Repeal of Black Administration Act and Amendment of Certain Laws Bill: Department briefing

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
30 August 2005
REPEAL OF BLACK ADMINISTRATION ACT AND AMENDMENT OF CERTAIN LAWS BILL: DEPARTMENT BRIEFING

Chairperson: Ms F Chohan-Kota (ANC)

Documents handed out:
Repeal of Black Administration Act and Amendment of Certain Laws Bill [B25-2005]
Memorandum on the Objects of the Bill (see Appendix)
Black Administration Act [No 38 of 1927]

SUMMARY
The Department briefed the Committee on the Repeal of Black Administration Act and Amendment of Certain Laws Bill. The main aim of the Bill was to repeal the Black Administration Act incrementally. In the interest of good governance, it was impossible to get rid of the Act at one go. There were provisions that needed to be substituted because doing away with them completely, might give rise to problems. Certain provisions of the Act could be repealed immediately, and others had to be substituted. Some of the provisions of the Act would be repealed on 31 December 2005 or on the date on which provincial legislatures would pass substitute legislation. The Committee should be provided with a report indicating how far the substitute legislation in provinces had progressed. The report on progress in these legislatures would help determine the date on which the provisions would be repealed.

MINUTES

Department briefing
The Department was represented by Mr D Rudman (Deputy Director: Legislative and Constitutional Development), Mr L Basset (Legal Drafter), Mr K Molalathoko (Principal State Law Advisor) and Ms T Skosana (Senior State Law Advisor). Ms F Omar and Mr J Thomas also appeared on behalf of the State Law Advisor’s Office.

Mr Basset said that this was a very technical piece of legislation and the Department was happy that it had reached the stage where it could brief the Committee. He hoped that members would be happy with its content. The Bill had originated from a report of the South African Law Reform Commission but was a bit different from the Commission’s draft Bill. The main aim of the Bill was to get rid of the Black Administration Act on an incremental basis. It was, in the interest of good governance, impossible to get rid of the Act at one go. There were provisions that needed to be substituted and done away with completely and this could give rise to problems. Certain provisions of the Act could be repealed immediately and others had to be substituted.

Another reason for the incremental approach was that not all provisions of the Act were administered by the Department of Justice and Constitutional Development (DoJ). Some were administered by the Departments of Provincial and Local Government (DPLG) and Land Affairs (DLA) and by provincial administrations. Some of the provisions of the Act had been assigned to six of the provinces: Limpopo, Free State, Kwazulu-Natal, Eastern Cape, Mpumalanga and North West. The arrangement of the Bill took into account that the immediate and simultaneous repeal of all the provisions of the Act, attractive as it might have seemed, would not be in the interest of good governance.

The Department was responsible for the administration of section 12, 20, and 21A of the Act. The DPLG was responsible for sections 1, 2 and 5 and the DLA was responsible for section 34 and possibly the second Schedule of the Act. Failure to substitute some of the provisions of the Act could create a vacuum and chaos. For instance, there were provisions in the Act that provided for the appointment of traditional leaders and the recognition of traditional authorities.

Mr Basset read through the lengthy Memorandum on the Objects of the Bill (see Appendix).

Clause 1 Repeal of Act 38 of 1927 and savings
Mr Basset said that this clause formed the crux of the Bill. It dealt with the repeal of various provisions of the Act. Some of them would be repealed immediately and others would be repealed once appropriate legislative measures had been put in place. It attempted to categorise the different provisions of the Act that were intended for repeal, in such a manner that those provisions of the Act that:
- could be repealed without any problem, were in fact repealed immediately;
- required alternative provisions in their place, were repealed when the different Departments and spheres of government had enacted and implemented such alternative provisions or on 31 December 2005, whichever occurred first (a sunset clause).

Mr Bassett said that the 31 December date was set so as to encourage various role players to have alternative legislation in place before this date. The Committee might have to consider if this date was realistic bearing in mind what still had to be done.

Clause 1(1) dealt with sections of the Act that could be repealed immediately without any implications. These included section 11A which dealt with the legal capacity of Black women in relation to leasehold and ownership and section 21A which empowered the Minister for Justice and Constitutional Development to confer certain judicial powers on persons in respect of the now defunct community councils. Another was section 26(1) that provided that a list of proclamations issued by the President under the authority of this Act should be tabled in Parliament. Such proclamations remained in force unless Parliament had requested the President to repeal them or modify their operation. The ratio for this section had fallen away. The repeal would not affect the validity of any proclamation because the section did not authorise or enable the issuing of a proclamation. It was merely a requirement as to form. Section 27 empowered the President to make regulations in respect of a large range of issues relating to Black persons. The regulations would fall away following the repeal of the section.

The Chairperson asked why regulations always fell away following the taking away of the power in terms of which they had been made.

Mr Basset replied that in terms of the law, subordinate legislation fell away once the principal legislation had been repealed.

The Chairperson said that one had to be careful when repealing provisions empowering people to make regulations. One had to look at what regulations had been made before repealing such provisions.

Mr Basset said that it had been very difficult to ascertain what had been done since 1927.

Mr J Jeffrey (ANC) noted that some provisions would be repealed on 31 December or on such date when provinces repeal such provisions, whichever would occur first. It was unlikely that provinces would have passed their relevant legislation by 31 December 2005. He wondered if this would not create a lacuna that would make it impossible to appoint traditional leaders. He asked if the provisions intended for repeal should not be repealed on the date on which provinces would pass the relevant legislation.

Mr Basset agreed that there would be a lacuna should provinces or national Departments involved not pass substitute legislation. The date was intended to urge role players to view the matter seriously and come up with their legislation and to show that there was commitment to get rid of the provisions as soon as possible. DPLG had indicated that all six provinces had introduced legislation in their legislatures.

The Chairperson said that the Committee should be provided with a report indicating how far the process of making substitute legislation had progressed. The report on progress in the legislatures would help the Committee in determining the date on which the provisions should be repealed.

Mr Basset said that clause 1(5) dealt with the repeal of the remaining provisions of sections 12 and 20 and the Third Schedule to the Act, which regulated the judicial powers of traditional leaders and traditional courts. These provisions would be administered by the Department of Justice and their repeal would only take place once the Department had promoted and implemented new legislation dealing with these issues. The Law Reform Commission had published a report dealing with traditional courts and had made legislative recommendations. The Department was in the process of looking at and evaluating the report. It would approach the Minister with a submission in the near future. The proposal had financial implications and a question had been raised whether the Department should not come up with interim legislation to regulate traditional courts. He reminded the Committee that the Department was in the process of rationalising the courts. One should look at the way such courts fitted into the court’s structure as part of the broader picture.

The Chairperson said that that an interim legislation was the most logical solution because this was a very big issue.

Mr Basset said that sections 12 and 20 dealt with the settlement of civil disputes and the adjudication of criminal matters by traditional leaders respectively.

Clause 1(6) dealt with the repeal of the remaining provisions of sections 22 and 23 of the Act. These sections were also administered by the Department of Justice and Constitutional Development. They related to issues of marriage and the customary law of succession. The repeal of these provisions would only take place once new legislation dealing with these issues had been enacted and implemented. The Department was in the process of drafting a Bill on an urgent basis. The Bill emanated from a report of the Law Reform Commission and the Department was fairly at an advance stage of evaluating the report and making a submission to the Minister. The Constitutional Court had already spoken on this matter.

The Chairperson asked if there would be a lacuna if these sections were repealed tomorrow.

Mr Basset replied he would want an opportunity to look at the provisions before giving an answer. He was of the view that the Constitutional Court had already ruled that the provisions were invalid.

The Chairperson urged the presenter to check the provisions.

Clause 1(7) was intended to repeal section 24 of the Act, dealing with the Code of Zulu Law. There were two Codes in operation in Kwazulu-Natal. The Kwazulu-Natal provincial administration was in the process of looking at the Code of Zulu Law and it appeared as if they were planning to repeal that Code and replace it with guidelines. This section could be repealed without any problem and it would be advisable to put it under clause 1(1).

Clause 2 Amendment of section 4 of Act 66 of 1965, as amended by section 1 of Act 86 of 1983, section 26 of Act 57 of 1988, section 4 of Act 20 of 2001 and section 2 of Act 47 of 2002.
This clause dealt with the amendment of section 4(2) of the administration of Estates Act, 1965.

Clause 3 Insertion of section 7A in Act 41 of 2003
Clause 3 envisaged an insertion in the traditional Leadership and Governance Framework Act, 2003. It dealt with the liability of a traditional leader in respect of personal obligations and was intended to protect a traditional community from liabilities incurred by a wayward traditional leader. The DLA had requested that some technical amendments should be made to the clause.

Clause 4 Short title
Clause 4 contained the short title of the Bill.

Discussion
Ms S Camerer (DA) agreed that the Bill was technical. It was at the same time a historic event. Parliament would at last get rid of the Act. The Committee had been trying to get rid of the Act for the last ten years. She asked if the Committee could have more information on what was done in terms of section 5(1)(a) of the Act.

The Chairperson asked if the Member wanted to know how the Black Administration Act had been implemented. Ms Camerer agreed.

The Chairperson replied that it was difficult to figure out what apartheid was all about.

Mr Basset said that he would have to liaise with the DLA before responding to the question. He would furnish the Committee with any files on how it was applied if such were available.

The Chairperson asked if the Member was asking the question for interest’s sake and whether she had a point to make in relation to the repealing of the provision.

Ms Camerer replied that she only intended to say that the repeal of the Act was a historic event. She noted that section 2(9) of the Act was also to be repealed. She asked if the repealing of the provision would mean that a person would be able to defy a chief without any punishment.

The Chairperson replied that a person could defy the President of the country with impunity. This was what democracy was about.

Mr Basset said that the Traditional Leadership Framework legislation might have something to say on this issue. He would look at the matter and come back to the Committee.

The meeting was adjourned.

Appendix:
MEMORANDUM ON THE OBJECTS OF THE REPEAL OF BLACK ADMINISTRATION ACT AND AMENDMENT OF CERTAIN LAWS BILL, 2005

1. Purpose of Bill and background information
The Bill, which emanates from an investigation and report of the South African Law Reform Commission, is intended to repeal the Black Administration Act, 1927 (Act No. 38 of 1927) (the Act), on an incremental basis. Since not all the provisions of the Act can be repealed immediately, the Bill envisages the repeal of some of the provisions immediately, and others on a particular date in the near future or on the date of implementation of substitute statutory provisions by different role players in the national and provincial spheres of government, whichever occurs earlier.

There are certain provisions of the Act which can be repealed immediately without any implications, while others created a detailed system of governance, the outright repeal of which does not represent a satisfactory solution unless they are replaced by appropriate alternative provisions. Moreover, some provisions of the Act are administered by Government Departments other than the Department of Justice and Constitutional Development, namely the Departments of Provincial and Local Government and Land Affairs at national level, as well as different departments in the provincial sphere of government.

2. Objects of Bill
Clause 1 forms the crux of the Bill and, as mentioned above, intends to repeal the provisions of the Act on an incremental basis. It also contains some savings provisions. This clause attempts to categorise the different provisions of the Act that are intended for repeal, in such a manner that those provisions of the Act that —
can be repealed without any problem, are in fact repealed immediately; and
require alternative provisions in their place, are repealed when the different Departments and spheres of government have enacted and implemented such alternative provisions or on the date specified in the Bill (31 December 2005), whichever occurs first (a sunset clause).

Clause 1(1) deals with sections of the Act that can be repealed immediately without any implications. It seeks to repeal the following sections of the Act:
Section 1, dealing with the powers of the Governor-General (the President or Premiers where assignments to provinces have taken place) as Supreme Chief of all Blacks;
section 2(1), (2), (3), (5) and (6) dealing with the appointment of different categories of commissioners and tribal settlement superintendents;
section 2(9), providing for the punishment of a person who obstructs any officer, chief or headman in the lawful execution of his duty;
section 3, dealing with the circumstances when a ‘‘tribe’’ is bound by the personal obligations of its ‘‘chief’’ (this section is re-enacted with adaptations in clause 3 of the Bill);
section 11(3)(a), which regulates the law to be applied in a Commissioner’s Court;
section 11A, dealing with the legal capacity of Black women in relation to leasehold and ownership;
section 21A, which empowers the Minister for Justice and Constitutional Development to confer certain judicial powers on persons in respect of the now defunct community councils;
section 26(1), providing that a list of proclamations issued by the President under the authority of this Act must be tabled in Parliament;
section 27, which empowers the President to make regulations in respect of a large range of issues relating to Black persons;
section 31, empowering the President to grant to any Black person a letter exempting the recipient from Black law and customs;
section 33, providing that no stamp duty or fee shall be payable in respect of any declaration made under the provisions of the Act;
section 34 and the Second Schedule to the Act, dealing with the extension of the operation of the Act to any area or piece of land in the district of Namaqualand which has been granted, set apart, reserved or made available for occupation by persons commonly described as ‘‘Hottentots or Bastards’’ or to the areas comprising the Fingo and the ‘‘Hottentot’’ villages in the Grahamstown urban area.

Clause 1(2) and (3) seeks to repeal the sections of the Act that are administered by the Department of Provincial and Local Government and the six provinces to which the administration thereof was assigned in 1994, namely section 2(7), (7)bis, (7)ter and (8).
Section 2(7) provides that the Governor-General may recognise or appoint and depose any person as a chief of a Black tribe and may make regulations prescribing the duties, powers, privileges and conditions of service of such persons. Section 2(7)bis provides that the Governor-General may, in certain circumstances, make an order awarding to, or imposing on, the person recognised or appointed as a chief, such of the property, rights or obligations of the previous chief as the Governor-General may deem just. Section 2(7)ter provides that any person affected by an order made in terms of section 2(7)bis may petition the Governor-General for the amplification, variation or interpretation of the provisions of the order, in respect of which the Governor-General may make such order thereon as he may deem fit. Section 2(8) provides that the Minister or his delegate may appoint any person as headman over a tribal settlement or as headman of the Blacks in any area and may appoint any person to act temporarily as a chief or headman in the place of or in addition to the ordinary incumbent of the post and may also depose such person.

Clause 1(2) seeks to repeal, with immediate effect, these four subsections at national level in the three provinces (Gauteng, Western Cape and Northern Cape) where they have no application, which is confirmed by the fact that the administration of these sections was not assigned to them shortly after the inception of the new constitutional dispensation in 1994.

Clause 1(3) seeks to repeal the same four subsections of the Act in the six provinces to which the administration of the provisions was assigned in 1994, namely Kwazulu-Natal, the Free State, Mpumalanga, North West, Limpopo and the Eastern Cape. The repeal of these provisions at provincial level can, however, only take place once suitable provincial substitutes are in place. The Traditional Leadership and Governance Framework Act, 2003, envisages the enactment of provincial legislation to regulate the matters currently contained in section 2(7), 2(7)bis, 2(7)ter and (8) of the Act. Clause 1(3) of the Bill consequently envisages that these subsections of the Act are repealed in the six provinces in question on 31 December 2005 or on such date in each province when such province repeals the said subsections in its area of jurisdiction and enacts and implements corresponding provincial legislation contemplated in the Traditional Leadership and Governance Framework Act, 2003, whichever occurs first.

Clause 1(4) seeks to repeal section 5(1)(a) of the Act. This section is also administered by the Department of Provincial and Local Government and makes provision for the Governor-General to define the boundaries of the area of any tribe or tribal settlement, divide any existing tribe into two or more parts, amalgamate tribes or parts of tribes into one tribe, or constitute a new tribe, as necessity or the good government of Blacks may require. This subsection has not been assigned to any province. Again, this subsection can only be repealed once suitable substitute legislative measures are in place. Clause 1(4) of the Bill consequently provides that this subsection of the Act is repealed on 31 December 2005 or on such date when the national and provincial legislative provisions dealing with the boundaries of traditional communities and the merging or division of traditional communities referred to in the Traditional Leadership and Governance Framework Act, 2003, are implemented, whichever occurs first.

Clause 1(5) of the Bill deals with the repeal of sections of the Act that are administered by the Department of Justice and Constitutional Development, namely the remaining provisions of sections 12 and 20 and the Third Schedule to the Act, which regulate the judicial powers of traditional leaders and traditional courts. The repeal of these provisions can only take place once the Justice Department has promoted and implemented new legislation dealing with these issues. Clause 1(5) consequently provides that the remaining provisions of sections 12 and 20 and the Third Schedule to the Act are repealed on the date of implementation of national legislation to further regulate the structure and functioning of traditional courts or on 31 December 2005, whichever occurs first.

Clause 1(6) deals with the repeal of the remaining provisions of sections 22 and 23 of the Act, sections which are also administered by the Department of Justice and Constitutional Development and which relate to issues of marriage and the customary law of succession. The repeal of these provisions of the Act can only take place once new legislation dealing with these issues has been enacted and implemented. Clause 1(6) consequently provides that the remaining provisions of sections 22 and 23 of the Act are repealed on the date of implementation of national legislation to further regulate the customary law of succession or on 31 December 2005, whichever occurs first.

Clause 1(7) seeks to repeal section 24 of the Act, dealing with the Code of Zulu Law. Section 24 of the Act provides that, notwithstanding the repeal of Natal Law 19 of 1981 by section 1 of the Black Laws Amendment Act, 1976, the Schedule to that Act, as substituted by Proclamation R. 195 of 1967, shall remain of full force as law for Blacks in Natal, and the State President may from time to time by proclamation in the Gazette amend, repeal or substitute the provisions of that Schedule, which shall be known as the Code of Zulu Law. The proclamation containing the Code of Zulu Law was assigned to the province of KwaZulu-Natal in 1994. The repeal of section 24 of the Act is dependent on the Kwazulu-Natal Provincial Legislature enacting substitute legislation. Clause 1(7) consequently provides that section 24 of the Act is repealed on the date of implementation of provincial legislation by KwaZulu-Natal to further regulate the Code of Zulu Law or on 31 December 2005, whichever occurs first.

Clause 1(8) seeks to repeal subordinate legislation made under the Act. This subordinate legislation has been ‘‘kept alive’’ by virtue of the Abolition of Racially Based Land Measures Act, 1991 (Act No. 108 of 1991). Clause 1(8) provides that any proclamation made under section 25 of the Act, any regulation made under section 30(2) of the Act or any by-law made under section 30A of the Act and which was in force prior to the commencement of the Abolition of Racially Based Land Measures Act, 1991, which has not yet been repealed, is repealed on 31 December 2005 or on such date as it is repealed by a competent authority, whichever occurs first. This approach has been followed in an attempt to create legal certainty since it has proved virtually impossible to try to identify the remaining subordinate legislation, let alone try to ascertain whether it is still being applied in practice.

Clause 1(9) deals with the repeal of sections, 32, 35, 36, 37, the long title and the First Schedule of the Act, which respectively provide for penalties in the event of a breach of any proclamation, rule or regulation made under the authority of the Act (section 32), definitions (section 35), the repeal of laws (section 36), the short title of the Act and the commencement thereof (section 37), the long title and the First Schedule thereto which deals with the laws the Act repealed at its commencement. This subclause envisages the repeal of these sections once the other provisions of the Act have been repealed, that is all the provisions referred to in clause 1(1) to (8).

Clause 1(10) contains savings provisions. Clause 1(10)(1)(a) makes provision for the protection of vested rights and provides that the repeal of sections 11A, 31, 34 and Second Schedule to the Act by the Bill does not affect any rights acquired in terms of those sections prior to their repeal. Clause 1(10)(b) gives effect to a request of the Department of Land Affairs that a provision be built into the Bill to provide that any restrictive condition contained in an existing deed, which was imposed by virtue of section 34 and Schedule 2, is withdrawn and that the relevant Registrar of Deeds must, without charge, and on application by the owner of the land in question, remove such restrictive condition from the deed.

Clause 2 of the Bill seeks to amend section 4(2) of the Administration of Estates Act, 1965 (Act No. 66 of 1965), the aim of which is to ensure that all orphans and minors are treated in the same manner. Section 4 of the Administration of Estates Act, 1965, deals with the jurisdiction of Masters of the High Courts, subsection (1) thereof dealing with the jurisdiction of Masters in the case of deceased estates. Section 4(2) deals with the jurisdiction of Masters in respect of property belonging to minors. This amendment is proposed in order to bring about legal certainty, leaving no doubt that the property of all orphans and minors, including the property of those orphans and minors who are governed by the principles of customary law, enjoy the protection of the High Courts as upper guardians of all minors.

Clause 3 of the Bill envisages an insertion in the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003). This clause, in essence, constitutes a re-enactment, with some adjustments, of section 3 of the Act (which is being repealed by clause 1(1) of the Bill). It deals with the liability of a traditional leader in respect of personal obligations and is intended to protect a traditional community from liabilities incurred by a wayward traditional leader. (The wording of clause 3 is almost identical to that of section 3 of the Act, the changes thereto, being changes that are required for changed circumstances). The section still serves a purpose and ought to be retained in some form or other.