Powers, Privileges and Immunities of Parliament Amendment Bill: consideration

Meeting report

Opening remarks
The Chairperson welcomed everyone and read out the names of the Members who had sent apologies, which the Committee had no choice but to accept. The agenda was adopted, and the Chairperson informed the meeting that he would run through as quickly as possible so as not to lose the quorum. He knew that Members were extremely busy with meetings that day.

Outstanding Minutes
The Chairperson moved straight to the minutes of 24 January 2018.

Ms Kilian proposed the adoption of the minutes as the meeting of 2 May 2018 had gone through the minutes and suggested amendments, but the meeting was not quorate and therefore could not adopt the minutes. The Committee adopted the minutes of 24 January 2018.

The minutes of 2 May 2018 were presented, and the Committee took time to read the minutes.

Ms Kilian proposed that the Committee Secretary reword the discussion about the amount set for a fine under ‘Matters Arising’ as the phrase was confusing.

Ms Kilian also requested that the Legal Advisor, Ms Kassen, provide the correct wording for ‘Point 6. Matters arising’ as she had proposed the amended wording for the Bill.

Ms Kassen suggested that minor adjustments be made so that it read more accurately. Referring to ‘Matters Arising (i) and (ii)’, Ms Kassen suggested amendments as follows: (i) whether it is necessary to include in the Act the amount of the fine relating to the penalties; (ii) why Section 14 subsection 2 of the Act was not applicable to the provinces in Section 28.

The Committee approved the amendments and adopted the minutes.

Ms Kilian asked about the implications of there not being a quorum at the previous meeting. Was it procedurally acceptable for the Committee to adopt the minutes as a true reflection, not withstanding that there had not been a quorum. How did the Committee get around that issue?

Mr Victor Ngaleka, Procedural Advisor, Parliament, informed the Committee that the numbers at the meeting of 2 May 2018 had not constituted a decision-making quorum but had been sufficient for a discussion quorum.

Ms Kilian thanked him and asked that it be reflected in the minutes.

Under matters arising, Ms Kassen informed the Chairperson that she had been tasked to make certain changes to the Bill, which she had done.

The Chairperson informed her that the Committee would address those amendments as it went through the Bill clause by clause.

Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill
The Chairperson informed the Members that he would go through the Bill clause by clause. He would ask for a proposer and seconder for each clause so that the Bill could be approved by the Committee clause by clause. He asked Ms Kassen to take him through the Bill and indicate where she had made adjustments.

Preamble
Ms Kilian suggested that the preamble had been fully discussed and proposed adoption. She noted that it was very important to ‘dot every i and cross every t’ as the technical and grammatical errors in the Act was one of the reasons for the Amendment to the Act.

Ms Kassen stated that, in the second line of the first paragraph, she had changed the citation of the case to a neutral citation: [2016] ZACC 8. The next change was in line 4 where the words ‘only subject’ were changed to ‘is subject only’.

Ms Kilian explained that the changes had been discussed in the previous meeting and proposed adoption.

The Committee adopted the Preamble.

Clause 1
Ms Kassen explained that Clause 1 was an amendment to Section 1 of the Act which changed the definition of disturbance to exclude an act committed by a member in the exercise of his or her privilege contemplated in Section 58(1) and 71(1) of the Constitution.

Clause 1 was adopted.

Clauses 2 - 8
Ms Kilian informed the Committee that Clauses 2 to 8 had been considered in the previous meeting and there had been no further changes proposed.

Each clause was separately proposed, seconded and adopted.

Clause 9
Ms Kassen stated that she had been instructed to make a change to Clause 9(b). In the new paragraph (g), the words ‘of a provincial legislature or the province’s permanent delegate to the National Council Of Provinces’ to make it clear which Member was being referred to in terms of Section 117(1) of the Constitution.

Clause 9 was adopted.

Clause 10
Ms Kassen informed the Committee that a word in Clause 10 had been incorrectly punctuated: legislatures’ had been changed to read: legislature’s.

Clause 10 was adopted.

The Chairperson explained to Members who had not attended the previous meeting that the Committee had discussed the Bill and had then asked the legal advisor to check that there was legal compliance, so the Members should stop him at any stage, if they wished to do so.

Clauses 11- 14
No changes had been made. The Committee adopted Clauses 11 to 14.

Memorandum on the Bill
Ms Kassen stated that in paragraph 1.2, in line 2, she had corrected the citation of the judgement by including the neutral citation.

The Chairperson asked her to elaborate on what she had done.

Ms Kassen explained that after the reference to the case in the Constitutional Court, she had included the neutral citation: [2016] ZACC 8. She had done the same in paragraph 3.3 and had included the citation: [2016] ZACC 8.

The Chairperson noted that it was a technical matter not dependent on the Committee’s input.

In paragraph 3.9, in the third line, Ms Kassen had included the words ‘a member of a provincial legislature or the province’s permanent delegate to the National Council Of Provinces in the exercise of his or her privilege contemplated in section 117(1) of the Constitution when being applied to provincial legislatures’. The intention was to align the paragraph to the change made by the Committee in the Bill.
In paragraph 6.1, Ms Kassen had included that the Committee had published a draft Bill for comment on 23 February 2018 in Government Gazette No. 41456 and considered and deliberated on the submission received.

Those were all the changes that Ms Kassen had made in her capacity as legal advisor.

The Chairperson said that the Members had done the necessary to their satisfaction. He asked whether any of the Members wished to comment.

Mr R Tesli (ANC) noted that the Committee had only started inserting provincial legislature from Clause 10 in the Amendments. What were the implications and what did it mean? His take was that anywhere that the Bill spoke of Parliament, the provincial legislature would just come in, but there were instances where there had been specific reference to provincial legislatures.

Ms Kilian responded that the Committee’s understanding was that the principal Act covered everything in respect of Parliament and provincial legislatures and that it was only in respect of clarifying Members that they had wanted to expand and to include Members in the National Council of Provinces and provincial legislatures.

The Chairperson stated that the Committee had gone through the whole Bill, paragraph by paragraph and Members were in agreement. Could that be recorded as the agreement of the Committee?
Dr Lotriet agreed that it could be recorded that the Committee had gone through the Bill clause by clause but when the Bill was put to the Committee in its totality, she would have to reserve her party’s support as she first had to get the party’s mandate before she could support it.

The Chairperson noted that that was an acceptable position for parties in opposition in Parliament. He put it to the Committee that the Bill be adopted.

Ms Kilian stated that she proposed the adoption of the Bill and asked that Mr N Matiase (EFF) seconded the proposal.

Mr Matiase said that he seconded. He noted that Dr Lotriet had made inputs in the Bill and had agreed to the clauses in the Bill, so he thought that she should be committing to the spirit in which the Bill had been discussed and proposals had been carried. It was a Bill that sought to regulate Members’ behaviour and to regulate that which was lawful and unlawful and what could be said in relation to free speech. For some, that principle was guaranteed and there was no attempt to stop them from speaking.

The Chairperson stated that Mr Matiase’s comments had been recorded. He accepted that Ms Kilian had proposed the adoption of the Bill and that Mr Matiase had seconded her proposal. He asked if there was a counter-motion.

Dr Lotriet indicated that she did not have a counter motion but that she could not support the Bill in total until her caucus had given her a full mandate. The Democratic Alliance would debate the Bill and decide whether to approve the Bill.

The Chairperson understood Dr Lotriet’s position and wished to express his appreciation for her full participation in the proceedings and that the Committee had really acted as a Committee of Parliament and had not brought party squabbles in a matter of public interest. He asked for hands in favour. The Chairperson noted that six Members were in favour of adopting the Bill. The Bill was duly adopted and would be debated in the House. He noted that a report was necessary.

Ms Kassen noted that the Table staff would normally discuss process, but she recapped what the Committee had done in relation to a Committee Bill. There had been a resolution in the House that a Committee be established to draft the Bill. Because of that resolution in the House, it had not been necessary to approach the House for permission to do a Committee Bill, which was required in terms of Section 273 of the National Assembly Rules. The Committee had to prepare a draft Bill, which it had done. It had to consult the Joint Tagging Mechanism (JTM) for advice in terms of Section 274 (1)(b) of the Rules, which had been done in terms of the initial draft, and then comply with publication of the Bill, which had also been done in terms of Rule 275.

After adoption and before introducing the Bill, the Committee had to consult the Joint Tagging Mechanism for classification of the draft Bill as it was to be introduced, which was the next step. A certification of compliance from the Chief Legal Advisor, would be prepared by her office. Process Table staff would then do the report required.

For introduction in the House, the Bill together with the documents mentioned had to be sent to the Speaker’s Office for tabling and once it had been introduced, it would receive a Bill number and would form part of the House’s programme. It did not come back to the Committee. Once it had been introduced, the Bill immediately became a second reading and from there it would go straight to the Committee in the NCOP.

Mr E Buthelezi (IFP) was agreeable with all the processes that had been followed but he had a concern about the issue of public participation that had not been up to what the Committee had expected. Could that have any legal implications?

Ms Kassen stated that in terms of the Constitution, Committees had to involve the public in its legislation and in its processes. The Committee had facilitated public involvement by calling for public submissions. It had also distributed the Bill internally in Parliament. She had personally shared the Bill with fellow legal advisors in Parliament and in the provinces. Some responses had been received from the latter processes but there had been only one submission from the public.

In the Doctors for Life case, the Constitutional Court had said that there was an obligation for Parliament to involve the public but how Parliament involved public was at Parliament’s discretion as long as Parliament had fulfilled its duty and obligations. It was not necessary to hold public hearings, but the Committee could have done so if there had been more submissions. The Committee had published the Bill in the Government Gazette for four weeks, which was longer than the obligatory minimum of three weeks. Only one submission had been received but she was of the opinion that the Committee had fulfilled its obligation to involve the public.

In the Doctors for Life court case, the Court had stated that Parliament had to take reasonable measures, dependant on the nature of the Bill. In the previous meeting, there had been a discussion about participation and Members had suggested that because it involved Members, the Bill had not attracted public interest. However, her legal opinion was that the Committee had fulfilled its obligation.

The Chairperson concurred that the Committee had done everything necessary. What had been done would suffice by all reasonable standards. He asked if any Member disagreed. Everyone concurred.

Mr Buthelezi thanked the Chairperson. He was clear about the matter.

Closing remarks

Ms Kilian asked the Chairperson to conclude the meeting as Members had to attend other meetings.

The Chairperson stated that it was agreed that the Committee would have to meet to adopt the report and date would be set through consultation with Members. He thanked Members for their commitment to serve the South African public.

The meeting was adjourned.