The Committee met virtually to discuss whether it would support the Recognition of Customary Marriages Amendment Bill and Customary Initiation Bill. Members deliberated on comments received on the Customary Initiation Bill from the public as well as relevant stakeholders. No written comments were received by the Committee on the Recognition of Customary Marriages Amendment Bill - this was because the Bill was a response to a Constitutional Court Judgement that had been handed down. The purpose of the Amendment Bill was to bring the principal Act in line with the Constitution and therefore not receiving comment from the public was anticipated.
When discussing the Customary Initiation Bill, Committee Members sought clarity on some of the definitions in the Bill. They also wanted to ensure that the Bill cross-references the Constitution.
Members raised the concern that the Bill should not be an attempt to ‘prescribe culture’ but rather ensure equality as far as customary law is concerned. With regards to some aspects of the Bill, such as the issue of virginity testing, some Members felt they did not know enough to provide an input.
While still discussing the Customary Initiation Bill, the topic of traditional leaders and Khoi-San leaders and their appointment arose for discussion. As well as concerns that Nguni leadership was not recognised in the Western Cape.
Discussing the Recognition of Customary Marriages Amendment Bill, the Committee Members felt that it also did not provide clear definitions. Committee Members were concerned that the lack of definitions would provide loopholes such as husbands who wanted to take advantage of their wife/wives.
Members voted on whether or not to support both Bills - Members decided to support the Customary Initiation Bill with amendments but not to support the Recognition of Customary Marriages Amendment Bill.
Customary Initiation Bill
The Chairperson tabled the Bill for discussion in terms of the Committee’s negotiating mandate. He invited comments from Members.
He said the Committee had received comment from the Western Cape government. It said the Bill should address the use of surgical equipment and the obstacles linked to accessibility for Emergency Medical Services (EMS) to initiation schools, especially in remote areas. They also said a principal should be able to assess the readiness of the initiate to undergo initiation.
Mr P Marais (FF+) said the Bill should qualify what is meant by ‘surgical equipment’. He said this must be addressed in the Glossary of Terms.
The Chairperson said the Provincial Government is of the view that the Bill does not address the recognition of Khoi-San leadership and communication within the Traditional Leadership and Governance Framework Act.
Mr Marais said the Bill needs to be cross-referenced with the Constitution with regards to equality between the different ethnic groups, as far as customary law is concerned.
The Chairperson said this was contained in the full submission. He said members of the public wanted clarity on whether the Traditional Leadership and Governance Framework Act would be repealed when the Bill is assented to, in particular if Khoi-San leaders would be included in the Provincial Initiation Command Council (PICC)
Mr Marais said the Bill should make reference to ‘statutorily-recognised Khoi-San Leaders’ instead of just ‘Khoi-San Leaders’ as there are various groups seeking recognition.
Ms A Bans (ANC) asked why the Bill should exclude anyone and why those that are not recognised are excluded.
Mr M Xego (EFF) asked how the Nguni people of the Western Cape would be recognised and if they would be able to form their own forums.
The Chairperson proposed that age-specific references throughout the Bill should be checked, taking into account the different cultural practices.
Mr Marais said the Committee cannot prescribe culture, however he wanted to know if tests would be conducted before or after an initiate goes to initiation school.
Adv Andre Le Roux, Legal Adviser, Western Cape Provincial Parliament (WCPP), said clause 22 covers the issue of medical certificates as a requirement.
The Chairperson pointed out that ‘genital mutilation’ should include all types of female genital mutilation.
With regards to virginity testing, the Chairperson said that the Bill does not include a definition of virginity testing and that it also does not contain substantive provisions dealing with this matter. He said that it is not clear who is involved and what precautions must be taken.
Mr Marais said he does not know enough about the subject matter to give input.
The Chairperson said the definition needs to be broad enough so that people do not just conduct tests outside of the scope of the Bill.
Mr Marais said all these things are medical and should be guided by a medical practitioner.
Ms P Lekker (ANC) said the Committee should get a briefing on how virginity testing is conducted. She made reference to some groups in South Africa that practice female initiation. She wanted the Bill to include a provision for medical certificates as a requirement for virginity testing.
Adv Le Roux said the Children’s Act covers the issue of consent for virginity testing. He quoted the Act stating that a child below the age of 16 may not grant consent for virginity testing.
The Chairperson said the Bill should mention abuse in its broadest form so that it covers all types of abuse.
He also said that the Bill should set out a timeframe for the Minister to consider and approve the Report and indicate what the process will be if the Minister does not approve the Report.
The Committee considered Chief Nokwaza’s input in which he said Nguni leadership is not being recognised in the Western Cape, even though they are the main group that practices initiation.
Adv Le Roux said the PICC must be established and they must co-ordinate around issues of initiation. He also said the object of the Bill was not to recognise leadership.
Mr Marais said there is a big difference between Traditional Leaders and Khoi-San leaders. He said Nguni leaders are appointed by the President, whereas Khoi-San leaders are appointed by the Premier at a provincial level. He said traditional leaders do not have to prove their traditional leadership whereas Khoi-San leaders need to be able to provide proof by leading a continuous lifestyle and show how much support they enjoy.
The Chairperson said the current discussion is meant to ensure the Committee does not overstep the mark.
Adv Le Roux said the question of leadership has been discussed at length and that it is still ongoing. He said this Bill would be amended once Khoi-San leadership has been recognised, to make reference to initiation where appropriate.
Mr Xego said there are people of Nguni origin who are not recognised in the province but recognised elsewhere.
The Chairperson said it is his understanding that any initiation taking place in the Western Cape would be subject to the Bill regardless of the persons ‘origin’.
Mr M Kama (ANC) said he wanted to agree with legal adviser’s view that this Bill is not concerned with recognition of leadership. He said he did not want the current process to interfere with other processes, such as the recognition of traditional leadership.
Mr Marais said that they must first ask themselves what a traditional leader is, specifically in the Western Cape. He made an example in which the Griqua are recognised by the United Nations but not by the Constitution.
Adv Le Roux said that the recognition of Traditional and Khoi-San leaders is not relevant to the Bill. He pointed out that clause 11 of the Bill authorises the Premier to establish the PICC, seeing as initiation takes place in the Western Cape where there is no House of Traditional Leaders.
The Chairperson said the Committee also received comments that there should measures in place to prevent harmful practices such as those that equate to sexual and gender-based violence. The Bill needs to strike a balance between LGBTQIA+ persons, traditions, culture, religion, and other sub-cultures. The comments also said the Bill needs to create space for gender non-conforming individuals in traditional settings.
Mr Marais said it would not be wise to repeat what was already said in legislation or the Constitution.
The Chairperson reminded the Member that this was a comment.
Mr Kama wanted clarity on what it means to provide a space for gender non-conforming individuals, because the individual would be the one providing the consent to go through with initiation.
Adv Le Roux said most of the comments echo what is in the Bill. For example, clause three says the Bill must be in line with the Bill of Rights.
Members agreed with the barring of persons convicted of sexual offences from participating in initiation schools. They also supported the involvement of women as part of the process.
The Committee supported the Bill with proposed amendments.
Recognition of Customary Marriages Amendment Bill
The Committee received a briefing from the Department of Justice on 16 July 2020. Virtual public hearings were held on 22 September 2020. Submissions were accepted until 28 September 2020.
The Committee did not receive any written comments via e-mail or Whatsapp.
The Chairperson said there was no clear definition of the following:
- Marital Property;
- House Property; and
- Family Property.
This could provide a loophole for such property to fall in the sole control of the husband.
Adv Romeo Maasdorp, Senior Legal Adviser, WCPP, said he was not surprised there was no submission from the public. This is because the purpose of the Bill is to respond urgently to a Constitutional Court judgment.
Mr G Bosman (DA) said it cannot be that customary law is recognised, but the rights under the marriage are not recognised.
Mr Marais said that if a woman decided to go into a polygamous marriage then she must deal with the outcomes of that decision.
Adv Maasdorp said this Bill responds to a Constitutional Court judgment in order to make the principal Act constitutional. The Bill was not concerned with coming up with new definitions from scratch. The definitions are fluid because of the different number of tribes. He said he had reservations when a Bill that aims to restore the position of women under archaic property, is supported, because of definitions that can be found elsewhere.
Ms Bans said she would not be supporting a view that does not support the Bill.
Mr Kama proposed taking into account the legal advice received. He said the negotiating mandate needs to highlight the need to revisit the definitions.
Mr Bosman said that while the Bill addresses certain issues, it also creates loopholes. He said he does not believe the definitions should be fluid but rather certain.
Mr Xego said that the National Council of Provinces (NCOP) needs to look at further definitions.
Mr Marais said that he was very nervous about the issue of ‘law vs culture’, and the idea that the Roman-Dutch Law can ‘correct’ culture. He wanted to know if it was permissible for the Committee to involve itself in the affairs of a customary marriage.
Ms L Botha (DA) said she thinks the Committee needs to talk more about the issue.
Adv Maasdorp directed the attention of the Committee to section 2(d). This section says that the definitions have meaning that can be found elsewhere.
Mr Bosman reiterated that the definitions must be included.
Mr Marais raised the point that it seemed Mr Bosman wanted to tell the lawyer how to do his work. The definition is in the customary law. He said government is not trying to destroy customary law, but to bring it in line with constitutional principles. He said the government already consulted with Contralesa.
He also said it was ridiculous that Coloured people were sitting here trying to tell Nguni people how their customary law should look.
The Chairperson proposed putting the matter to a vote.
Mr Xego said that if the definitions were available elsewhere, then there was no need to vote and that the Committee can just support the Bill.
Ms R Windvogel (DA) said the Committee should support the Bill with amendments.
Mr Bosman said he does not support the Bill because of the lack of definitions.
Mr Marais and Ms Bans both said they support the Bill.
The matter was put to a vote. The outcome of the vote was 3-2 in favour of not supporting the Bill.
The FF+ and the ANC expressed a minority view supporting the Bill.
The meeting was adjourned
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