Registration of Muslim Marriages Bill: MP Hendricks & DHA briefing; DHA Budget: Committee Report; with Ministry in attendance

Home Affairs

02 May 2023
Chairperson: Mr M Chabane (ANC)
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Meeting Summary


Tabled Committee Reports

The Committee received a briefing on a Private Members’ Bill from MP Mr Ganief Hendricks, leader of Al-Jama-ah, on the Registration of Muslim Marriages Bill. The Department of Home Affairs, led by the Minister, provided its response to the proposed law.

The Department was of the view that it is not necessary to proceed with the Private Members’ Bill as it is currently in the process of developing an Executive Bill to regulate all marriages in South Africa. The draft Bill provides for most of the issues raised in the Private Member’s Bill

Mr Hendricks indicated that he was prepared to delay his Bill if the Minister gave him an assurance that his Bill would substantially be incorporated in the omnibus bill (Department bill), which he wanted to see by June. He added that Al-Jama-ah would assist Government to comply with the Constitutional Court order recognising Sharia marriages as valid

The Committee agreed that the Department and Mr Hendricks should meet and find points of convergence. They commended Mr Hendricks’ willingness to delay his Private Members’ Bill to circumvent a dual process on the same issue. The Committee highlighted the need to keep in mind the deadline set by the Constitutional Court to ensure compliance with the court order. That was in light of the June 2024 deadline set by the Constitutional Court to ensure compliance with the court’s order recognising the validity of Muslim marriages.

Minister Motsoaledi assured the Committee that the department was eager to find solutions. The Minister’s presentation was not indeed to prove Mr Hendricks wrong; it was just putting the facts on the table to allow Members to exercise their own discretion.

The Committee also adopted the Budget Vote 5 Report of the Home Affairs Portfolio with amendments and adopted its Annual Performance Plan 2023/24 with amendments.

The Committee resolved to hold a special sitting to enable the Minister of Home Affairs, together with the Commissioner of the Border Management Authority, to give a full report and account of the circumstances surrounding the landing of the President of the United Arab Emirates, Sheikh Mohammed bin Zayed Al Nahyan, in the Eastern Cape.

The Committee would apply to the House Chairperson responsible for committees to hold the session on Friday, 5 May 2023.

The Committee also impressed upon the Department the urgency of addressing the consequential amendments required arising from the President’s signing into law of the Electoral Amendment Bill. The Committee would receive a detailed briefing on the amendments in its next ordinary session, on Tuesday, 9 May.

Meeting report

Ms M Modise (ANC) took over as Acting Chairperson while the Chairperson had difficulty connecting to the platform.

Adoption of Committee Minutes

12 July 2022
The minutes were adopted without amendment.

25 August 2022
The minutes were adopted without amendment.

30 August 2022
Mr A Roos (DA) proposed an amendment to item 3 on page 2. It should read “however, indicated that the DA did not support the Bill”.

The minutes were adopted with the amendment.

13 September 2022
The minutes were adopted without amendment.

20 September 2022
The minutes were adopted without amendment.

27 September 2022
The minutes were adopted without amendment.

4 October 2022
The minutes were adopted without amendment.

7 October 2022
The minutes were adopted without amendment.

11 October 2022
The minutes were adopted without amendment.

12 October 2022
Mr Roos proposed two amendments. Item 3.6 on page 3 should read, “Mr AC Roos and Ms TA Khanyile objected to the clause because they felt that independent candidates, in the same way as party candidates, should choose a region or be on national lists”. Item 3.13 should read, “the next highest number of votes, after the original calculation, should fill it”.

The minutes were adopted with the amendments.

Remarks on the landing of the President of the United Arab Emirates, Sheikh Mohammed bin Zayed Al Nahyan, in the Eastern Cape

The Chairperson observed that in the previous meeting, the Committee had issues arising from the landing of the President of the United Arab Emirates (UAE), Sheikh Mohammed bin Zayed Al Nahyan, in the Eastern Cape, and the concerns around that landing. However, the Committee needed to receive a detailed brief from the Minister so that the Committee affirmed the principle of oversight and holding the Executive to account. The Committee thought that this was an important area where members of the community, stakeholders, political parties, and Members of Parliament (MPs) had raised concerns about the matter in the Eastern Cape. The Committee had already sent questions to the Chief Commissioner of the Border Management Authority (BMA), Dr Mike Masiapato, on the matters which unfolded in relation to the landing of the President of the UAE. The principle was that Members needed to have a full detailed report on the process that unfolded in relation to the landing. The Committee observed the Minister’s press briefing with his colleagues in the Cabinet, where he informed society and members of the media about the concerns raised around the landing of the President. It would be important that the Committee receive a full brief and supporting documentation in relation to that. The Committee would also request Members to consider if it could initiate a special session, whether on Friday or the first agenda item next Tuesday. It was an important matter that the Committee needed to deal with in the meeting. The Chairperson proposed that the Committee look at the special session on Friday, where the Minister and Commissioner Masiapara could give the full account of that matter. The Committee was also aware that other MPs had approached the Public Protector (PP) to invite the PP to look into that matter. He felt that the Committee must also affirm that MPs had a right to interact with the PP. That would assist both the Committee and Parliament to go into the details of what had happened in the landing. The Committee was not currently concluding on the issues that had been raised around the landing of the President and his entourage, but the Committee needed a full account so that it would have clarity on the details, and be able to pronounce itself on those issues.

The Committee would also receive a presentation by Mr G Hendricks (Al-Jamah-ah) on the Registration of Muslim Marriages Bill [B 30—2022], and also hear the response to that by the Department of Home Affairs (DHA). Members would then interact with those two presentations, and give guidance on how the Committee was going to navigate, respond or participate to make sure that all the issues that were presented to the Committee in relation to that subject matter were dealt with. He recalled that in the previous meeting, the Committee postponed the matter that led to a consequential amendment of the Electoral Act. The Minister would have to brief the Committee in terms of the process. The Committee had no other time to deal with that matter. In the next meeting, the Committee proposed that the Minister would give an update on where the Department was since it requested time. The Committee believed that it had given sufficient time for the Department’s legal team, and also those that were consulting on the matter, to come back to the Committee.

Mr K Pillay (ANC) remarked that the Committee supported that there should be a special meeting called where the Minister could be able to respond to all of the questions that had been sent to him. He felt it was important to note at that juncture that the Committee was not making any assumption that there was anything untoward, but instead, the Committee simply wanted to know the processes that had been followed. He felt that it was for the betterment of society that the Committee was able to give those kinds of answers. He felt that for any future happenings, the Committee should be kept abreast of it.

Adv B Bongo (ANC) agreed with Mr Pillay.

Mr Roos agreed that the Committee needed a briefing. He felt there were some questions that needed to be answered. The Committee would first see what came out of that before jumping to conclusions. He felt that the Committee needed to raise serious concerns that it had already given the Minister time to present the report on the consequential amendments. The report was supposed to be served three days before today’s meeting. The Committee did not have time in that process, and it had gone through that process again and again. There had been delays from the ministry’s side. The Committee needed to insist that that happened at that next meeting so that it could move forward with the consequential amendments with urgency.

Ms L van der Merwe (IFP) felt that the briefing that the Chairperson had proposed was an important one. She currently found that there were a lot of issues pertaining to the Committee that ended up playing themselves out in the media. MPs were “subjected to the same treatment as all the other members of the public”; MPs seemed to be getting information from social media, and then they saw press conferences by the Department on eNCA or some of the other channels. There had been the issue of the Thabo Bester matter; there had been the issue of the Guptas and their travel documents, and now the matter of the landing of the President of the UAE. She was sure that in that case, the Minister already knew about the landing of the royal family sometime before it hit the media. She was thinking that perhaps in future, the Committee could also have those types of briefings happen before such matters were actually in the public domain. If possible, the Minister could have briefed the Committee, and given it information about the landing of the royal family before it was revealed in the media. Then it would stop some of those issues that played themselves out in the public domain, where people did not have the correct information, or they assumed that there was something wrong, or that there was something untoward. Maybe in the future, the Committee could do it the other way around. She supported the need for a special briefing on that matter.

Mr Y Tetyana (EFF) agreed with Ms van der Merwe. The Committee did not want to be “shocked”, but it did not necessarily want to appear to be “co-running” the Department with the Minister and his team. Members wanted to at least be appraised on some of the issues where Members could potentially find themselves having to speak without knowledge as if they were not serving together on the Committee. He agreed with the Chairperson’s proposal, and with what Ms van der Merwe was saying, where Members could be privy to those things before they happened. If the current matter had been known before it reached the media, the Committee would not have had the questions it did.

Ms Modise fully supported the Chairperson’s proposal that the Committee needed to set aside time for it to receive a briefing on the developments on the issue that had been in the media. In a case where the Minister was unable to brief the Committee formally in a Committee meeting, then could he at least write a letter to the Chairperson informing the Committee of the developments, or what was to happen, so that at the time those issues were in the public, at least the Committee would have gotten information.

She asked if the Chairperson suggested that the meeting be set aside for Friday, or was he suggesting that it must be in the next meeting?

The Chairperson said that the Committee would request Mr Eddie Mathonsi, Committee Secretary, to check the dates, because the Committee’s meetings were scheduled on Tuesdays. But if Mr Mathonsi had to request a special meeting or to do applications, then the Chairperson proposed that the Committee invite the Minister on Friday, 5 May. If that was not possible, then the Minister could perhaps brief the Committee on Tuesday, where the briefing would be the first item on the Committee’s agenda.

Mr Mathonsi replied that he needed to apply to the House Chairperson’s office for the special meeting on Friday. Sometimes the office would not approve such because of Members serving on other committees, but he would make an application. He would inform Members once it had been processed.

The Chairperson suggested that the Committee take the principal decision that its meeting would be on Friday, and then Mr Mathonsi would inform the Committee by the following day. If the meeting was not approved for Friday, then the Committee would deal with the item the next Tuesday. The following process would follow: Members of the Committee who still had questions to submit for the Minister’s attention would send those questions to Mr Mathonsi, who would then send those questions for the Minister to consolidate into a comprehensive response. The Committee requested that the Minister submit that presentation to it at least by Thursday so that if it was meeting on Friday, Members would have details on the issue that it was going to engage with at that meeting. At least the Committee would be able to have deliberations, because questions were already being sent to the Minister for his attention.

The Chairperson confirmed with the Minister if he understood what the Committee intended to do.

Minister Motsoaledi confirmed that he would be ready for Friday, and would follow the processes as outlined. The other issue, if the Committee had any time next week, was the issue of the amendment to the Electoral Act. He would also be ready by next Tuesday so that whether the Committee started with the amendment or items already on the agenda, it would be fine with him. For both Friday and the following Tuesday, the Minister would be ready for the things that the Committee was asking.

Mr Mathonsi then read out the apologies from Members, and an apology from the Director-General of Home Affairs, who had to depart at 10:45.

Briefing by Hon MGE Hendricks on the Registration of the Muslim Marriages Bill

The Chairperson thanked Mr G Hendricks (Al-Jama-ah) for presenting his Private Members’ Bill, and thanked the team that assisted Mr Hendricks to introduce the Bill. He also thanked the Minister of Home Affairs and his team for briefing the Committee on the process undertaken at the level of the Department. Members would then raise questions, and would then deal with the matter of taking a decision once they got a sense of what issues Members were raising, and of the issues that Mr Hendricks and the Minister of Home Affairs were raising.

Mr G Hendricks (Al-Jama-ah) presented.

He began by greeting the Committee: “Good morning, molweni, Assalamualaikum wa rahmatullahi wa barakatuh”. He was indeed honoured that the Minister of Home Affairs and the Director-General of Home Affairs was present. It showed their commitment to be present whenever they could whenever important issues of any community in South Africa were raised. He thanked the Committee for granting him an opportunity to assist the Committee to consider a motion of desirability for his Private Members’ Bill called the Registration of Muslim Marriages Bill. He hoped that his briefing, which he had sent to the Committee and the DHA the previous Friday, would persuade Members to support his Bill. He knew that he was contesting for support of the Bill with a report from the DHA which would try and persuade Members not to support his Bill. He hoped that all parties would come to an amenable solution.


It was on this premise that our courts had to step in to address the state’s failure to deal acceptably, lawfully and Constitutionally with Muslim marriages. So, when our Constitutional Court found fault with the Marriage Act and the Divorce Act due to their failure to meet the important constitutional principles of dignity and equality, among others, because it fails to recognise Sharia marriages as valid marriages, it was Al-Jama-ah who, fuelled by the support of its constituency and Muslims affected by these deficient laws across our various provinces, took the responsibility of crafting a Bill that we, amongst ourselves, refer to as the ‘bare-bones’ interim Bill.

Mr Hendricks added that he had crafted a Bill to comply with the Constitutional Court (ConCourt) judgement meeting the deadlines to save the Executive and Parliament, which included himself, not to be delinquent and in contempt of court. He was aware of the fact that the DHA had promised to have a Bill that would address the orders of the ConCourt with regard to the recognition of Sharia marriages ready by June, postponing the date promised by the Green and White Paper by a year, and later postponing again, from March to June this year, letting down the stakeholders it consulted like the Muslim Judicial Council (MJC) by another three months. In their heart of hearts, the Department of Home Affairs, the legislative drafting team of Parliament, the Parliament Constitutional Muster Committee, and the Legal Head of Parliament knew that the Department of Home Affairs would not be able to meet the deadline of the ConCourt that was 12 months from now. As long as the so-called Omnibus Marriage Bill was not promulgated (his guess was that it would only happen in the seventh Parliament; he may not even be elected to the seventh Parliament), there remained a need to regulate the recognition and registration of Muslim marriages in Africa. The point is that the omnibus Marriage Bill was put in motion too late. Even the Cabinet rejected the latest version. If the Interim Registration of Muslim Marriages Bill was not adopted, then there would be a lengthy period where no legislation regulated the essential aspects of Muslim families in South Africa. The DHA would therefore be in contempt of court, and Parliament would have failed in its oversight role if it did not utilise other interim measures that had already been set in motion and could easily be supported by the Department to both comply with the ConCourt order, and comply with the constitutional obligation of avoiding one more day of infringing the constitutional rights of all Muslim women and men married in terms of Islamic law, or intend to get married in terms of Islamic law during the interim period.

Current Position – Problems Presented

On 6 January, the Director-General of Home Affairs, Mr Tommy Makhode, issued a circular introducing his staff, especially at the front desk of Home Affairs offices, to register all Muslim marriages in terms of the regulations of the Customary Marriages Act 1998.

It must be further noted that the Recognition of Customary Marriages Act in its entirety cannot be applied to Muslim marriages in any manner that will be considered constitutionally and legally defensible. This is because customary law is specifically defined in the Recognition of Marriages Act as the customs and usages that are traditionally observed among the indigenous African people of South Africa, and which form part of the culture of those peoples. While this definition may include many indigenous African people that are also Muslim, for generations since the founder of Islam in South Africa, Sheikh Abadin Tadia Tjoessoep also known as Muhammad Yusuf al-Maqassari came to Macassar in Cape Town 350 years ago, it would not provide for the specific application of Sharia law to such marriages at all, and in fact, it would create a conflict of laws. One merely has to consider how vastly different the concept of Lobola is to the Mahr (Islamic dowry), then one can appreciate how in practice, this can create problems for the prospective wife within the family and may open up risk factors for practices like orchestrated Ukuthwala, domestic violence, or abandonment – this is an untenable situation! The Act patently would not be applicable to and excludes those Muslims who are not indigenous African people.

Mr Hendricks returned to the issue of the circular: The circular is an incorrect interpretation of the court judgement. The Director-General took it upon himself to register Muslim marriages in accordance with indigenous African customary law. As regards clause 6 of the Private Members’ Bill, the Minister is empowered to promulgate regulations whereby he could vary the time period with which registration of Muslim marriages should be varied. Any concern of the Minister can be resolved in accordance with that clause. There is nothing wrong with clause 6. Mr Hendricks received a certificate of compliance from Parliament's Constitutional Certification Committee. The Minister could hardly raise the point in question as a reason for not being in support of the interim Bill, offered to him to avoid his being held in contempt of court, especially because this is a “get out of jail free card”. Al-Jamah-ah has been working not only with the MJC but also with the Minister and his Department were consulted. Al-Jamah-ah was also working with 200 Muslim African wives, and other Muslims from Zandvlei, where the word of Islam started 350 years ago, and each of the other Ulama bodies in Africa, which the Department did not consult unless that was not on the record. It was also working with Muslim lawyers, and the youth, who would face the brunt of any further indignity. African Ulamas in their numbers were consulted. And all this can be seen in Al-Jamah-ah’s memorandum, which is published in the Government Gazette.

Contents of the Bill

The “bare bones” Bill Mr Hendricks submitted contained only the essential aspects of registering a Muslim marriage and the consequence of entering into a Muslim marriage.

In summary, this Bill makes provision for:
- the recognition of Muslim marriages;
- the requirements for the conclusion of a valid Muslim marriage;
- the solemnisation of Muslim marriages;
- the registration of Muslim marriages;
- the proprietary and other consequences of Muslim marriages;
- the dissolution and consequences of dissolution of Muslim marriages; and
- the automatic repeal upon the promulgation of any final legislation by Parliament which addresses the failures identified by the Courts.

The Bill is intended to regulate the recognition, requirements, solemnisation, registration, proprietary and other consequences, dissolution, and consequences of dissolution of Muslim marriages; and to provide for matters connected therewith.

Mr Hendricks added that Muslim women did not have access to divorce courts, while all other women in South Africa had access to those courts, which was unacceptable.

Section 1 provides for definitions of key terms and concepts unique to Muslim marriages and required procedures and role players in the solemnisation thereof. A key term is the definition of Islamic Law (Sharia), which means the law as derived from traditional customs (Al-Urf), the two primary sources, namely, the Quran and the Sunnah (Prophetic model) and that uses juristic tools such as ijma (the consensus) of Muslim Jurists of the individual jurist’s qiyas (analogical deductions) to issue legal edicts. “Muslim Marriage”, subject to section 2, is a legal contract of marriage that regulates the consequences of the parties’ intended marital relationship, concluded during a ceremony referred to as nikah in accordance with Islamic Law.

Section 2 provides for the application of the Bill, to a Muslim marriage concluded after commencement. The Bill would also apply to a Muslim marriage concluded before commencement, if the parties to that Muslim marriage elect to have their marriage so registered with the Department.

Clause 3 provides for the recognition of Muslim marriages as valid in law.

Clause 4 provides the requirements that the parties must comply with in order to conclude a valid Muslim marriage under the Bill. Parties must comply with the Islamic Rulings regarding required age as well as with the prescripts already set out in sections 24 to 27 of the Marriage Act. This clause therefore accords with the current statutory marriage regime and accords with International and regional Human Rights Treaties and Declarations, such as the Southern African Development Community’s (SADC) Protocol on Gender Development. Such treaties provide that while no person under 18 may marry, there may be other exceptions/specifications in law, provided that they take account of the best interests of the child. Other requirements under this clause include that the Parties must be of sound mind; They must not be aware of any lawful impediment to their proposed marriage; The marriage must be freely and voluntarily entered into; and Consent to be married to each other must be provided in writing.

Mr Hendricks added that this is all to avoid human trafficking in terms of South Africa’s commitments when it comes to international agreements.

Clause 4(2) provides that a prospective wife must determine the dowry (called the mahr) that she expects from her prospective husband. The dowry may include the performance of any obligation prior or after the marriage has been confirmed. (Mr Hendricks added that “This gives the Muslim wife more rights than any other woman in the world”.) The acceptance of requested dowry by the prospective husband creates a binding obligation on that prospective husband, which will never prescribe.

Clause 4(3) provides that the parties may each mandate a person to negotiate the dowry on behalf of the parties to the marriage.

Clause 4(4) provides that the agreed terms of the dowry must be recorded in writing and noted with the marriage certificate issued by the marriage officer. This provision has no equivalent in civil law and is meant to provide a measure of financial security to women in Muslim marriages. The passage of this Bill would permit the enforceability of this Sharia law right which cannot currently be enforced. (Mr Hendricks added that currently, Muslim wives did not have access to the divorce courts because they did not have a valid South African marriage certificate, although they had a nikah certificate.

Clause 5(1) provides for the solemnisation of Muslim Marriages by a marriage officer. It provides that the marriage must be conducted: in the presence of the parties to the Muslim marriage themselves; and in the presence of at least two competent witnesses. Clause 5(4) provides the marriage formula, in accordance with Islamic law tenets.

Clause 6 provides for the process of registration and the responsibilities of the Marriage Officers in this process. Such responsibilities include to:
- complete a certificate on the prescribed form;
- state that at the time of the solemnization of the marriage he was entitled to solemnise that marriage;
- record the details of the parties to Muslim marriage and the date, time and place of the solemnisation thereof;
- note the terms of the dowry as contemplated in Clause 4(4);
- indicate the matrimonial property regime contemplated selected by the Parties within a reasonable period after the conclusion of the Muslim marriage, transmit the marriage register, certificate, and any other prescribed documents, to an authorised officer contemplated in the Identification Act; and
- keep record of the marriage, including a copy of the certificate contemplated in sub-Clause (2) until such time that the Muslim Marriage is duly registered with the Department.

Clause 6(4) allows for the retrospective effect of the right to have Muslim Marriages registered in accordance therewith, and on application by either spouse to a Muslim marriage.

Clause 6(5) permits either party to a Muslim marriage to request a marriage certificate, or copy thereof, which is to be issued by the Department.

Clause 6(6) provides that the marriage certificate is prima facie proof that a valid Muslim marriage exists between the spouses, and that it has been registered with the Department.

The above provides critical relief to a Muslim spouse who seeks the legal vindication of any of their rights which arise from the marriage, which have to date been unobtainable.

Clause 7 of the Bill is of the utmost importance. It provides for the Proprietary consequences of Muslim marriages, as follows:
- The parties to a Muslim marriage must voluntarily choose the matrimonial property system that will apply to their marriage.
- This election must be indicated on the home affairs prescribed form. This is a creative innovation proposed by the Minister of Home Affairs to reduce legal cost and notarial deed cost for indigent couples.
- If the chosen matrimonial property regime is that of out of community of property, an antenuptial contract must normally be entered into and must comply with Chapter VII of the Deeds Registries Act. The Minister's innovation does away with this.
- A court may on application by either or both of the parties to the Muslim Marriage, subject to such conditions as it may deem desirable, authorise the postnuptial execution of the notarial contract having the effect of an antenuptial contract, if the terms thereof were agreed upon between the intended spouses before the Muslim marriage, and may order the registration, within a specified period, of any contract so executed, in accordance with section 88 of the Deeds Registries Act.
- Provides for the applicability of the Matrimonial Property Act, 1984 (Act No. 88 of 1984) to the matrimonial property regime chosen by the parties.

Mr Hendricks thanked Parliament’s legal advisor, the Constitutional Muster Committee, and the drafting team for their valuable assistance to ensure a Bill that South Africa could be proud of, and which complied with the requirements of the ConCourt.

Clause 8 of the Bill is similarly of great importance. It provides for the equal status and legal capacity of spouses, stating that:
“Each party to a Muslim marriage has full status and capacity, including the capacity to acquire assets and to dispose of them, and to enter into contracts and to litigate in their own name.”

The presentation also covered clauses 9 to 12 of the Bill.

Mr Hendricks added that there were 12 months to go for the Department and the Department of Justice and Constitutional Development (DoJ&CD) to comply with the order of the ConCourt, but had not done anything to amend the Divorce Act. That matter would still come before the Portfolio Committee on Justice and Correctional Services. There were only four minor amendments to be made, but “both departments had ignored it”, and would be in contempt of court. Parliament would be accused of not doing proper oversight, because “nothing had been done so far”.

Regarding clause 10, Mr Hendricks added that the Green Paper said that there should be an alternative dispute resolution mechanism to deal with disputes, and not to clog the courts. The Muslim community already had many dispute resolution bodies, which the Bill would give more powers to, and more teeth. The Muslim community was ready to implement the suggestion in the Green Paper that different communities must have different dispute resolution processes, such as the Commission for Conciliation, Mediation and Arbitration (CCMA) when it came to labour matters. Mr Hendricks had 40 years of experience in the CCMA.

Mr Hendricks made a strong statement for the Bill, citing the suffering of Muslim wives for 15 years due to the current structure of the Marriage Act. He also gave the example of Imam Haron, who died in detention during apartheid; his young children were left homeless because of the Marriage Act (which the ConCourt declared unconstitutional).

The Department of Home Affairs has made an attempt to comply with the order of court in respect of Muslim marriages. However, the department has erroneously followed the order of the Supreme Court of Appeal, and not to the Constitutional Court. The Director-General of the Department of Home Affairs, Mr L T Makhode has thus issued a circular to all its marriage officers / officials / registrars on 6 January 2022, instructing them to register all Muslim marriages in terms of the “Recognition of Customary Marriages Act, 1998 (Act 120 of 1998)”, as amended, with the necessary modifications”.


Mr Hendricks acknowledged that the Committee was solutions-orientated. The Chairperson arranged a meeting between Mr Hendricks and the Minister in order to find solutions. He appreciated that, and said that that was real leadership.

He went on to say that nobody was in the meeting to point fingers. The matters under discussion were difficult matters, but Al-Jamah-ah had provided a mechanism for a solution. The outcome it wanted was a mechanism for the registration of Muslim marriages at the front desk of any Home Affairs office, until such time as the Omnibus Marriages Bill saw the light of day. Al-Jamah-ah wished the Minister every success. The Minister had indicated that Mr Hendricks could withdraw his Bill, because the Department would put his Bill in the Omnibus Bill. But he could not allow Muslim wives to suffer one more day because of the inability to take their issues to the divorce courts, which was a free court for which they did not need lawyers and advocates to address their problems. He pointed out that there were “at least 100 cases” of Muslim women who were assisted by non-government organisations (NGOs) in going to the courts because they sought redress as a result of the breakdown of their marriages.

(See Presentation)


The Chairperson observed that the Committee had been dealing with various issues. Members had detailed knowledge of processing matters, whether private members’ bills or any other matter that came before the Committee. He assured Mr Hendricks that in the Committee’s interactions with him and with the Minister, Members, in their wisdom, would be able to process that matter, while looking at the issues in the spirit of the Supreme Court of Appeal (SCA) or the ConCourt judgement. Members would come back to Mr Hendricks’ Bill after the presentation by the Department. 

Response by the Department of Home Affairs on the Registration of the Muslim Marriages Bill

Minister Motsoaledi presented. He introduced the presentation by saying that the Department was not there to compete with Mr Hendricks. The Department was not his enemy or his opponent in the matter of marriages. The Department just want to find solutions, because “we are all South Africans, and we want all South Africans to be comfortable”. The presentation he was going to make was not to prove Mr Hendricks wrong. It was just to put facts on the table so that Members could exercise their own discretion on how to go on, taking into consideration that both bills, namely the Private Members’ Bill and the Executive Members’ Bill would still have to be processed by the same Committee. There was no question about that, and no other way of doing it. It was true that the Department did meet Mr Hendricks, which included the Minister, and the Chairperson of the Committee. It was true that the Department and the Committee tended to look for solutions. The Department and Mr Hendricks never reached any final conclusion. The Minister was sure that after the Committee received the presentations from Mr Hendricks and the Department, the Committee might like to go and consider all the issues, and come up with a probable solution.

Members might recall that the issue of marriage in South Africa “is a sore point” for all religions, all traditional groups, all rights groups, and many NGOs, etc. It was for that reason, that in August 2019 when the Department started the first meeting of consultation on those issues, it invited scholars, academics, and traditional leaders in various communities, including various religious groups, Christians, Muslims, Jews, etc. The Department consulted all of those groups, and it was not an easy exercise at all, because marriage was not just a legal document or legal undertaking. Most marriages reflected the culture of individuals, it reflected their spiritual understanding, their religious beliefs, and their philosophy in life. In some cases, it may even reflect their political orientation. That was what marriage was all about. For that reason, it was a very complex issue. The Department was trying to come in as the law to try and give a piece of paper such that nobody could deviate. If one checked all the rulings of the court on that issue, it did not put “serious emphasis” on the fact of having a legal paper for marriage, they followed exactly what was the intention of the two people. In the final analysis, after all the consultation, it took four years. The Department wanted to develop a White Paper. When it went to the Cabinet, it said that the matter affected each and every sector of the community in such a profound way that it wanted the Department to go back and start with a Green Paper so that everybody's proposals were considered in the Green Paper. Members may recall how in that process, the Department also put in the issue of polyandry, which raised “a lot of firestorms”, even by Members of the Committee, even by the Cabinet, but the Department just tried to accommodate everybody's proposal so that they got discussed. In the final analysis, the Department said that Parliament must produce an omnibus bill which would accommodate all South Africans, and which would be characterised by three things: Human dignity, equality, and non-discrimination. That was what the Committee was faced with: How to produce a final Act that reflected all three of those characteristics, namely human dignity, equality and non-discrimination.

Minister Motsoaledi observed that the Cabinet never rejected the present draft of the Muslim Marriages Bill. It was going through the motions of the Cabinet. In the last meeting, there were several issues that were raised by the DoJ&CD, and the Cabinet sent the Department back because it did not just want to be “rubber stamps”. It sent the Department back to deal with those issues so that when the Bill finally ended up in public, the issues were resolved by Government itself. That was exactly what happened. The Department believed it was ready to put the Bill forward. The Department had also dealt with the issues related to the ConCourt, and would expand on those issued during the presentation.

Registration of Muslim Marriages Bill, 2022

• It is important to note that Clause 11 of the Private Member’s Bill deals with the limited duration of application of the Act and in part, provides that “[T]his Act will be automatically repealed upon the commencement of an Act of Parliament regulating the registration, recognition, solemnisation, proprietary consequences and dissolution, and consequences of dissolution of, Muslim marriages (sic).”.

• Having regard to this Clause, it is clear that the Bill is meant to provide a temporary recognition and regulation of Muslim marriages. It is, therefore, our considered view that the Bill is not necessary as the Department is currently in the process of developing an Omnibus Marriages Bill - Executive Bill in terms of section 76 of the Constitution. The Marriages Bill provides for the solemnization, registration and dissolution of all marriages, including Muslim Marriages. The Marriages Bill was presented to the Justice, Crime Prevention and Security Cabinet Committee (JCPS), as well as the Department of Social Development (DSD) on 7 February 2023. The Bill was sent back by the Cabinet Committee to the Department for further consultation with the Department of Justice and Constitutional Justice and the Department of Social Development. The consultation process has been concluded and the Bill will be submitted to the JCPS Cabinet Committee in May 2023 for consideration and recommendation to Cabinet. The Bill will, in all likelihood, be gazetted for public comment by 30 June 2023 for a period of three (3) months.

Minister Motsoaledi added that the Private Members’ Bill was saying that as soon as Parliament had finalised the Executive Members’ Bill, the Private Members’ Bill would automatically lapse. If the Committee accepted the Private Members’ Bill, it would have to deal with two bills in parallel.

In relation to the second bullet point, he observed that the three departments (DHA, DoJ&CD and DSD) had to be very clear that the passing of the Bill would not interfere with some of the bills under their jurisdiction. Considering that the public had been dealing with that matter for “the past four years” meant that it would not be something new.

• Clause 4(1)(a) of the Bill requires that parties who wish to enter into a Muslim marriage must be 18 years and provide the requisite identification. The draft Marriages Bill outlaws child marriages (marriages of persons younger than 18 years) and provides for the laying of a criminal offence against any person who facilitates such a marriage.

Minister Motsoaledi added that currently in South Africa, children aged 16 years could get married provided that their parents consented to the marriage. The Department agreed with Mr Hendricks that clause 4 accorded with the SADC Protocol on Gender Development. Unfortunately, that Protocol was “never implemented”, but the Bill sought to implement it, and to criminalise parents who forced children to get married.

• Clause 6 deals with the registration of Muslim marriages. Clause 6(3)(a), in particular, requires that the marriage must be registered within six months after the conclusion of the marriage. Section 4(3)(b) of the Recognition of Customary Marriages Act No 120 of 1998 (RCMA) provides for the registration of customary marriages within three months after the conclusion of the marriage or within such longer period as the Minister may from time to time prescribe by notice in the gazette.

Minister Motsoaledi explained further. The Private Members’ Bill proposed that after a marriage had been concluded, it must be registered within six months. The RCMA provided for registration three months after marriage. “There is no way that we can be at variance because of a difference between six months and three months”. He wanted to explain the issue of a “longer period as the Minister may prescribe from time to time”. When the Customary Marriages Act was passed in 1998, Parliament was aware that lots of people, especially in African cultures, had been married through customary marriages, which were not recognised. South Africa had only one Act which was passed in 1961, which was Western-orientated and Christian-orientated, and “forget about all the other religions and cultures”. After 1994, in trying to remedy that, Government passed the RCMA to try and accommodate those people who married customarily, but that was not enough. In 2006, the Government accommodated same-sex marriages. Many Members might have participated in that. It was also a “very, very difficult and intense exercise”, but it was passed. This time around, the Government discovered that it had not solved the problems of South Africa, because even adding two more acts did not solve the problem. That was why the Department started the process again, and noted that there were too many gaps. Muslims had been left out, Jews had been left out, Hindus had been left out, and certain forms of traditional marriages among South Africans had been left out, regardless of the RCMA. For instance, “we know that in many African royal families, there is a way in which they marry the woman who will eventually bear the future leader of that particular nation”. Members were aware that there had been many battles about that issue. The Department realised that the RCMA did not cover that. That was why the Department needed a new Act. Now, after the passage of that Act, there was a call that all the people who married customarily must come and register, but those who do so after the passing of the Act must register within three months. Many people did not heed the call, so “ministers after ministers of Home Affairs”, Minister Motsoaledi’s predecessors, had to on many occasions extend that registration period in the Government Gazette. Ministers kept on extending that period because the Department said the intention of that Act was not to lock anybody out and say, “No, the time has passed; your marriage is not recognised”. That was not the intention. That was why the registration period kept on being extended, and even up to now, it was still being extended. The door was still open for people to come and register.

• The Department is currently registering Muslim marriages through the RCMA following the Constitutional Judgement on Muslim Marriages which instructed the Department to provide an interim measure for the registration of Muslim marriages through the RCMA. On 28 June 2022, the Constitutional Court confirmed a Supreme Court of Appeal (SCA) ruling for Women's Legal Centre Trust v President of the Republic of South Africa and Others, which legally recognises Muslim marriages and declares certain sections of the Marriage Act and Divorce Act unconstitutional.

Minister Motsoaledi read out paragraph 1.8 of the ConCourt orders: “Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, it is declared that from the date of this order, section 12(2) of the Children’s Act 38 of 2005 applies to the prospective spouse in a Muslim marriage concluded after the date of this order”. In paragraph 1.9, it went on to say that: “Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, for the purpose of paragraph 1.8 above, the provisions of sections 3(1)(a), 3(3)(a) and 3(3)(b), 3(4)(a) and 3(4)(b), and 3(5) of the Recognition of Customary Marriages Act 120 of 1998 shall apply, mutatis mutandis, to Muslim marriages. ”. It was not the DHA who imposed the scenario that while Parliament would be seized with that matter, Muslim marriages would be registered in terms of the RCMA. It was the ConCourt that made that ruling that, in its wisdom, that would be a stopgap measure.

• After the CC judgement, the Department issued a Circular on 31 March 2023 advising Civic Services Front Office on how to register Muslim marriages as per the order of the Constitutional Court.

The Department issued that circular after meeting with Mr Hendricks, who was concerned about the humiliation of Muslim wives who sometimes “got a raw deal” in the front offices of Home Affairs. The Minister was the one who asked for that new circular after meeting Mr Hendricks, to make sure that there were no mistakes committed by people in the Home Affairs front offices.

• Clause 7 of the Bill deals with proprietary consequences of a Muslim marriage and requires that the parties must voluntarily choose the matrimonial property system which will apply to their marriage. Importantly, this provision requires the conclusion of an antenuptial contract if the system chosen is out of community of property.

Minister Motsoaledi said that clause 7 reflected what Mr Hendricks mentioned in his Private Members’ Bill.

• Currently, the law requires couples, when concluding a marriage, to choose from three matrimonial property regimes; that is, marriage in community of property, marriage out of community of property with accrual and marriage out of community of property without accrual. In the event that couples do not conclude an antenuptial contract, the marriage is regarded as a marriage in community of property (default position). In future, there will be no default matrimonial property regime. Couples will be given an opportunity to choose a matrimonial property regime that suits them. The Department, working with the DoJ&CD, will introduce a pro forma antenuptial contract for couples who may not be able to afford lawyers (notaries).

Minister Motsoaledi added that the DHA would put the above in the training programmes of all marriage officers. In terms of the new Act, marriage officers must no longer come from one religious group. It would extend to all other religious groups and traditional groups to be able to solemnise marriages, and the DHA would give them certificates. During training, marriage officers would be taught that it is an obligation to make sure that couples choose deliberately what matrimonial property regime they want to get married into. He also observed that Mr Hendricks raised the issue of the default matrimonial property regime. Any position chosen would be a contract, and all marriage contracts required lawyers. Mr Hendricks pointed out that there were many poor Muslim women who could not afford lawyers. At that point, the Department came up with the idea of a pro forma contract, since there would be other poor South Africans who could not afford lawyers. Such a contract would be underwritten by the DoJ&CD. Those who could afford lawyers would still be able to make use of such services.

• Clause 9 of the Bill deals with dissolution of a Muslim marriage and refers to section 3 of the Divorce Act. The draft Marriages Bill also deals with the dissolution of all marriages and refers further to the Mediation in Certain Divorce Matters Act, 1987 and the Divorce Act.

Consultations on Muslim Marriages

• The Department has had consultations with the Muslim Judicial Council (the “MJC”) on 30 January 2023 in Cape Town in order to deal with the registration of Muslim marriages. This meeting reviewed the “White Paper on Marriages and draft Marriages Bill” and received support from the MJC.  Prior to this (on 10 September 2021) there has also been consultation with the Al Jama-ah Political Party.
• The MJC raised issues relating to, inter alia, the issuance of death certificates wherein the certificate reflect the spouses as either “single” or “never married”.
• Mr Hendricks also strongly mentioned this fact as objectionable and offensive to the Muslim community. The Department fully accepts this criticism. However, it is important to note that the issuance of “never married” death certificate affects every person whose marriage is not registered with the Department. Most marriages which were concluded before 1986 were registered manually and were not entered to the National Population Register. Couples who are married in terms of the RCMA also suffer a similar consequence if their marriages are not registered with the Department.

Minister Motsoaledi added that the issue of marriages not being entered to the National Population Register affected him a few months after he entered the DHA. His mother passed on, and he went to fetch her death certificate, and it said “never married”. With anger, he went back to the office, which was in a funeral home in Mamelodi. The person laughed at him, and told him that that issue came from his department. He then phoned people in the Department to find out what was happening. He was told that most marriages concluded before 1986 were not recorded in the National Population Register, which affected any person, regardless of the matrimonial regime they were married under. His parents did not know about that, and never went to register their marriage; they thought that their marriage was registered when they married many decades ago.

The RCMA said that people must register their marriages within three months. There were three requirements for the registration of such a marriage: If one could prove that lobola was paid, e.g. by showing receipts or signing an affidavit under oath, and then presenting documentation to Home Affairs. Another requirement was that one could also prove that two families came together to negotiate. The final registration and documents were “just a legal issue”; the main issue of marriage was what was in people’s hearts. Did the prospective partners tell their families to negotiate a marriage relationship between them? If one could give proof in the form of affidavits if one had no other evidence, then it was acceptable. Lastly, if one could demonstrate that there was a form of celebration, whether a goat was slaughtered and a few people came together, or a “bigger beast” was slaughtered, then that was also acceptable. Recently, there was a case where someone got married before 1994, and the husband died before the marriage was registered. A woman then appeared and claimed that the man who died never got married, and was living with her. The first woman said that she was married customarily with the man who died. She was asked to show the registration, and Home Affairs found that the marriage was not registered. The matter went to court, and the judge ruled that as long as a couple could produce the three things – proof that lobola was paid, proof that two families sat together to negotiate, and proof of a form of celebration – then that was a marriage, even if it was not yet registered with Home Affairs.

• The Department, unfortunately, did not undertake extensive marriage registration campaigns on the registration of marriages. The Department will intensify the campaign on the registration of marriages.
• The White Paper on marriages provides for the compulsory registration of marriages.


The Department is of the considered view that: -
• it is not necessary to proceed with the Private Members’ Bill. The Department is currently in the process of developing an Executive Bill to regulate all marriages in South Africa. The draft Bill provides for most of the issues raised in the Private Member’s Bill.

Minister Motsoaledi added that when the Department did consultations, there were people who were insisting that their religious beliefs needed to be put in the Bill. In Miniser Motsoaledi’s home province, there were many people who wanted their traditional beliefs to be in the Bill. But the Bill was a product of trying to bring all South Africans together. If favour was shown to one group, then one could end up with “many bills” instead of one Omnibus Bill. The thinking of uniting South Africans was not being done as a form of opposition against Mr Hendricks; the Department was just putting facts in front of the Committee.

(See Presentation)

The Chairperson felt that Mr Hendricks and the Minister did not need to be concerned about the idea of contesting each other. He encouraged the parties to “demobilise that spirit” and deal with the issues at hand. The two presentations were important to the Committee meeting. There were areas where there was convergence and areas where there were differences in terms of the interpretation of the ConCourt judgement and the Supreme Court judgement.

He was also aware of the fact that the issues in the Bill related to the three departments: DHA, the DoJ&CD, and the DSD. The presentations mainly talked to those departments. Members would be given time to look at those issues and then be able to formulate a decision on how to proceed in the next Committee meeting. The Chairperson wanted to assist Members in this way so that the Committee was able to thoroughly deal with this complex issue and assist the communities and various religions that the Bill sought to resolve. He had read the reports on both bills. There was an
emphasis that where there was a consensus in terms of the Omnibus Bill, both the DHA and Mr Hendricks may reach a point of convergence. Then, when the Committee deliberated for a decision, it would be clear on the issues of consensus and how the parties could assist each other to deal with that process, including looking at the matters that related to the DSD, and other consistent matters.

Mr Roos recalled that it was mentioned in the House when the Bill was introduced that those marriages were allowed in the first place to protect families, to protect widows and abandoned orphans, and to ensure justice for them. He felt it was a shame that it had to go to the court for the people to get that. Over the years there had been numerous attempts at some sort of a bill, and each time persons could not come to the party and agree on a way forward, and make some sort of reasonable compromise. The Committee needed to start with what was required of the Committee, the Executive and Parliament. The DA’s reading of the court order in the Women's Legal Centre Trust v President of the Republic was that the court gave 24 months for the President and the Cabinet, together with Parliament, to remedy the defects that were mentioned and that the Private Members’ Bill sought to address. As Mr Hendricks mentioned, that time period ends on 28 June 2024. Unfortunately, Members had seen it before; they had had to go to the court again and again, to request extensions. That should not become the norm, and it should not be acceptable for Members. Members had a Bill that was meant to be a temporary measure until such time as the Marriage Act was in place. The reality was that Members had the current year, and early next year and then it would be the elections. It was “extremely unlikely” that the Marriage Act was going to come through the Committee and be passed in time. Parliament was required by the middle of next year to have an act in place. The judgement was specific – that it should be either by amending existing legislation or by passing new legislation; thus not by a memorandum or something else. It specifically talked about amending the legislation. There was a history, unfortunately, of the inability of the DHA to table bills in the Committee. There were a number of bills that were supposed to be on the table by now that had not seen the light of day. The Private Members’ Bill was needed to tide things over until such time as the new act was in place.

Mr Hendricks talked about “bare bones legislation”. What were the elements of what was necessary that were left out of the bare bones legislation? He was asking so that Members satisfied themselves that there was no material harm that was potentially caused by leaving out certain elements of those marriages and the consequences of them in the need to “hurry along legislation”.

There was a mention of an “opt out” in the briefing documents. It seemed to suggest that if one of the parties opted out of the Act governing their marriage, it then fell back to the current state, which seemed to suggest that the husband could just opt out and then “the whole thing falls flat”. How does one then cover the needs of the prospective children of these marriages, so that the best interests of the children were protected if the parents were allowed to opt out on their behalf? The court had ruled about the effect on children and how their constitutional rights were being affected.

Mr Roos did not recall hearing that there was any clarity on the assertion that the circular was put out on the SCA judgement and not the ConCourt judgement. He asked the Minister who was tracking court judgments relative to the DHA, to then ensure that those were properly implemented in the DHA, or that legislation was put out in that regard. Who was tracking those, and what went wrong in that situation? He knew that there were other court judgments for which Parliament did not have amendments on the table yet, and where the DHA was supposed to go and implement legislative changes, or changes to processes.

He felt that there was a need for the legislation under discussion because the Marriage Act was not going to be finalised in time, and that implementation would miss the ConCourt deadline. There would once again be a gap in the legislation that would potentially lead to the very situation that the Committee did not want. Specifically, where there were well-meaning people that went into a marriage and did not expect it to go wrong. But at the end of the day, what was happening was that there were abandoned children, and wives that were destitute. Parliament needed to make sure that there was something in place to protect such people.

Ms M Molekwa (ANC) wanted to agree with the recommendation as proposed by the Minister. If one looked at the Private Members’ Bill, most of the issues were covered in the Marriages Bill as presented by the Minister.

Ms van der Merwe felt that the right to introduce private members’ legislation was something that was hard fought for and won, and it was something that was very important to all Members of Parliament (MPs) to use in order to identify gaps in legislation, and to contribute to building South Africa’s democracy. In the case of the Private Members’ Bill, Mr Hendricks had “gone out of his way” to ensure that the rights of women were protected. But on the other hand, the question before the Committee was whether to proceed with a Private Members’ Bill or go with an Executive Members’ Bill as outlined by the Minister. In her case, she would lean towards the Executive Bill because it sought to protect more groups. It sought to give more legal certainty to marriages of a variety of groups, whether Jewish, Muslim, or traditional marriages as the Minister outlined. But now the question became the issue of timeframes, as highlighted by Mr Roos. The Minister said that hopefully, the Bill would be ready by the end of June, and then it could go through the public processes. Before the Committee made a decision on whether it supported a Private Members’ Bill or whether it supported the Executive Members’ Omnibus Bill, the Committee needed certainty in terms of the timeframes. Would it be able to pass the Bill before the deadline expires (which was in January)? Or would it be a case again of having to seek a court extension? She wanted to hear from the Minister if the Committee would be able to complete the Omnibus Bill that he was proposing within the timeframes.

She also wanted to ask Mr Hendricks what his main bone of contention with the broader omnibus bill was. What was missing from that Bill that he would like to see included in his Bill?

Once the Committee got that feedback, then Members would go back to their caucuses and come back with a more concrete decision on a way forward the following week.

Adv Bongo felt that the spirit articulated by the Minister was a very positive spirit, in the sense that what the Minister raised regarding the Private Members’ Bill sought to synchronise the two bills. He suggested that the Committee needed to look into the Bill suggested by the Minister, synchronise the issues and put the other issues into the final Bill so that the Committee did not just pass a lot of legislation unnecessarily. His understanding from what the Minister said was that the Bill the Department was working on would cover a variety of communities, such as the Jewish, Muslim and traditional communities. His view was that the Private Members’ Bill was a portion of what would be covered by the Bill that the Minister was suggesting. He asked if the Minister would be able to commit to timeframes so that the Committee would not miss court deadlines. When would the Bill come to the Committee, so that it could do one Bill for all of the communities? The commitment towards building non-racial, non-sexist, united and democratic South Africa was embedded in what the Minister was suggesting, specifically the need to do one thing for one nation, and building one country that had one piece of legislation.

Adv Bongo’s view was that with bills of that nature, it would be preferable if they came from the Executive because after the bills were passed by Parliament, they would be administered by the Executive. It would be important for checks and balances that whatever the Committee did, it was synchronised with what the Executive was doing. In that case, Adv Bongo was pleased that the Minister said that work had been put into that Bill. He was also aware of the court decisions and court rulings around the matter, which was also appreciated. He felt that the Committee needed to incorporate what Mr Hendricks brought to the Committee. It was commendable that Mr Hendricks brought such an important piece of legislation to the Committee. The Committee might need to incorporate Mr Hendricks’ Bill with what the Department was doing in order to deal with checks and balances on whatever Bill was chosen. The Committee could go with the Bill, only to find that when the Minister’s Bill arrived, there were some duplications. He felt that the Committee needed to do some due diligence on what had been raised, incorporate everything into the Bill that the Minister was dealing with, and also use Mr Hendricks as a resource person in ensuring that the Committee tightened what the Department had already embarked on.

Mr Tetyana felt that the Committee needed to appreciate the Chairperson’s role in the Bill process. He heard that the Chairperson arranged a meeting between Mr Hendricks and the Minister to try and find each other in aspects where they found contradictions between ideas in relation to the bills. He observed that that meeting was supposed to be one that would not have put the Committee at the point where it was that day, but it seemed like there was no agreement. That was why the Committee was in the meeting to discuss the Private Members’ Bill and the Minister’s presentation as well.

He felt that after the presentation by the Minister, the Chairperson should have gone back to Mr Hendricks to see if there were contradictory elements with what the Minister was presenting to the Committee. For him, it did not seem that there were many contentious issues between the two bills. The Minister's presentation noted that there were other cultural groups that the Department wanted to incorporate, which was broader than what the Private Members’ Bill was dealing with. But the court had ruled that at least by January, Parliament should have completed that process. While he supported the Private Members’ Bill, when one listened to what the Minister was saying now, it meant that there would be a broader societal benefit if the Committee went the route of the Executive Members’ Bill. It was only the technical aspects that brought the Committee to where it was in the discussion.

Mr Pillay felt it was important that the Committee acknowledged Mr Hendricks’ concerns – his concerns were the concerns of women within that community, and it was an important plight. But in saying so, he felt it was important to understand that marriage is a union and when one tries to concretise this, it should not disadvantage any person. In particular, if one looked at the omnibus Marriage Bill, it was that it was going to take care of all women, and not just Muslim women. Even if the Committee had to accept that particular Private Members’ Bill, what would happen is that one would find women from other cultures and other religions seeing themselves excluded. It was important for Members to ask themselves whether they would then have a separate bill for each group of women. One could rather have one bill that was now going to take care of everything. He felt it would be helpful to look at the comparisons between the two and the gaps. If there were gaps, how does the Committee then fill in those gaps? He also agreed with what other Members were saying about whether there should be an engagement between the Minister, the Department and Mr Hendricks to see if there were any of those gaps, and how they could then be able to take care of that. The parties would also be able to ensure that they would be able to find each other regarding those items that may be missing or may be contentious. He felt it was important to then have one bill that takes care of everything. Mr Pillay proposed that that could be a way for the Committee to move forward.

Ms L Tito (EFF) said that most of her colleagues had covered her and the EFF also welcomed the two presentations that were done by the Minister and Mr Hendricks.

Mr Hendricks’ Response

Mr Hendricks emphasised that he did not want to oppose the Minister. But at the same time, he did not agree with him. Logistical reasons did not trump human dignity. Additionally, the ConCourt only dealt with Sharia marriages. For the last 20 years, that had been in South African courts, in Parliament, and in the DHA. The gay community came forward and they got their bill; the civil union people came forward, and they got their bill. His view was that “There has not been the same urgency as far as the dignity of Muslim wives is concerned”. That was why the ConCourt came down very hard on the President, on Government, and Parliament (including himself). The ConCourt wanted immediate relief, and the Department responded within a week or two with a circular. That circular, in his opinion, misinterpreted the judgement and further harmed the dignity of Muslim women who wanted to practise Sharia in their marriage. He did not think that was done deliberately. Al Jamah-ah presented a circular that would comply with the tenets of Islam, the ConCourt, and comply with constitutional rights. Mr Hendricks was prepared to consider the Minister’s proposal on the basis that the Private Members’ Bill presented to the Committee would be included substantively in the Omnibus Bill. Al-Jamah-ah was prepared to delay its Bill until that time. But the ConCourt was very tough on the harm toward Muslim women, and especially those who went through the help of the Women's Legal Centre approach the court for relief. If the Minister could accept the circular that Al Jamah-ah had presented, it could certainly share with the Minister its legal opinion on the circular. He was very happy to have a meeting, as suggested by Adv Bongo, with the Minister and the Al-Jamah-ah legal team; Al Jamah-ah hoped that the Chairperson would facilitate that. Because of the Chairperson’s facilitation, there had already been a relief for Muslim women, and he thanked the Minister for that. “We do have a Minister that cares”. He emphasised that Al-Jamah-ah wanted to work for solutions. He hoped that the Minister could accept the circular as Al-Jamah-ah amended it because it felt that it was not fair. After the ConCourt had said that Sharia marriages were a valid South African marriage, to subject Muslims to the RCMA, which violated Sharia in so many ways, even while there was common ground. That was not to insult the RCMA; it was just that Muslims had Sharia, and they were different. Muslim women wanted to practise their marriages in the Sharia way, which gave them “more rights than any other woman in the world”.

Mr Hendricks said that there was consultation with the MJC. But the DHA needed to “wake up”. The DHA could not just consult the MJC if it was one of 50 Ulama bodies in the country. A lot of Ulama bodies opposed the DHA position; they wanted the codification of the Quran, and the Hadith in the Bill. That was why the other bill was rejected. Al-Jamah-ah wanted to provide a mechanism for Muslim marriages to be registered at the front desk, and it felt that it wanted to be guided by the Green Paper which said communities such as the Khoi-San, Muslims, etc. must develop an alternative dispute resolution process not to “clog the courts” and not to “clog Parliament”. The idea seemed to be, “Don't make religious problems and cultural problems the problems of Parliament; sort it out in your community”. The Muslim community was well-placed to do that.

On what had been left out of the Bill, and if it would have any material harm: He thanked his fellow Members for the support of a Private Members’ Bill, and for realising that not a day longer must the dignity of women be harmed. There was no material harm, and the Bill was very comprehensive. It had gotten a certificate of constitutional muster, and Al-Jamah-ah had the assistance of the parliamentary legal team and its own legal team. On the “opt in, opt out” clause, there were religious leaders who were “extra-parliamentary”. Such people did not respect the Constitution, they did not respect the ConCourt judgments, and their followers wanted to opt out. Mr Hendricks put their position in so that those leaders could not say that he did not put it before the Committee. The easy way for such people to opt out was not to present the nikah certificate at the front desk of Home Affairs. That may be further addressed when the omnibus bill came about later on.

On who was tracking the court judgments: Mr Hendricks wanted to hear what the Minister said, because Al-Jamah-ah had a very strong legal opinion that when the ConCourt stated that part of the RCMA applied, it only related to the age of children, and not to the whole RCMA. He did not think the ConCourt wanted to impose lobola on Muslims, which was completely different to the mahr. The lobola went to the family, specifically to the uncles, whereas the mahr went directly to the woman and no one could touch it. The woman could also put conditions before and after the marriage. When it came to the questions from a Member who agreed with the Minister because the Member felt that most of the clauses of the Private Members’ Bill had been covered, Mr Hendricks felt that Member was wrong. The Omnibus Bill had covered most of Mr Hendricks’ clauses. Nobody had seen that Bill yet, and he was not sure what the Member was referring to. Even the Legal Adviser of Parliament had asked for the Omnibus Bill and was refused. Another Member said that the Omnibus Bill would protect both groups. Al-Jamah-ah supported that, but it was its time now, and it was time for Muslim wives to get immediate relief and not wait a day longer. It was very important for the Committee to hear the timeframes. He did not think that the Minister would mislead Parliament by stating that the Bill would be ready by the end of the month. Next year, it was election time, and there were a lot of other issues, and Parliament would not get to it. Al-Jamah-ah was saying that at the moment, “Parliament is delinquent”. It was in contempt of court and was not going to meet the deadlines.

Another Member had remarked that it was very important that the Committee find a solution to the Bill. Mr Hendricks felt that the Minister had already shown his good faith by: Changing the entry on the death certificate of a person who is married in terms of a nikah to state “married” and not the indignity of “never married”. Just imagine that one was married for forty years and got a death certificate that said “never married”. Mr Hendrick’s national campaign manager told him that his son saw the death certificate of the manager’s mother who died recently, and on the death certificate it said “never married”. The son said to his dad that he was “illegitimate”. Mr Hendricks’ position going forward was that he was prepared to delay the Bill if the Minister gave him the assurance (which he had already given) that his Bill would substantially be incorporated in the Omnibus Bill. He wanted to see that in June, when the bill was eventually made public to Members and to the parliamentary legal team. The Private Members’ Bill had constitutional muster. It met the rules of Parliament. There was a public participation process, so people could change whatever they wanted later on. The Bill could be put into the Omnibus Bill, and then Parliament would not have to have two public participation processes. Parliament was very busy “working 24 hours a day”. However, there was also a need to ensure the rights of Muslim wives and children; some academics and professors at North-West University and other universities were saying that in terms of the law, Muslim wives were “whores” and the children are “bastards”, and also Muslim women could not appear before the divorce courts. Such a scenario needed to be removed from the law. He encouraged the Committee to look at Al-Jamah-ah’s circular. Its legal team was prepared to put forward the legal opinion that had been tested with their peers in the legal fraternity, namely that one could not apply the RCMA to Sharia, since the two were different, although there are similarities. Al-Jamah-ah respected the RCMA because “many Muslims are Xhosas and Zulus”.

Even if the Minister and the DHA were correct and Al-Jamah-ah’s legal opinion was wrong, Mr Hendricks asked that the Minister please consider that circular, because Al-Jamah-ah had tested it in its community, with the Ulama, and with the youth, who would bear the brunt of the current legal situation. People were saying that they did not want their marriages to be registered in terms of the RCMA because all the provisions of that Act would apply. People wanted to be registered. Mr Hendricks felt that the Minister was “very good at giving orders for circulars”. There had been a third circular, but Members had not seen the second and third circulars. The Minister said that with immediate effect, the death certificate would say “married”, but there was no circular to that effect. When Mr Hedricks went to undertakers, they laughed at him. With regard to the other issues, the Minister had indicated that there would be a circular, but there was no circular. Unfortunately, the DHA was “very slow” with circulars.

Department’s Response

Minister Motsoaledi observed that the Executive Members’ Bill was one of the most important pieces of legislation in South Africa’s democracy. He wanted to assure Mr Hendricks that the Executive Members’ Bill was not a secret bill at all; it was only going through various stages in Government as any bill would do. The bill was solely based on the White Paper. Members were aware that the process of the White Paper was so long with all the consultations. The Department would not put anything in the Bill that contradicted the White Paper. That was the reason why white papers existed; they set up a policy. Once that policy was set up, the bill became much faster and much easier, because one was just taking what was in the white paper, and transcribing it in the form of a bill. One would make it legal in Parliament in the form of a bill. But the White Paper itself was a product of consultation, and that was why he was able to mention many of the fields of the Bill in the meeting. It was not a secret. He was going clause by clause to show what was in Mr Hendricks’ proposed Bill, and what was in the Bill that the Department was preparing, even before it came out, because there was nothing secret about it. In the White Paper, the Department said that it was going to criminalise the marriage of youngsters, and it was there in black and white. The White Paper had been accepted by “everybody”, and had been gazetted, so that was why the Minister was able to mention it.

Secondly, the Minister agreed with Hendricks about discussing the contents of the circular. He acknowledged that Mr Hendricks had a proposal on the circular. He reminded Members that whatever the Department was doing, the outcome needed to reflect three things at all times: The issue of human dignity, the issue of equality, and the issue of non-discrimination. The Minister acknowledged that the Department did take a long time even in the development of the White Paper because in some cultures and religions, words like “equality” were “not easily accepted”. Such words were challenged by certain traditional authorities on the issue of equality, especially among wives. He acknowledged that South Africa was still by and large “living in a hugely patriarchal society”. The Department had to “battle” through the issue of inequality because some communities said that the Department was “vanquishing” their culture. If the Department put in the issue of equality, it meant it was undermining those cultures. He asked the Committee to bear with the Department in understanding that this was not one of the easiest processes that one could ever undertake, for the reasons he mentioned. It dealt with culture. It dealt with spirituality, with religion, and with what was in the hearts of people. It also sometimes dealt with people’s political beliefs. That was very difficult to put on paper and satisfy everybody. “But we can't stop trying to be South Africans, as one South Africa, as one nation”. He agreed with Mr Hendricks on the issue of looking at his Bill and assuring the Cabinet.

It was true that quite a number of matters had been going to court. It might be possible that because of the activism and determination of people like Mr Hendricks, which was the issue of Muslim marriages and the suffering of the women, that they might have gained prominence more than others because those others did not have a champion. For instance, he did not know how many Members here knew that a prominent member of society wanted to divorce his wife and went to court using one of the homeland legislations, to the effect that when that woman leaves that house, she leaves with nothing, perhaps just the clothes she is wearing. The matter went to court, and the court was dismayed to find that that homeland act was not repealed. The person was taking advantage of that, specifically that that homeland act was not repealed. There were still many apartheid laws which Parliament had not yet repealed; it was going through those laws one by one. Some were discovered when a particular problem happened. It would be wrong to claim that South Africa had completely reversed all the acts that existed during apartheid Some of those apartheid laws were “still applicable”. The man mentioned earlier took advantage of that, but the court did not agree on the basis of the South African Constitution; it said that it was inconceivable in a democracy to quote an archaic act that demeaned a woman like that. The courts definitely protected the vulnerable, especially women in a patriarchal society, which Government was trying to turn around. Minister Motsoaledi asked the Committee to give the Department guidance: If the Committee accepted the Private Members’ Bill temporarily, it would listen to the Committee. He was glad that Mr Hendricks said that the parties involved were ready to listen to each other. The Minister was under the impression that the Private Members’ Bill would still also have to go through all the steps which the Executive Members’ Bill would go through as far as the Committee was concerned. He was asking that question because it seemed as if the Private Members’ Bill would be “passed tomorrow” and meet all the ConCourt deadlines, whereas the Executive Members’ Bill would not be able to do so.

Follow-up Discussion

The Chairperson thanked Mr Hendricks for his responses, which attempted to bring all into one process that sought to align with the thoughts of Members and the Minister. The Committee would not take a decision in the meeting today; he was following the guidance of Members’ contributions. In the response of Mr Hendricks, there was a sense that the Committee may need to work closely with the Department in order to have a proper solution. If two lines indicated as the issues arising from the Private Members’ Bill which were already in the Executive Members’ Bill were included, then the Committee may need to consider working on the Executive Members’ Bill. He felt that was an important statement on Mr Hendricks’ part. But the Chairperson wanted the Committee to be broader in terms of the thought process behind when the Committee would deliberate more on the decision process to consider the two presentations. It had to consider whether it needed to move ahead with a Private Members’ Bill or the Executive Members’ Bill. Ms van der Merwe was correct that Members needed to be afforded space to go and solicit proper guidance so that when they came back, at least the Committee would be able to deal with the matter.

He suggested that the Committee “pace wait” Mr Hendricks and the Minister, and both legal teams. Both the Minister and Mr Hendricks had agreed on the need to meet so that they could deal with areas that would be able to assist the Committee to move forward. He agreed with Mr Tetyana that it could have been important for Mr Hendricks to have a follow up session before the Committee’s discussion so that it would have been looking at the details of the areas where there were differences. The Chairperson felt that during the Bill process, it was important for the Committee to get a sense of what the issues were so that it was able to deal with the third step of facilitating that session. That was the spirit in which the Committee was facilitating this discussion. The most important area which would assist the Committee in the facilitation of the process was the timeframe in terms of the court judgement for the Bill to be implemented, and also the interim measure in the absence of the Omnibus Bill. Those were some of the issues that would help to facilitate that discussion between the Minister, Mr Hendricks and the Committee. Even in the Committee’s absence, it would direct the Minister and Mr Hendricks to find ways to deal with that, so that in the next Committee meeting, the Committee dealt with the report and the decision that it must take to move forward. The Chairperson was comfortable now that the issues found expression in the Executive Members’ Bill that the Minister presented, and with the principle of including all the communities in the Bill. He appreciated the work undertaken in the process of consultation with various stakeholders, traditional leaders, and religious communities. The timeframe needed to meet the deadline was also an important issue. The Chairperson proposed that the Committee not take a decision that day to consider the Executive Members’ Bill and make a decision to allow that facilitation between the Minister and Mr Hendricks so that all the issues were dealt with. Mr Hendricks stated that he was prepared to delay his Bill once certain areas found expression in the Omnibus Bill. The Chairperson also requested that the Minister deal with the circular amendments that Mr Hendricks proposed. He felt that that would be fair so that Members were able to go back and look at the issues and get further guidance. In the next Committee meeting, the Committee would then be able to deal with that matter.

The Chairperson pointed out that Mr Roos raised an important matter on the delays to the bills that came to the DHA. The ConCourt had taken a firm decision. It appeared that there was “no urgency” on the part of the Department. It was one area that the Committee needed to look at. He asked for Members’ guidance on how to deal with that matter. The Committee would finalise in the next meeting.

The Chairperson asked the Minister and Mr Hendricks if they were comfortable with the process, and the Minister replied that he was comfortable with it.

Mr Hendricks then said that he was very thankful to the Minister for his magnanimity in meeting, and he thanked Mr Roos for his leadership. He was also thankful for the contribution of all Members. He was sure that he would be able to get a circular that he was comfortable with, and the Muslim community was comfortable with, so that not a day longer than necessary passed for women to get their dignity back, to get their marriage certificate, and to have the right to appear before the divorce court that was denied at the moment. It could not be that any section of the South African community should be denied access to any court in the land. Al-Jama-ah hoped to “kill two birds with one stone”. The Department “had been slow” with regard to amending the Divorce Act. Al-Jama-ah had already made the amendments; those had a constitutional certificate of muster.

The Chairperson asked again if Mr Hendricks was comfortable with the process, and he confirmed that he was.

Consideration and adoption of the Budget Vote 5 Report of the Home Affairs Portfolio

Mr Adam Salmon, Committee Content Advisor, presented. The report was a summary of the budget vote deliberations and strategic plans of the Department, as well as the Committee’s visit to the permitting section and the Menlyn Mall Home Affairs office.

Mr Salmon received three additions to the recommendations he read out in the previous meeting. He showed the additional recommendations in red text. Those contributions included in the final report, and the recommendations of the Committee were detailed in part 11 of the report. Under the recommendations for the DHA, points 11.4 and 11.14 were additional contributions.

For the BMA, point 11.15 was an additional contribution.

11. Recommendations

1. An update on all outstanding report recommendations contained in the interim legacy report of the Committee will be required by the third quarter of 2023.
2. Whilst the additional allocation of funds increasing the DHA capacity is appreciated, the DHA budget should continue to increase capacity even beyond the 55% currently allowed for given the ongoing delays in services to the public. Planning should start to possibly retain some of the youth employed in the digitisation project after their 2-year contracts.
3. Whilst the additional caution introduced to prevent fraud in applications for Visas and permits is important, there must be decentralisation and downward delegation of applications with other ad hoc and automated system checks and balances put in place to address the backlog.
4. There should be ambitious time-bound targets set in the annual plans and related budgets for so-called non-critical permits such as spousal permits which have a knock-on effect on the reputation of the country to attract scarce skills and investments.
5. The Branch Appointment Booking System should be enhanced to ensure that it accommodates the collections of documents and that walk-ins should be allowed in all offices.
6. The DHA should capacitate the Call Centre to ensure that members of the public are assisted timeously.
7. The DHA should ensure queries sent to the Department by Committee members on behalf of the public, should be responded to.
8. The DHA should deal with long queues at its offices and mobile offices should be procured and deployed in rural areas.
9. DHA offices in rural areas should also be modernised to ensure the phasing out of the Green Identity Documents.
10. The Committee requested that the DHA should focus on applications for Identity Documents towards the 2024 National and Provincial Elections and there should be cooperation with the Electoral Commission (IEC).
11. The DHA should ensure that its offices installed cameras for security purposes.
12. The DHA should work faster on resolving the Late Registration of Births to ensure that all South Africans have the necessary documents while at the same time, encouraging citizens to register births within 30 days.
13. The Deputy Minister should engage with VFS on the issues raised by the Committee and report back. The Committee would then conduct an oversight visit to VFS office/s.
14. The Public Private Partnership tender for the appointment of a new Visa Facilitation Service provider should be completed as soon as possible with the inclusion of requirements to filter out incomplete applications which are now clogging the application process.
15. The BMA should work closely with the National treasury to get more funding for the full operationalisation of the BMA, expansion of its patrolling of the borderline and roll out to guarding coastal borders.
16. The BMA should continually endeavour to make good on the promise that its establishment would improve the efficiency of border management beyond the capacity seeded from other departments despite fiscal constraints.
17. An update on all outstanding report recommendations contained in the interim legacy report of the Committee will be required by the third quarter of 2023.
18. An update on all outstanding report recommendations contained in the interim legacy report of the Committee will be required by the third quarter of 2023.
19. Funding provisions will need to be made for the inclusion of independent candidates in the forthcoming National and Provincial Elections and forthcoming Party Funding Act amendments.
20. The IEC should aspire towards its initial targets set in 2019 for the registration of 29 million voters and 74% participation in elections.
21. The IEC will require additional funding in the adjusted budget to allow for extensive voter education and mobilisation given the changes to the Electoral laws around independent candidates.
Government Printing Works (GPW)
22. An update on all outstanding report recommendations contained in the interim legacy report of the Committee will be required by the third quarter of 2023.
23. There should be a timeline provided by the GPW for the implementation of the remaining  Ministerial Review Panel Report  Recommendations.
24. GPW needs particular focus and oversight on ensuring the timely submission of accurate audit data to internal and external audit and consequence management for dereliction in this regard.
4. The GPW should work in collaboration with the National Treasury to ensure that non-payment by government clients after 30 days is addressed.
5. The GPW must provide an update on its consultation on the State printers bill and finalise the tabling of this legislation as a matter of urgency.

Read: ATC230504:Report of the Portfolio Committee on Home Affairs on Budget Vote 5 and Annual Performance Plans of the Department of Home Affairs and Entities, Dated 2 May 2023


The Chairperson observed that the Committee had resolved in its previous meeting to adopt the report in the current meeting.

On the issue of the Committee’s visits to Home Affairs: There was an issue in relation to the backlog which was said to be contributed by the Visa Facilitation Services (VFS). There was a decision that was taken that the Deputy Minister, who was leading the delegation, should have an engagement with the VFS on the matters that the Committee found on the ground, and bring the reports to the Committee. The Committee had instructed the Deputy Minister to meet with that stakeholder to get a sense and what the issues were, and to make sure that there was a commitment on the part of the Department that it would deal with that. The Chairperson asked Mr Salmon to expand the sentence at point 11.13.

Mr Roos felt that with the amendments, the report was fine with him. He did not want to belabour any other issues, so he was happy to agree with the report as it was.

Adv Bongo felt that the report was. He wanted to add that the Committee had been discussing the issue of VFS since it started, and it had never done any oversight visit to go and look into what was happening there. He strongly suggested that coming from the oversight, and arising from what the Committee said the Deputy Minister must do, the Committee must take a deliberate stance to visit the VFS offices and establish what exactly were the problems on the ground.

Mr Tetyana commented that with the VFS issue, the Committee did not necessarily instruct the Deputy Minister unless he missed it. He recalled that the Committee mentioned that the VFS was a stakeholder who played a critical role in terms of what was happening in that subsection of Home Affairs. The Deputy Minister had already employed the people at the VFS. The Committee needed to satisfy itself by meeting the VFS. He asked for that resolution to be changed; the Committee never said the Deputy Minister, it said that the Committee itself must meet the VFS.

The Chairperson commented that the Committee had made resolutions on two fronts. The Committee requested the Deputy Minister to engage with the VFS and secondly, the Committee has to conduct oversight at the VFS. The Committee did deliberate on that so that it got a sense from both the service provider and Home Affairs of what happened during their first interaction on the issues that the Committee established on the ground. Then the Committee needed to conduct oversight. He felt that Mr Tetyana and Adv Bongo were not far from the resolutions on the decisions that the Committee had taken. You can amend that, that the committee. He asked Mr Mathonsi to establish a time when the Committee would determine when and how it was going to deal with the matter of meeting the VFS. The Committee would also need to get an update brief from the Deputy Minister.

Mr Pillay did not have any other things to add, and he felt that it was all captured correctly. He wanted to re-emphasise what Members had just mentioned on the VFS.

Ms Modise felt that all the other matters were captured correctly. She also wanted to emphasise the VFS matter that had been with the Committee for quite some time. Members would recall that the decision was that the Committee would go for the [unclear 3:18:39] and it may seem as if the contract had been extended. She did not want the Committee to delay matters. One of the challenges that the Committee had was that it resolved issues and then delayed those issues. She wanted to put a timeline on the oversight that the Committee must embark on. When Mr Mathonsi looked into the schedule, it should be within a period of three weeks, or at most in the next four weeks, that the Committee should have gone to the VFS offices to conduct oversight, with an intention to deal with the legalities of that contract. Ms Modise felt that at some point, the Committee needed to take a decision that it would look into that extended contract, as it may seem as if it is invalid, and then be able to deal with it.

The Chairperson felt that the timeframe had been clearly articulated, and encouraged the Committee to work on that.

The EFF objected to the report.

The report was adopted with the amendments.

Portfolio Committee Annual Performance Plan 2023/24

Mr Salmon said the Committee did not formally adopt the Committee’s annual report, because it did not have a full quorum when it was on its oversight visit. Members made a few additions, and the Chairperson also gave feedback on the annual business plan, which it also needed to adopt.

The business plan outlined the strategic plan of Parliament as well as the policy priorities of Home Affairs, the Electoral Commission, the Government Printing Works, and now recently the Border Management Authority. The plan also covered the mandate of the Committee in its regular work.

The plan also summarised the annual work of the Committee in the last year and lastly, summarised the plans going forward per quarter.

Since the last strategic engagement there was feedback from the Auditor-General (AG) and the Chairperson, where the Committee made recommendations in its annual reports to indicate that the specific recommendations of the Auditor-General and the Special Advisory Committee be established both for the GPW and within Home Affairs, to ensure compliance.

Under outstanding recommendations, an addition was the AG's performance against programme targets and achieving clean audits also be considered. That was saying that the auditing of the budget programmes of the Department and its entities were being measured against performance as well and that that formed part of a clean audit. Therefore, the Department needed to be more mindful of that, and that the Committee would also be more mindful of it. The same thing applied to the BMA. Particularly, because it was the BMA’s first annual performance plan and strategic plan, it should bear in mind the advice of the AG and the Department of Monitoring and Evaluation (DME) within the Presidency, in terms of how it should refine its annual and strategic plans. That was based on guidance from the AG.

That in turn translated into the Committee’s quarterly programme. It indicated the changes in red. It endeavoured to visit all nine of the provinces within the period of five years. It still had an outstanding visit to the Eastern Cape and the VFS. In the Committee’s next term programme, it would plan a trip to the Eastern Cape, and then visit the VFS facilities in the Eastern Cape, thus covering those two outstanding issues in one oversight visit.

Another issue that the Committee had to defer to next term was its attempt to engage with the provincial managers of each of the provinces on a yearly basis. The Committee would also include it as part of the next term’s programme. The Committee was still awaiting the outcome of the application for the joint study tour. It still had not had approval because it was endeavouring to get the full contingent of the Committee to be included in that study tour. Initial permission was only granted for a small complement of the Committee. It was also potentially going to be joined by the Select Committee. That application was still pending, and Members would be updated as soon as there was progress.

It was not included in the programme, but the Committee might have to consider the appointment of a new Electoral Commissioner, this term or next term, depending on when it came to the Committee as a priority. It would also try to have one public meeting arranged, the idea being that it would have direct engagement with the public outside of legislative issues. Potentially, the trip to the Eastern Cape would also include a stakeholder engagement meeting in the province, to get on-the-ground feedback from members of the public. The Committee was also going to be dealing with the Electoral Laws Amendment Bill, which it had moved to extend to the next term because it would probably still be within the Committee process.

The Chairperson said that the plan had been circulated, and the additions Members had made were incorporated into the plan. The plan provided a framework for what the Committee would do, and the issues that it needed to deal with. The Chairperson suggested that the Committee prioritise the issue of the provincial managers, and have direct contact with the managers to raise issues with the team. The Committee did find more challenges on the ground, including the challenge of the mobile trucks that were not working when there was community outreach, and the impact that had on people.

The Committee had also received a communique that study tours were limited to a particular number. The Committee had since returned to the Chair of Chairs to request that the study tour include all Members of the Committee because it was going to deal with the critical matter of electronic voting, now that South Africa was moving to the new electoral system that included independent candidates. The Committee was awaiting that response so that all Members were participating in that study tour. The tour would also include the IEC delegation and the Select Committee.

Mr Roos was happy with the report. He also wanted to highlight the issue of reports of systems going offline. He thought it was critical that that issue was in the Committee’s plan, and that it made sure that in the next year, it kept the pressure on that issue.

The report was adopted with the amendments.

Closing remarks

The Chairperson thanked the staff member who had developed the annual plan for the Committee, and he thanked the Members for their contributions to the plan. The Committee had dealt with the matter of the Minister needing to present to the Committee on the landing of the President of the UAE. A detailed report needed to be sent to the Members at least a day before the presentation. Mr Mathonsi would check if Friday was a suitable day for the briefing. If the Committee did not get approval for Friday, then the briefing would be its first agenda item on Tuesday. Regarding the Registration of Muslim Marriages Bill, the Committee would make a decision on whether it proceeded with the Private Members’ Bill or the Executive Members’ Bill. Members needed to note that there were timeframes allocated and interim measures to allow the process to move swiftly. With the annual performance plan, Members agreed that within the next three weeks, the Committee must visit the VFS office to interact directly with the executive and the staff. The Committee had now endorsed the annual plan.
The meeting was adjourned.


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