The Select Committee was convened to receive briefings from the Department of Justice and Constitutional Development on the Recognition of Customary Marriages Amendment Bill [B12-2019] and the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill [B22B-2019].
For the briefing on the Recognition of Customary Marriages Amendment Bill [B12-2019], the Select Committee had also invited Members from the country’s nine provincial legislatures to participate and make inputs. The Committee asked whether the Amendment Bill would be applicable to non-customary marriages, and questioned the long period the Department had taken to address the Constitutional Court’s judgment in the Ramuhovhi case. Members also sought clarity on the definitions of marital property, household property, family property and personal property in customary marriages in the Bill, and asked whether these issues would be addressed in the Department of Home Affairs’ process of consolidating the legislation into a single Marriage Act.
Members sought clarity on the retrospectivity in the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill. The Department referred to two concerns with respect to the amendment. The first was the principle of legality. For instance, if a person committed a murder 40 years ago, it was and still was an offence. The other issue was the right to a fair trial. It assured the Committee that the amendment would not affect the right to a fair trial, because charges could be brought against a person only if the state had a strong case against that person.
Department briefing: Recognition of Customary Marriages Amendment Bill
Mr John Jeffrey, Deputy Minister, Justice and Constitutional Development, said the Department had tried to get an extension from the Constitutional Court. However, the Amendment Bill had been delayed because of elections and by the process of involving the National House of Traditional Leaders. The Court had declined to grant an extension on the basis there had been a reading into the provisions of the Act which did not constitute sufficient grounds for it to grant an extension.
The purpose of the presented Amendment Bill was to address the Constitutional Court case of Ramuhovhi and Others v President of the Republic of South Africa and Others. He added that there were other amendments needed in the Bill.
Ms Theresa Ross, Principal State Law Adviser, DoJCD, briefed the Committee on the Recognition of Customary Marriages Amendment (RCMA) Bill.
The Constitutional Court, in case of Ramuhovhi and Others v President of the Republic of South Africa and Others , had confirmed the decision of the High Court of South Africa, Limpopo Local Division, and held that section 7(1) of the RCMA was inconsistent with the Constitution because it discriminated 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.
The key highlights were the definition of “marital property,” “house property,” “family property” and “personal property” in section 7(1) of the principle Act.
Deputy Minister Jeffery summarised that when the Customary Marriage Act was passed, it set up a new system relating to the sharing of property. It stated that marriages entered into before the Act was passed would remain as they were. Since the Act had been passed in the country’s first Administration, he assumed the rationale was because that government had thought that parties that had entered into customary marriages prior to the Act had rights, and that the government was not in a position to intervene. What this Bill did was that it expanded the time period that it covered, and now covered customary marriages that had been entered into before the Act was passed in terms of the definition of marital property.
The Chairperson said she would first invite Members from the Select Committee to give inputs and ask questions before she invited Members from provincial legislatures to make their comments.
Mr M Mmoiemang (ANC, Northern Cape) enquired about the coverage of the Customary Marriage Amendment Bill. He asked whether this Bill would apply to marriages governed by other laws and regulations.
The Chairperson asked the Deputy Minister about the Ramuhovhi and Others v President of the Republic of South Africa and Others. The constitutional judgment had been handed down some time ago, and she wanted to know why it had taken the Department such a long time to address the issue.
Regarding the amendment to section 7(1)(d), she sought clarity on whether the Department was expecting the court to provide interpretations on the definitions on marital property, household property, family property, and personal property, as Ms Ross had just indicated that there were no uniform definitions of these terms in customary laws.
Finally, she sought clarity on the Department of Home Affairs (DHA) embarking on consolidating a single Marriage Act that governed all different types of marriages, and whether the definitions of such terms would receive more attention.
Deputy Minister Jeffrey explained that the Marriage Act fell under the jurisdiction of the Department of Home Affairs, which included ordinary marriages, civil unions, as well as religious marriages, such as Islamic marriages. The case being referred to, Ramuhovhi and Others v President of the Republic of South Africa and Others , has not been confirmed by the Constitutional Court. To put it simply, the DHA was embarking on a process to establish a single Marriage Act to apply to all marriages. He said that Gumede (born Shange) v President of the Republic of South Africa and Others, was a case that had happened a while ago.
Ms Ross affirmed that the Bill addressed only customary marriages. Other marriages were still governed and regulated by other laws.
On Gumede vs the President of South Africa and Others, she explained that the Department had picked up the need to effect legislative correction only during an oversight on section 7(1)(d) of the Act. She admitted that it was the Department’s fault for not having picked it up earlier.
Regarding marital property and household property, she said that until there was legislative certainty, customary marriages were still in effect and that there were variations on the definition of these terms in different cultures. The DHA was reviewing a whole array of issues in order to come up with a definition that had minimal disagreement across different cultures.
The Chairperson invited Members from the provincial legislatures to make inputs.
Provincial legislatures’ inputs
Mr T Matiwane (ANC; Eastern Cape Provincial Legislature) said he did not have any questions or inputs from his delegation. He would have to go back to his provincial committee and engage with Members before public hearings. He highlighted the importance of listening to communities and indicated the possible challenge in conveying the message to communities which had limited internet access.
Mr C Smith (DA; Free State Provincial Legislature) commented on the bill’s very proactive approach to addressing women’s issues in customary marriage. He would engage with Members from the provincial committee on the matter.
Mr N Mthembu (ANC, KwaZulu-Natal Provincial Legislature) said he would follow the example of the Eastern Cape to engage with provincial legislature Members on the matter, and then provide feedback.
Mr A Motswana (ANC, North West Provincial Legislature) commented that the Amendment Bill involved a complex issue around customary marriages, so his province would also follow the example of the Eastern Cape.
Mr R Allen (DA, Western Cape Provincial Parliament) commented that many of the provincial parliamentary Members were not able to join because they had received the meeting notification only yesterday. He would also be following the example of the Eastern Cape, and revert to the Committee after having a discussion with provincial committee members.
In the absence of provincial legislative Members from the other provinces, the Chairperson thanked all those present for their participation. She assured them that extensive public consultation on the Bill would take place, and that public hearings would also be held.
Department briefing: Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill [B 22B-2019]
Deputy Minister Jeffery said this Bill was to address the gap of the lapsed time period to charge a person for a particular crime. At present, if one did not charge someone within a certain time period, one could not charge that person after that time period had lapsed. This Bill addressed that gap.
Mr Henk du Preez, State Law Adviser, provided background information on the Bill. It emanated from the Constitutional Court case of Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others 2018 ZACC 16. The Constitutional Court had declared that section 18 of the Criminal Procedure Act (CPA) was inconsistent with the Constitution to the extent that it barred, in all circumstances, the right to institute a prosecution for all sexual offences, other than those listed in section 18(f) (rape and compelled rape), 18(h) (trafficking in persons for sexual purposes) and 18(i) (using a child for pornographic purposes), after the lapse of a period of 20 years from the time when the offence was committed. The Constitutional Court had afforded Parliament 24 months to enact remedial legislation, which was before 14 June 2020.
The content of the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill [B22B-2019] was provided to Members.
Mr Mmoiemang sought clarity on whether a crime that happened before this law was passed could be charged retrospectively if this Bill was passed. He highlighted the need for laws to protect the most vulnerable in the community, both in civil and criminal law.
Deputy Minister Jeffery explained an act could not be made a crime before the act was committed. This Bill was dealing with the consequences of those crimes. There would be justification for limiting the rights of victims.
Mr Matiwane asked whether the Bill presented was a result of the Constitutional Court’s ruling on Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others 2018 ZACC 16, which required Parliament to come up with remedial legislation before 14 June 2020.
Deputy Minister Jeffery explained that it was partially to amend the Criminal Procedure Act, in line with the judgment from Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others 2018 ZACC 16. However, it also went further into the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill, which was the new part. He clarified that the Department would have met the deadline had there not been the COVID-19 pandemic.
Mr Du Preez responded that there were two concerns with respect to the amendment. The first was the principle of legality. For instance, if a person committed a murder 40 years ago, it was and still was an offence. The other issue was the right to a fair trial. He assured Members that the amendment would not affect the right to a fair trial, because charges could be brought against a person only if the state had a strong case against that person.
The Chairperson indicated that the Committee would have to spend more time to interrogate the content of this Bill. It would then have to publish it to invite public comments. She believed that more issues would emerge as more engagements on the Bill happened.
Adoption of Minutes
The adoption of six sets of meeting minutes, dated 18 May 2020, 29 May 2020, 3 June 2020, 4 June 2020, 10 June 2020 and 11 June 2020, received majority support and were duly adopted.
The meeting was adjourned.
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