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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO
10 October 2005
REPEAL OF BLACK ADMINISTRATION ACT AND AMENDMENT OF CERTAIN LAWS BILL B25-2005: DELIBERATIONS
Documents handed out:
Repeal of Black Administration Act and Amendment of Certain Laws Bill B25-2005
Repeal of Black Administration Act and Amendment of Certain Laws Bill B25-2005: as amended
The Committee considered amendments to the Bill. Clause 3 was deleted from the Bill as introduced. Clause 3 dealt with the liability of traditional community for the obligations of traditional leaders. A new clause 3 was added to repeal sections 5 and 8 of the Abolition of Racially Based Land Measures Act, 1991. This was requested by the Department of Land Affairs. Some provisions of the Black Administration Act dealt with in the Bill would be repealed on 31 July 2006 or on such date as they were repealed by a competent authority, whichever would come first. Some sections of the Act were moved to clause 1 so that they could be repealed immediately.
The Department of Justice and Constitutional Development was represented by Mr L Basset (Drafter), Mr K Molalathoko (Principal State Law Adviser and Ms T Skosana (Senior State Law Advisor). MR JH Havenga (Deputy Director) and Ms M Chetty (Parliamentary Legal Officer) represented the Department of Land Affairs. Ms M Motseo (Deputy Manager: Legal Services), Ms V Zini (Director Legal Services and Mr S Khandlela (Manager: Traditional Leadership and Institutions) represented the Department of Provincial and Local Government (DPLG) wanted the provision.
Ms Chohan-Kota said that the National Assembly had to pass the Bill by the 13th October 2005. She asked Mr Basset to take the Committee through the proposed insertion of section 7A in Act 41 of 2003. She asked why DPLG wanted the provision. The Bill was intended to repeal the Black Administration Act.
Mr Havenga said that there was a decision by the Land Claims Court to the effect that one could take judicial notice of the fact that a traditional leader could bind the land of his or her community.
The Chairperson said that this was possible because the Black Administration Act was still in operation. The fact that one could bind communal land in relation to personal obligations could cause constitutional problems, specifically the right to property.
Ms Zini said that her Department was neither in favour nor against the provision. The Department would be happy with any decision the Committee would take.
Mr Basset said that, when drafting the provision, the Department of Justice was to a large extent led by the suggestions in the report of the South African Law Commission. The Commission had suggested that section 3 of the Act still served a useful purpose. The provision was drafted on the basis of section 3 and then sent to DPLG for comment. DPLG did not ask for the provision.
The Chairperson said that she had a legal problem with the provision and was unsure if it was in all fours with the Constitution. The Constitution protected both individual and communal rights.
Mr Havenga suggested that the provision should be referred to the State Law Advisor so that they could check its constitutionality.
The Chairperson said that she and Mr Basset had dealt with some of the concerns that the Committee had raised in a previous meeting.
The Chairperson said that the words "orphans and" had been deleted from the Bill as introduced in the National Assembly. The long title dealt with the jurisdiction of the Master over the property minors. The Moseneke judgement did not deal with just orphans but all minors.
Clause 1 Repeal of Act 38 of 1927 and savings
The Chairperson said that some new sections had been added to Clause 1(1). Clause 1 dealt with sections that could be repealed immediately.
Cause 1(2) and (3) referred to traditional leaders and gave powers to certain authorities and provinces to recognise traditional leaders and deal with things like salaries. There were provinces that did not have traditional leaders. Provinces that had traditional leaders had been given an assignment from the Act. There would be a need for a sunset clause because one could not just repeal a provision and leave a lacuna in the law. The provision would still apply to provinces that had traditional leaders. The intention was to repeal the Act at national level. There was no point in repealing it immediately in provinces that had not traditional leaders. The intention was to allow the Traditional Leadership and Governance Framework Act to be implemented. The DPLG had the power to repeal some of the provisions of the Black Administration Act and should be given an opportunity to do so. These two subclauses would be replaced by two new subclauses.
The date in subclause 2(a) should change to 31 November 2006 so as to show the urgency with which the issues had to be addressed. It provided that section 2(7), (7)bis, (7)ter and (8) would be repealed on the 31st July 2006 or on such date when the last of the provinces that had traditional leaders had repealed the provisions and had enacted and implemented corresponding provincial legislation.
Ms Zini said that all provinces had indicated that they had draft bills in place but one was not sure if they covered all sections to be repealed.
The Chairperson said that all provinces should submit a progress report by 31 January 2006.
The Chairperson said that option 2 should be taken out of the Bill because it dealt would something that could be repealed immediately. It provided for the insertion of section 5(1)(a) in clause 1(1). Section 5(1) had already been listed under subclause (1). The date in subclause (3) should also change to 31 July 2006. The intention was to have one date on which everything would be repealed.
Mr Basset said that sections 12 and 20 of the Black Administration Act dealt with the powers of traditional leaders to adjudicate in traditional and criminal matters respectively.
The Chairperson said that the date in subclause (4) should refer to the 31st of July 2006. Paragraph (b) should be redrafted and specifically refer to sections 12 and 20 and the Third Schedule of the Act. The dates referred to subclause (5) and (6) should also change to 31 July 2006.
Mr Havenga said that there were deeds registration that were proceeding in terms of certain regulations and powers conferred to Commissioners. It was difficult for the Registrar of Deeds to take over such registrations. The situation would have to change.
The Chairperson said that the sections listed under subclause (8) would be repealed once all the provisions referred to in subclauses 1 to 7 had been repealed. The repealing of sections listed in subclause (9) wold not derogate from any right which was not inconsistent with the Constitution and which was acquired in terms of those sections prior to their repeal by this Bill.
Mr Havenga said that his Department had a proposal relating to the registration of deeds. He proposed that the should be provisions providing that "upon the repeal of the proclamations and regulations contemplated in subclause (8), all the powers and duties relating to the registration of deeds vested in or imposed upon the Chief Commissioner or other registration officers in terms of such proclamations or regulations, devolve upon the Registrar of Deeds having jurisdiction in the area concerned". The advantage of having this provision was that it would immediately make provision for deeds officers to fast track the procedure of registering the deeds.
The Chairperson asked if Mr Havenga was proposing that people who had registered their property through Commissioners to register with the Registrar of Deeds.
Mr Havenga agreed.
The Chairperson was worried about giving effect to something that came from the Black Administration Act. There was a proposal that the removal of restrictive conditions of title deeds should be dealt with by the Registrar of Deeds. The Bill provided that the Minister should deal with such an issue. The reason was that one could get discriminatory conditions that had to be done away with. At the same time there might be restrictive conditions that were still important, particularly when dealing with communal land. It important to note that nobody would lose any rights unless the necessary legislation is passed. There should be a political decision on these matters.
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
The Chairperson said that certain provisions of the Black Administration Act were found to be unconstitutional in the Moseneke judgement. This clause was intended to give effect to the court’s judgement. It was not strictly speaking repealing any particular provision of the Act. It would extend the jurisdiction of the Master to all property belonging to all minors and not just orphans.
Clause 3 Repeal of sections 5 and 8 of Act 108 of 1991
The Chairperson said that this provision was proposed by the Department of Land Affairs (DLA). She asked Mr Havenga to explain the provision.
Mr Havenga said was not sure if the Department had proposed the provision.
Mr Basset said that the provision was suggested by one of Mr Havenga’s colleagues during a meeting between the Departments. The main aim was to clean up the statute book. These sections had certain subordinate legislation alive.
Mr Havenga supported the repeal of the sections.
The Chairperson said that the date referred to the clause should change to 31 July 2006.
The meeting was adjourned.