Judicial Matters Amendment Bill; Recognition of Customary Marriages Amendment Bill: hearings

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Justice and Correctional Services

25 February 2020
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Submissions were heard from the Africa Criminal Justice Reform, the Confederation of South African Trade Unions, the Women’s Legal Centre and the Commission for Gender Equality.

Judicial Matters Amendment Bill: The African Criminal Justice Reform submission addressed the amendments to the National Prosecuting Authority Act on the term of office of the National Director of Public Prosecutions and its Deputies per a Constitutional Court judgment of Corruption Watch NPC and Others v The President of South Africa and Others. ACJR noted that an independent prosecution authority that is free from political interference was fundamental to a democracy’s criminal justice system. The President’s power to unilaterally extend the term of office of the National Director, to suspend a National Director or a Deputy Director for an indefinite period and without pay, compromised that independence and integrity. Thus, ACJR welcomed the amendments provided for in the Bill.

The Congress of South African Trade Unions supported the Bill as the abuses that took place during the era of state capture had been well documented and were beyond dispute. COSATU said it was important to bear in mind that it was now a matter of judicial record that such abuses of authority took place under the direction of the former Head of State and state capture occurred at the highest levels of the National Prosecuting Authority. Currently, the NPA National Director appointment was the prerogative of the President. As an exercise of executive authority, there is nothing unsound with this principle in theory. In reality, this had been a serious flaw and extremely dangerous defect in the Act.

Some Members supported the view that an expert panel had to be constituted to interview for appointment or dismiss the NPA National Director.

Recognition of Customary Marriage Act: The Commission for Gender Equality argued that section 4(2) enabled a party to register a customary marriage in the absence of another party as long that party can prove the existence of the marriage. In practice, the Commission had noticed that the registering officer refused to register a customary marriage unless both parties to the customary marriage were present which CGE believed was in contradiction of section 4(2) of the Act. The refusal by Department of Home Affairs marriage officers was amplified by the Home Affairs customary marriage registration form which provided for both parties to sign the form before registration could be effected.

COSATU strongly supported the Bill. The objective of the Bill was progressive as it sought to correct a constitutionally unfair unintended consequence of the Recognition of Customary Marriages Act, namely the abysmal failure to afford adequate protection to women married before the 1998 commencement of the Act. This has shamefully put women in pre-1998 customary marriages at significant risk of discrimination and hardship, especially with regard to divorces, deaths and the separation and settlement of estates. It urged its speedy passage through Parliament.

The Women’s Legal Centre's position is that if a customary marriage occurred and there was proof, then a wife had the full right to register that marriage on her own. It noted that the amendment to the Recognition of Customary Marriages Act had been necessitated by a Constitutional Court judgment that declared section 7(1) of the Act unconstitutional. The court order stated that the defect should have been corrected by 30 November 2019. The Court had provided the Department of Justice and the legislature 24 months to remedy this violation of rights. The Minister of Justice had requested an extension from the Court which is awaited. The Centre had been the amicus curiae in the Constitutional Court matter of Ramuhovhi and Others v The RSA President and Others 2018 which had prompted the amendment of the Act.

Committee members were in broad agreement that women’s rights had to be protected and Parliament had an important role to play in this. Some members took issue with the proposal that only one spouse could register a marriage, citing sham marriages as an example.

 

Meeting report

Africa Criminal Justice Reform submission on Judicial Matters Amendment Bill
The Committee was briefed by the Africa Criminal Justice Reform (ACJR), a project of the Dullah Omar Institute for Constitutional Law, Governance and Human Rights at the University of the Western Cape. ACJR engaged in research, teaching, and advocacy on criminal justice reform and human rights in Africa.

The ACJR submission addressed the amendments to the National Prosecuting Authority (NPA) Act on the term of office of the National Director of Public Prosecutions (NDPP) and its Deputies per a Constitutional Court judgment of Corruption Watch NPC and Others v The President of South Africa and Others. ACJR noted that an independent prosecution authority that is free from political interference was fundamental to a democracy’s criminal justice system. The President’s power to unilaterally extend the term of office of the National Director, the power to suspend a National Director or a Deputy Director for an indefinite period and without pay, compromised that independence and integrity. Thus, ACJR welcomed the amendments provided for in the Bill.

ACJR expressed concern that while the Constitutional Court judgment ordered that the period of suspension of an NDPP or a DPP by the President may not exceed six months, the proposed amendments suggested that the period should be 12 months. The position of NDPP or DPP is one of the most important positions in any country. It is of utmost importance that all appointment and disciplinary processes involving such incumbents should be facilitated and processed as soon as possible to ensure that the Office of the NDPP or DPP was not compromised.

ACJR further submitted that the Bill failed to address holistically other shortcomings the NPA faced which undermined its independence. Such provisions were the appointment and dismissal of the NDPP, ministerial control over the prosecution service and the NPA accountability to Parliament.

Discussion
Adv H Mohamed (ANC) noted that it seemed that the ACJR submission envisaged an NDPP in the manner of the President only accountable to the Constitution. Additionally, the submission also seemed to call for limited engagement by Parliament in the affairs of the NPA - and in practice this did not happen every day. Parliament always sought to be transparent and he asked if the ACJR proposal would not limit Members’ role as representatives of the South African people.

Mr X Nqola (ANC) referred to paragraph 13 of the ACJR submission that dealt with the powers of the President to dismiss the NDPP and the risks associated with this concentration of Presidential executive power. He lamented the fact that the ACJR did not suggest an alternative to the current provisions that allowed the President to dismiss the NDPP. Paragraph 16 of the submission cast doubt on the neutrality of a Portfolio Committee in the case of Minister Pravin Gordhan and he asked which Committee this was.

Adv G Breytenbach (DA) said she did not differ from the ACJR submission and that there was a need for a complete overhaul of the structure. Twenty five years along the line, parliamentarians have a deeper understanding of the matters at hand and the need for meaningful change.

The DA had drafted a Private Members Bill on the NDPP and a lot of work had been placed in this process. The DA hoped to introduce this Bill to the Committee and would welcome comments by the ACJR on the Bill. She added that the National Director needed to report to Parliament to account on policy matters without interfering in the NPA prosecutorial powers.

She recalled that during the tenure of the previous NDPP, Adv Shaun Abrahams, the latter had a meeting in Luthuli House with then Minister of Justice Michael Masutha. Two days later, Minister Gordhan was charged by the NPA – the inference being that political pressure was applied and that Adv Abrahams was not independent.

Mr W Horn (DA) said that there seemed to be broad agreement that an independent panel should be constituted for the appointment of an NDPP. The question that arose though was how to ensure that the panel itself was not “packed with politically motivated individuals".

He cited the example of the Judicial Services Commission. There had been a rule change in the National Council of Provinces (NCOP) that dropped the proportional representation provision. This will result in the ANC taking up all the seats on the JSC. He wanted to ascertain how this process would prevent such a thing from happening.

Ms J Mofokeng (ANC) took issue with the comments by Ms Breytenbach on the former NDPP’s visit to Luthuli House to meet with Minister Gordhan. She asked how Adv Breytenbach knew about the former NDPP’s visit to Luthuli House.

Adv Breytenbach replied that she never said that the former NDPP met with Minister Gordhan. The meeting was with the former Minister of Justice Michael Masutha and the meeting was widely reported on. The former NDPP admitted as such.

The Chairperson interceded and cautioned Members to pose questions to the presenters instead.

ACJR response
Prof Lukas Muntingh, ACJR Project Coordinator, replied that the NPA Act was written at a specific time in history and that the legislation had not undergone a stress test that considered possible abuse by an incumbent President.

He recalled the discussions emanating from the Venice Commission centered on who was not prosecuted instead of who had been prosecuted. He noted that directives enjoined the NDPP to prosecute corrupt government officials.

He replied that the previous Portfolio Committee on Justice called the former NDPP to appear before Parliament to discuss the Gordhan matter. It trod a very fine line, especially since one of the Members asked if the NDPP would release information that pertained to Minister Gordhan’s case. If memory served Prof Muntingh right, the former NDPP undertook to provide this information.

He questioned the relationship between Parliament and the NPA, especially on past engagements between the two. He lamented the nature of engagement between Parliament and the NPA that in the main revolved around interrogating Annual Report performance instead of interrogating actual policy challenges.

On the suggestions by Adv Breytenbach, Prof Muntingh noted that the ACJR stood ready to support the work of the Committee as it was committed to strengthening good governance and democracy in South Africa.

On the proposal for an independent selection panel for the appointment of the NDPP and its composition, he stated that it was important that the selection panel be impartial. This held promise as the power to appoint would be easily spread among panelists and he believed this reduced the risk of interference.

Follow-up questions
Adv Mohamed noted that accountability to the people was always going to be a balancing act and that Parliament’s participation could not be limited. The new Committee could not be held responsible for the actions of the previous one and that the Committee oversight role was premised on interrogating both performance and policy.

He stressed that he found it difficult to accept calls to limit Parliament’s role, especially since it was an “activist parliament”.

Adv Breytenbach agreed with Prof Muntingh that the NPA depended on the South African Police Service (SAPS) and requested his view on whether the entire criminal justice system had to be overhauled.

Ms N Tafeni (EFF) informed that the EFF would be abstaining.

The Chairperson noted the comment by MsTafeni and said that the EFF would have an opportunity to indicate if it supported amendments at the end of the process when the Bill was brought to a vote.

ACJR replies
Prof Muntingh replied that it was never his attention to call for Parliament’s constitutional role to be limited as Parliament had to exercise its mandate. This mandate should be viewed within the context that the NDPP’s position should be independent, yet still accountable to Parliament.

He agreed with Adv Breytenbach that there should be a comprehensive overhaul of the criminal justice system.

He informed Mr Nqola that when he wrote paragraph 13, he had the Ginwala inquiry into the conduct of the then NDPP Adv Vusi Pikoli in mind. The findings by Ginwala were disregarded by Parliament.

The Chairperson thanked the professor for his inputs and noted that several issues had been raised that the Committee had to engage on in the future.

COSATU submission on Judicial Matters Amendment Bill
The Congress of South African Trade Unions (COSATU) supported the Bill and its speedy passage through Parliament. COSATU was of the view that the abuses that took place during the era of state capture had been well documented and were beyond dispute. COSATU said it was important to bear in mind that it was now a matter of judicial record that such abuses of authority took place under the direction of the former Head of State and that state capture occurred at the highest levels of the National Prosecuting Authority.

Currently, the appointment of the NDPP was the prerogative of the President. As an exercise of executive authority, there is nothing unsound with this principle in theory. In reality, this had been a serious flaw and extremely dangerous defect in the Act. South Africa had only recently begun to emerge from a devastating era of state capture and abuse of executive privilege at the highest levels.

The consequences of such abuses had been the pending collapse of many State-Owned Enterprises (SOEs) and other organs of the state, billions of rands in taxes lost to corruption, a stagnant economy, increasing taxes and the possible retrenchment of thousands of public sector workers.

COSATU and workers across the nation cannot afford to return to an era of state capture or to see the collapse of the state and resultant retrenchments. Workers are angry at the lack of consequences for those who had brought the state to the verge of collapse.

COSATU supported any rationale attempt to strengthen the rule of law, in particular with regard to the leadership of law enforcement agencies, including the NPA.

It welcomed the processes undertaken at the current President’s behest for the appointment of the new NDPP. The call for applications for the NDPP post, the appointment of a Judicial Services Commission-type panel of non-partisan experts to interview the candidates, the hosting of such interviews openly and transparently had been welcomed and was seen as critical to rebuilding public confidence in such an important position and in government.

COSATU therefore strongly urged the Portfolio Committee to insert a clause in the Judicial Matters Amendment Bill that formalised these very progressive processes for the appointment of the NDPP.

Such a transparent, considered and inclusive process should not be left to the generosity of an incumbent President.

COSATU recalled that the Fifth Parliament made a commitment to review all existing legislation to ensure that unconstitutional and discriminatory clauses were removed, in particular, those leftover from colonial and apartheid-era Acts. It called on Parliament to ensure that these laws were scrapped.

Discussion
Mr Nqola said that in its submission COSATU had raised a fundamental point about Parliament’s failure to meet Constitutional Court deadlines. He assured COSATU that Parliament would meet the relevant deadline.

He noted COSATU’s comment about workers being very angry about state capture and the lack of prosecutions of the culprits. He asked if COSATU viewed the Zondo Commission as a tool to hold to account those implicated in state capture.

He had reservations about the appointment of a panel of experts as envisaged by COSATU as this would place an additional financial burden on an already strained fiscus.

The Chairperson added that the Committee committed to meeting all deadlines set by the Constitutional Court before the Easter recess. The Committee did not want to be found wanting again.

Mr Horn questioned the COSATU assertion that the JSC was a non-partisan body, let alone comprised of experts. He asked how the trade union proposed to insulate it against political interference.

Adv Breytenbach also questioned why Mr Ehrenreich viewed the JSC as non-partisan as it was not, according to her.

COSATU response
Mr Tony Ehrenreich of COSATU replied that the trade union supported the Zondo Commission, yet it wanted to see corrupt elements in orange prison suits.

He warned against taking short cuts to press societal and constitutional issues. COSATU stood ready to engage on reform of the NDPP appointment process as it needed to be taken out of the hands of an incumbent President.

He called on Parliament to be decisive in removing discriminatory laws from the statute books, especially as the ANC had received a mandate to do just that.

The Chairperson thanked COSATU and said the Department of Justice and Correctional Services will appear before the Committee in the week of 2 March 2020.

He added that COSATU had raised salient points that had to be looked at, especially legislation that discriminated against women.

He took note of the DA’s Private Member Bill and that the Committee would interrogate the Bill.

CGE submission: Recognition of Customary Marriages Amendment Bill
The Commission for Gender Equality (CGE) argued that section 4(2) enabled a party to register a customary marriage in the absence of another party as long that party can prove the existence of the marriage. In practice, the Commission had noticed that the registering officer refused to register a customary marriage unless both parties to the customary marriage were present which CGE believed was in contradiction of section 4(2) of the Act. The refusal by Department of Home Affairs marriage officers was amplified by the Home Affairs customary marriage registration form which provided for both parties to sign the form before registration could be effected.

In divorce proceedings, an unregistered customary marriage posed problems in that the parties needed to obtain a High Court declaratory order that confirmed the existence of the marriage before the divorce being finalised, which added legal costs for the parties.

The CGE noted in practice that the burden of an unregistered customary marriage fell almost entirely on woman. In most cultures women depend on the men to register the customary marriage and it is the prerogative of the man to decide if the parties register or do not register a customary marriage.

Discussion
Mr Horn stated that noted that there were vast numbers of unregistered marriages in South Africa. He thus failed to understand how the Act can be amended against that background. He also asked if Members had to accept that the burden to register customary marriages was being placed on the woman.

Mr Nqola stated that there was a difference between an absent partner and a deceased partner. He cautioned against the proposal that would allow one partner to register a marriage, especially considering the many bogus marriages registered in South Africa by foreign nationals. He wanted to ascertain how the authorities will verify that these marriages are indeed valid.

Prof C Msimang (IFP) commended the CGE for taking up the interest of the female spouse however he cautioned against spurious marriages. He asked who protected the interests of co-wives and not only the principal wife.

Ms Mofokeng asked CGE if it had received inputs on Muslim customary marriages during its public hearings on gender transformation. The challenges faced by women are different and most problems arose when their husbands died, especially in scenarios where families did not recognise certain wives.

Ms N Maseko-Jele asked how CGE arrived at the proposal that the requirement to have both partners present to register a marriage should be waived.

CGE response
Ms Jamana Mathebula, CGE Chairperson, replied that the CGE had been involved in several public participation processes and had received complaints by mostly co-wives of husbands who had died. This had been the rationale behind the proposal.

The CGE had also fostered a close working relationship with the Department of Home Affairs (DHA) on marriage legislation.

CGE had been a party to the litigation on Muslim marriages and an appeal had been lodged. The litigation on Muslim marriages was necessary as Muslim marriages had yet to be recognized under South African law.

In the case of co-wives, CGE wanted to ensure that co-wives were protected. The CGE had also proposed that evidence of lobola negotiations in the form of written notes on the number of cattle received could serve as evidence of a customary marriage.

Ms Marissa van Niekerk, CGE Chief Legal Officer, noted the concerns raised about sham marriages and stated that the onus was on marriage officers to ensure and verify that marriages were legal and valid.

It was also the CGE’s mandate to assist indigent women, mostly rural women, in instances where husbands refused to accompany their wives to the registry office. Most rural and indigent women do not have the financial muscle to obtain a declaratory order from the courts.

Follow-up discussion
Mr Nqola noted that in terms of civil marriages, lobola was not a legal requirement.

Ms Mofokeng relayed an anecdote about certain families that did not ask for lobola. Instead, families would sign an agreement with the husband and his family that stipulated that the husband would provide a house and education opportunities to their daughter upon marriage.

Ms Maseko-Jele asked if there was a follow-up mechanism to establish if a husband indeed refused to accompany his wife or wives to the registry office.

CGE replies
Ms Mathebula replied that the CGE did conduct on-site visits to establish the veracity of a complaint and found that indeed most husbands refused to accompany their wives to register their marriage. This was most evident where husbands worked as miners in Gauteng. In these instances, the husband would already have taken an additional wife in Gauteng as well.

Custom also dictated that the husband had to seek permission from the first wife to take a second or third wife however in many cases this did not happen. There was very little the first wife could do about this as under South African customary law, these wives are regarded as legitimate wives.

It was also important to protect the rights of the first wife and that husbands could not marry one wife in community of property whilst marrying the other wives outside of community of property. In cases where there is a dispute over assets, the courts had to make a just and equitable determination of assets between the respective wives.

On the comments by Ms Mofokeng, Ms Mathebula stated that the payment of lobola or the conclusion of an agreement between families was the sole prerogative of those involved.

COSATU submission on Recognition of Customary Marriages Amendment Bill
COSATU welcomed and strongly supported the Bill. The objective of the Bill was progressive as it sought to correct a constitutionally unfair unintended consequence of the Recognition of Customary Marriages Act, namely the abysmal failure to afford adequate protection to women married before the 1998 commencement of the Act. This has shamefully put women in pre-1998 customary marriages at significant risk of discrimination and hardship, especially with regard to divorces, deaths and the separation and settlement of estates. This Bill will now eliminate this unfair and serious form of discrimination. The Bill protected the rights of women, in particular those married out of community of property under the Transkei Marriages Act and similar former homeland legislation. The Bill is critical to protect the rights of such spouses, especially in the event of divorce and the subsequent separation and disposal of assets. COSATU did not propose any changes  to this Bill and urged its speedy passage through Parliament.

Women’s Legal Centre (WCLE) on Recognition of Customary Marriages Amendment Bill
The Women’s Legal Centre position is that if a customary marriage occurred and there was proof, then a wife had the full right to register that marriage on her own. WCLE noted that the amendment to the Recognition of Customary Marriages Act had been necessitated by a Constitutional Court judgment that declared section 7(1) of the Act unconstitutional. The court order stated that the defect should have been corrected by 30 November 2019. The Court had provided the Department of Justice and the legislature 24 months to remedy this violation of rights. The Minister of Justice had requested an extension from the Court which is awaited. The Centre had been the amicus curiae in the Constitutional Court matter of Ramuhovhi and Others v The President of the Republic of South Africa and Others 2018 (2) SA 1 (CC) which had prompted the amendment of this Act.

This amendment was of particular importance to a very specific category of women. These women have been affected for many years by the lack of protection that was afforded to other women who could have their marriage and rights in marriage recognised through this Act. In the Centre's experience most women affected by this lack of protection had been older women in both urban and rural areas. They lived in accordance with their custom and sought to give effect to their constitutional rights to do so. The amendment was important as it sought to remedy discrimination against women who were precluded from owning or holding rights in property and to manage and control property equally with their husbands.

Discussion
The Chairperson wanted to ascertain to what extent the WLCE cooperated with the CGE.

Ms Mofokeng thanked the Chairperson for asking the question about cooperation with the CGE. Civil society had a responsibility to continually bring unjust practices to the attention of Parliament. South Africa was a participatory democracy and civil society stood at the vanguard. South Africans tended to react to situations instead of being proactive.

Ms Maseko-Jele agreed and stated that there was a need for Parliament to investigate unjust and discriminatory practices. She said civil society had to stop bringing ad hoc issues to Parliament. Instead, civil society should have a holistic approach.

She assured the organisations present that Parliament would look into the matters raised and acknowledged the Parliament's responsibility to meet deadlines and that things would be done differently.

She called on WLCE to continue to raise pertinent issues that impact women and she encouraged civil society organisations to conduct educational/awareness campaigns on the rights of women and other vulnerable groups.

She called on the Chairperson to consider public participation at the grassroots level on the matters before the Committee as this would contribute towards raising awareness.

Mr Horn stated that there had to be workable solutions to the challenges facing women in customary marriages. He stated that hopefully WLCE would realise that its proposal might not be feasible.

WLCE response
Ms Seehaam Samaai, Director of Women’s Legal Centre, replied that when the WLCE broached the subject of challenges experienced by women in South Africa, there had to be an acknowledgment that women are vulnerable in South Africa. This was particularly true when dealing with substantive equality matters.

The WLCE position had been that if the marriage occurred and there was proof, then a wife had the full right to register that marriage on her own. There was a need for empowerment to be legislated and WLCE stood to advise Parliament on the need to enact legislation that benefitted women.

The non-recognition of Muslim and Hindu marriages proved to be an immense challenge in South Africa and in the case of African customary marriages some women even face threats mounted against them by families or communities at large.

Radical interactions and solutions were required to stem rising incidences of women being left destitute and that civil society organisations like the WLC had an obligation to raise awareness about the challenges faced by vulnerable women in South Africa.

She suggested that government budgets should include funding for the training of not only civil society organisations, but also legal practitioners, judges, magistrates and court clerks.

Mr Ehrenreich noted that COSATU agreed with the WLCE proposals and that there seemed to be a tendency within government to conduct five-year reviews. This seriously hamstrung efforts to adequately address matters that required immediate intervention.

Concluding remarks by Chairperson
The Chairperson said that the Committee took the concerns of the submissions seriously and it would endeavor to address some of these although it might be difficult to commit that all issues would be addressed all at once. He thanked everyone for their inputs. The Committee’s programme was tight and that it was in part influenced by the deadlines set by the Constitutional Court. The Committee has a deadline of June 2020 to conclude all outstanding matters.

Meeting adjourned.
 

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