National Assembly Rules Committee

NATIONAL ASSEMBLY RULES COMMITTEE

ChairpersonCommittee Secretary

Speaker of the National AssemblyTharina Abell x2262

MINUTES OF PROCEEDINGS

Friday,22 February 2013 (10:00), E249

Chairperson: Speaker of the National Assembly

Present:

Motshekga, M S (Chief Whip of the Majority Party); Watson, A (Chief Whip of the Opposition); Bhoola, R B (MF); De Lange, J H (ANC); Gaum, A H (ANC); Jeffery, J H (ANC); Kalyan, S V (DA); Khunou, N P (ANC); Kilian, J D (Cope); Landers, L T (ANC); Masutha, T M (ANC); Mdakane, M R (ANC); Moloi-Moropa, J C (ANC); Mulder, C P (FF Plus); Oriani-Ambrosini, M G R (IFP); Thibedi, J D (ANC); Kholwane, S E (ANC).

Bikani, F C(ANC, co-opted member)

Sithole, S C N(ANC, co-opted member)

Mashigo, R M(ANC, co-opted member)

Tinto,B (ANC, co-opted member)

Staff in attendance:

M Coetzee, (Secretary to Parliament); M K Mansura (Acting Deputy Secretary to Parliament); M Xaso (Acting Secretary to the NA); M Nel(NA Table) andR January (NA Table).

1.Opening and welcome

The Speaker, as chairperson, opened the meeting at 10:08.

2.Apologies (Agenda item 1)

Apologies were tendered on behalf of Ms N C Mfeketo (Deputy Speaker), House Chairperson Mr C T Frolick, House Chairperson Ms F Hajaig, Mr M Johnson, Mr M I Malale, Ms C C September, Ms P Tshwete, Mr E J Marais, Ms S P Kopane, Mr D A Kganare, Mr N J J van R Koornhof, Mr J H van der Merwe, Mr S Z Ntapane, Mr I S Mfundisi and Mr D D van Rooyen.

3.Consideration of agenda (Agenda item 2)

On the proposal of the Speaker, the agenda, with the addition of the following item, was agreed to:

-Progress report on the Review of Rules

4.Consideration of draft minutes of 7 November 2012 (Agenda item 3)

After a quorum had been attained, the minutes of 7 November 2012were agreed to with the following amendments:

a)That either the word ‘asked’ or ‘requested’ be deleted on page 8, paragraph 3.

b)That the following paragraph be added at the end of the discussion on the presentation by Mr Frolick on the Constitutional Court judgment on Introduction of Private Members’ Bills:

“That Dr Oriani-Ambrosini stated that he was of the view that the proposed rules were legally flawed, repetitive and do not comply with the court ruling, and that he did not support the proposed rules guidelines.”

5.Matters arising (Agenda item 4)

5.1Report of Ad Hoc Committee on Review of Chapter 9 and Associated Institutions

Mr Watson pointed out that it had been agreed that a workshop on the Report of the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions would take place early in 2013. He enquired when this workshop would take place.

Mr Xaso indicated that the week of 24 Marchwas being considered for the workshop, as there would be no sittings during that week.

5.2Use of electronic devices in the Chamber

Ms Khunou reported on behalf of Mr Frolick that the matter would be referred to the Rules review process, adding that Mr Frolick, as convener of the ICT Focus Group, would make a presentation on the matter to the Subcommittee on the Review of Rules.

6.Discussion of measures to make appropriate provision for Motions of No Confidence in the Rules of the National Assembly (Agenda item 5)

Mr Jeffery informed the meeting that the proposal by the ANC consisted of a new chapter in the Rules, to be inserted between the Chapter on Motions and Matters of Public Importance. The proposal also included Motions of No Confidence in the Speaker and Deputy Speaker, as this was also not provided for in the Rules.

The proposal of the ANC was as follows:

1. A member may give notice of a Motion of No Confidence to the Speaker in terms of section 102 and 52(4) of the Constitution and the member may request the Speaker to agree to allow the motion for consideration by the House.
2. Before the Speaker decides on this matter, h/she must take into consideration the factors listed in subrule 3 and must consult with the Leader of Government Business and the Chief Whip of the Majority Party.
3. The Speaker must take into consideration and give due regard to the following factors before making a decision on this matter;

i)The views expressed by the Leader of Government Business and the Chief Whip of the Majority Party with regard to the availability of members of the Executive and the practicality of the accommodation of the motion on the programme of the House;

ii)The constitutional imperative of obtaining and maintaining the proper and appropriate balance between the principle of majoritarianism and the deepening and broadening of multi-party democracy in our country;

iii)The likelihood of the requisite majority being obtained in the House when the motion of no confidence is being voted on;

iv)Whether a similar motion of no confidence or matter with a similar subject matter has been debated recently especially during the present session of the House; and

v)Any other relevant and rational factor the Speaker deems fit.

1. In the event of a Motion of No Confidence being requested against the Speaker of the House, the request shall be addressed and decided upon by the Deputy Speaker of this House.
2. Such a discussion shall not exceed the time allocated for it by the Speaker after consultation with the Leader of Government Business and the Chief Whip of the Majority Party.
3. Questions of privilege may not be discussed in this rule.
4. A Motion of No Confidence is passed by this House if the vote is supported by a majority of its members.
5. Notwithstanding Rule 96, an amendment to a Motion of No Confidence may be moved to express confidence in the subject or subject matter of the motion.

Mr Jeffery explained that the proposal was in line with the current rules which provide for the Chief Whip of the Majority Party to arrange business on the Order Paper, but requests to debate Matters of Public Importance would be lodged with the Speaker. The proposal also provided for factors that must be taken into consideration by the Speaker. He added that the proposal provided for a mechanism to ensure that the programme of Parliament was not flooded with Motions of No Confidence on a weekly basis.

Mr Jeffery also explained that the reason why Rule 96 was taken out of the equation was to ensure that the House was able to express confidence in a person, if it wished to do so. He also informed the meeting that it had been practice to allow amendments to motions. Heemphasised that it was not an unfetteredright to bring a Motion of No Confidence as this could disrupt the programme of Parliament.

Dr Oriani-Ambrosini raised a concern that even though the subcommittee had met for an extensive time on the matter, the proposal of the ANC was completely outside the parameters of what was discussed and proposed in the subcommittee. He requested clarity on the following aspects of the document, namely: Whether the decisions referred to in sub-rules 1 and 2 were in relation to if a Vote of No Confidencewould be allowed or when the Vote of No Confidence would take place. He further mentioned that it was agreed in the subcommittee that it should be allowed at least once every six months.

Dr Oriani-Ambrosini continued to say that it was discussed in the subcommittee that the Speaker should not be placed in a position where he/she should make a potential political decision as this would put him/her and the institution in a difficult position. He also said that he was under the impression that there was consensus in the subcommittee on at least the value of the position of Speaker and that the position should be above party politics.

He raised a concern with regard to the clarity of the guidelines in relation to the Speaker as outlined in paragraph 3(ii) and (v)of the proposal. He raised a further concern about the strain that would be placed on the Speaker and the possibility of an attack on the Speaker by the opposition parties.

Dr Oriani-Ambrosini said that even though it was agreed in the subcommittee that no amendments should be allowed, the proposal states that it may be allowed. He explained that it would mean that a motion that was not given notice of and was not debated would be presented to the House for decision.

Ms Kilian raised a concern about the manner in which the second subcommittee meeting was conducted. She said that there had been agreement on certain issues in the subcommittee, and even though a document along these lines was compiled, a completely new document was presented to the meeting.

Ms Kilian questioned the term majoritarianism used in the proposal versus the use of the phrase multiparty democracy used in the Constitution. She added that the issue of a Motion of No Confidence in the Speaker was discussed in the subcommittee and found it strange that that issue was included in the proposed document.She stated that the irregular practice of changing the meaning of a motion was now being made into a rule, and this was not acceptable to the opposition parties. The proposal by the ANC did not allow for the processing of a Motion of No Confidence, but instead added additional obstacles.

Mr Watson raised a concern that members of the subcommittee were requested to consult their parties on documents that emanated from the subcommittee discussions but that the documents were replaced by a new proposal presented to the meeting. He said that the proposal reflects the position that the Chief Whip of the Majority Party had expressed in his press statement when he resisted the scheduling of a Motion of No Confidence in 2012.

Mr Watson said that the instruction issued by the court was to give effect to the Constitution by providing rules to enable members to bring a Motion of No Confidence before the House. In his view, the document presented by the ANC created obstacles and did not adhere to the constitutional provision.

Mr Watson further stated that the meeting was not informed about the status of the document, as it did not reflect any of the discussions that had taken place within the subcommittee. He questioned whether the document had addressed the specifics of the court judgment. He raised a concern that there was no role for the Programme Committee reflected in the proposal and that the proposal did not provide for a deadlock breaking mechanism. He mentioned that the motion by Mr Dandala was not dealt with in terms of the rules and could therefore not be used as a precedent.

Mr Jeffery responded that the subcommittee did not take any decisions and did not reach any agreements. He said that it has always been his position that the Speaker should decide, that it was not an unfettered right to discuss a Motion of No Confidence and that the Speaker already has similar powers to decide on Matters of Public Importance.

Mr Jeffery added that the principle of majoritarianism was taken from the Constitution and that the inclusion of a Motion of No Confidence in the Speaker in the proposal was purely to fill an existing omission within the Rules.

Adv De Lange pointed out that the court judgment required that a procedure should be put in place. He further said that the subcommittee was not a decision making structure and that if agreement could not be reached, options should be brought to the principal body. He explained that the Chief Whip of the Majority Party would, in consultation with the Leader of Government Business, manage the programme of the Assembly. He said that the ANC was not in favour of timeframes.

Adv De Lange also stated that if parties were not satisfied with a decision made by the Speaker, the test of rationality could be brought before the court.

Dr Mulder said that, if the proposal was to assist the opposition parties as stated by the ANC, opposition parties should be part of the consultation process in the scheduling of Motions of No Confidence. The proposal only reflects consultation with majority party stakeholders. He also said that the principle of majoritarianism was correct, but that was why the majority party could defeat the motion at the end with their numbers, but should not use their strength to stop the opposition parties from debating the motion.

Mr Watson presented the following proposal on behalf of the ACDP, Azapo, Cope, DA, FF Plus, IFP, UCDP and UDM:

Rule 102A(for insertion at the end of Chapter Seven)

(a)Any member may, subject to the rules, move a motion of no confidence in the President or the Cabinet as contemplated in section 102 of the Constitution;

(b)the member must give notice of the motion in the House and deliver a signed copy to the Table for placing on the Order Paper;

(c)the Speaker must schedule such a motion for consideration within seven sitting days of the notice appearing on the Order Paper, provided that the motion comes before the House within one month;

(d)motions of no confidence are subject to the provisions of Rule 95(2) , unless it is proven urgent with the support of one third of the members of the House;

(e)At the request of the member in charge, a motion of no confidence must be decided by secret ballot.

Or

(e)At the request of the member in charge and with the concurrence of one third of members, a motion of no confidence must be decided by secret ballot.

Mr Watson also stated that the views of all parties in the subcommittee were taken into consideration and included in the proposal.

Dr Oriani-Ambrosini reiterated that the proposal by the opposition parties was based on the subcommittee discussions. He said that, because the President is elected by secret ballot, the option of a secret ballot on a Motion of No Confidence should be included in the rules. He further said that if the Constitution was silent about a secret ballot, that should not exclude it from becoming a procedure of the House. The Constitution is completely silent about the procedure to follow when considering a Motion of No Confidence.He stated that the procedure to be followed falls under the provision of section 57 of the Constitution and that the President is appointed by secret ballot and should therefore be dismissed by secret ballot.

Dr Oriani-Ambrosini agreed that the right of the opposition parties to bring a Motion of No Confidence is not an unfettered right or an absolute right, hence the proposal that states a third of the House should agree that such a motion can be brought before the House once every six months. He also said that it was agreed that the Speaker should make the decision on scheduling, but without the prescripts which enable parties to pressurise him/her. He also said that the opposition parties’ proposal placed a decision making power on the Speaker regarding when the motion would be scheduled and not whether it should be scheduled.

Ms Kilian pointed out that at the previous NARC meeting the Parliamentary Law Advisers highlighted the following from the Constitutional Court ruling: “that the competence of the Assembly to make rules in terms of section 57 of the Constitution did not entitle it to impose substantive or content-based limits on the exercise of the constitutional powers of its members, but rather contemplated rules that were procedural in nature.”

Ms Kilian said that the rules should therefore be procedural in nature and should provide for mechanisms without adding hurdles. She also raised a concern that the possibility of raising a matter as a matter of Urgent Public Importance was not brought to the subcommittee, the structure that was formally charged with the discussion of the issue.

Adv Gaum said that it was not an unfettered right to move a Motion of No Confidence, as it seemed to be the opinion of some of the opposition parties. He added that the consultation process as outlined in the ANC’s proposal was included due to the specific roles that the Chief Whip of the Majority Party and the Leader of Government Business play, and that the proposal states that the Speaker’s decision should be taken after consultation and not in consultation with the different role-players. He also said that because the use of a secret ballot is not required by the Constitution a Motion of No Confidence should not be decided in this manner.

The Chief Whip of the Majority Party said that there seemed to be consensus regarding the position that the Speaker should make the decision on a Motion of No Confidence, however, to place time limits on his/her decision making abilities would not be acceptable. Placing time limits on the decision shows a lack of confidence in the person holding the position of Speaker. He pointed out that the proposed guidelines and criteria were provided to create certainty about how a decision was reached.

Mr Jeffery mentioned that the proposal by the opposition parties placed restrictions on the number of Motions of No Confidence. He raised a concern that, if the first motion of the session was moved towards the end of that session when the programme would becongested and very limited time was available, it would put a strain on the programme of the Assembly. He said that a secret ballot would not be in the interest of transparency and, in any case, was not required by the Constitution.

Mr Jeffery explained that the consultation with the Leader of Government Business was not a veto power, but to ensure the availability of the Executive. He further explained that the consultation with the Chief Whip of the Majority Party would be to ensure the availability of time within the programme of the Assembly, adding that if consultation with the opposition parties was requested it could be considered as an addition.