(Subcommittee) Matters Referred by Rules Committee

Meeting report

The Chairperson opened the meeting and called for apologies.

The Chairperson outlined the agenda for the day, and it was adopted without any changes.

Committee minutes dated 21 April 2023

The minutes were considered page by page and were subsequently adopted without amendment.

Ms S Gwarube (DA) moved to adopt the minutes, and Ms D Dlakude (ANC) seconded.

Matters arising

Mr Perran Hahndiek, NA Table Staff, outlined that the National Assembly (NA) Rules Committee referred four matters to the subcommittee, namely

-draft Rules and Guidelines for Petitions

-a model to follow up on government assurances in the House

-progress with rules related to Money Bills and Related Matters Act (2009)

-draft Rules on House Resolutions

Another matter for the subcommittee to consider is the possible impact of independent members on the rules, in terms of the amendments to the electoral legislation. 

NA Rules Chapter 14 Part 3: Petitions

Mr Nazeem Ismail, Undersecretary to the National Assembly, introduced the proposals. The proposal was an amendment to rule 3 (4) (7), which deals with petitions to bring it in line with the rules of the National Council of Provinces (NCOP) and the broader legislative sector. The rules of parliaments on the continent were also looked at, as well as international parliaments where there was no legal requirement for only a Member to submit a petition on behalf of the public. Currently the rules state a petition must be lodged by a Member with the Secretary for tabling by the Speaker and must be signed by the Member. The proposal is to change the rule 3 (4) (7) as:

1. A petition must be lodged by a member of Parliament or member of the public with the Secretary for approval and tabling by the Speaker and must be signed at the beginning thereof by the member or a member of the public
2. A member of Parliament may not lodge a petition on his or her own behalf but such a petition may be lodged by another member

This proposal for amendment would bring the rule in line with the NCOP rules and those of the broader legislative sector and other parliaments.

Guidelines for petitions

Mr Ismail outlined that the Constitution says everyone has the right to present petitions. Section 56(d) provides that the NA or any of its committees may, amongst others, receive petitions, representations or submissions from any person or institution. While the Constitution does not prescribe any process or procedure on how to deal with petitions, section 57 allows the Assembly to determine and control its internal arrangements, proceedings and procedures and make rules and orders concerning its business with due regard to representative and participatory democracy, accountability, transparency and public involvement.

Assembly Rule 344 provides that petitions submitted to the Assembly must be in the form prescribed by the Speaker in accordance with guidelines determined by the Rules Committee. Rules 345 - 350 regulate the language, signing, lodging, approval by the Speaker, tabling and referral of petitions to committees.

The purpose of the guidelines is to give effect to Rule 344 in order to guide the Assembly in relation to the firm of the petitions submitted to it and lay down general principles for the submission of petitions.

In terms of the formal requirements, a petition must

1. Comply with Assembly Rules 345 – 347
2. Include the names and contact details of the petitioners
3. Be legible
4. Not contain improper or disrespectful language
5. Contain any supporting documents on the issue raised by the petitioner(s)
6. Indicate the nature of the relief (assistance) asked from the Assembly

Substantive Requirements

A petition must -
a) Request action where the House, national government or Minister has the authority to intervene;

b) Not have been considered by the Committee previously, except if that petition, in the opinion of the Committee, contains new information that may materially impact on the outcome of re-consideration of the matter; 

c) Not be in respect to a matter that a petitioner has not yet brought to the attention of a relevant body, or if the petitioner has brought it to the attention of the relevant body, the relevant body has not been afforded reasonable time to consider the matter;

d) Not concern a matter pending in a court of law, tribunal, forum, investigative institution or body contemplated within the Constitution or any other law;

e) Not be in connection with the conviction and sentencing of a person by a criminal court or judgment made by a civil court of law;

f) Not seek to review or overturn the proceedings of judgement of a competent court; and

g) Should not deal with a matter that is already before the Assembly.

Mr Ismail added that Parliament has received a lot of petitions over the years, and committees have complained that most of the petitions could have been handled at the local government level or elsewhere because of their nature. These guidelines will allow for the vetting of petitions to see if they comply with the ambit of the National Assembly. The petition should be seen as a last resort

The guidelines were presented for consideration by the subcommittee. The amended guidelines, it is argued, would assist the NA and petitioners in the petition process.  

Mr John Manyange, NA Table, added that the Speaker's Forum commissioned research into how legislatures dealt with petitions; that was some years ago. What became clear was that there was no standardized approach to either the processes or timelines associated with the various processes within the petition process across the legislature. So on 27 June 2013, the Speaker's Forum adopted the public participation framework for the South African Legislative Sector. Now, this framework provides a generic public participation framework. The public participation framework gave rise to the participation model of Parliament today. And it also provided the petitions for work for the legislative sector. Now, the purpose of the generic petitions framework was to serve as a guideline and provide minimum standards to increase alignment and integration of traditional practices and processes, to sing from the same petitions hymn book, if one could call it that. Now, before the subcommittee today, a draft petitions framework is being proposed, which, besides aligning itself with policies and practices of other legislatures, also seeks to serve as a guideline and minimum standard for the two Houses in order for them to increase alignment and integration of their petition practices and processes. Currently, the Houses are doing their own thing by way of processing petitions and their practices. They will now be expected to look into the current petition process processes and align them as closely as possible to the framework presented today. Now, firstly, this framework deals with the title; it provides the title, and it provides names and terms. The definition of petition is of particular interest in the glossary of terms. The research mentioned earlier also found that legislators defined petitions differently, and it developed a definition for the sector. The definition of the framework presented today comes from the Speaker's Forum. Now the Framework also addresses its goal, objectives and source of authority. It also addresses role players and their activities in the processing of petitions. For instance, we have the Speaker's office, as the office that receives petitions; we have the petitions office, which does not exist currently, which will administratively validate, conduct research, table and refer petitions to committees internally and, when necessary, refer petitions to government departments externally, and also to liaise with petitioners. This is what happens administratively.

The second part of the framework deals with the committee process after the tabling and referral of petitions, and how much time committees will take to conclude their work. It also addresses the period within which committee reports on petitions should be programmed for consideration by the House. The nuts and bolts of this internal administrative output will be contained in the petitions workflow i.e.

standard operating procedures. The framework is very heavy on timelines. Now, in our estimation, and with regard to the proposed timeframes in the framework, the processing of a petition in terms of this framework should not take more than five months. Most of the work is concentrated on committees. And administratively, a petition should leave the desk within seven days for tabling and referral to committees. While the guidelines presented by Dr Ismail prescribe the form and substance of a petition, this framework is about the two Houses looking into their current petition processes and aligning them as closely as possible. The framework is being introduced to the subcommittee with a view to the subcommittee recommending it for adoption by the rules committee before it finds application.

Discussion

Prof A Lotriet (DA) welcomed the proposal. She said it makes sense. Some colleagues have been sitting with petitions for years. She fully supported the proposal. She thought the timelines were reasonable and thought it was high time to have the rules as proposed.

Ms M Lesoma (ANC) also agreed and supported the proposal as presented. However, while she understood the procedure, processes, turnaround time, finalisation, and all that, she asked if this applied to when the petition should be dispensed of by the relevant portfolio committee or in terms of the petition's final destination.

Mr Manyange said Ms Lesoma was correct, although he didn’t hear quite well. However, there are also instances where the validation process and research into petitions revealed that they should have been referred to government departments or may have been dealt with as a court matter. Separation of powers issues also come into play when dealing with petitions, but most of the petitions received end up in relevant committees.

Ms Lesoma agreed and supported the processing and referral to the relevant committees to force a better turnaround time and not create delays if the petition needs to be referred elsewhere.

There should be a way to follow up on the final conclusion of the petition.

Ms Dlakude agreed with the position presented by Ms Lesoma and that the subcommittee accept the proposal that a petitions office with a registrar and support staff be established responsible for administrative processes and research related to petitions and referrals. She further agreed that the resolution of petitions should be 90 days and that in 30 days thereafter, a report should be submitted to the House for a resolution to be generated within seven days.

The Chairperson summarised the matter, and the subcommittee agreed to the proposal for the Rules Committee's attention. He then proceeded to the next matter.

A model to follow up on government assurances in the House

Mr Hahndiek, by way of background, explained that a government assurance is also called an executive undertaking, which are promises made by members of the executive during proceedings of the House, not in committees but in the House itself. Those might arise in question time, in debates, and in Member statements where a Minister will say, we note the Member's concerns and will supply Parliament with whatever information is being requested. So, that category of statements is called Executive undertakings. Over and above what it does already, Parliament can monitor this by Members pursuing it further in committees and in other ways. But there is no formal mechanism by which these Executive undertakings if you like, are documented and referred to whatever structure they need to be referred to. This is in part because procedural issues arise in this respect. So the Oversight and Accountability Model, which discussed this, suggested that a special committee be established to monitor and pursue all government undertakings, and commitments from Ministers from the floor of the House. The NCOP has since created such a committee. So all government assurances made from the floor of the House are recorded and processed by this committee. The NCOP has quite extensive rules about how this committee must support this function.

An alternative model would be for the Speaker, obviously with the support of the staff, to record the undertakings and to refer them to the relevant portfolio committee. So both models - that's the model of a special committee and the model of referring these to portfolio committees - have certain advantages and disadvantages. So a government assurance e.g. the Minister of Health promising to supply the Parliament with certain information, would obviously be of interest to the respective portfolio committee, the Portfolio Committee on Health, for example. These committees also have knowledge of the context in which an undertaking is made. So that would be the advantage of referring them to a portfolio committee. At the same time, portfolio committees, of course, have many, many matters before them, so responses to these undertakings, where such responses are required, might vary a lot from one committee to the next. So, there might be a lack of a standard approach to these efforts, referred to as portfolio committees.

Essentially, the subcommittee is asked to discuss the matter with a view to agreeing or proposing to the Rules Committee which model to use: the model of a special committee or the model of referring these two portfolio committees. Looking at the advantages and disadvantages, it might be better if government assurances were referred to respective portfolio committees. That would then be based on developing rules or guidelines to facilitate that and try to create uniformity in how those committees process them.

Discussion

Prof Lotriet heard what was said about referring assurances to the portfolio committees; however, she was very much aware of the amount of work that committees have. They are sometimes bogged down by legislation, so she worries these resolutions will be lost. She was rather in favour of a specific committee to deal with this so there's proper track record keeping and tracking. She was uncertain whether the committees would actually be able to do it to the full extent that it should be done. Hence, she was in favour of a specific committee.

Ms Lesoma felt the matter was straightforward, but the Sixth Parliament should also be informed by its experience. With a special committee, there might be a quorum problem with those Members taken from other portfolio committees and Members being overstretched. One would also need to think of oversight. However, there could also be challenges referring undertakings to portfolio committees, although they would be relevant to them. She suggested that the subcommittee recommend the relevant portfolio committee to deal with the undertakings.

Ms Dlakude did not support establishing a special committee but rather that the Speaker refer undertakings to the relevant portfolio committees. We know that committees are stretched, but for this purpose, based on the deadline, like those put on petitions, the portfolio committees will be able to deal with this.

Mr Papo said the advantage of referring undertakings to portfolio committees is that they have Members familiar with the issues. It would help if these referrals were mainstreamed into the agenda of the portfolio committee and not left to the Chair's discretion. Rather, make it compulsory for the Minister to account. Gauteng has a system where resolutions from the House and commitments and so on are mainstreamed into portfolio committees, and it has increased the level of accountability by the Executive Council. If Members are drawn into special committees, it can raise problems with availability etc, especially smaller parties. The NA table will also monitor that work with the Office of the House Chair to see that committees actually process these undertakings. This is a “safer” approach, especially given the familiarity of portfolio committees with the issues.

Prof Lotriet said she was persuaded by the suggestion that the NA table assists with ensuring the undertakings are processed. This would satisfy her concern about keeping tabs on whether these undertakings have, in fact, been undertaken.

The Chairperson said by consensus that the subcommittee agrees to take the route of the Speaker referring the matter to a relevant committee with the stringent conditions of committees being compelled to deal with the undertakings and having timelines attached to that.

Progress with rules for the Money Bills and Related Matters Act

The Money Bills and Related Matters Act (2009), a product of Parliament, initiated the legislation. The Act gave effect to section 77(3) of the Constitution, which states that an Act of Parliament must provide for a procedure to amend Money Bills before Parliament. Money bills are unlike all other bills in that there must be a specific law to provide for their passage through Parliament. At

the time, there were rules to facilitate some of the processes in the Act but only up to a point. Certain technical and procedural challenges with the Act at the time were identified. That led to the adoption of an Amendment Act in 2019. Certain elements of the Act require rules, in some cases, to elucidate or clarify certain procedures. Rules were developed on this basis. The rules are quite extensive and detailed – see attached

Mr Hahndiek ran Members through some of the key issues or themes. He said many money and appropriation bills involve a whole range of parliamentary structures. So obviously, the Standing Committee on Appropriations, but also all portfolio committees, have an interest and have a role to play in the appropriation bill because, obviously, the budget votes get referred to them. That also applies to other appropriation bills. So in many ways, these bills are different from other bills, which only involve maybe one committee.  And that's why one of the reasons for a special act is required to govern how these interactions must take place. So, the first element that the rules tried to solve was the manner of consultation and coordination between the different committees during budget proceedings.

The second issue is that of the mode and extent of public participation in budget proceedings. So one of the challenges associated with the budget, and this, again, applies to other money bills as well, is that they must be passed within a certain time. The budget, for example, must be passed within four months after the start of the financial year, which is April, and then it must be passed by the end of July. So that's four months to consider all the different instruments associated with the budget. Because of that, one has to look at timeframes or deadlines for certain structures to do certain things, which would also apply to public participation because public participation must be conducted at different levels at different stages. So in portfolio committees, for example, with respect to different votes, but then again later in the Appropriations Committee and so on. So, the draft rules also try to unpack how that process of public participation can be undertaken. So, the draft rules suggest that the two committees - the Standing Committee on Finance and the Standing Committee on Appropriations – empower these committees to issue directives. So the intention of a directive would be, effectively, a guideline that they would publish whenever a money bill is introduced in Parliament. Now, these directives would basically be more or less generic. So, they would set out what the process of consultation would involve, what the requirements would be, and so on. What would change in each case would be the timeframes. For example, the election year is this year vs. a normal year. So, the directives are trying to clarify the deadlines for different structures to have input into the budget process. The directives could also clarify the form in which representations come from, including how proposed amendments should be set out. Amendments to money bills would also have to be submitted to the relevant Minister before they are tabled in the House. So that's another onerous requirement; it involves timeframes, and that all creates these challenges around money bills. The idea would be that the directives again would try and address, in each case, how these consultations would happen. It would be more or less generic but really to deal with timeframes.

So the rules are designed to assist the Assembly in terms of practicality in how the Act can be fully implemented. There was consultation on the rules with technical teams, the budget office, legal service etc., but there was no political consultation, so this is something for the subcommittee might decide is necessary, both within parties, but also, for example, with the relevant structures i.e. finance and appropriations committees, for their input because they obviously have practical knowledge of these things that perhaps the table does not have. The proposal is that the subcommittee notes and the Rules Committee note but agree that further consultations are unnecessary on the proposed rules and then invite the finance and appropriations committees and maybe any other committee that that may have concerns to make formal comments on the proposal.

Discussion

Ms Lesoma was comfortable noting the proposal and considering further consultation on some of the practical aspects. She noted that some of the processes, almost all of them, are already happening. She agreed to comprehensive consultation, not necessarily political, but with the relevant committees now for the Sixth Parliament, to uncover any gaps.

Prof Lotriet supported the proposal for wider consultation with specific emphasis on the relevant committees working with this.

Ms Dlakude supported the further consultation that is being proposed and that the chairpersons [of the relevant committees] are engaged to provide their proposed amendments to the rules, given their institutional and lived experience with the rules. The draft from the NA table can be given to them. The period to report should be well before the end of the term, which, in terms of the scope, is possible. Those chairpersons with institutional experience from the NCOP and who served in the NA should also be consulted. The proposal should not slow the process down as work should be completed and signed off before the end of the sixth term of Parliament.

The Chairperson said the subcommittee agrees there should be further abbreviated consultations within the relevant committees, with an emphasis on the chairs. But more than that, this matter should be wrapped up when we rise as the NA.

Draft Rules for House Resolutions

Mr Hahndiek explained there are no supporting documents for this item. He outlined House resolutions are those resolutions arising from the decisions of the House, for example, on committee reports, motions and where these are adopted, conveyed to the relevant offices, often to the Executive. This arises from the concern that was expressed in the State Capture Commission, which suggested that the Executive have not always taken account of parliamentary resolutions, and reported thereon and therefore urged Parliament to take steps to try and improve its monitoring of what the Executive is doing in response to resolutions. Many of these arise from committee reports. So based on that proposal from the State Capture Commission, the Table looked at what it could do to improve monitoring. At its last meeting, the Rules Committee agreed to certain principles to follow to regulate both the formulation of House resolutions, how they're crafted, and how they are monitored. These principles are captured by the rules committee reports, which are tabled on the ATC of 29 June 2023. So very briefly, what the principles say is that recommendations emanating from committee reports should be substantiated and specific – it is very difficult for the Executive to respond to a House resolution if it's vague, for example, if it doesn't contain timeframes and so on. After that, the Speaker must maintain a record of resolutions, and, in the event of a delay, in other words, if the Executive doesn't respond within the time given in the resolution, often 60 days or two months, liaise with the LOGB office about that delay. The Rules Committee also agreed that the Speaker should report to the Rules Committee twice a year on the status or responses. The principles also stated that the Executive has an obligation to report to Parliament on measures emanating from resolutions.  This is largely already done, but 60 days would be a generic deadline if no timeframes have been given. The Minister should also be expected to inform the Speaker of delays in responses and provide a time when the full response can then be given. Lastly, the LOGB office must assist in monitoring and submitting an annual report on the status of Executive compliance with parliamentary resolutions to the Speaker. The idea is that this will also be submitted to the Rules Committee on an annual basis.

At the time, the Rules Committee noted that these principles may, in the future, need to take the form of rule amendments or guidelines. At the moment, they are decisions of the rules committee, so they are in force and are being implemented, but they may need to be clarified in future. A mechanism has since been put in place to trial a system to monitor House resolutions, follow up with the LOGB, and so on based on the principles that were agreed upon. But because the system is still quite nascent, the table would recommend that it be implemented further and then assess whether further rules or guidelines are actually needed in future. Because the system is still quite new, the Table suggests it continue to be implemented, and if it is noticed that there needs to be rules or clarity in certain areas, then those rules can be developed.

Discussion

Ms Dlakude said rules or standing orders must respond to factual situations and not be presumptuous about what may or may not happen arising from 29 May. So, this must be put in abeyance for now until the Seventh Parliament.

The Chairperson noted that the subcommittee was not dealing with standing orders but was referring to the issue of the draft rules and matters related to decisions of June 2023.

Ms Lesoma said the House already does this work ordinarily. The Speaker writes to portfolio committee chairpersons for updates on referrals. Committees are also expected to create their own dashboards to track issues and ask the departments for timely updates and progress. There is no cause for alarm now, and she suggested working on what was agreed on. Matters can be reviewed if needed going forward. Committees need to “jack up” their tracking tools. 

Mr H Papo (ANC) suggested the status quo remain with tighter monitoring.

Ms Dlakude supported the two prior speakers.

The Chairperson said the subcommittee agrees to monitor what would have been created on 29 June in terms of the Rules Committee's decisions. The matter still needs to be monitored to see how effective it is. If something is found not to be working, intervention should be initiated.

Prof Lotriet concurred for the record.

Draft standing order to provide for independent representatives in the National Assembly

Mr Hahndiek explained that amendments to the Electoral Act were passed last year, which provides that independent representatives can be elected to the National Assembly. So, the Table thought it was necessary to look at the Rules of the National Assembly to see what impact that might have on them. So to give an example, the rules were drafted on the basis of party politics, not independents. So, in many cases, the rules say political parties must be consulted on various issues, that parties determine who represents them in committees, that parties determine leaves that Members have, and so on. The rules don't talk about independent members. So the Table undertook that assessment and thought that in some cases, independents could be accommodated in terms of the current rules; if there is a read-in provision to say that where the rules talk about political parties, it can also be understood to mean independents.

The Table was not necessarily proposing this but put together a standing order which they thought might help, if not now, then maybe at the beginning of the Seventh Parliament, to clarify some of these elements, e.g. where the rules talk about parties, to now also include that as a reference to independents. This is a relatively unsatisfactory position because there are rules where a read-in provision, i.e. a standing order put forward, would not be sufficient; for example, in the case of the leave policy for Members where, from a practical point of view, the read in provision would not make sense. Many of the rules would have to be reviewed in any case, even if there was a read-in provision. So, although the Table does not necessarily recommend a standing order, they thought it was necessary to put one forward, which may assist if members believe it's necessary now. However, the Table would certainly recommend that at the beginning of the Seventh Parliament, the Rules Committee look at the rules and see what can be done to accommodate independents. Obviously, one doesn't know at that stage what the composition of the Seventh Parliament would look like. However, even if there are no independents because the legislation makes provisions for them, the rules would still have to be updated at that point. If there is a standing order, as an interim measure, subject to that review, the standing order could then be rescinded.

Discussion

Ms P Majodina (ANC) said Parliament does not have independents at the moment, and we’re not even sure whether they will arrive. So it will be premature to even think about them now. She requested the matter be put in abeyance until the seventh term starts. It's only then that one will know.  Yes, there are independents in terms of the electoral reforms, but we can't make a party for someone who has not yet joined the House. So there's no one housewarming party for people who are not there.

Ms Lesoma agreed that the matter be parked somewhere instead of doing it “in case”. She thought the rules should deal with the current material conditions Parliament finds itself in now, not for tomorrow.

Prof Lotriet said that although it is very important to make provision for independents and the possibility of independents, at this point, it might not be the opportune time right now. Let's first see what happens. But at the same time, she said it was a good starting point to already have a draft. Perhaps the table staff could start looking at all the different elements within the rules that could be affected by the inclusion of independents, but for now, she thought the matter should be kept in abeyance, ready for the next parliament to decide on.

Ms S Gwarube (DA) said it would be useful for the Table staff to identify where the wholesale changes would need to be made in the meantime. For instance, the allocation of speaking times, the allocation of members to different committees, and the formulas need to be looked at. It will be important that while this process is ongoing, minds should be applied, whether there are independents or not.  It would showcase that Parliament is preparing for a scenario where they may very well be independent candidates. But she agreed it wouldn't be a good use of time now. But she asked that the staff start to look at where the changes would need to be made.

Mr Papo concurred that the matter should be part of the legacy report handed over to the seventh Parliament so that it can be immediately dealt with when the seventh Parliament comes in. This will show that the Rules Committee did think about the matter.

Ms Tanya Lyons, NA Table, assured the meeting, that this is something that the Table is looking at, in terms of the rules, and will continue to look at it. Some of the items mentioned by Ms Gwarube would also be part of, not necessarily rules, but the determinations by the rules committee at the beginning of a parliament. The table will keep this on its agenda, and not let it fall off the agenda as required.

The Chairperson said the subcommittee was of the view that it was good the Table was being proactive by starting this work. The subcommittee noted that the legislation and the law allow that, for the first time, after the 29th of May, they might or might not have independents. However, the decision of this committee as a recommendation is that it will be presumptuous to make a decision, even a recommendation, now. The matter must be put on abeyance, but there will be no harm for The table staff in the backroom to start doing their own homework on this. The subcommittee said this matter should be part of its legacy report.

Members agreed.

Closing

Mr Hahndiek said a report will be prepared on the deliberations on today's discussions, bearing in mind that the subcommittee does not make decisions on such matters but makes recommendations. In some cases, for example, with petitions, the subcommittee will recommend that certain things be adopted. In other cases, it will be a progress report on what's been done, for example, on the issue of the standing order.

The Chairperson said the subcommittee has done its work as is normal in preparation for the full Rules Committee, where we're going to table this. Some matters will come from the Joint Subcommittee on the Rules that might even be considered in such a rules committee meeting for the NA as a House. For example, it was said this subcommittee does need a quorum, but in the workshop of the joint rules subcommittee, this was problematised to a point where the NA Secretary agreed the matter must be flagged and work will be done on that.  Clarity is needed on the no quorum requirement, as came out of the workshop. 

Meeting adjourned.