Thank you, Chairperson, The Recognition of Customary Marriages Amendment Bill, was referred to Select Committee on Security and Justice on 09 June [Inaudible.] The committee has agreed to the Bill with amendments. The recognition of Customary Marriages Amendment Bill aims to amend the Recognition of Customary Marriages Act, 1998 by further regulating the proprietary consequences of customary marriages entered into before the commencement of the Recognition of Customary Marriages Act, RCMA in order to bring the provisions of
the Act in line with the judgments of the Constitutional Court which the court found to be constitutionally invalid because they discriminate unfairly against certain women in customary marriages.
The Constitutional Court, in Ramuhovhi and Others versus the President held that section 7(1) of the RCMA inconsistent with the Constitution because it discriminates unfairly against women in polygamous customary marriages which were entered into before the commencement of the Act on the basis of gender, race and ethnic or social origin.
Currently, section 7(1) of the RCMA provides that the proprietary consequences of a customary marriage entered into before the commencement of the Act continues to be governed by customary law. This, in effect means that such wives have no right of ownership and control of marital property and that the right of ownership and control of marital property is the sole preserve of the husband. This was found to be the case particularly in Venda Customary Law.
The Constitutional Court suspended the declaration of constitutional invalidity for 24 months to afford Parliament an opportunity to enact remedial legislation, that is before 30 November 2019. However, the suspension of the declaration of the invalidity was accompanied by an order for interim relief that would continue to apply should Parliament fail to correct the defect by the time set.
Clause 2 of the Bill amends section 7(2) of the RCMA in line with the judgment in Gumede versus President of the Republic of South Africa, in which section 7(2) was declared constitutionally invalid because the section made only customary marriages entered into after the commencement of the RCMA where a spouse is not a partner to any other existing customary marriage to be a marriage in community of property.
The effect of this amendment is that all customary marriages whether entered into after or before the commencement of the RCMA will be marriages in community of property and of profit and loss unless the spouses
decide to exclude that by means of an ante nuptial contract.
In terms of the procedure, the Department of Justice and Constitutional Development briefed the Committee on 23 June 2020. Provincial Legislatures conducted the public participation process between September and November 2020.
Due to the COVID-19 pandemic and national restrictions on public gatherings, provinces were afforded additional time to conduct public participation.
Chair, the Committee received all nine negotiating mandates, eight provinces were in favour of the Bill. On 10 November 2020, the Select Committee considered the negotiating mandates and the responses by the Department of Justice and Constitutional Development to the mandates. During the Committee's deliberations, a concern was raised to the effect that the Bill fails to define the forms of property ownership at customary law, such as marital property, house property, family property and personal property.
The Committee, however, agreed with the Department's explanation that the insertion of definitions of these terms in the Bill would require in-depth research, as well as extensive consultation with the relevant stakeholders, so as to avoid unintended consequences to the detriment of women in customary marriages, and whom the Bill aims to protect.
The Committee noted that the South African Law Reform Commission, with the Department of Home Affairs, is reviewing the South African Marriage Regime and that this process is better placed to investigate the definitions of forms of property ownership at customary law and, therefore, requests that the Ministry bring the matter to the attention of the commission for investigation.
Further, the committee recommended that many of the general comments received from provinces in relation to marriages should also be referred to the Department of Home Affairs for their consideration and action.
The Committee further encouraged the Department of Justice and Constitutional Development to heed the calls
made by Provinces for extensive public education on the Bill to ensure that all persons understand the amendments made to the Recognition of Customary Marriages Act.
The Select Committee met on 18 November 2020 and adopted the A-List of proposed amendments. Amendments: Amendments were made to two clauses in the Bill. Clause one was amended to revise the definition of "traditional leader" so as to align it with the definition as contained in the Traditional and Khoi-San Leadership Act, No. 3 of 2019 once that Act has commenced. Clause four was amended as well to reflect that the Bill is now a 2020 Bill as opposed to a 2019 Bill.
The Select Committee met on 25 November 2020 to consider the Final Mandates. At this meeting the committee had received only eight final mandates, seven in favour of the Bill with one province not in favour of the Bill. The Committee did not receive a final mandate from the North West Province at the time of the meeting. However, the final mandate from the North West, in favour of the Bill, was received after the decision of the committee. The committee report was duly adopted on the 26 November 2020
as the committee was satisfied with the proposed amendments and with the content of the Bill.
The Committee is of the view that the Bill will go a long way in ensuring gender equity and for the equitable distribution of assets for women in customary marriages.
The Committee is mindful that the Department of Home Affairs is embarking on a process to develop a new marriage policy that is inclusive and will embrace equality, human dignity and non-discrimination, and recognize cultural and religious beliefs of various communities in the country. As part of this process, the committee is sure that the Department of Home Affairs, will attend to the concerns in relation to marriages generally, as raised by provinces in their negotiating mandates.
The Select Committee on Security and Justice, having considered the Recognition of Customary Marriages Amendment Bill [B 12 - 2019] referred to it and classified by the Joint Tagging Mechanism, JTM, as a section 76 Bill, submits an amended Bill, namely the
Recognition of Customary Marriages Amendment Bill [B 12B
- 2020] for the Council's consideration. Thank you very much, Chairperson.
Declarations of vote: