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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO
11 October 2005
REPEAL OF BLACK ADMINISTRATION ACT AND AMENDMENT OF CERTAIN LAWS BILL: ADOPTION
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
Repeal of Black Administration Act and Amendment of Certain Laws Bill [B25B-2005]
Comments by the National House of Traditional Leaders
Committee report on the Bill
Repeal of Black Administration Act and Amendment of Certain Laws Bill: as adopted
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. The proposed repeal of sections 5 and 8 of the Abolition of Racially Based Land Measures Act, 1991 was also removed from the Bill because the Department of Land Affairs was unsure if it wanted the sections repealed. Some investigation must be conducted before they could be repealed. The Committee adopted the Bill with amendments.
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 Chohan-Kota took the committee through its programme for next week. The Committee would be briefed on the 12th amendment to the Constitution on Monday. There would hearings on implications of the recommendations on the remuneration of magistrates on Tuesday. This would be a joint hearing with the Select Committee on Security and Constitutional Affairs. The Committee would continue with the 12th amendment to the Constitution on Wednesday. The Superior Courts Bill would soon be brought before the Committee.
Clause 1 Repeal of Act 38 of 1927 and savings
Mr Basset said that section 5(1)(a) of the Act had been included under subclause (1). The section dealt with the powers of the Governor General to define boundaries of traditional communities and the merging or division of traditional communities referred to in the Traditional Leadership and Governance Framework Act. This section would be repealed immediately. Subclauses (2) and (3) of the Bill as introduced had been collapsed into one subclause. The subclauses dealt with the repeal of section 2(7), (7)bis, (7)ter and (8) of the Act. The section would be repealed on 31 July 2006 or on such date that the last of the provinces in question had repealed the section and had enacted and implemented corresponding legislation, whichever would occur first. The words "legislative measures" in (2)(b) were replaced by "legislation" as they gave an impression that proclamations would suffice.
The Chairperson said that (2)(b) should provide that "…corresponding provincial legislation regulating the matters dealt with in section 2(7), (7)bis, (7)ter and (8) of the Act in terms of the Traditional Leadership and Governance Framework Act, 2003 (Act No 41 of 2003), within their areas of jurisdiction, whichever occurs first." Basically the provision should refer back to the sections to be repealed.
Mr Basset said that subclause (3) dealt with the repeal of sections 12 and 20 and the Third Schedule of the Act. The sections dealt with the powers of a traditional leader to adjudicate criminal and civil matters. The date referred to the clause was changed to 31 July 2006. Like (2)(b), subclause (3)(b) was amended so that it would refer back to the provisions to be amended. The date referred to in (4)(a) should also change to 31 July 2006. Subclause (4)(b) should also refer back to the provisions to be amended. Section 23 was removed from the ambit of subclause (4). The section dealt with customary law of succession. The entire section 23 and regulations made under it were declared invalid in the Bhe case. Section 23 should be dealt within in clause 1(1) and be repealed immediately. Section 22(7) and (8) would be repealed on 31 July 2006 or on such date that national legislation to further regulate matters dealt with in them would be implemented, whichever would occur first. The Department of Justice should investigate the matters dealt with in the section and also see if there was any other category of women who were in need of protection as a result of their marriage not being recognised.
Mr Basset said that clause 1(5) dealt with the repeal section 25 of the Act. Section 25 dealt with the Code of Zulu law. The date on which the sections would be replaced had been extended to 31 July 2006. Paragraph (b) referred back to section to be repealed. Subclause (6) related to subordinate legislation that had been kept alive by virtue of sections 5 and Act of Act 108 of 1991. The sunset date had also been changed to 31 July 2006. Subclause (7) dealt with provisions that would remain in the statute book until such time certain provisions had been repealed. The provisions that would remain in force were sections, 32, 35, 36, 37, the long title and the First Schedule of the Act. The original Bill specifically identified sections that contained vested rights that had to be protected. These were sections 11A, 31, 34 and the Second Schedule of the Act. These sections were dealt with in clause 1(8). The words "sections 11A, 31, 34 and the Second Schedule" had been replaced by "any section". Section 11A dealt with the capacity of black women in relation to leasehold and ownership. Section 31 dealt with letters of exemptions and section 34 dealt with the extension of the operation of the Act.
The Chairperson suggested that clause 1(8) should also refer back to the provisions to be amended. In other words it should provide that "the repeal of any section, including sections 11A, 31, 34 and the Second Schedule...".
Mr Basset said there would be no harm in referring back to the section.
The Chairperson said that the intention was to convey the fact that the Committee had applied its mind to sections 11A, 31, 34 and the Second Schedule. There might be other sections that the Committee had not identified. The Chairperson changed her mind and said that it was not necessary to refer back to the sections.
Mr Basset said that subclause (8)(b) related to certain pieces of land in Namaqualand and Grahamstown. This provision was requested by the Department of Land Affairs. The Department had indicated that there might be a need of some investigation before removing just about any restrictive condition. There might be unintended consequences if all restrictive conditions were removed. The new provision provided that restrictive conditions would only be removed if the Minister responsible for land affairs had approved their removal in writing.
Ms S Camerer (DA) asked why ministerial intervention was necessary.
The Chairperson replied that the removal of restrictive conditions were to be an administrative process. An application for the removal would have to be made to the registrar of deeds. The problem was that some restrictive conditions were discriminatory in nature whilst other served a very good purpose. There was no problem with removing discriminatory conditions.
Ms Camerer said that any ministerial intervention in any land matter had the effect of delaying the whole process.
The Chairperson said that the clause dealt with certain pockets of people in Namaqualand.
Clause 3 Repeal of sections 5 and 8 of Act 108 of 1991
Mr Basset said that this clause was inserted following a request by DLA. These sections had kept subordinate legislation alive. It had been suggested that these sections should be repealed in order to clean up the statute books.
Mr Havenga said that his Department had a problem with the 31 July 2006 date referred to in the clause. There was a need for further investigation before the section was repealed. He was unsure if the clause should be retained or deleted from the Bill.
The Chairperson suggested that the clause should be deleted from the Bill.
Mr Basset said that no changes had been made in clause 2. He proceeded to take the Committee through comments made by the National House of Traditional Leaders (NHTL) on the Bill. (See documents attached). The Bill emanated from an investigation from the South African Law Reform Commission. The Commission had consulted widely before drafting the Bill. The Department’s Bill did not differ much from what had been suggested by the Commission. The NHTL did not like the incremental approach adopted in repealing the Bill.
Voting on the Bill
The Chairperson took the Committee through the Bill clause by clause. The Committee unanimously voted in favour of the Bill with amendments.
The Chairperson took the Committee through the Committee’s report on the Bill. (See document attached). There would be a debate on the Bill on Thursday in the National Assembly.
The meeting was adjourned.
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