Recognition of Customary Marriages Bill [B110-98]; Prevention of Organised Crime Bill [B118-98]: discussion

Meeting report

JUSTICE PORTFOLIO COMMITTEE
19 October 1998
RECOGNITION OF CUSTOMARY MARRIAGES BILL [B110-98]; PREVENTION OF ORGANIZED CRIME BILL [B118-98]: DISCUSSION

Documents handed out
Prevention of Organized Crime Bill with first draft amendments
Summary of Representations of Organized Crime Bill
Summary of Comments and proposed Solutions: Recognition of Customary Marriages Bill

SUMMARY
The committee discussed the Recognition of Customary Marriages Bill (with input from Professor Nhlapo of the South African Law Commission) and the Prevention of Organized Crime Bill. Nothing was definitively agreed and discussion on both Bills will resume after some draft amendments have been made.

The processing of the Customary Law of Succession Bill has been postponed until February 1999.

DETAILED MINUTES
The chairperson, Mr de Lange (ANC), said that the Customary Law of Succession Bill has been postponed until February 1999. There were too many practical implications which needed to be worked through before the Bill could be passed, including the training of Magistrates to take over the administration of estates and translation of the master documents into the official languages.

Recognition of Customary Marriages Bill [B110-98]
Mr de Lange then introduced Prof. Nhlapo (SALC) who briefed the committee on issues of concern in respect of customary marriage, based on the document, Summary of Comments and Proposed Solutions: Recognition of Customary Marriages Bill.

In the first instance, Prof. Nhlapo discussed what was meant by an existing customary marriage in terms of s2(1). He suggested inter alia that the word "valid" be included to obviate problems in respect of which marriages should be recognised. Other possibilities were discussed in the document.

The next point dealt with the budgetary consequences of such recognition. Prof. Nhlapo expressed the opinion that this would not be an issue; the cake would stay the same size, while the slices would get smaller. It was up to the Insurance Companies and others to draw up the appropriate contracts with their clients. At present wives in a polygamous union have claims in delict. The risk of unlawful conduct is the possibility of having to pay damages to more than one wife.

Prof. Nhlapo went on to requirements for the validity of a customary marriage. These are that the parties be over 18, that they consent to be married under customary law and that the marriage is "entered into and celebrated" according to customary law. Traditional leaders want lobola mentioned by name, but Prof. Nhlapo said that the wording of the section is meant to indicate that a customary law marriage is a process and not an event. Therefore, he feels that lobola is adequately accommodated. If steps were to be specified, it would close the door on people who did not follow those specific steps, for example, the San people of the Northern Cape who do not pay lobola.

The next point was registration. It was felt that it was wrong to punish people who do not register, especially by deeming their marriages invalid. The real sanction is that if they do not register their marriage, a couple will lose out on the benefits which proof of marriage carries. Any person who has an interest can apply for registration. This is likely to be ascendants and descendants, whose status may, in part, derive from the status of their children or parents (e.g. in terms of succession or lobola). S4(1) should be changed to allow for only one spouse to apply, and not both.

In respect of provision for the equal status of spouses, Prof. Nhlapo pointed out that the legislature was bound by the Constitution and also by CEDAW. The provision has caused a lot of problems with traditional leaders who are concerned about the extent of this proposed equality. The example was given of whether this might now mean that a woman who was mourning could enter a kraal (a serious taboo). Prof. Nhlapo said that traditional leaders had been assured that this was not the case. Nonetheless, they wanted the clause to be couched in terms of the full rights and privileges of customary law status. This matter needs to be looked into further.

Property rights are the major sticking point. Prof. Nhlapo said the SALC had started off leaning towards making marriage out of community of property the default marital regime, but they have since been convinced that it should rather be in community of property. Community of property is also less alien to customary unions. This is of course not final, as it can be excluded by antenuptial contract. Traditional leaders argue that the notion of private ownership which this introduces ignores the traditional regime of communal property. However, even in customary law, all property is not held communally; for example, a wife may hold cattle separately from her husband where these have accrued to her as a traditional healer.

Finally, the question of dissolution centres around who will be able to grant a divorce. Mr de Lange (Chairperson - ANC) suggested that the situation should remain as it is at present, with the Family Courts ultimately taking over the role.

The committee then went to point by point discussions on the matters raised. Mr de Lange asked firstly, who would decide whether a marriage was valid in order to effect registration. Prof. Nhlapo answered that there are already, for example, lobola certificates and also instances where traditional leaders investigate. An evidentiary clause will be considered.

A committee member reminded the committee that many of the people who might want to register live in urban areas where there are no traditional leaders, the certification provision must be open enough to accommodate this.

Ms Madikizela (ANC) asked how it was possible to distinguish between cases of prolonged cohabitation and a customary union. Prof. Nhlapo agreed that in urban areas this poses a potential problem. Acceptable levels of proof will have to be established.

Mr de Lange (Chairperson - ANC) asked what the situation would be where someone under the age of 18 got married. Prof. Nhlapo replied that s3(4) and (5) import provisions of the Marriage Act which cater for this eventuality.

Ms Botha asked whether failure to register does not place an unfair burden on the surviving spouse e.g. where the husband dies, the marriage is disputed and the wife thrown out. Prof. Nhlapo suggested the inclusion of a formula which has been used in previous regulations, where registration is not compulsory, but compellable at the instance of one of the spouses.

In respect of the equality clause, Mr de Lange said that he would prefer an inclusive, rather than an absolute clause. The clause provides for equal status to hold and dispose of assets, to contract and to litigate, as well as providing for rights held under customary law. In terms of antenuptial contracts, Prof. Nhlapo reminded the committee that any proprietary regime may be chosen by the couple, including customary law, as long as this is done by agreement.

Mr Mzizi (IFP) pointed out that if the aim of the Bill is to protect women, a limit must be put on men taking wives on an annual basis, or leaving their kraal and wives must be given remedies where this occurs. Mr Mahlangu (ANC) added that while the Bill proposes to protect the first wife, by requiring the couple to agree on a proprietary system and division of the estate before the second marriage, under customary law, the entire estate would remain the property of wife one. An estate for wife two must be built up separately. Prof Nhlapo said that it is offensive to African culture to divide a man's estate while he is still alive, but that s7(5)(b) calls for a negotiated settlement by all interested parties, which the courts must oversee. In response to a suggestion by Mr Nel (ANC) that "effecting" in this clause gives the impression that the estate is actually dissolved, Prof. Nhlapo said that he would look at rewording the section to more adequately reflect the legislature's wish that the estate be tallied up.

Ms Botha (ANC) asked why the Bill had not been translated into an African language. To this, the law advisor replied that it would be translated into Zulu. Mr de Lange said that the committee would pass a resolution asking that the Bill in fact be translated into all official languages.

Clauses 7, 8, 9 and 10 of the Bill were discussed after the lunch break.
The Chairperson, Mr De Lange (ANC, Western Cape) said that the Bill makes customary marriages valid according to civil law, and as such civil law applies to those marriages and to the dissolution of those marriages. He said that this might result in access to justice problems in rural areas where there is no court. He suggested (and the committee agreed) that the committee propose to the Chief Justice of the Supreme Court that the Supreme Court send circuit courts to visit rural areas on a regular basis.

Mr De Lange noted that the effect of clause 9, which provides that a person's age of majority is determined by the Age of Majority Act, 1972 and not by customary law, is to deprive some people of part of the legal code which they consider applies to them. He said that while this is unfortunate it probably could not be changed because if the Bill provided for customary law to be used to determine the age of majority of some people, while the Age of Majority Act is used to determine the age of majority of other people, that would constitute unequal treatment in breach of the constitutional guarantee of equality.

Ms Botha (ANC) then asked whether in clause 8 (dealing with dissolution of customary marriage) the term "suitably qualified person" needs defining, considering that a suitably qualified person may be appointed by a court to assist a spouse in divorce proceedings. Professor Nhlapo said that "suitably qualified person" should include persons who traditionally assist spouses in the dissolution of customary marriages, and not only legally qualified persons, otherwise hardship would be caused to parties of customary marriages seeking a divorce. Mr De Lange stated that allowing non-legally qualified persons to act as representatives in the Supreme Court could be problematic in respect of legal aid rules and court procedure rules. He also stated that if non-legally qualified people are allowed to represent parties to customary marriages while parties to non-customary marriages may be represented only by legally qualified persons this would raise a constitutional issue of unequal treatment. Professor Nhlapo said that he would not push his point in respect of this issue and the committee deferred making any decision on the matter. As an end note to discussion of this topic, Mr Mzizi (IFP) asked for clarification as to whom this Bill will apply to: all marriages or only customary marriages. Mr De Lange replied that it applies to customary marriages as it is a Bill to make customary marriages legally valid, but in principle he would like the procedures to be available to all people.

Mr De Lange raised the issue that the mass repeal of legislation inconsistent with this Bill did not include the Transkei Marriages Act. He asked what the effect of this was. Professor Nhlapo answered that the provisions in the Transkei Marriages Act which were inconsistent with the Bill would be repealed by the Bill. He added that all the legislation which deemed a woman to be a minor under the guardianship of her husband would be repealed. He also pointed out that currently a person in the Transkei can have a customary marriage and then become married in a civil ceremony but under this Bill that will not be possible anymore: the customary marriage will be legally valid and the second marriage will not be valid. He noted that one problem for customary spouses will be the difficulty in proving the existing customary marriage. Mr De Lange said that the legal advisers would look at the issue.

Mr Mzizi raised the issue of the possible differences in taboos relating to related people marrying in customary law and in civil law. He said that in a customary marriage if it is discovered that the spouses are related then a special payment must be made to 'buy' the relationship, and asked what would happen in this situation under this Bill. Professor Nhlapo answered that the Bill provides that the rules of customary law regarding relatives' right to marry to continue, but noted that the provision was badly drafted and said it would be re-drafted. He also noted that a possible lacuna in the Bill is that it does not provide for the continuance of customary law regarding the validity of an existing marriage between relatives. Mr De Lange said that, once more, a constitutional issue may be raised (regarding equality) if customary law permits different relationships to become marriages than the civil law does.

Mr De Lange finished this discussion by asking for some amendments reflecting the discussions to be drafted for further discussion.

Prevention of Organized Crime Bill
This discussion began with the legal adviser explaining that when the Proceeds of Crime Act was undergoing amendment it was decided that it would be appropriate to incorporate it in this Bill, therefore it is now appeared in chapter 3 of this Bill.

Mr De Lange said that Police Service had requested that the definition of criminal gang be amended and the Attorney General of KwaZulu Natal also suggested an alternative definition. The Committee did not decide on which amendment to adopt.

Mr De Lange said that there appeared to be a contradiction between clause 12 which provides that a person may be found guilty of a gang related offence if the person participates in a criminal gang activity, and the definition of ‘criminal gang activity’ which requires two or more participants to be involved in the activity. He thought that it was contradictory that two or more people are required before the activity is deemed to be "criminal gang activity" and one person may be convicted for partaking in a "criminal gang activity".

He added that the definitions of "criminal gang activity" and "pattern of criminal gang activity" are circular because the definition of "criminal gang’ refers to a pattern of criminal gang activity and the definition of "pattern of criminal gang activity" refers to a criminal gang. Those definitions would be dealt with at another meeting.

Mr De Lange mentioned that some concern had been expressed by the public about making it an offense to be a member of a criminal gang, and explained that according to the Bill membership of a criminal gang is not an offense in itself but it is relevant once a person has committed an offense.

It was noted that the Chief Justice of the Supreme Court asked for the definition of "enterprise" to be amended to exclude any entity that is not a ‘juristic person’ rather than excluding any entity that is not a ‘legal entity’. His reason was that people may interpret ‘legal entity’ to mean ‘lawful entity’. Mr De Lange expressed concern that ‘juristic person’ does not mean the same as ‘legal entity’ and the committee decided to seek clarification from the Chief Justice before making a decision.

The Attorney General of KwaZulu Natal had suggested an alternative definition for ‘pattern of illegal conduct’ which is "the continuous or repeated participation or involvement in illegal conduct, including two acts of illegal conduct not more than ten years apart (excluding any period of imprisonment)."
The Committee was concerned that the two acts of illegal conduct could have occurred before the commencement of the Act and therefore may be unconstitutional because of retrospectivity but subsequently agreed that the retrospectivity would not be unconstitutional. The Committee agreed to accept the Attorney General’s proposed clause, and to insert "at least" between "including" and "two".

Mr De Lange then referred to clause 2 – offences relating to a pattern of illegal conduct, specifically subsection (a). Subsection 2(a) contains 3 elements to an offense, which are:
receiving or retaining property derived from a pattern of illegal conduct;
when the person knew or ought reasonably to have known that the property was from a pattern of illegal conduct; and
using or investing the property in an enterprise.

Mr De Lange asked why the third element was required to make out the offense (saying it would make a conviction extremely difficult) and suggested that the offense be split into two offenses, the first of knowingly receiving the proceeds of a pattern of criminal conduct , and the second of knowingly using or investing the proceeds of a pattern of criminal conduct. The Committee agreed with the suggestion and proposed that a new subsection be drafted.

Mr De Lange asked a legal adviser why subsection 2(d), which provides that a person who manages an enterprise and knows that a person employed or associated with the enterprise is participating in a pattern of illegal conduct through the affairs of the enterprise, contains a mental element and why it is not a crime to manage an enterprise alone. The adviser replied that it would be unjust to make it an offense for a person to manage an enterprise in which persons are engaging in a pattern of criminal activity even if the manager is unaware of the criminal activity, and gave the example that the Commissioner of Police may be convicted under such a provision if police officers are engaging in a pattern of illegal conduct in the course of their employment even if the Commissioner was unaware of that conduct. Mr De Lange agreed that the subsection should be left as it is. However he suggested that subsection 2(c) be re-drafted for clarity.

Mr Mzizi referred to the word ‘employed’ in subsection 2(c) and asked what definition of that word would be read in by the courts. The legal adviser noted that the Bill does not define ‘employed’ and suggested that the words "or associated with" in the subsection would cover most employment situations anyway.

The meeting then finished and the committee decided to resume at 10.00am on 20 October 1998.