The Committee met virtually to consider and adopt its Report on the Recognition of Customary Marriages Amendment Bill (the Bill).
The Report noted that eight final mandates had been received. Seven provinces were in support of the Bill with the exception of the Western Cape not supporting the Bill. The North West province submitted its final mandate in favour of Bill after the adjournment of the meeting.
Committee Report on Recognition of Customary Marriages Amendment Bill
The Chairperson welcomed Members to the meeting. In the last meeting the Committee was on the verge of considering the adoption of the Committee Report on the Bill. Given the fact that the Report was received quite late by Members, the Committee decided that consideration of the report would be deferred.
The Chairperson briefly went through the Report. The Bill was a section 76 Bill that had been referred to the Committee. The Report covered the background in that the Bill aimed to amend the Recognition of Customary Marriage Act of 1998 (RCMA), to bring it in line with the judgments of the Constitutional Court. The court had found the Act to be constitutionally invalid because it discriminated unfairly against certain women in customary marriages. The Constitutional Court rulings related to the Ramuhovhi and Others v The President, and in this sense it found that the RCMA was inconsistent with the Constitution because it discriminated unfairly against women in customary marriages which were entered into before the commencement of the Act.
Further, the Bill amends section 7(2) of the RCMA in line with the judgment in Gumede v President of the Republic of South Africa in which section 7(2) was declared constitutionally invalid because the section made only customary marriages entered into after the commencement of the RCMA where a spouse is not a partner to any other existing customary marriage to be a marriage in community of property.
In terms of the public participation process, the Committee was briefed on the Bill on 23 June 2020. Being that this was a section 76 Bill, the Bill was sent to the provinces for public consultation. Members had received the nine negotiating mandates and she knew that the Report said that the Committee had received all final mandates. Members would recall that when the Bill was dealt with, the final mandate of the Free State was not available at the time. However, it could be confirmed that the final mandate had been received from the Free State but it had come after the meeting. Eight final mandates had been received and the Free State mandate would come at a later time so the report needed to be updates as such. The Committee did not want to make the amendments before Members, as the Report had already been sent out.
In terms of the public participation process, while the processes had taken place between September and November 2020, the Committee had also requested provinces to give the Committee detail. However, due to the Covid-19 pandemic, provinces were also afforded additional time to conduct public participation. In terms of the negotiating mandates, eight provinces were in favour of the Bill, with the exception being the Western Cape which did not support the Bill. On 10 November 2020, the Committee had received a briefing from the Department of Justice & Constitutional Development (DOJ&CD) on its response to issues that were raised in the negotiating mandates. The DOJ&CD had responded to all concerns. During the Committee’s deliberations concerns were raised to the effect that the Bill failed to define the forms of property ownership in customary law, such as marital, house, family, and personal property. The Committee had agreed that the Bill would require in depth research and extensive consultation with the relevant stakeholders. To avoid unintended consequences to the detriment of women in customary marriages, the Committee also noted that the South African Law Reform Commission together with the Department of Home Affairs was reviewing the South African marriage regime. A lot of the other issues had been dealt with in that process.
One other thing that was also raised by provinces was that the DOJ&CD should heed the call for a sense of public education on the Bill to ensure that all people understood the amendments made in the RCMA – which the Committee agreed with. The A-list of amendments was considered by the Committee and adopted on 18 November 2020, which was sent to the provinces for a conferral of final mandates. In terms of final mandates, the North West province did not submit its final mandate in response to the Report. The Committee had met on 25 November 2020 to consider the final mandates and had also considered the B-Bill and adopted it. She proposed that the Committee include in the Report that the North West province’s final mandate was received but only after the Committee had taken a decision, and also indicate that the province was in favour of the Bill. The Committee recommended to the House that the Bill be adopted. Attached to the Report was the B-Bill, which contained the amendments that had been made. She asked if Members wanted to raise any issues that they had with the Report or else move for the adoption thereof.
Ms Z Ncitha (ANC, Eastern Cape) moved for the adoption of the Report.
Ms M Bartlett (ANC, Northern Cape) seconded the adoption of the Report.
The Chairperson considered the Report to be duly adopted. She thanked all support officials who had assisted the Committee in terms of the processing of the Bill as well as Members for their attendance and participation in the process.
The meeting was adjourned.
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