Divorce Amendment Bill: Department briefing; Magistrates and judges salaries; SAHRC & PPSA salaries; with Deputy Minister

Meeting report

The Chairperson warmly welcomed all the Members and attendees to the Committee meeting, and said the meeting would be brief due to another meeting for the appointment of the Public Protector that Members needed to attend. He announced that the Deputy Minister would lead the Committee's discussion on the remuneration for magistrates and judges.

Remuneration for magistrates and judges

Mr John Jeffrey, Deputy Minister of Justice (DoJ), clarified that the President determined salaries for the judicial office -- which included judges, magistrates, the Public Protector and the South African Human Rights Commissioners (SAHRC). He was explaining this on behalf of the President, as it was not appropriate for the President to personally address this matter. The law dictated that the judiciary and independent constitutional institutions were entitled to remuneration, including salaries, allowances and benefits. The President determined these and gazetted them after considering recommendations from the Independent Commission for the Remunerations of Public Office Bearers. The President's notice must then be submitted to Parliament for approval or disapproval.

The determination made by the President had come into effect in April 2022, the last fiscal year. The Independent Commission for the Remuneration of Public Office-bearers (IRC) released its recommendation and report on 21 April 2023 pertaining to the remuneration of public office bearers. This report included a recommendation of a 3.8% increase for the 2022/23 fiscal year. However, after considering several factors, the President was now contemplating a 3% increment for all office bearers, including magistrates, judges, the Public Protector and the Deputy Public Protector, starting from 1 April 2024. Members had received the President's Speaker memorandum regarding this report.

Discussion

Adv S Swart (ACDP) expressed his appreciation for the Deputy Minister's briefing. He acknowledged the Independent Commission for the Remuneration of Public Office-bearers' initial recommendation of 3.8%, and the President's subsequent reduction to 3%. He raised concern about the delay in submitting the Commission's recommendations, which had limited the time for stakeholder and judiciary deliberations. He sought suggestions from the Deputy Minister on how to expedite the submission of recommendations earlier than the late-April timeline of this year.

He said the Chief Justice had added his perspective, urging the Commission to consider the impact of inflation's erosion on judges' salaries. He highlighted the substantial funding gap of -20.6% that the judiciary had experienced over time. He expressed uncertainty about the Commission's response to this problem, and sought clarity regarding the ongoing major review of judicial salaries. He emphasised the urgency of addressing this financial challenge promptly.

Ms N Maseko-Jele (ANC) was pleased with the Deputy Minister's report, and extended her appreciation to public servants, including the Public Protector. She noted the recommended 3.8% increase and the President's more recent proposal of a 3% increase. Given the economic situation in the country, she leaned towards supporting the 3% increase, recognising the need to balance acknowledging public service with economic realities.

Deputy Minister's response

Deputy Minister Jeffery provided a detailed explanation of the Commission's process. He referred to the shift from concluding adjustments before the financial year-end to now starting them at the beginning, which affected tax calculations as they fell under a new financial year. He suggested that the Committee could proactively engage with the Independent Commission for the Remuneration of Public Office-bearers to address the delays. He said the major review of judicial salaries was expected to be submitted at the end of the financial year.

He discussed the discrepancy between the Ministry of Finance and Justice's views on the 3.8% increase. The Ministry of Finance did not support the increase. Deputy Minister Jeffery highlighted the discrepancy in salary increases between National Prosecuting Authority (NPA) prosecutors and magistrates due to distinct inflationary structures. He also pointed out the growing gap between magistrates' and judges' salaries, identifying potential long-term issues. He proposed a uniform 3% increase across the various roles, including Members of the Executive.

The Chairperson suggested that certain matters, such as legacy issues, should be part of the Committee’s ongoing discussions. Acknowledging time constraints, he indicated that adding more work before the year-end might not be feasible. He proposed that the Committee's recommendation be incorporated into their official report, which would allow Parliament to review the matter.

The Chairperson sought agreement from the Members, and upon receiving their consent, he moved forward to discuss the report's adoption.

Mr X Nqola (ANC) and Ms Maseko-Jele supported the report, considering the existing fiscal limitations.

Adv G Breytenbach (DA) reserved her position.

The Chairperson maintained his position, and scheduled the actual adoption of the report for the following day.

Divorce Amendment Bill

Deputy Minister Jeffery informed the meeting that the Bill had already been introduced and was open for public commentary until the upcoming month. Simultaneously, the Department of Home Affairs (DHA) was working on an inclusive new Marriages Act, covering divorce procedures. However, this comprehensive work's completion has been deferred due to the upcoming elections. As a result, an interim solution in the form of the Divorce Amendment Bill has been presented. This interim measure aimed to ensure compliance with the directives from the Constitutional Court and the Supreme Court of Appeal.

The Deputy Minister introduced the Department's presentation, mentioning that the Committee Secretariat would facilitate the presentation display due to his connectivity issues.

Ms Ina Botha, State Law Adviser, took the Committee through the presentation, which started with a crucial milestone – the landmark ruling by the Constitutional Court on 28 June 2022, titled "Women’s Legal Centre Trust v President of the Republic of South Africa and Others [2022] ZACC 23 (WLCT)." This judgment highlighted the importance of safeguarding the rights of Muslim women and children during the dissolution of Muslim marriages.

The background story to this judgment involved three separate cases brought to the High Court, which were later merged for review by the Constitutional Court. Notably, the Constitutional Court ruled that the existing Divorce Act fell short by not recognising unregistered Muslim marriages as legally valid, rendering it unconstitutional.

This evaluation extended to the Divorce Act's mismatch with key sections of the Constitution, leading to the declaration of unconstitutionality for specific sections.

Furthermore, the Constitutional Court had opted to suspend the declaration of invalidity for 24 months. This interval was designed to facilitate collaboration between the President, the Cabinet and Parliament, with the goal of rectifying these issues through amendments within the given time.

Ms Botha highlighted that the Constitutional Court had outlined interim measures to be followed while the revised Divorce Act awaited implementation. It had refrained from implementing a "read-in" order, underscoring the urgency of the Bill's swift enactment. As directed by the Constitutional Court, the Bill must be in effect by 28 June 2024.

The presentation transitioned to another critical aspect – the Constitutional Court's ruling on the Marriage Act, 1961 (Act No. 25 of 1961). This Act was found to be constitutionally flawed for not acknowledging unregistered Muslim marriages as legally binding. Consequently, the Department of Home Affairs shared the same deadline of 28 June 2024 to rectify these issues through amendments or new legislation.

The presentation emphasised the Department of Justice's collaboration with the Department of Home Affairs, aiming to align timeframes and policies between the proposed Marriage Bill and the Divorce Amendment Bill. The complex synchronisation faced challenges due to the forthcoming parliamentary elections, resulting in a rushed parliamentary process.

Ms Botha highlighted a pivotal shift in perspectives. Earlier, Muslim couples adhering to Islamic (Sharia) law were required to formalise civil marriages to access the Divorce Act's provisions. The Divorce Amendment Bill had been introduced in response to the Constitutional Court's decision, aiming to rectify these gaps. Its primary aim was to extend recognition and protection to Muslim women and children within Muslim marriages, simplifying the dissolution process without needing separate civil registration. This recognition solidified the legitimacy of Muslim marriages within civil divorce proceedings.

 Proposed Clauses:

The presentation concluded with a brief yet comprehensive overview of the proposed clauses within the Divorce Amendment Bill:

- Clause 1: Broadly defines "Muslim marriage" for inclusivity and clear interpretation.

- Clause 2: Expands the application of the Divorce Act to include the dissolution of Muslim marriages.

- Clause 3: Extends safeguards for minor and dependent children in Muslim marriages.

- Clause 4: Introduces provisions for asset division and maintenance within Muslim marriages.

- Clause 5: Encompasses the forfeiture of patrimonial benefits in Muslim marriages.

- Clause 6: Provides a comprehensive application of the Bill to diverse scenarios in Muslim marriages.

- Clause 7: Concludes by specifying the Bill's concise short title.

(See attached)

Discussion

Adv Swart conveyed his appreciation for the presentation and emphasised the time-sensitive nature of the Bill due to the Constitutional Court's stipulated timeframe. He inquired about the possibility of extending the Bill's provisions to encompass other faiths, such as Hinduism, and Jewish law marriages. He sought clarification on whether there was sufficient time to include these additional religious marriages within the Bill's scope. Had it even been considered to incorporate other religious marriages?

Ms Maseko-Jele expressed appreciation for the Department's dedication and efforts towards meeting the Constitutional Court's deadline. She emphasised the significance of any legislative measures aimed at upholding women's rights. While recognising the potential inclusion of other marriage types, she emphasised the urgency of complying with the specified timeline set by the Constitutional Court. The 7th Parliament would have to consider amending the Bill further to incorporate other religious marriages.

Mr G Hendricks (Al Jama-ah) emphasised the pressing nature of the situation, commenting that about a month after the Constitutional Court's ruling, he had introduced a Private Member’s Bill aimed at amending the Divorce Act. He underscored the urgency due to the approaching June deadline, which could result in South Africa lacking a functional Divorce Act in accordance with the Constitutional Court's decision.

He had developed the Bill, collaborating closely with the parliamentary legislative drafting team. Following this, a Certificate of Constitutional Muster was obtained, and the Bill underwent the requisite tagging process. However, he expressed his confusion regarding the Committee's lack of communication concerning his Private Members Bill. He identified significant similarities between his Bill and the one currently under discussion, prompting him to seek clarity on whether elements from his Bill were incorporated in the Department's presentation to the Cabinet. He sought to ascertain the degree of alignment.

Mr Hendricks highlighted a crucial aspect, clarifying that the alignment of the Bill with the Constitutional Court's directive relied on the expertise of the parliamentary legislative drafting team. The principal amendment, discussed with an advocate, revolved around the provision that Muslim women or anyone representing children, should approach the divorce court only after their marriage was dissolved in accordance with Islamic law, mirroring the marriage procedure stipulated in Islamic law.

He also directed attention to another significant concern. His amendments to the Maintenance Act, aimed to address discrimination faced by non-Muslim women. While men received travel subsidies, women did not. Referring to the Chairperson's mention that the African Law Reform Commission was expected to provide a progress report by the end of June, he expressed disappointment over the lack of updates on his Private Members Bill concerning the Maintenance Act since June.

Shifting focus to another legislative endeavour, he said his Private Member’s Bill concerning the registration of Muslim marriages had undergone comprehensive discussions involving all political parties in Parliament. Currently under consideration by the Portfolio Committee on Home Affairs, the Bill was nearing completion of the certificate of desirability process. He delved into the existence of two marriage bills -- one aligned with the Constitutional Court's directive, and the other reflecting government's aspiration for a unified Marriage Act. He commented that those discussions had yielded positive results in this regard.

However, he voiced deep concern over the possibility of non-compliance with the Constitutional Court order due to the imminent deadline. Failure to meet this deadline could trigger the enforcement of interim measures, as stipulated by the Court. He also mentioned the Department of Home Affairs' issuance of a flawed circular aimed at providing relief to Muslim women and children. He commended the efforts to rectify the circular's shortcomings, underscoring the commitment to ensuring compliance while adhering to the principles of Sharia law.

The Chairperson interjected, and kindly requested that the discussion remain focused on the current Bill under review, encouraging participants to limit their comments to inquiries directly related to the Bill's content and implications.

Deputy Minister Jeffery delegated the responsibility of addressing the inquiries to the Department's officials. He also assured the Committee that following the officials' responses, a succinct summary and concluding remarks would be provided.

DoJ's response

Ms Botha responded to the inquiries posed by two Members regarding their concerns over divorces or marriages conducted according to the tenets of other religions. She said this aspect had indeed been considered during the process. The discussion had encompassed the potential utilisation of the Private Members' Bill on divorce amendments, which involved numerous permutations of changes to divorce regulations. These amendments would encompass scenarios where diverse forms of marriages were practised within various cultural and religious frameworks.

Ms Botha clarified that the focus of their efforts remained anchored in the Women's Legal Centre Trust (WLCT) case and its implications. She emphasised that the engagement between her team and the DHA had begun at an early stage. It had become evident that the DHA's approach would involve a comprehensive marriage legislation framework, accommodating a range of marriage recognition scenarios, including those conducted under different religious tenets. This perspective was aligned with the standardised approach embraced by the DHA.

Given this approach, her team had seen no necessity for the Department of Justice to extensively address these matters in the Divorce Act. Instead, they had concluded that primary attention should be given to the broader marriage legislation administered by the Department of Home Affairs. Subsequent alignment of the Divorce Act would follow upon the enactment of the proposed marriage legislation. The intention was to recognise and validate any marriage if it adhered to the minimum requirements specified in that legislation. She acknowledged that any necessary adjustments to the Divorce Act could be made after the passage of the proposed marriage legislation. This approach, focusing on the WLCT case, had been chosen to meet the Constitutional Court deadline and due to the time constraints posed by the need for a swift response.

Mr Hendricks was not entirely satisfied, but hoped the Deputy Minister would provide further clarity.

Deputy Minister Jeffery responded, acknowledging that he was not primarily addressing Mr Hendricks' concerns but rather highlighting Ms Botha's attempt to address the issues related to the Bill. He asked the Committee to respond on the matter of the Private Member's Bill. He added that the public should review Mr Hendricks' version of the Bill, and highlighted the complexity of defining certain aspects concerning religions. He mentioned various scenarios, such as Rastafarians, emphasising that the current practice involves a marriage being conducted by a marriage officer. He indicated that the focus of the DHA's work was to include more religious marriage officers in the Marriage Bill.

The Department of Justice dealt mostly with the dissolution of marriages.

The Chairperson addressed the topic raised by Mr Hendricks, explaining that this was the Committee's initial meeting following the constituency period, and updates from the South African Law Reform Commission would be pursued to give an update. He underscored the immediate focus on the Bill under consideration, viewing it as a temporary solution to meet the Constitutional Court's deadline. He recognised that interactions with the Commission would take place during the process of discussing the comprehensive Marriage Bill.

Mr Hendricks said the Deputy Minister had indicated that the Chairperson would lead the Committee in discussions regarding the Private Member's Bill. He pointed out that the Divorce Amendment Bill under discussion bore significant similarities to the Private Member's Bill, which had a Certificate of Constitutional Muster. Both bills addressed the Constitutional Court's directive, and it would not be equitable to deliberate on the presented Bill without acknowledging the Private Member's Bill, due to the shared characteristics.

The Chairperson indicated that the Members needed to allocate time to thoroughly discuss the concerns raised by Mr Hendricks. Once the briefing was concluded, the Committee would provide a response regarding the progress of the Private Member's Bill.

The meeting was adjourned.