now two matters that he must attend to. Firstly, he would amend the working of Rule 81(1) to have the standard time decided by the Programming Committee. Secondly, he would now re-draft the rule dealing with budget votes, to clarify that a global time would be set, with parties able to determine how to use their time.

Chapter 7

Mr Shivambu wanted an explanation of ‘unanimous concurrence’ in Rule 97(1)(g). The position which was taken in the Chief Whip’s Forum, and operated on as part of the guidelines, was that there is no need for unanimous concurrence on motions without notice presented in plenary. The House then had the opportunity to reject or adopt a resolution.

The Chairperson reminded the subcommittee that the Chief Whip’s Forum took no binding decisions and was merely a consultative forum where the Chief Whips attempted to persuade each other politically.

Mr Hahndiek said his understanding was that there were guidelines that had been approved on motions without notice, captured in sub-rule (2).

Mr Shivambu reiterated his request for an explanation.

Mr Hahndiek said the guidelines indicated that the motions without notice must be circulated in advance. If there was a response from any party rejecting the motion without notice, there would not be an opportunity to read it out in the House.

Mr Shivambu said the context of the rule was being skewed, because the guidelines stated that there is no need for unanimous concurrence. He warned that if unanimous concurrence was required there would not be any motions without notice in Parliament. He agreed with the circulation of the motions and allowing them to be read in plenary, leaving it to the plenary to determine whether the motion carried or not. This was how Parliament had been operating since the decision taken in the Chief Whip’s Forum, which should not be underestimated.

Mr Mashile said the process for motions without notice ensured that if a motion without notice was adopted, Parliament would in fact act upon it. Therefore, parties ought to agree about the motions to be read in the House. Generally motions without notice were benign, but at times parties included remarks which could be damaging to other parties, and this was where the need for concurrence beforehand arose. It could not be correct for a motion without notice to be read in the House, just for the sake of it being read.       

Ms Killian said the Chief Whip’s Forum was a consultative forum which the Speaker can defer to if s/he so wished and therefore its decisions were not binding. Further, the requirement of unanimous concurrence was in the Rules at present and no outside decision could overrule that fact. Lastly, if the motion without notice did not succeed, nothing would stop individual political parties from acting on the motion in their own capacity, but Parliament could not be ‘hijacked’ for this purpose.

Mr Singh clarified that the decision was not that of the Chief Whip’s Forum, but the House, when it adopted the guidelines on the Rules. He suggested that the issue be taken to the Rules Committee with guidelines on motions, and it was necessary to ensure that the House should not be brought to a standstill, because a party objected to every single motion without notice.

Mr Shivambu said the suspension of the unanimous concurrence rule had come about through the Speaker instructing the Chief Whip’s Forum to discuss motions without notice, which led to the adoptions of the guidelines by the House. He again cautioned that motions without notice would become redundant should there be an insistence on unanimous concurrence.

Ms D Carter (COPE) supported Mr Singh’s suggestion that the guidelines be used before the Rules Committee.

Mr Hahndiek said the first step with motions without notice was for the question to be put to the House whether any Member objected to there being no notice. If there was no objection the motion was then put to the House. The first step was where unanimous concurrence is relevant.

Ms Dlakude said while the guidelines were accepted by the House, this matter was referred to the Rules Committee and therefore it should be dealt with. She encouraged the political parties to at least attempt to find each other, “otherwise it is going to be a long five years”.

Mr Booi agreed with Mr Singh, saying this allowed an opportunity for the parties to apply their minds and attempt to find a common position.

The Chairperson felt Mr Hahndiek’s explanation clarified the issue, because the crux of unanimous concurrence lay in objections to the reading of the motion at all. There would be issues on which there was concurrence, and others where there was not, but this was the nature of the raising of motions without notice.

Ms Killian clarified again that the guidelines did not alter the Rules, because they allowed for the presentation of a motion without notice subject to the unanimous concurrence of all Members. The point of motions without notice was for the House to be able to collectively voice an opinion on unforeseen matters. Furthermore, the steps as outlined by Mr Hahndiek were included in the guidelines, following the requirement to circulate the motion beforehand. She reiterated her statement that the guidelines did not change the rules and Members were not to undermine the process which produced the guidelines.

Mr Shivambu said the process motions without notice, as described by Ms Killian and Mr Hahndiek, was not in fact complied with. What happened in practice was that the circulation of the motion was sufficient to allow it to be read out and decided upon by the House. This process was engendered by the situation where the EFF had decided to object to every motion with notice in the House. The EFF’s suggestion was that the rule should remains as is, except for the requirement of unanimous concurrence, particularly as the parties still had the right to reject the motion.

Chapter 8

The Members indicated their general acceptance.

Chapter 9

The Members indicated their general acceptance.

The Chairperson then asked if the Members were in agreement with Chapters 1- 9 and happy for the draft Report to be presented to the Rules Committee. He reminded the subcommittee that once a decision was  taken by the majority, the decision would be regarded as that of the subcommittee as a whole, although objections may be noted.

Minimum Dress Code
The Chairperson then asked for any input on the dress code issue.

Mr Singh said that a document had been circulated setting out the dress code of the Eastern Cape legislature. The IFP felt that the structure of the rule was too elaborate and contained too much detail, because it could lead to minutiae being brought up. The IFP  believed that Members must dress in accordance with the dignity of the forum and the value they placed on Parliament as the highest law making institution of the country, leaving it to parties to define dignity and decorum.

The Chairperson said minimum standards were the concern rather than the minutiae. Acceptable dress could include traditional dress and formal office wear, with the basis being that whatever was worn should be appropriate to Parliament. The dress should thus reflect each Members' respect for the people who have elected them, them and be something that they were proud to wear, even outside of Parliament. It was important that the decorum of the National Assembly should be preserved so Members ought to dress in a manner which represented the Members’ view of Parliament.

Mr Singh said "the elephant in the room" was whether a hard hat, gumboots or ‘designer overalls’ could be worn in Parliament. If these issues were not discussed then nobody was doing justice to the issue.

Mr Shivambu said Mr Singh was handling the issue correctly. The principle was that Members of Parliament ought to come dressed as they saw fit. If the intention was to restrict the EFF from dressing in a manner of its choice, this should not be done. He said “the EFF will continue to wear overalls and clothes that are worn by the working class”. The EFF believed that any rule which sought to forbid it from doing so would not be lawful. The Chief Justice presided over the swearing-in ceremony in Parliament and there was no issue raised then, because “he appreciated the democratic right of the EFF to wear the clothes it so desires”. The issue for the EFF was not merely one of dress code, but it wanted to make average people aware that Parliament is their platform, where their views could be expressed symbolically. Electoral commitments could not be made simply to be undone. Obvious problems, such as wearing short trousers or sneakers, could be proscribed, but the chosen attire of the EFF should not be subjected to the same process. 

Ms Carter agreed with Mr Singh that the provisions of the Eastern Cape Legislature were unhelpful as it would be difficult to define exactly what "formal attire" was. Since the real problem seemed to be EFF’s dress, it would be unhelpful to stipulate requirements in detail. She felt a clear proposal was required to help the subcommittee move forward. The EFF had indicated that its position was not to change, but it must be decided whether Members were in Parliament merely to look like construction workers, or to in fact stand up and fight for people’s rights.

The Chairperson said the Eastern Cape Legislature's dress code was only an example and it was not a submission by any party. At issue were the minimum standards which would preserve the dignity of the House, eliminating the obvious in discrepancies, but not dictating what ought to be worn.

Mr Booi was concerned that the EFF was attempting to impose itself upon the institution of Parliament. Fundamentally, if there was a position taken by the institution generally, then this must be complied with. Mr Shivambu was misrepresenting the actions of the Chief Justice, because the Chief Justice was aware that, according to the Constitution, he could not prescribe to Parliament what to do with its own Rules. These Rules had to be made by Parliament itself. The ruling party was clear that it would not allow the EFF to impose itself on the institution. The ruling party could equally have imposed itself by rejecting the proposal to debate a secret ballot, but in the spirit of democratic decision-making it did not do so. It was unparliamentary and undemocratic for the EFF to simply take the stance that no one was going to tell it what to do.

Mr Dlakude said some Members wanted to be remembered as dignified, therefore her proposal was to have certain acceptable limits, such as traditional dress and formal wear. She felt it important to, for instance, draw the distinction between Members attending in dress suitable for the making of law, and in dress suitable for social occasions. The real reason that the dress code was being discussed was that dress code had never been at issue before. Parliament could not be seen to be disregarded, because it made law which governed the country. She noted that even criminals who appeared in court dressed appropriately. She questioned why Members who wore overalls in the House went to their offices to change when the House had adjourned. She also noted that hard hats could not be allowed in the house as they were a potential weapon.

Ms Killian said she had drafted a proposal, which she hoped would allow the parties who were agreed on a minimum standard to find each other. She noted that Ms S Kalyan (DA) had submitted a proposal in the Chief Whip’s Forum which had received agreement, and would have liked her input.

The Chairperson said the issue of the dress code had been under discussion in the past and this was not being raised now simply because the EFF has joined the Fifth Parliament. A decision must now be made and proposals must be made to the Rules Committee and eventually to the House, to bring the matter to an end. What constituted the minimum standard was the main issue.

Ms Killian read out her draft as follows: “Members must be dressed elegantly, in such a way as it does not impact negatively on the dignity of the house, nor display disrespect for the Constitution or the people they represent”. The proposal went on to suggest that “Members may not wear clothing or clothing accessories which are revealing, display party emblems or insignia, nor should they wear informal wear such as jeans, shorts...and other items which can be described as informal or casual wear”. She said this could be extended to specifics about male Members such as “male Members may wear traditional clothing or formal wear; shirts with or without a tie and with or without a jacket”. The subcommittee may choose to add in more or less detail.

Mr Shivambu wanted to point out the contradiction between Ms Dlakude. who had said that the reason this Rule was being raised was because of the situation in the Fifth Parliament, and the Chairperson who had stated that the review of the Rules was not something that commenced with or had anything to do with the specifics of the Fifth Parliament, and was not new. He was in agreement with the proposal of Ms Kilian, as long as it would not be interpreted as proscribing the clothes which the EFF had been wearing, because that was something he would not agree to. The position on casual wear was different. He noted that EFF Members had never worn hard hats while in session and pointed out that Mr Bheki Cele, Deputy Minister of Agriculture, Forestry and Fisheries, brought a hat with him to the House. Furthermore, on the point that hard hats could be weapons, he pointed out that even a belt could be used as a weapon, but this was not being proscribed. He emphasised that the attire of the EFF did not disrespect the electorate. He repeated that he generally agreed with the proposal, as long as it did not interfere with the dress of the EFF.

The Chairperson said that Ms Kilian's proposal could be interpreted as banning overalls and gumboots.

Mr Shivambu said that if this was the case, then it could not be accepted and if need be, the question would be “subjected to a different process”.

Ms Carter said in fact Ms Kilian's proposal was not helpful, as it was little more than a summary of the dress code of the Eastern Cape Legislature. Stipulating that Members should dress elegantly and in a manner not disrespectful to the electorate was not helpful, because it was open to different interpretations. She agreed with the formal part of the proposal, but said that then again problems could arise with clothing such as ‘Madiba shirts', as they were untucked and therefore could be classed as informal. She suggested that time be given before the meeting of the Rules Committee to try to draft proposals which might bring the subcommittee closer to consensus.

Mr Singh said Madiba shirts set a precedent in Parliament, because prior to that no untucked shirt would have been acceptable. He reminded the subcommittee that this was an African Parliament and the rules could not be too proscriptive, but broad guidelines are required. When people were invited to functions, the invitation would stipulates the dress to be formal, semi-formal or traditional, and he questioned why Members seemed to understand what that meant outside of Parliament yet had a problem with what it meant inside Parliament. He suggested that the various proposals should be circulated, hopefully enabling the acceptance of a minimum standard in line with the dignity of the House, at the Rules Committee.  

Mr Shivambu said the example of an invitation was a good one. The Members were invited to Parliament by the electorate, and in this case they knew what the EFF was going to wear when they voted them in. This electorate celebrated what the EFF wore by coming dressed in a similar fashion to what was worn in Parliament. It was unnecessary to stipulate what can and cannot be worn by Members, because what was decent or elegant was a subjective decision.

Mr Mashile agreed that proposals should be circulated for Members to apply their minds to the suggestions, with the aim of finding consensus. He pointed out that whilst it was true that the electorate may have voted parties in, they voted them into a collective, and this collective, under the Constitution, had the right to prescribe rules governing the conduct of its business. This was what is being done at present, therefore it would be problematic if a party continued to act in a separatist fashion, because the collective would then be undermined.

Mr Booi said the ANC had made a presentation and its position would not change. The ANC also had its own constituency to represent and the EFF’s constituency was seen as competing with those members of the public. Therefore, the ANC would use its majority to implement what it felt was best for society. He said the EFF’s sweeping statements about representing the working class were incorrect, because there were people who did not feel their dress to be appropriate. If this resulted in the EFF ‘running to court’, so be it, but that threat would not stop the ANC asserting what it felt was correct.

The Chairperson said that, in maintaining the dignity of the House, it was important that all parties be heard, but once all, even the one-man parties, had been heard, they must still accept that the majority was determinative in a democracy. This was tempered by the potential for those who were aggrieved to take court action but this could not stop Parliament from making its rules, which would be adjusted if necessary.  As most parties accepted that there would be no harm with a minimum standard for dress, this should be the starting point for proposals to be considered. Once the decision was taken by the majority of parties in Parliament, then surely this must be enforced universally.

Mr Shivambu reminded the subcommittee that when charges of contempt of Parliament were brought by the Speaker against the EFF, he had warned the Chairperson and Mr Mashile not to waste Parliament's resources on a process which was going to fail due to unconstitutionality. He wanted to repeat this advice, because the proposed proscriptions now suggested would not, in his view, stand the test of the courts.

The Chairperson said the EFF had the right to a view, but the subcommittee has a right to make a decision. He encouraged the parties to exchange their views before the meeting of the Rules Committee.

Proposal for use of secret ballots in the key decisions of Parliament: Briefing by the EFF
Mr Shivambu spoke to the document earlier circulated, entitled "Proposal for use of secret ballots in the key decisions of Parliament" (see attached document). By way of introduction he highlighted that Members were directly elected, although they may come through on a party list. Section 19(3)(a) of the Constitution gave the electorate the right to vote on a secret ballot. Secret ballots were sacrosanct in any democracy. In many instances where there had been open and then secret ballots there had been huge discrepancies between the outcomes. Harvard University did research on hybrid systems, which used an open and then secret ballot, and there had always been differences in outcome. This was because in an open ballot people voted not for themselves, but in line with external pressure from whomever was paying their salaries.

Mr Shivambu continued that as secret ballots had been included as a fundamental principle, this should be extended to public representatives. This would protect their ability to take independent decisions in an anonymous fashion. If this was not done, then public representatives were reduced to ‘voting cattle’ of businesses, lobby groups and their political parties. They may in principle agree with the position, but could not vote for it. There could be no democracy without a secret ballot, particularly as it avoided intimidation. When the President, Speaker and Deputy Speaker were elected this was done through a secret ballot, and by inference section 89 on votes of no confidence should also imply the use of a secret ballot. Where the President, who is relatively powerful in terms of the Constriction, also happened to be the leader of a majority party, and was voted in through a secret ballot, it stood to reason that his or her removal should not be through an open ballot. This would lead to victimisation of Members who voted contrary to their party’s view. Further, there were practical examples where a Member has voted against the party position and sanctioned through disciplinary processes. This was what happened in the case of former Member of Parliament, Mr Ben Turok, who voted against the party position on the Protection of State Information Bill.

Mr Shivambu asked what the purpose was of having thorough debates when the Members were then simply made to toe the party line regardless, as this reduced Parliament to a “talk show”. The essence of debate was to persuade Members of a particular position on a bill or report and then for independent decisions to be made. This was not only a potential threat to the majority party, because opposition Members would also be free to take the majority position if they feel it more appropriate. This would allow Parliament to be a truly democratic institution where superior argument and logic prevailed over party political lines.

Mr Shivambu said the proposed mechanism was for a hybrid system, where, in general, votes would be taken through an open vote, but when 15% of the Members were in favour of a secret ballot, this would then be done. This would allow the persuasiveness of the debate to triumph over party discipline, where the threshold was met.

Discussion
Mr Singh said he was in agreement with the comments on the election and removal of the President, Speaker and Deputy Speaker, pointing out that this was a constitutional provision. and he agreed that it made sense that if these office bearers were elected through a secret ballot they could not be removed in the same way. Perhaps a constitutional amendment would be required to formalise the potential to read in "by secret ballot" to the provision dealing with votes of no confidence. However, he disagreed with the view that while Members may be elected individually, they did so based on party ticket. The electoral system in place in the country required this. Had the system of constituency- based elections been adopted following the Slabbert Commission Report, then the proposal would have been more appropriate, as only the concerns of the constituency would guide Members. However, at present he felt that Members were elected to Parliament in order to follow party views and positions. Parties had not been dogmatic and had in the past allowed free votes, for example on the abortion issue. This, however, would remain a caucus issue, rather than one brought to the House. He asked what would happen in the situation where a Member voted against the party line and there was no way of knowing this. He cited an example of the Hibiscus Coast Municipality, where a vote was conducted 23 times to elect the mayor and other office bearers, precisely because IFP members were voting with the ANC. It would therefore be wrong to have carte blanche secret ballots and Parliament should proceed with caution in deciding in what cases secret ballots were allowed.

Ms Dlakude wanted to clarify that ANC members were not "voting cattle", but were here to represent the views of their parties and push its agenda and policy. It must be remembered that South Africa used a proportional representation system and in the absence of a constituency based system Members were expected to vote along the party line, whether they wanted to or not. Members were in Parliament by virtue of the party. She noted that at the EFF’s national congress, EFF members had been given lists on how to vote, rather than allowing them to vote according to their conscience. The EFF should not suggest that Parliament  be co-opted into doing what was not even done in its own party. She said there is a system in use in Parliament and the ANC did not agree with the secret ballot.

Mr Mashile wanted to remind Mr Shivambu that the Members were in Parliament by virtue of their political party. A debate could be started on the constitutional amendment suggested by Mr Singh, as there was no harm in debate. However, Members could not act as though they were in the National Assembly as free individuals.

Ms Carter said that COPE had always been a need for electoral reform in the country, without going too far into either proportional representation or a constituency system. It was a fact that intimidation did occur in the National Assembly, which she had experienced herself. She differentiated between voting on moral issues and voting on policy issues, because with the latter the party line must be observed. She also agreed that there was a need for a constitutional amendment.

Mr Booi appreciated the points made in the presentation, but said that he did not necessarily agree. This document did not speak to how to divorce Members from their party manifesto and take decisions on individual feelings, rather than the substance of the manifesto. He felt that the procedure for removal of the President was in the Constitution and Mr Shivambu was merely trying to draw an inference. Further, the right of citizens to have a secret ballot did not necessarily extend to Members. In sum, Mr Shivambu had not been able to convince the subcommittee that secret ballots could gel with the electoral system already in place or that the Constitution needed to be changed. He pointed out that the proportional representation system had been the means through which the reconciliatory spirit of the country had been maintained.

Ms Killian differed from Mr Shivambu’s point that Members are directly elected, saying that at present there was an indirect electoral system. Members were directly elected in a constituency based system and in such an instance, despite strict party discipline, Members would have the option to have recourse to their constituencies in order to have a direct mandate on the vote in the House. The present system was indirect, because parties submitted a party list which resulted in Members being elected. Further, every year after the election, parties were allowed to alter the list as they wished without the electorate having any say. Therefore, the mandate was given to the party rather than the individual. This was enhanced by the Constitution which spoke to the fact that the party had the power to deprive a Member of his or her seat by virtue of the Member not being part of the party any longer.

Mr Shivambu said it was a narrow conception of democracy where elections were seen as fully mandating political parties to act on behalf of the electorate for the next five years, without any further influence. It was equally narrow to hold the view that since a Member had come to Parliament by virtue of a party list, the only valid form of influence was that of the party. This would rob the Members from getting input from the public. If this conception of democracy held true in South Africa, then there was no democracy but mere recurrent elections. The reason that parties were directed to be present in particular constituencies was exactly to receive input from and draw influence from the ground.  He disagreed that Members of Parliament were not directly elected, because the electorate was aware of the individuals they are voting into Parliament, rather than merely a party. He was questioned why any majority party should fear a secret ballot on key decisions, unless they feared that their logic was inferior. If the cracking of the party whip was indeed what determined a decision in Parliament, then Parliament was being “reduced to a mockery of a talk show”. He clarified that his proposal was not that secret ballots will be the order of business, but rather that there should be that process available where a sufficient number of Members felt it appropriate. On the interpretation of the Constitution he felt Parliament was within its rights to determine, in its Rules, that secret ballots were an option, even for the removal of the President. Section 89 of the Constitution required a resolution and Parliament would be within its rights to determine how this was measured, including a secret ballot. The proposal was aimed at deepening democracy among public representatives and making Parliament more vibrant by removing the party from decisions about what Members must say and do.

The Chairperson said he was happy that Mr Shivambu understood that democracy was bigger than individuals and once a majority decision was made it would bind universally. Members should not be selective about when they appealed to the principles of democracy.

Mr Shivambu said that democracy operated within a ring-fenced set of rules. For example, regardless of a majority vote for corruption to be legalised, this could clearly not stand. Everything that was passed through Parliament must be within the confines of the Constitution, regardless of a majority vote.

The Chairperson said that democratic decisions were also universally binding. The decisions taken in the present meeting, such as those on the dress code, would bind everyone, even if parties were not happy with certain rules.

Mr P Hahndiek asked whether Mr Shivambu’s submission ought to be inserted as an option.

Mr Shivambu said he would be pleased, and encouraged that it be included as an option.

The Chairperson clarified that it would be the principle, rather than the entire submission, which would be put in as an option.

Mr Mashile said options ought to only be put in where at least some Members were in favour of that option, rather than just an individual view constituting an option.

Mr Singh agreed that it was appropriate for the options to be included and for summaries of the contentious issues to be sent to the Rules Committee, such as the dress code and declarations.  There were more party representatives in the Rules Committee, and their right to be heard on the issue was respected only if they could make informed contributions.

Ms Killian said she had no principled objection to the inclusion of the option, although she had difficulty with the submission as it did not refer to specific rules which were to be amended.

Mr Hahndiek replied that there were specific rules mentioned in the document, under paragraphs 22 and 23. Therefore, there were two options  - either to circulate the entire document or isolate the rules mentioned and how they were to be altered.

The Chairperson said his understanding was that all documents submitted to the subcommittee were circulated generally to the Rules Committee.

Mr Shivambu said that there had been a request for a cogent submission to be made on the use of protection services inside the House, before the meeting of the Rules Committee. The same would be done on the arbitrary powers of the Speaker to suspend Members.

The Chairperson said the subcommittee would then present the document as prepared, on Mr Shivambu’s behalf. If further submissions were to be made, then the Rules Committee could deal with these itself and make the final decision.

Referring back to an earlier point, the Chairperson said that he understood that Members of this subcommittee become Members of the Joint subcommittee to deal with the Joint Rules of Parliament.  He asked the Members to read the document provided on the Joint Rules, so that Members of the National Assembly would be able to express a view. 

The meeting was adjourned.