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JUSTICE PORTFOLIO COMMITTEE
29 September 1998
RECOGNITION OF CUSTOMARY MARRIAGES BILL [B110-98], AMENDMENT TO CUSTOMARY LAW OF SUCCESSION BILL [B109-98], PREVENTION OF ORGANISED CRIME BILL [B118-98]: HEARINGS
Documents handed out:
House of Traditional Leaders of the Eastern Cape submission on the Recognition of Customary Marriages Bill
House of Traditional Leaders of the Eastern Cape submission on the Amendment to Customary Law of Succession Bill
Commission On Gender Equality submission on Recognition of Customary Marriages Bill
South African Institute of Race Relations submission on Prevention of Organised Crime Bill
South African Police Service submission on Prevention of Organised Crime Bill
Human Rights Committee submission on Prevention of Organised Crime Bill
Other submissions on the Prevention of Organised Crime Bill
Submissions on draft and tabled Bill:
Attorney-General: Free State
Banking Council South Africa
Cape Bar Council
Chamber of Mines of South Africa
Chief Justice: Ishmael Mahomed
Chief Magistrate: Pretoria
Department of Welfare
General Council of the Bar of South Africa
Human Rights Committee
Judge President: Pretoria High Court
Judge President: Northern Cape High Court
Judicial Officers' Association of South Africa
National Association of Democratic Lawyers
State Attorney: Raath
South African Institute of Race Relations
South African Police Service
In the morning session the House of Traditional Leaders of the Eastern Cape presented submissions on the Recognition of Customary Marriages and the Amendment to Customary Law of Succession Bills. The Commission on Gender Equality presented a submission on the Recognition of Customary Marriages Bill.
In the afternoon session the committee listened to oral submissions on the Prevention of Organised Crime Bill [B118-98] from
a) the South African Institute for Race Relations,
b) the South African Police Service and
c) the Human Rights Committee.
The Chairperson, Mr de Lange, informed the committee that the Maintenance Bill was 95% completed and was due to be finalised, but the Domestic Violence Bill has to be substantially rewritten. He noted that there would be a conference on corruption in October.
South African Institute for Race Relations: Prevention of Organised Crime Bill
Mr Schonteich said their main criticism concerned the ‘making of a forfeiture order’, clause 18. He was not generally opposed to it, but considered the clause problematic if the accused was found not guilty. In such a case, he elaborated, property, which was involved in the pattern of illegal conduct, may have been forfeited by the state to the expense of the accused or a third person for the time of examination.
South African Police Service: Prevention of Organised Crime Bill
The committee then consulted Mr Jacobs and Mr de Beer from the South African Police Service (SAPS) who reported on present mechanisms to fight organised crime. Advocate de Lange (Chairperson - ANC) emphasised two urgent tasks for the SAPS in connection with the Prevention of Organised Crime Bill:
a) after having designed the Prevention of Organised Crime Bill in all its thoroughness and complexity, an ‘Implementation Plan’ was required to be drawn up by the SAPS, which would facilitate its quick and effective realisation.
b) a mechanism, possibly in the form of a multi-sectoral committee, would have to be designed to transcend and, if necessary, clear the police service from corrupt elements before implementing the new system to fight and prevent organised crime.
Human Rights Committee: Prevention of Organised Crime Bill
Ms M Levick, assisted by Mr E de Klerk, presented the submission of the Human Rights Committee (HRC), which concerned four major points of criticism:
a) the process, in which the Bill had been drawn up. Considering the importance of the issue, Ms Levick argued that more time was required to allow for a thorough debate around the prevention of organised crime, but that the HRC ‘s impression was that the Bill was being rushed through parliament.
b) the criminalisation of street gangs and the vague definitions concerning chapter five of the Bill, explicitly of "criminal gang members", "criminal gangs" and "pattern of criminal gang activity". She also feared that the Bill might primarily target ‘the small people’, instead of large and superbly organised criminal associations.
c) the questionable constitutionality of the Bill. Ms Levick emphasised that more time and effort should be spent on the phrasing of the Bill in order to avoid unconstitutionality. She feared that the Act might be challenged on the ground of its ‘questionable constitutionality’ and, once going through the judicial process, possibly up to the High Court, lose its effectiveness.
d) the Bill represented legislation in isolation. In order to fight and prevent organised crime efficiently, the Bill would have to be accompanied by a ‘requisite back-up’ such as modern database and information systems, adequate training of police and justice officials etc.
Messrs de Lange and Moosa objected to parts of the criticism on the grounds that it was unjustified and in parts not well-based. They highlighted that the Bill was in fact one which had been discussed and drafted in an extremely thorough process of consultation of a broad range of sectors including international law advisors, professors, the police service, administrative expertise etc.
Furthermore they remarked that the Bill was anything than ‘legislation in isolation’, being probably the most holistic and integrative legislation against organised crime passed anywhere in the world. Apart from that Mr Moosa and Mr de Lange were not aware of any bills being passed by the committee that were of ‘questionable constitutionality’, especially considering that -in contrast to Ms Levick - a great portion of the committee members were lawyers themselves being very much acquainted with the constitutional congruency of bills. Finally, Mr de Lange stressed that the Bill did provide for explicit and unmistakable definitions of ‘criminal gangs’, ‘criminal gang members’ and ‘patterns of criminal gang activity’. As such a ‘criminal gang member’ was unambiguously defined as a "member of a criminal gang [...]", a ‘criminal gang’ as a "formal or informal ongoing or temporary organisation, association, or group, [...] that consists of three or more persons who have two or more members who individually or collectively engage in or have engaged in a pattern of criminal gang activity.", and ‘a pattern of criminal gang activity’ was defined as "the commission [...] of two or more common law or statutory offences [...] by a criminal gang."
Mr Moosa elaborated on the importance of fighting low-level criminal gang activity as much as highly organised crime, stressing that to prevent petty crime was a healthy approach on order to fight and prevent highly organised crime.
Ms Levick’s concern that the vague definitions in relation to chapter five (gang activity) of the Bill might lead to abuse on the side of the police, was rejected on the basis that to determine a gang was a judicial question, decided by the courts and not the police.
House of Traditional Leaders (Eastern Cape): Recognition of Customary Marriages Bill
Chief Nonkonyana reported that he was there in his capacity as Chairperson of the House of Traditional Leaders of the Eastern Cape. He went through the Customary Marriages Bill [B110-98] clause by clause. The sections of the Bill which they support or object to are detailed in full in their submission.
Chief Nonkonyana stated that it was implied that "Roman Dutch Law" was superior to customary law and this was not the case. In many instances existing common law could learn from customary law, and parts of customary law could be included in legislation for all.
The question of polygamous marriages was discussed.
Dissolution of a marriage, Clause 8, cannot be supported as customary marriage is not a union of two persons, but a commitment between the two families. Therefore if a marriage is dissolved there are still certain obligations of the wife. She must go into mourning and wear black if the husband dies. If the son goes into the mountains for the circumcision ritual, she must return to the home and be there for the entire period.
The observance of Western norms seriously undermines customary rules. For many years people were subjected to foreign rules and norms. Now that they have their freedom they feel they can set up what is correct for their people.
In Section 12, the Minister should be able to make changes in the Constitution if necessary, and do this with the help of the House of Traditional Leaders. e.g. If there are objectionable clauses in the Transkei Marriage Act, Act 21 of 1979, they must be identified and reviewed. The repeal of Laws Schedule includes the repeal of this Act. But some of the customary clauses should be retained.
Chief Nonkonyana concluded by thanking the Minister of Justice for drawing their attention to the Bill and giving them the opportunity to voice their objections. He asked that the amended Bill be submitted to the House of Traditional Leaders before it was finalised.
Questions and comments by committee members:
Ms Jana (ANC): How do customary laws reconcile the equality clause in the new Constitution ?
Both Ms Jana and Mr Solomon (ANC) asked about the minimum age for marriage. Ms Jana: Should not the Council of Traditional Leaders try to reconcile customary laws with the reality of the new system of society? Young people would be more prepared to adapt to traditional systems that were acceptable to them. There is also the need to compromise between different tribal systems.
A male M.P. asked what would happen if a "divorced" husband does not want the wife back to observe any events subsequent to her leaving.
Several committee members, Ms Jana, Ms Ngwane and Mr Mzizi detailed cases of how girls are being forced to accept arranged marriages.
Response by Chief Nonkonyana: If the vertical application of equality is maintained, traditions are in jeopardy. That is why Contralesa took the question to the Constitutional Court. The Court said that the Bill would not affect traditional norms. He maintained that their laws were there to protect women. Marriage age should be left to individual tribes and not made a Western mandatory law. If a marriage is arranged, it cannot take place unless both parties agree. He said that during the ceremony ("ubuthwale"), if the girl screams, one cannot proceed with the ceremony. Civil marriages should not be imposed on customary marriages. Civil marriages should not supercede customary marriages.
Not only tribal culture must change, but also other cultures. When marriages of parties of different tribes e.g. Sotho and Xhosa, are planned, the tribes discuss compromises between their cultures. However he also said that when a woman marries and the marriage breaks down, the law of the house into which she marries will prevail.
The question of maintenance brought up the point that if lobola is paid, it is the property of the bride's family and should not be considered when maintenance is awarded.
Ms Ngwane said that if the House of Traditional Leaders of the Eastern Cape objects to the Bill, they should provide alternative acceptable clauses which could be substituted for those to which they object.
House of Traditional Leaders (Eastern Cape): Amendment of Customary Law of Succession Bill
Chief Nonkonyana presented the comments of the House of Traditional Leaders, Eastern Cape, reading the document in full.
Chief Nonkonyana said that they had a Master of the Supreme Court to administer estates. They feel that their people will suffer if the Bill goes through. The House of Traditional Leaders rejects it entirely.
Mr Radue said that the Provinces should have been consulted on this Bill.
Mr de Lange: The Constitution says that Customary Law must be applied where it is applicable. The Constitution is the basis of all law in this country. The Roman-Dutch Law to which the chiefs are objecting is not the basis of our laws.
Question: What happens to the rights of a woman who has children but is not married?
Response by Chief Nonkonyana: On the question of succession, the rights of illegitimate children are sometimes overlooked. He does not agree with the concept of "single parents". Both mothers and fathers have responsibility. Unmarried females remain part of the family unit. The children cannot inherit from the family, but the woman is given land of her own within the family, and the children will inherit within the family.
If the women of Contralesa want a say in this Bill, Chief Nonkonyana will give them the Bill and invite their comment.
He understands that there are career women and women taking a stand after the Beijing Conference. In 1990 the Chiefs had a conference with the ANC Women's League. However the women do not always know what is in their best interests. They had a national conference on Human Rights, and he feels that human rights are embedded in family law. The woman wants to succeed and "take over everything" but the wife belongs to the man and must do what he wants. The individual ownership concept where both wife and husband earn has a detrimental effect. Our Constitution contains clauses which have failed in other countries and yet have been brought up again. We are being treated as guinea pigs and we must be cautious.
Mr Surty, in summing up, said that customary unions are not necessarily contrary to the Bill. The idea of making things equal does not detract from the husband. Equality in the status of women does not diminish the rights to lobola in terms of customary law. The idea of the Bill is not to make the woman married with civil rights better off than the woman married according to customary rights. The Bill does not stop the husband from making a will to leave his assets to whichever heir he would like.
Mr Surty thanked the chief for his input.
Commission On Gender Equality: Recognition of Customary Marriages Bill
Ms P Ntombela-Nzimande said that there should be ways of reconciling equality of women with cultural practices. In international law women had equal rights. The government needs to implement guarantees of such rights.
She then read the Commission's submission to the Committee.
1. There should be a single system of marriage that has specific "core requirements" which should include:
a) Consent of both parties
b) Registration of the marriage. Licensed marriage registrars should include tribal authorities, religious leaders and persons of authority in a particular area.
c) Standardisation of a minimum 18 year old age of consent.
The Commission of Gender Equality rejects the practice of polygamy recognised by the Bill. (Reasons given on page 7 of the submission)
3) Lobola should not be a legal requirement for marriage, but parties can choose to incorporate it if they wish. The question of lobola should not be raised in maintenance obligations
4) For comprehensive list of recommendations see page 9 of the submission.