Judicial Matters Amendment Bill & Customary Marriages Amendment Bill: briefing; with Deputy Minister

Meeting report

The Chairperson said that the Committee would receive presentations on the Judicial Matters Amendment Bill [B 13-2019] and the Recognition of Customary Marriages Amendment Bill [B 12-2019].

He welcomed Mr John Jeffrey, Deputy Minister of Justice and Constitutional Development (DJCD), and the delegation from the Department.

Deputy Minister Jeffrey explained that both Bills were intended to give effect to Constitutional Court judgments.

Mr Lawrence Bassett, Chief Director: Legislative Development, DJCD, said that the Constitutional Court had been quite specific on what it wanted, and the Department had not had much room to manoeuvre.

Judicial Matters Amendment Bill

Ms Virginia Letswalo, DJCD, explained that the primary aim of the Judicial Matters Amendment Bill was to amend the Divorce Act, 1979 and the National Prosecuting Authority Act, 1998, to give effect to judgments of the Constitutional Court.

In the case of the Divorce Act, the Constitutional Court had found that Section 7(3) discriminated against women married out of community of property under the Transkei Marriage Act insofar as it excluded them from the benefits of a just transfer of assets on divorce. The Amendment Bill sought to extend the protections of Section 7(3) to persons married out of community of property under the Transkei Marriage Act, and also under any other law. The deadline for the Bill was 22 October 2020.

In the case of the National Prosecuting Authority Act, the Constitutional Court had found that Section 12(4), which empowers the President to extend the term of office of a National Director of Public Prosecutions (NDPP) or Deputy National Director of Public Prosecutions (DNDPP) beyond the age of 65, and Section 12(6), which empowers the President to suspend a NDPP or DNDPP for an indefinite period without pay, compromised the independence of the NDPP. The Amendment Bill sought to remove Section 12(4), and to provide that the period of suspension should not exceed 12 months, and that an official should be entitled to his/her full salary while suspended. The deadline for the Bill was 12 February 2020.

Mr Bassett said that the Bills departed from the recommendations of the Constitutional Court in one respect only. Whereas the Constitutional Court had recommended that the period of suspension should not exceed six months, the Department thought that this was too short and therefore impractical.

Deputy Minister Jeffrey clarified that the Constitutional Court order had said that the period of suspension should not exceed 12 months, but that the interim order had indicated a period of six months. He said that the Recognition of Customary Marriages Amendment Bill had been written without specific reference to the Transkei Marriage Act, to allow for the possibility that there might be other pre-1994 legislation which discriminated in the same way.

Discussion

Mr S Swart (ACDP) understood that a six month limit on suspensions might be impractical, but had the Constitutional Court not given reasons for why it had ordered a six month limit?

Deputy Minister Jeffrey clarified that the Constitutional Court had only ruled that an indefinite period of suspension was unconstitutional, and that it could not be more than 12 months. He did not know why it had chosen six months for the interim order, and he did not think there had been much reasoning about it.

Adv G Breytenbach (DA) also wanted to know about the reasoning for the six month period. She understood the practical motivation for a longer suspension period, but extended disciplinary processes should not be encouraged.

Deputy Minister Jeffrey understood the concern. He said that the longer period was intended to avoid creating situations where dismissals could not be processed quickly enough, allowing suspended officials to return to work.
           
Mr Swart wondered how likely it was that the 12 February 2020 deadline for passing the Judicial Matters Amendment Bill would be met. If it was not going to be met, would the Department apply to the Constitutional Court for an extension?

Deputy Minister Jeffrey replied that an application to extend the deadline had been submitted for both Bills.

Mr Bassett added that if the legislation was not passed by the deadline, the interim order would become final. The application to extend the deadline was at an advanced stage. Counsel had been appointed and an affidavit was expected to be signed off within the next week.

The Chairperson asked the Department to provide regular updates on this matter, as it had an impact on the Parliamentary programme.

Mr Swart suggested that the Department obtain an affidavit from the Speaker of the National Assembly that could guide the Court when it considered the application to extend the deadline. Generally, meeting deadlines set by the judiciary seemed to be a regular problem. What guided the judiciary when it set deadlines? The Committee should engage with the Chief Justice when it had a chance.

The Chairperson agreed.

Mr Bassett said that the affidavits for both Bills explained the work of the executive and Parliament in detail, and noted the impact of elections on the speed of passing legislation. Bringing a Bill to Parliament was a lengthy and complicated process, with many opportunities for delays. The Department had only had 18 months to process the Judicial Matters Amendment Bill, and it was becoming increasingly difficult to rectify legislation even within the normal 24 month period.

Mr Swart asked for a copy of the affidavits.

The Chairperson observed that the Recognition of Customary Marriages Amendment Bill still needed to go to the National House of Traditional Leaders.

Mr Bassett replied that it had already been sent to the National House of Traditional Leaders, and comments had been received.

Mr X Nqola (ANC) asked if the Transkei Marriages Act had been wholly repealed.

Deputy Minister Jeffrey replied that it had not been repealed.

Mr Nqola said that the amendments to Section 7 of the Divorce Act were a step in the right direction. He also noted, with regard to the proposed amendments to the National Prosecuting Authority Act, that there was no retrospective application of law.

Ms J Mofokeng (ANC) asked if the Department had made any comments on the Bill. The Government Gazette of 20 April 2018 had invited various stakeholders, including the Departments of Women, Cooperative Governance and Arts and Culture to comment on the Bill. Had these stakeholders made any comments?

Deputy Minister Jeffrey replied that this concerned the Recognition of Customary Marriages Amendment Bill, which would be dealt with in the next presentation.

Recognition of Customary Marriages Amendment Bill

Mr Makubela Mokulubete, DJCD, said that the primary aim of the Recognition of Customary Marriages Amendment Bill was to amend Sections 7(1) and 7(2) of the Recognition of Customary Marriages Act, 1998, which the Constitutional Court had found to be constitutionally invalid. The Bill also amended the definition of “traditional leader” in Section 1 of the Act, to be in line with the Traditional and Khoi-San Leadership Act, 2019.

The Constitutional Court had found that Section 7(1) discriminated against women in polygamous marriages entered into before the Act was passed insofar as it provided that the proprietary consequences of such marriages continued to be governed by customary law, according to which wives had no right of ownership and control over marital property. The Bill sought to provide the spouses in such marriages with joint and equal rights over marital property. Section 7(2) was amended to remove the distinction made between monogamous customary marriages entered into before and after the Act was passed, with the effect that all such marriages are in community of profit and loss unless it was specifically determined otherwise by means of an antenuptial contract.

A wide range of stakeholders had been approached for comments on the Bill when it was gazetted on 20 April 2018. The deadline for the Bill was 30 November 2019. If the deadline was not met, the interim order would become final.

Discussion

Adv Breytenbach asked to see the submissions of the stakeholders.

Ms Mofokeng also wanted to see the submissions, particularly from the Department of Home Affairs (DHA).

Mr Bassett said that the comments could be made available. He did not think that the DHA had made any comments.

Adv Breytenbach asked why the Bill seemed to consider only cases where a man had many wives, and not cases where a woman had many husbands.

Mr N Kwankwa (UDM) also wondered why polyandry was not considered by the Bill.

Deputy Minister Jeffrey was not aware of any customary law in South Africa providing for polyandry.

Mr Swart asked what the role of the state had been in the Constitutional Court litigation. The state appeared not to have played any role, according to the judgments.

Deputy Minister Jeffrey said the state had agreed that the relevant sections were unconstitutional, so it had not needed to defend anything.

Mr Swart said it was unlikely that the 30 November 2019 deadline would be met. Could the Department confirm that there had been an application for an extension?

Deputy Minister Jeffrey said that the deadline would not be met. The Department was working with Parliament to arrange the extension.

Mr Bassett confirmed that the application for an extension had been submitted to the Constitutional Court.

Mr Kwankwa wanted to deal with some of the more problematic areas of the Act -- for example, the definition of when lobola had been agreed to, and its relation to traditional engagement. There was a lot of confusion. In addition, anyone could go to court and claim they were married according to customary law, and the court would have to entertain the case. There was also a lack of consistency between different courts on matters of customary marriage.

Deputy Minister Jeffrey said it was not well understood among the public, and even in the National Assembly, that the current Bill dealt only with specific sections of the Act. He agreed that some other parts of the Act might need to be looked at, but these were not part of the current discussion.

Committee matters

The Chairperson asked the Department to update the Committee regularly so that it could rearrange its programme. He said that the Committee programme still needed to be updated to reflect its decision from the previous week to give Adv Jiba until 7 November to make representations to Parliament as to why she should be restored to office as Deputy National Director of Public Prosecutions

Adv Breytenbach was concerned that the Committee schedule would not be sufficient to get through its work.

The Chairperson agreed. This matter should be included as part of the Committee’s strategic plan for 2020.

Mr Nqola asked if the discussion on the removal of Adv Jiba was going ahead on 6 November.

The Chairperson confirmed that it was. However, he was worried that it was going to be a waste of time, because Adv Jiba had been given until 7 November.

Mr W Horn (DA) was concerned about the meetings scheduled for the 12 and 13 November interviews regarding the Deputy Public Protector. He noted that there were also questions to the Minister in the afternoon of 13 November. Had invitations been sent out?

The Chairperson said that the adoption of the report on the interviews regarding the Deputy Public Protector would be a quick process. He suggested that the Committee need not attend the House on 20 and 21 November, and it could include a discussion on Adv Jiba then. 3 December had also been suggested, but he was concerned that a long, technical submission could be made and the Committee would run out of time before the end of the year.

Mr Horn said that a letter from Adv Mrwebi had been circulated. It should be dealt with as soon as possible.

The Chairperson asked Members to give preliminary views on the letter.

Mr Horn said that the Committee should not accede to the request in the letter. Adv Mrwebi had had an opportunity and had not taken it. The Committee was not obliged to give him another chance.

Mr Swart agreed with Mr Horn. The issues raised by Adv Mrwebi would be dealt with when Adv Jiba came to the Committee.

The Chairperson said the matter would be discussed formally on 20 November.

Ms W Newhoudt-Druchen (ANC) asked for a template of the court rulings the Committee needed to attend to, including deadlines.

The Chairperson said that the next meeting would be the following week.

The meeting was adjourned.