Deeds Registries Amendment Bill: briefing & finalisation

Meeting report

LAND AFFAIRS SELECT COMMITTEE
28 March 2003
DEEDS REGISTRIES AMENDMENT BILL: BRIEFING & FINALISATION

Chairperson: Rev P Moatshe (ANC, Northwest)

Documents handed out:
Deeds Registries Amendment Bill [B65b-2002]

SUMMARY
The Committee was briefed on the Deeds Registration Amendment Bill. The Bill was formulated as a reaction to the Customary Marriages Recognition Act, keeping legislation on property ownership up to speed with related legislation. Discussion centred around the popularisation of the Bill and informing affected parties of the implications of this Bill. The Bill was approved by the Committee without amendments.

MINUTES
Deeds Registries Amendment Bill
Mr C M Brocker: Director: Legal Services, Department of Agriculture and Land Affairs, briefed the Committee on the Bill. The Recognition of Customary Marriages Act, 1998 (Act 120 of 1998), has introduced a new matrimonial property system which is currently not accommodated in the Deeds Registries Act. The Recognition of Customary Marriages Act, 1998, provides for the recognition of customary marriages and regulates the proprietary consequences of customary marriages entered into before or after the commencement thereof on 15 November 2000. Spouses in a customary marriage entered into before the commencement may apply to court to change the matrimonial property system which applies to their marriage or marriages. In order to accommodate this system. Section 17 of the Deeds Registries Act is being amended accordingly. It is also necessary to amend the Deeds Registries Act so as to confer juristic personality, for the purposes of the Act, on trusts and in this way enable compliance with the Trust Property Control Act. This is sought to be achieved by amending section 102 of the Act by inserting a definition of "person" which includes a trust.

Discussion
Mr Windvoel (ANC, Mpumalanga) welcomed the Bill and was particularly impressed by its reaction to the recognition of customary marriages. He expressed a desire to know what type of input the formulation of this Bill had from Traditional Leaders and other interested parties.

Mr Brocker said that consultation during the formulation of this Bill was limited. He said that the main consultation was done with the Law Society of South Africa.

Rev P Moatshe, Chairperson, noted the fact that there were many customary marriages in the country. He asked how people would be informed about approaching the Department of Land Affairs to register. He was concerned about the fact that the Bill has been kept very quiet, specifically from the public's point of view.

Mr Brocker replied that the Department had not undertaken any education programme. He explained that the Bill dealt with a particular form of legislation which allows for the requirement of a court order. This left it up to the legal representatives of respective individuals to advise them on their rights.

Rev Moatshe asked why this particular Bill was being presented by the Department of Land Affairs, seeing that it is concerned with giving rights to those who did not have them before because of their customary marital status. He asked why it was not the Department of Home Affairs' responsibility.

Mr Brocker explained that this particular Bill was being proposed following the passing of the Customary Marriages Recognition Act. He said that this Bill was put forward mainly to align land ownership issues with this Act so as to keep pace with current legislation.

Mr Conroy (NNP, Gauteng) proposed a scenario that a man had thirteen wives. He asked whether, in the instance that one of the wives was declared bankrupt, the financial status of the husband and the other twelve wives would be affected.

Mr Brocker replied that this would depend on how they all entered into the marriage, that is, their prenuptial agreements. The bankruptcy of one wife could affect the financial status of the husband and the other wives if all the wives entered into an agreement of community of property with their husband and with each other.

Mr Conroy, in considering the same scenario, asked whether the husband had to have the approval of the other wives in order to marry wife number thirteen.

Mr Brocker said that he was not in a position to answer that but legally the husband did not have an obligation to seek the approval of his other wives.

Mr Conroy asked how couples who are living together, and even same-sex couples, are effected by this Bill.

Mr Brocker explained that the law proposed by the Bill was a substantive law that did not affect the Registrar of Deeds. A common law spouse, which was the legal term for the individuals involved in the living arrangement explained by Mr Conroy, still had no legal right over property belonging to the other spouse unless the couple entered into a contract that awarded these rights to the common law spouse.

Mr Windvoel stressed the point that they needed to involve the people in the passing of this Bill. He did not understand why there was no public dialogue and input on this Bill. Extensive consultation, especially with the people the Bill affected. He agreed that the Bill needed to be passed, but only after consultation with the affected parties.

Ms B Thompson (ANC, Kwazulu-Natal) warned that without public consultation the Bill would not benefit the correct beneficiaries.

Mr Brocker explained that the Department of Land Affairs would be undertaking a work review of the deeds and survey system. This would be a major undertaking and it would be here where they would be involved in full public consultation on all issues, including this one. The introduction of the Electronic Deeds Registration System (EDRS), linked with a Central Deeds Registration Office, would come out of this.

Mr Conroy said that he understood that the Bill was formed in 'reaction' to an Act and was formulated to protect the land rights of spouses involved marriages under Customary Law. He explained that there was therefore little more that they could expect the Department and Mr Brocker to do. Viewing it as a 'reaction' to a law passed under the Department of Home Affairs, this Bill was the perfect response from the side of the Department of Land Affairs. He concluded that it was asking too much from the Department of Land Affairs to be awarded the responsibility of educating the public, since their main mandate was to formulate a Bill that would be in line with the Customary Marriages Recognition Act.

Rev Moatshe asked why the Bill was tagged as a Section 75 Bill instead of a Section 76 Bill. He got the impression that the Bill was being rushed. If the Bill had been tagged as a Section 76 Bill, it would have had the chance to go in front of the people and thus would have been popularised.

Mr Brocker explained that the Bill had been introduced as a Section 75 Bill because of the functions it regulated. It was because land was seen as a technical competence. He said that they would inform the people of the implications of the Bill when they were doing the overall review. If the Committee approved the Bill, it would be taking a significant step towards progress, particularly regarding Clause 1 of the Bill.

Ms Thompson pleaded with the Department of Land Affairs to understand that the Committee Members were there on behalf of the people. This was the reason they were pushing for the participation of the people. She asked them to note this.

Mr Windvoel remarked that the Bill would have far-reaching consequences. The people's right to know was not ensured by the Department. He said that they would have to attend to this. He asked for an indication of when the Department would entertain this. Their aim was to make provincial structures user-friendly to the people, thus making them progressive.

Mr Brocker replied that he had already mentioned that there would be an information campaign to inform the people and gain their input in an overall review project. He expressed a desire to refer the Committee to Section 36 of the Constitution, regarding the boundaries of their mandate. He urged them to consider the consequences of enforcing an extended education campaign, especially considering human and financial resource needs. There would not be many people affected by this Bill.

Mr Windvoel asserted that Mr Brocker did not know this.

Mr Brocker said that it would take more than a month to develop a specialised education programme, let alone implement it. He admitted that he could, however, not argue against the fact that people needed to know. What they could do as a Department was limited.

Rev Moatshe revealed that this was the reason he had questioned the tagging of the Bill. Had the Bill been tagged differently, the public would have been informed about it without any cost to the Department.

Mr Windvoel explained that they were not trying to complicate matters, but merely asking the Department to come with a draft outlining their plans to popularise the Bill.

Rev Moatshe suggested that they end the discussion at that point. They would plan a briefing regarding the popularisation of the Bill by the Department in a future meeting.

The Bill was agreed to by the Committee without amendments.

The meeting was adjourned.