Deeds Registries Amendment Bill: finalisation; Bi-Lateral Agreements with Botswana and Zimbabwe: briefing

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LAND AND AGRICULTURE PORTFOLIO COMMITTEE
23 January 2003
DEEDS REGISTRIES AMENDMENT BILL: FINALISATION; BI-LATERAL AGREEMENTS WITH BOTSWANA AND ZIMBABWE: BRIEFING


Chairperson:
Mr NH Masithela (ANC)

Documents handed out:
Deeds Registries Amendment Bill [B65 - 2002] pdf file
Proposed amendment, Deeds Registries Amendment Bill (Appendix 1)
Deeds Registries Amendment Bill, 2001- Briefing explanation by the Deputy Registrar of Deeds (Appendix 2)

SUMMARY
The Committee discussed how customary marriages could be recognised. The Department felt that every marriage should be treated in the same way and there should be no distinction on the basis of marriage type. The Department felt that such distinctions could undermine the integrity of the Deeds Registries Office. After intense discussion the Committee moved a motion of desirability and the Bill was accepted.

The Department mentioned current food shortages in SADC region in general and Zimbabwe in particular. The contribution made by the World Food Programme and the international community was helping to stabilise the situation. Foot and mouth disease was the main issue of concern to the Committee. The Committee and the Department felt that there was a need to intensify security around the border between South Africa, Zimbabwe and Botswana to control the movement of animals in and around the border area. South Africa is expected to contribute more to combat the spread of the disease.

MINUTES
Deeds Registries Amendment Bill
The Committee was concerned about the effect of Section 7 of the Recognition of Customary Marriages Act, 120 of 1998. In terms of Section 7 a person married before the commencement of the Act has to apply to court in order to have proprietary consequences similar to those enjoyed by spouses married in community of property. The Department argued that there was no need for people married under customary law to be given special treatment.

The Chairperson said there could be a way in which the situation could be dealt with in a positive way. He added that the Committee does not want to pass the law for the sake of passing it; he wanted the Committee to look seriously at the clauses that could be detrimental to the public. The Committee should look at the proposals of the State Law Advisers and see how they could bring them forward.

The Department argued that the effect of what was proposed by the Committee would be to discriminate people on the basis of marriage in customary law and marriage in community of property. The Department felt that there should not be any distinction based on the type of marriage. They said the integrity of the Deeds Registries Office could be compromised if such distinctions were made. They asked the Committee to look thoroughly at their proposals.

The Chairperson replied that the Committee did not want the integrity of the institution to be compromised; instead they wanted people to hold the institution in high esteem. However, the Department needed to add clauses that would accommodate all the people so that the law could be easily implemented.

Discussion
Mr L Dlali (ANC) asked what would be the consequences be of not accepting the Bill.

Mr G Tsotetsi from the Department said they were in the process of reviewing the whole registration process and that could take three to four years. Discrimination, in whatever form it manifests itself, was wrong. Whatever distinction is made should be justified.

The Chairperson said he would like the Committee to take a position on the matter. The integrity of the Deeds Office should not supercede that of Parliament. Parliamentarians are public representatives and their role was to see that public interests were protected. As Parliamentarians they were trying to address a historical problem and not everybody would be satisfied in that process. He further asked the Committee whether they agreed with the clause or not.

Mr Dlali said that the issue of exceptions should not be dealt with in the meeting. He asked the Committee to endorse the Bill.

Ms L Ngwenya (ANC) said she thought the Committee was trying to accommodate those who were married under customary marriage. She disagreed with the Department's view that people in a customary marriage were given special treatment. In fact she believed that they were being accommodated because their marriages were not recognised in the past.

Mr Ngema (ANC) said the matter was dealt with extensively by the Committee in 2002. He said it was very important to know the history of South Africa first before changes could be necessitated in legislation. The introduction of any changes should be informed by the historical realities of this country. If changes conform to the historical realities of our country, then those changes could be accepted.

Mr B Radebe (ANC) said critically the changes in the Deeds Registries Office should also conform with the fundamental principles of Batho Pele. He noted that it was important that customary marriages were recognised in this country.

The Chairperson moved a motion of desirability and the Bill was accepted.

Briefing by the Department on Bi-Lateral Agreements with Botswana and Zimbabwe
Ms Josephs, representing the Department of Agriculture and Land Affairs, told the Committee that with regards to Botswana the Department has not yet had relations in the field of agriculture. They actually had informal relations in the field of technical engineering. A formal visit to that country was still underway. With regards to Zimbabwe the Minister will visit that country by the end of January or early February 2003.

Food Security
Mr P Ngobese (Department) said there was an appeal by the international community to provide 900 000 tons of food to SADC countries. He said 73% of that commitment has been funded already, however, there will be a shortfall of 320 tons between January and March 2003. He added that by March this year the commitment would be met, or at least 89% of it. Grain shortage in the region will be experienced even beyond March. The World Food Programme has been working very hard to ensure that food was distributed to needy areas in the region.

As far as Zimbabwe was concerned, food shortage was visible, especially on retail shelves. The World Food Programme was currently distributing food in the needy areas in that country. He told the Committee that last year the government of Zimbabwe imported 600 000 tons of grain to stabilise the situation until March 2003. He said Zimbabwe was also looking at the current crop yields whether they would be enough to meet the needs of the people in that country.

Foot and mouth disease
Mr Ngobese said foot and mouth has become endemic in Zimbabwe, maybe the reason could be that livestock and wild animals are always found together. In Botswana there has been already an outbreak of foot and mouth and South Africa has put a ban on the importation of meat from that country. S.A. has also made an effort to maintain the fences that borders the two countries. He also mentioned the intensification of major patrols by the South African National Defence Force (SANDF) and that more patrols were needed. He assured the Committee that the situation was under control and that South Africa, Botswana and Zimbabwe have made an agreement to control the spread of the disease. Mr Ngobese suggested that when the Committee visits Zimbabwe they should look at what measures were in place to control the movement of animals in and around the border between Zimbabwe and South Africa.

Discussion

Mr P. Ditshetelo (UCDP) asked what measures has South Africa taken in helping Zimbabwe prevent the spreading of foot and mouth disease into neighbouring countries. A similar question was asked by Mr B. Radebe (ANC) as to whether Zimbabwe had the vaccine to control the spread of foot and mouth disease and what support does South African provide in terms of the bi-national agreement with that country.

Ms Josephs replied that there was a request within South Africa to provide a vaccine for foot and mouth disease in the region and the matter was still under discussion. But she added that vaccine alone was not a solution to the problem, there should be a broader strategy that will look at how to combat the disease. For instance Ms Josephs said there were reports that about 500 cattle were grazing in the northern part of the border between Zimbabwe and South Africa. She added that illegal immigrants cut the fences as a result animals stray and graze in the area.

Mr Ditshetelo further asked where did Zimbabwe import the 600 000 tons of grain that Mr Ngobese mentioned.

Mr Ngobese replied that the food was imported mainly from Brazil and South Africa. The East London port is being used to import food from overseas.

Dr A. Van Niekerk (FA) asked whether the food security figures quoted by the Department were S.A. estimates or were SADC estimates.

Mr Ngobese said the figures that they quoted were figures that S.A. and SADC agreed on. The 600 000 tons is the amount of food that Zimbabwe has imported.

Dr Van Niekerk asked what possible measures could be taken to strengthen the patrols, was there a shortage of manpower?

Mr Ngobese responded that the Department had its own people who man the fences as well as the SANDF. He said the Departmental fence guards were dealing only with the repairing of the fence, they don't deal with illegal immigrants, that is why they needed more support from the SANDF.

Ms B. Ntuli (ANC) asked whether SA was not carrying the burden of foot and mouth alone whilst Zimbabwe and Botswana were relaxing.

Mr Ngobese replied that Botswana has given a supply of some vaccines to Zimbabwe, but the problem was that Zimbabwe had no foreign currency to pay for those vaccines and Botswana said they would not continue to provide those vaccines for free.

Dr Van Niekerk asked whether was there a centre that would help the country's transport system in dealing with the import and export of food in South Africa.

Mr Ngobese said there has been a donation of trucks by Norway and the Department was taking care of logistics using rail, road and sea transport. He assured the Committee that logistics were being taken care of by the Department.

The Chairperson concluded by saying the Committee will discuss the issue of reinforcements in border patrols with the Ministry of Defence. He appreciated the interaction between the Department and the Committee and thanked the Department for the informative presentation.

The meeting was adjourned.

Appendix 1:
PROPOSED AMENDMENT
DEEDS REGISTRIES AMENDMENT BILL
[B65 - 2002]
LONG TITLE
1. On page 2, in the second line to omit "name" and to substitute "names";
2. On page 2 from the third line to omit "and to endow a trust with legal personality;" and to substitute:
"and to provide for the registration of immovable property in the name of a trnst;".

CLAUSE I
1. On page 2, from line 17 to omit paragraph (C) and to substitute:
"(c) forms an asset in a joint estate and was registered [prior to I November1984] in the name of the husband only; or"
2. On page 2, from line 27 to add the following proviso:
Provided further that in the case of an order of court envisaged in section 7(9) of the Recognition of Customary Marriages Act, 1998(Act No.120 of 1998), the registrar shall, on submission of the relevant deed and court order and without the necessity for a written application, make the endorsement or note.".

CLAUSE 2
1. On page 3, in line 10, to omit the definition of "person" and to substitute:
person', for the purpose of the registration of immovable trust property only includes a trust;".

Appendix 2:
DEEDS REGISTRIES AMENDMENT BILL, 2001

Thank you, Honorable Chair

Introduction

I would wish to extend my heartiest greetings to the Honorable members of this Committee. My name is George Tsotetsi; I am a Deputy Registrar of Deeds, Legal Support, in the Office of the Chief Registrar of Deeds.

As a gesture of showing respect to this committee and in view of our tradition of dealing thoroughly with our work, I have deemed it prudent that I reduce the presentation of the Bill into writing.

I am, indeed, not oblivious to time constraints and I will not laboriously read through each and every comma, full stop etc, Will leave this copy here for the Committee's ease of reference.

BRIEF EXPLANATION OF THE BILL AND BACKGROUND THERETO

The Bill contains two clauses which propose the amendment of sections 17 and 102 of the Deeds Registries Act, 1937 (Act No. 47 of 1937). The amendment of section 17 is necessitated by the enactment of the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998), whilst the amendment of section 102 is necessitated by the decision of Judge Flemming in the case of Joubert and others v Van Rensburg and others 2001 (1) SA 753 WLD. A full discussion of these amendments is contained in the memorandum of objets of the Bill a copy of which was duly forwarded together with the Bill.

A presentation on the Bill was, sometime in November 2002, made to this Committee by Messrs Brocker and Geldenhuys. The Honourable Committee could, however, not accede to pass the Bill because it could not understand why parties should apply to Court for a change in their marital status and why should they apply to the Registrar and not the Registrar effecting such change on her/his own accord. The Committee also solicited the opinion of the Chief State Law Adviser with regard to the Bill. A comment on the said opinion is made below. The concerns of the Committee refereed to above warrant the discussion of the Recognition of Customary Marriages Act and the Deeds Registries Act.

THE RECOGNITION OF CUSTOMARY MARRIAGES ACT

It is important to note that one may, excusably so, from the name of the Customary Marriages Act, draw a fallacious conclusion that the Act relates exclusively to "Africans". The converse, however, is true. This can be gleaned from section 3 thereof. This section reads as follows:

Requirements for validity of customary marriages

3. (1) For a customary marriage entered into after- the commencement of this Act to be valid- the prospective spouses-
(i) must both be above the age of I8 years; and
(ii) must both consent to be married to each other under customary law: and
(iii) the marriage must be negotiated and entered into or celebrated in accordance with customary law.

There is nothing in the Act that requires that the prospective spouses must be of African descent.

Now I will turn to section 7(4) which is the cornerstone of the Committee's concern. This section reads as follows:

(4) Spouses in a customary marriage entered into before the commencement of the Act may apply to a court jointly for leave to change the matrimonial property system which applies to their marriage or marriages and the court may, if satisfied that-
(i) there are sound reasons for the proposed change;
(ii) sufficient written notice of the proposed change has been given to all creditors of the spouses for an amount exceeding R500 or such amount as may be determined by the Minister of Justice by notice in the Gazette; and
(iii) no other person will bc prejudiced by the proposed change, order that the matrimonial property system applicable to such marriage or marriages will no longer apply and authorise the parties to such marriage or marriages to enter into a written contract in terms of which the future matrimonial property system of their marriage or marriages will be regulated on conditions determined by the court. In the case of a husband who is a spouse in more than one customary marriage, all persons having a sufficient interest in the matter, and in particular the applicant's existing spouse or spouses, must be joined in the proceedings.

In this regard, it must be noted that it is not only parties that are married in accordance to customary law that need to apply to Court for the Change of their matrimonial regime. The legislator has already provided for the same with regard to other forms of marriage. In this regard section 21(1) of the Matrimonial Property Act, 1984 (Act No. 88 of 1984) provides as follows:
"A husband and wife, whether married before or after the commencement of this Act, may jointly apply to a court for leave to change the matrimonial property system….."

The reason for applying to Court stems from the fact that, in terms of our common law, the High Court is the only forum that is endowed with an inherent jurisdiction on matters relating to the status of persons. In this regard section 19(1)(a)(iii) is of relevance. This section reads as follows:

"…in addition to any powers or jurisdiction which may be vested in it by law, have power-in its discretion, and at the instance of any interested person, to enquire into and determine any existing, future or contingent right or obligation, …"

It must also be pointed out that legislation with regard to the recognition of marriages in accordance to Islamic rites is in the pipeline and that the same rules as above will apply to such marriages.

THE DEEDS REGISTRIES ACT

Section 3(1)(b) of the Act enjoins the registrar of deeds to examine all deeds or other documents submitted to her or him for execution or registration. A plethora of sections, including section 17(4) which is of concern to the committee, and regulations prescribe an application for the performance of a variety of acts of registration by the registrar. The reason for this requirement is that the relevant facts are unknown to the register and hence the need to apply and prove the relevant facts. The relevant application also serves as the legal basis for the registrar to perform a particular act of registration.

Section 17(4) currently relates to foreign marriages and marriages which were commonly referred to as "civil marriages. The proposed amendment is solely intended to conform with the current position by including customary marriages in the list of the forms of marriage already contained in the section.

The question that arises is : what the current legal position, in relation to customary marriages, is? The answer to this question is that parties to such marriages can still apply for the amendment of deeds in terms of section 3(1)(v) of the Deeds Registries Act.

Section 4(1)(b) of the Deeds Registries Act enjoins the registrar of deeds to rectify glaring errors in registered deeds. This section does not provide for the application by the registered owner. Our registration system is designed to afford security of title and to accomplish that it is practice to require the registered owner to apply for rectification even in instances such as those contemplated in this section. This is the case despite the fact that the section does not make any reference to an application by the owner.

It must be noted that the application procedure is already contained in section 17(4) as it now stands and already applies to other forms of matrimonial regimes and that it is not introduced into the Act by the proposed amendment.

THE CHIEF STATE LAW ADVISER'S OPINION

As regards the concern relating the court application procedure, the CSLA correctly points out that this procedure is not introduced by the Bill and that the position can only be changed by amending the Customary Marriages Act. This is a view that we share and endorse.

As regards the concern relating application to the registrar procedure, the CSLA proposes the addition of a proviso that will have the effect of exempting spouses married according to customary law from lodging a formal application for the endorsement of registered deeds. It must be noted that the CSLA does not advance any reason why the parties concerned should be treated differently from others. It must also be pointed out that the CSLA has formulated the opinion on the basis of the ill-drafted section 7(9) of the Customary Marriages Act. It must further be pointed out that the said proposal has the potential of flouting the almost sacrosanct equality principle contained in section 9 of the Country's Constitution.
It must further be noted that the proposed exemption will introduce an unwarranted departure from the sound principle referred to above. In we view of what has been said above, we, therefor, cannot and do not support the CSLA's proposal.

CONCLUSION

In the light of the fact that the application contemplated in section 17(4) of the Deeds Registries Act is not obligatory and the fact that the correctness of marital status is, in terms of regulation 44A (d)(i)(aa) of the same Act, the responsibility of the conveyancer concerned, we are of the view the concerns of the committee are not matters that are capable of being addressed in the Bill under discussion. We are, further, of the view that the CSLA's proposal, should it be accepted, will cause serious damage to the integrity of Country's much vaunted registration system.

RECOMMENDATIONS

We, in the light of the conclusion above, recommend that this committee accept the Bill as it is. If this recommendation is not acceptable to the committee, we request the committee to advise us with regard to the way forward.

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