12th Constitution Amd Bill, Repeal of Black Administration Act & Amendment of Certain Laws Bill: briefings

NCOP Security and Justice

14 October 2005
Share this page:

Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
14 October 2005
TWELFTH CONSTITUTION AMENDMENT BILL, REPEAL OF BLACK ADMINISTRATION ACT AND AMENDMENT OF CERTAIN LAWS BILL: BRIEFINGS

Chairperson
: Mr M Mokoena (ANC)

Documents handed out:
Repeal of Black Administration Act and Amendment of Certain Laws Bill [B25A – 2005]
Repeal of Black Administration Act and Amendment of Certain Laws Bill [B25B-2005]
Black Administration Act [No 38 of 1927]
Portfolio Committee on Justice and Constitutional Development Report on Bill
Comments on Bills by National House of Traditional Leaders
SA Law Reform Commission, March 2004 Report: Repeal of the Black Administration Act [email [email protected] if unavailable]
Traditional Leadership and Governance Framework Act 41 of 2003
Constitution Twelfth Amendment Bill [B33–2005]
Government Gazette, Vol. 482, 19 August 2005, No. 27937
Government Gazette
, Vol. 481, 18 July 2005, No. 27807
[email
[email protected] for documents]

SUMMARY
The Department of Justice briefed the Committee on the Repeal of the Black Administration Act and Amendment of Certain Laws Bill [B25A – 2005]. The Act would be repealed incrementally. The effective date of the Act’s repeal would be 31 July 2005 or on the date of substitute legislation enacted by the provinces, whichever would occur earlier.

The Department also briefed the Committee on the Constitution Twelfth Amendment Bill [B33 – 2005]. The purpose of the Bill was to amend the Constitution to re-determine provincial boundaries and eliminate cross-boundary municipalities.

MINUTES

Department briefing on Repeal of Black Administration Act and Amendment of Certain Laws Bill
The Department of Justice and Constitutional Development was represented by Mr L Bassett (Drafter), Mr K Molalathoko (Principal State Law Adviser) and Ms T Skhosana (Senior State Law Advisor). Mr Bassett summarised the three technical clauses of the Bill, and advised how each would be repealed.

Clause 1 was the crux of the Bill, which dealt with the repeal of the different provisions of the Act. Some provisions would be repealed immediately, and others would be repealed on an incremental basis once substitute provisions were put into place. All remaining provisions of the Bill would disappear on 31 July 2006, if not sooner.

He highlighted that Clause 1 also contained ‘savings clauses’. This clause categorised provisions in different ways, depending on whether the provisions could be eliminated immediately, or whether substitute legislation was first necessary. Clause 2 dealt with the remains of Section 4 of the Estates Act.

Mr Bassett explained that the Department was working on the Bill because the repeal of the Act affected the Departments of Land Affairs, and Provincial and Local Government, and six provincial administrations, namely Limpopo, Free State, KwaZulu-Natal, Eastern Cape, Mpumalanga and North West.

Clause 1
Mr Bassett said that Section 1 dealt with the powers of the Governor General as ‘Supreme Chief of all black people’, which was the wording found in the Act. It provided that the Governor General should be vested with all rights, immunities, powers and authorities as were, or from time to time, would be vested in him with respect to all black people in the province of Natal. This section was redundant and was repealed.

Mr Bassett said that Sections 2, subsections 1, 2, 3, 5, and 6 could all be eliminated immediately because they quoted different categories of offices and functions that did not exist anymore.

Mr Bassett described Section 2(9), which provided that a person who obstructed or insulted an officer in the course of performance of his duty committed an offence. That law was administered by the Department of Provincial and Local Government (DPLG), was redundant, and could be repealed immediately.

Mr Bassett said that Section 3, dealing with circumstances in which a tribe was bound by the personal obligations of its Chief, would be repealed immediately.

Mr Bassett said that Section 5(1)(a) was also administered by the DPLG. It empowered 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.

Mr Bassett referred to Section 11(a) dealt with the legal capacity of black women in relation to leasehold and ownership. He referred the Committee to the Report by the SA Law Reform Commission, which determined that this provision could not be repealed immediately. There needed to be investigation and protection of vested rights that had accrued to women.

Mr Bassett said that Section 21(a) could be repealed immediately because it dealt with the area of community councils, which no longer existed.

Mr Bassett said that Section 23 could also be repealed immediately. The section dealt with customary law succession, and had been declared unconstitutional by the Constitutional Court.

Mr Bassett said that Section 26 provided that proclamations made by the President under certain provisions of the Act would be required to be tabled in Parliament. Since there would be no more proclamations under the Act, it would be repealed immediately.

Mr Bassett said that Section 27 gave the President the power to make regulations in a large range of issues. For example, this included regulations dealing with tribal members carrying knives, sticks, etc. This section would be repealed immediately.

Mr Bassett said that Section 31 dealt with letters of exemption. The Governor General could grant any black person a letter of exemption from black law and customs, as he felt fit. The total effect of the exemptions was unclear. It was not known whether any letters of exemption had been granted in the past. However, the Law Commission determined that if any letters had in fact been granted, any accrued rights should be protected.

Mr Bassett said that Section 33 dealt with exemption from stamp duty. The only stamp duty dealt with the declaration by a man that he was not in a customary union. The section would be immediately repealed.

Mr Bassett said that Section 34 and Second Schedule involved the Department of Land Affairs (DLA). They extended to the operation of the Act and provide that Governor General could, by proclamation in the Government Gazette, apply provisions in Chapter 3 of the Act dealing with land registration to certain pieces of land in Namaqualand and Grahamstown. Those provisions in Chapter 3 had already been appealed. However, since there could have been vested rights accrued, the DLA had wanted to make sure those rights were protected before repealing those parts of the Act. The DLA had also requested a provision that any restrictive condition contained in the title deed of the affected land could be withdrawn if the Minister approved the withdrawal of such restrictive condition requested by the owner of the land.

Mr Bassett discussed Clause 1(2) of the Act, Sections 2(7), 2(7), 2(7)ter, and 2(8), which dealt with appointment, recognition, powers, and terms of service such as employment and remuneration of traditional leaders. These sections would be repealed when substitute laws were enacted. To repeal these provisions without such substitute legislation, would create a legal vacuum. All the provinces had initiated the process of creating substitute legislation, but some were further along than others. The original ‘sunset clause’ of 31 July 2005 had been extended to 31 July 2006. The provinces had been instructed to report to Parliament in January 2006 regarding their status on enacting substitute legislation.

Mr Bassett said that Clause 1(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. Substitute legislation was required before these measures could be repealed. The Department had suggested interim legislation because the new legislation should fit into the larger court system.

Mr Bassett said that Clause 1(4), dealing with 22(7and 8), involved protection of a category of women referred to as "discarded widows." For example, this applied where a customary union had taken place between 1 January 1929 and 31 December 1998. Where the husband had then subsequently entered a civil marriage with another woman, the wife in the civil marriage would not benefit to the exclusion of the wife in the customary union. It was important to continue to protect the rights of these "discarded widows."

Mr J Mack (ANC) asked if this also affected other women. Mr Bassett responded that the Portfolio Committee had instructed the Department to investigate the status of other women who were in relationships not regulated by the Marriage Act. The Department would investigate other women who might be in a vulnerable position as a result of their relationships not being recognised as marriages, and to include those women in the substitute law. So the Department was researching those other categories of women.

Next, Mr Bassett said that Clause 1(5) dealt with the repeal of Section 24 of the Act. Section 24 dealt with the Code of Zulu law, which had been assigned to the province of KwaZulu-Natal. The date on which the sections would be replaced had been extended to 31 July 2006 in order to provide time for substitute legislation to be enacted.

Mr Bassett then discussed the history of Clause 1(6), which was very technical. Section 25 dealt with the power to make proclamations. Section 30(2) dealt with the power to make regulations. Section 30(A)(1) dealt with power to make bylaws. The abolition of the racially-based land measures in 1991 said that subordinate legislation would remain in existence until repealed by a competent authority, i.e. the President. The President’s power to do so had lapsed in 1994. So the subordinate legislation had been repealed on 31 July 2006 by a "competent authority." The legislation purposely did not say who the "competent authority" was because it was difficult to determine.

Mr Bassett reported that the DLA and the DPLG had been instructed to assist the Department in determining which subordinate laws needed to be repealed, amended or substituted. The Department had gone to Butterworths legal publications and then to the Government Gazettes to determine the subordinate legislation involved. They had prepared a table referring to the information located. However, Mr Bassett believed Butterworths was not reliable because the DLA and DPLG had already identified known subordinate laws that were not reflected in Butterworths.

Mr Z Ntuli (ANC) asked, as an example, whether the Ingonyama Trust fell within the same category. Mr Bassett stated that that was not normally something the Department dealt with, and suggested it would be helpful for the Committee to ask the DLA to come and answer questions. Ms Skhosana responded that it was not part of this legislation because it was part of a separate Act.

Mr Bassett said Sections 32, 35, 36 and 37, which dealt with definitions, penalty clauses and similar standard provisions, would be repealed by 31 July 2006 after all the other provisions were repealed.

Mr Bassett then said subclause 8(a) again dealt with the vested rights already discussed. The Department was still investigating the effect of certain language in this provision. Subclause (8)(b) related to certain pieces of land in Namaqualand and Grahamstown. Mr Bassett referred again to the restrictive conditions that he had previously discussed.

Clause 2
Mr Bassett advised that Clause 2 sought to amend section 4(2) of the Administration of Estates Act of 1965, the aim of which was to ensure that all orphans and minors were treated in the same manner. The purpose of the amendment was to bring about legal certainty, leaving no doubt that property of all orphans and minors, including the property of those governed by the principals of customary law, would enjoy the protection of the High Court as ‘upper guardians’ of all minors.

Mr Molalathoko stated this amendment was wise because there had been a case where the head of family had passed away and left a widow and two minor daughters. Owing to customary law, the widow and minors could not inherit anything. The case had gone to court and the Magistrate had ordered that the property go to the father of the deceased, despite the fact that the widow had been with the deceased for 15 years.

Discussion
Mr S Shiceka asked how far the local governments had progressed in establishing substitute laws. Regarding the inheritance issue, he also wondered whether this was redundant in light of the Children’s Bill. The problem of AIDS-related deaths was increasingly leading to making many children the heads of households. He asked what effect this law would have on this situation. Finally, he thought the intention of the law was good regarding customary unions. He questioned how many laws would be needed to close this vacuum. If the Department could not answer this, then the Committee should insist they report back by 31 January 2006.

Mr Bassett stated the Department would be researching this issue and would report back to the Committee. He continued that the DPLG could also report to the Committee regarding its progress in determining the necessary substitute laws. Regarding the inheritance issue, Mr Bassett responded that the Act dealt more with protecting the property of minors and not necessarily the deceased estates.

Mr A Manyosi (ANC) worried that ‘the ordinary person’ would not be able to understand the law. He also commented on the current uncertainty regarding the appointment of Chiefs, which had resulted in Chiefs-in-Waiting not being paid. He asked about redress regarding their current lack of salary and uncertainty until 31 July 2006. Mr Bassett stated he did not have an answer.

Mr Mack (ANC) asked if there was anything in the Act that specifically related to the Western Cape so that he could report back to the province. Mr Bassett replied there was not.

Mr Bassett also discussed comments by the National House of Traditional Leaders (NHTL) that it was not happy with the piecemeal approach. They were also not satisfied with the administration of estates provision. Specifically, the NHTL disapproved of the fact that Masters instead of Magistrates were dealing with the winding up of deceased estates. Mr Bassett pointed out that the latter complaint did not really deal with this Act.

Finally, in response to concerns expressed by the Committee about derogatory language, Mr Bassett stated that certain offensive language referring to "bastards and Hottentots" in the original Act would disappear at the latest on 31 July 2006.

Justice and Provincial and Local Government Departments briefing on Constitution Twelfth Amendment Bill
The Department of Justice was represented by Mr J Labuschagne (Department Drafter), and Department of Provincial and Local Government, represented by Mr S Kholeng (General Manager: Integrated Development Systems).

Mr Labuschagne explained the purpose of the Bill was to eliminate cross-boundary municipalitie. The present Constitution did not define provincial boundaries, but only stated that the boundaries were those in effect at the time that the 1996 Constitution took effect. This had resulted in some practical difficulties with service distribution. The Constitution required each provincial government to establish municipalities.

In 1998, the Constitution had been amended to provide for the establishment of cross-boundary municipalities, which fell within two provinces. The result was 16 cross-boundary municipalities affecting five provinces. The cross-boundary municipalities were among those that did not function to the best of their ability. This was caused in part by the difference in laws within the same municipality that caused confusion among citizens and law enforcement agencies.

On 1 November 2002, the Provincial Governing Council (consisting of the President as the Chairperson, the Premiers of the Provinces and the municipal, provincial and local government) had resolved that cross-boundaries would have to be eliminated. On 19 August 2005, the Municipal Demarcation Board had published in the Government Gazette the pertinent maps. These had also been distributed for public comment, and to all the provincial legislatures. The deadline had been 26 September 2005. The Bill had been submitted to the National Assembly for comment. The Department was in the process of processing the comments and would provide a report to the Committee.

The Bill sought to repeal the provisions in the Constitution that provided for cross-boundary municipalities. It would be dealt with in conjunction with a DPLG Bill to be introduced into government the following week to repeal all the legislation dealing with cross-boundary municipalities. The Bill itself would include a new schedule in the Constitution that would reference demarcation maps published by the Municipal Demarcation Board (MDB) in the Government Gazette. The maps were limited to six metropolitan maps and 46 district councils. The Bill would not be passed without the approval of the five affected provinces.

Mr Kholeng briefed the Committee on the new provincial boundaries and status of municipalities affected. Mr Kholeng stated that local populations had been taken into account in realigning the boundaries.

Mr Labuschagne stated these changes were reflected in the Gazette issues distributed to the Committee. With respect to the new lines, Eastern Cape citizens had expressed major concerns. The DPLG had visited the affected provinces and informed them about the Bill so that the provinces could take necessary actions.

Mr Shiceka expressed concern that the Committee did not have adequate information. It needed to know the specific facts regarding the residents affected by the new boundaries. He asked how the MPs would convince their provinces.

Mr Kholeng referred to a PowerPoint presentation that would be updated and distributed in hard copy to the Committee Members on Monday, 17 October 2005.

The meeting was adjourned.

Audio

No related

Documents

No related documents

Present

  • We don't have attendance info for this committee meeting

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: