Recognition of Customary Marriages Bill [B110-98]; Domestic Violence Bill [b75-98]; Prevention of Organised Crime Bill [B118-98]

Meeting report

JUSTICE PORTFOLIO COMMITTEE
26 October 1998
RECOGNITION OF CUSTOMARY MARRIAGES BILL [B110-98]; DOMESTIC VIOLENCE BILL [B75-98]; PREVENTION OF ORGANISED CRIME BILL [B118-98]: DISCUSSION

Documents handed out:
Domestic Violence Bill (Eighth draft)
Recognition of Customary Marriages Bill with suggested amendments (CSM 13)

SUMMARY
Professor Nhlapo from the South African Law Commission (SALC) took the committee through the suggested amendments (CSM13) to the Recognition of Customary Marriages Bill which he had drafted on the committee’s request. The committee then discussed each suggested amendment and indicated to Prof Nhlapo where further amendments were required.

The committee then worked halfway through the Eighth Draft of the Domestic Violence Bill checking on the amendments that had been effected.

MINUTES
Recognition of Customary Marriages Bill
Prof Nhlapho took the committee through the suggested amendments:
Definitions
Pursuant to a meeting with the Home Affairs department, the definition of "registering officer" has been changed. It now provides that the Minister may authorize an official to appoint registering officers. The previous draft specified that the Minister himself/herself must do the appointments.

Clause 2 - Recognition of customary marriages
Sub-clause (1) has been reworded to correctly reflect the intention of the drafters. It now provides that "a marriage which is a valid marriage at customary law and existed at the commencement of this Act is for all purposes recognised as a marriage".

Clause 3 – Requirements for validity of customary marriages
Sub-clause (1) (b) has been re-worded by the insertion of the word "negotiated". The section now reads, "For a customary marriage entered into after the commencement of this Act to be valid, the marriage must be negotiated, entered into or celebrated in accordance with customary law".

Sub-clause (6) has been re-worded. It now reads " The prohibition of marriage between persons on account of their relationship by blood or affinity is determined by customary law".

Clause 4 – Registration of customary marriages
The clause has been re-worded to ensure that the duty to register customary marriages is very clear and time periods within which such registration should occur are specified. Marriages entered into before the commencement of this Act must be registered within a period of 12 months after the commencement of the Act. New customary marriages must be registered within a period of 3 months after the marriage has been entered into.

Sub-clause (3) now provides that either spouse may apply for registration. The tabled bill provided that both spouses must apply.

The Chairperson asked whether a certificate from the chief of the area would be considered as evidence of the existence of a customary marriage by the registering officer. Although the sub-clause did not specify what would be considered as evidence, such a certificate could be viewed as evidence.

Sub-clause (6) allows any person who has a sufficient interest in the matter to apply for the registration of a customary marriage. This clause applies to customary marriages which already exist or which existed but one spouse is now deceased, and allows the other spouse or children of the deceased to apply for a certificate of registration.

Clause 6 – Equal Status of spouses
The clause has been re-worded to make the intention behind the clause clearer. Although specific areas in which the spouses are to be considered equal are listed, the list is not to be considered as a closed list.

Clause 7 – Proprietary consequences of customary marriages and contractual capacity of spouses
Sub-clause (5) has been re-worded to ensure that it is clear that the sub-clause only applies to marriages entered into after the commencement of the Act. The clause provides that if a husband wants to enter into a customary marriage with a second wife, he must make an application to the court for termination of his existing matrimonial property system and for recognition of a new property system which includes the second wife.

Sub-clause (5) (c) has been reworded to reflect fully the discretion which is granted to the court. The court must, when considering an application for termination, division and recognition of a new system; take into account all the relevant circumstances of the family groups which will be affected – in order to ensure an equitable distribution of property.

Clause 8 – Dissolution of customary marriages
A question arose as to whether traditional courts should be able to dissolve customary marriages. It was pointed out that because potentially large sums of money could be involved and because traditional courts do not keep records, dissolution of customary marriages should be left up to courts of law.

There was further discussion on whether the traditional courts should be involved in mediation prior to the dissolution. Prof Nhlapo said that they were investigating mechanisms aimed at involving the traditional courts but as this was not yet finalised it was thought best not to specify any involvement in the bill.

Clause 10 – Change of marriage system
Sub-clause (2) has been re-worded. Prof Nhlapo pointed out that they wanted to avoid language which says that the customary marriage is dissolved when the parties contract a civil marriage.

Clause 11 – Regulations
Sub-clause (a) (iv) has been inserted after discussions with the Home Affairs Department. They indicated that they needed the Bill to authorise them to make provision for the administration of the Bill’s provisions, particularly the custody, certification, implementation, rectification, reproduction and disposal of any document relating to the registration of customary marriages.

Sub-clause (b) has been inserted. It provides that the Minister of Home Affairs may make regulations prescribing the fees payable in respect of the registration of a customary marriage.

Clause 12 – Amendment of laws
Mr Henegan from the Law Commission said that this clause had been added after discussion with the Deeds Office. It was felt that it was necessary to amend the Deeds Registries Act to include customary marriages in the provisions which deal with marriage.

The committee then turned to discussing the suggested amendments.

Definitions
It was decided that the definition of "court" should be expanded to include the "black divorce courts". These courts have now been opened to all races.

The committee indicated that they were satisfied with the proposed new definition of "registering officer".

Clause 2 – Recognition of customary marriages
The amendment to sub-clause (1) was accepted by the committee.

Clause 3 – Requirements for validity of customary marriages
The amendment to sub-clause (1) (b) was accepted subject to a comma being added and the word "and " between the words "negotiated" and " entered " being removed.

Prof Nhlapo clarified why an amendment had been made to sub-clause (6). The clause deals with the capacity to enter into customary marriages, and not the validity of customary marriages.

The Chairperson queried whether the sub-clause should specify that it is referring to customary marriages.

Mr Mzizi (IFP) explained that the Nguni people are not allowed to marry cousins or close relatives. If they do, they have to pay more in cattle to appease the ancestors.

Mr Mahlangu (ANC) said that customary law regarding marriages to relatives was actually stricter than the laws relating to civil marriages. You definitely cannot marry close relatives.

After much discussion, it was decided that the suggested amendment should be accepted as is.

Clause 4 – Registration of customary marriages
Mr Mahlangu (ANC) asked what would happen if a person did not register.

Prof Nhlapo said that there was no penalty for failing to register a customary marriage. However, a couple who do not register would be disadvantaged in that they will not have the certificate handy as proof of their marriage. They can however apply for a certificate later in terms of sub-clause (6).

Ms Jana (ANC) asked what would happen if the couple could not agree on whether or not to register.

Prof Nhlapo said that either spouse can apply for registration.

Mr Mahlangu (ANC) said that he was worried that people would only register when the need arose, for example when they wanted to put their wife on the medical aid scheme. Should the time limits not be stricter?

The Chairperson said that the Law Commission would be asked to draft a memorandum setting out the implications of the Bill. This memorandum would be circulated to all registering officers.

Mr Mzizi (IFP) suggested that couples who intend to marry should be required to publish that intention.

The Chairperson said that this could be provided for in regulations.

The Chairperson suggested that sub-clause (6) should be moved up to sub-clause (4) to ensure that the late registration option is known about.

Sub-clause (6)( c) specifies that the registering officer must refuse to register the marriage if he or she is not satisfied that a valid customary marriage has been entered into.

A committee member suggested that both those who are entitled to certify marriages and the manner in which such certification should occur must be regulated.

Mr Mahlangu (ANC) pointed out that traditional leaders were best placed regarding knowledge on whether a customary marriage exists or not, but they should not be registering officers because they ask for payment for their services.

Ms Botha (ANC) asked whether the Bill caters for couples who are from the rural areas and who are know living together in the townships.

The Chairperson said that the bill does not apply to co-habitees who do not have a customary marriage.

Mr Solomon (ANC) said that he was worried about giving registering officers the power to decide whether a customary marriage is valid or not.

The Chairperson said that the registering officer is only given the power to ensure that the requirements of the Act have been complied with. For example he or she must be satisfied that both parties have consented and both are above the age of 18 years.

Mr Mzizi (IFP) said that it was important that validity and registration are not confused.

Mr Mahlangu (ANC) asked what would happen to marriages which have been certified in terms of other laws regulating customary marriages.

Mr Henegan from the Law Commission said that he had discussed this with Home Affairs and they had indicated that they would initiate a process of rationalising all the different certificates but that they did not have the capacity to do it immediately.

The Chairperson asked Mr Henegan and Prof Nhlapo to draft a committee resolution requesting the Home Affairs Department to report to the committee within 6 months of the passing of the Bill, setting out how exactly they are going to rationalise all the systems and what they have already done towards this goal.

The Chairperson asked why the drafting of the regulations to this Bill was allocated to the Home Affairs Department and not the Justice Department. Although it makes sense that Home Affairs should administer the Act, he did not think they should be drafting the regulations. He asked Mr Henegan to look further into the matter.

Mr Henegan suggested that the Bill specify that the regulations be drafted by the Minister of Home Affairs in consultation with the Minister of Justice.
The Chairperson said that he was still worried because the Portfolio Committee does not have influence over the Home Affairs Department and he asked Mr Henegan to investigate how in law a different department to the one which drafted the Bill, could draft the regulations.

The monitor left at this stage. Deliberations continued for another 30 minutes or so until lunchtime.

Afternoon session:
Clause 7 - Propriety consequences of customary marriages and contractual capacity of spouses.
A discussion ensued on making identical the property regimes of the two systems, customary and civil marriages. Therefore marriage in community of property will be automatic but not compulsory as one can opt out of this via an anti-nuptial contract.

Ms Jana wanted to know if currently customary marriages are deemed in or out of community of property. Professor Nhlapo said that neither applied as neither were analogous to the customary marriage situation. For example, land property is not owed in individual title but administered as a trust.

Mr Mzizi (IFP) suggested that for a women it would be better to be married without community of property so that she can dispose of her own assets as she wishes. This suggestion was not seriously pursued.

Clause 7 (5) looks at the issue of polygamy for customary marriages entered into after the commencement of this Act. Three steps have to be followed: the current matrimonial property system must be terminated, division of the matrimonial property must be effected and the court must approve a written contact that outlines the future matrimonial property system.

This last step which ensures a court process is an attempt to protect the rights of all women involved. The chairperson explained that they had had to strike a balance between protecting the rights of women in terms of the equality clause of the Constitution versus preserving customary practices. He believed this solution as proposed by the South African Law Commission found the right balance. As had been suggested by Ms Mbatha of the Centre for Applied Legal Studies it was important not to impose benchmarks while bringing customary practices into a more modern system.

Clause 7(5)(b) was further amended to "all persons having a sufficient interest in the matter....must be joined in the proceedings" which will leave it up to the court to decide who the interested parties are, over and above the current and prospective wives.

In answer to a query by Ms Ngwane (ANC), the state law advisors had instructed the drafters prior to the tabling of the Bill that use of "shall" in this section should be changed to "must".

Clause 7(5)(d) caused concern regarding its one-sided emphasis as it protects only the existing wife and not the prospective wife coming into the marriage. It was agreed that it would be unconstitutional to protect only the first wife so the phrase "with regard to the safeguarding of the first wife and any of her children from the marriage" will be removed by the drafters.

The resolution regarding Clause 8 (Dissolution of customary marriages) still has to be drafted. This resolution will state that as the divorce procedure is difficult and costly that circuit courts should deal with this in the rural areas until family courts are brought into existence.

Clause 8 – Dissolution of customary marriages
With reference to Clause 8(6) [and clauses 7(4) and 7(5)], the chairperson asked Professor Nhlapo to ensure that transitional arrangements are catered for so that the rules of the Supreme Court will apply before the new ones are brought in to regulate matters in this Bill.

It was emphasised that "payment" in 8(7)(c) does not refer to lobola.

The chairperson stated that nothing in Clause 8 spells out the role of the traditional leader in terms of mediation. Whatever customary practices exist, will not be affected. However mediation will not be made a prerequisite to a dissolution. He mentioned that in most cases, traditional leaders record the dissolution only and do not mediate. Clause 8(5) is an empowerment clause to say that it is not affecting mediation.

Clause 10 – Change of marriage system
Professor Nhlapo explained the changes to Clause 10. Traditional leaders had felt that the idea that a customary marriage was dissolved by a subsequent civil marriage was insulting. The SALC was sympathetic to this viewpoint and had removed all references to "dissolve".

Clause 10(1) acknowledges the right to convert a customary marriage to a civil marriage. Clause 10(3) ensures that this applies only to single and not polygamous customary marriages (as proposed by the SALC).

Clause 11 - Regulations
The Chairperson asked Mr Hennigan to establish that the regulations would be drafted by the Minister of Justice in consultation with the Minister of Home Affairs and not vice versa, as presently envisaged.

Clause 12 - Amendment of Laws
The amendment of Section 17 of the Deeds Registry Act will be changed to read: "in or out of community of property or in terms of a customary marriage".

Nothing more was added to the repeal of laws.

The chairperson noted that this Bill needs to be passed by Monday, 2 November.

Domestic Violence Bill
The law advisor went through the changes that had been effected to the eighth draft of this Bill (see document). The changes were accepted unless indicated to the contrary below:
Preamble
He pointed out that the parts in the Preamble that had been deemed too generalised had been removed. As he had not yet consulted with the Joint Committee on the Improvement of Quality of Life and Status of Women regarding the Preamble, the committee decided to hold over consideration of the preamble.

Clause 1 - Definitions
1 (vii) The committee felt the replacement of "a complainant and a respondent" by "two or more persons" had made it too broad. They decided to revert to "a complainant and a respondent".

It was decided for the time being to retain subsection (d) but to go ahead and remove sub-section (e) of 1(vii) as it is covered by (g).

Clause 3 - Arrest by peace officer without warrant
The committee was happy with the addition of "at the scene of an incident of domestic violence"

Clause 4 - Application for protection order
Clause 4(4) has been made stronger so that any representative can bring an application for a protection order on behalf of a child and this avoids a situation where a parent can withhold consent for this.

Clause 5 - Consideration of application and issuing of interim protection order
Subsection (7) has fallen away and become subsection (3)(b).

Clause 6
The changes were accepted.

Clause 7 - Provisions of protection order
With the addition of "health or well-being" in 7(5)(b), the committee was concerned that the provision was now too broad and this clause was flagged.

The amendment to 7(b) was accepted.

Clause 8 - Warrant of arrest upon issuing of protection order
The changes were accepted.

Clause 9 - Seizure of arms and dangerous weapons
Subsections (a) and (b) have been narrowed to ensure that this refers not to the public in general but to those involved in a domestic relationship. The addition of "with the respondent" was removed from "in a domestic relationship with the respondent".

Following Ms Ngwane's suggestion, Clause 9(1) was widened to include not only possession but "under the control" as well:
"any arm or dangerous weapon in the possession or under the control of a respondent"

Clause 11 - Proceedings in camera
In 11(viii)(b) the phrase "limits any other power" was flagged to establish if it may be meaningless as it was taken straight out of legislation from New Zealand.

On Ms Ngwane's suggestion, subsection 11(c) may become a proviso of 11(b) depending if this is acceptable according to modern drafting techniques.

"or identities" in 11(c) was changed to "or reveals the identity"

The meeting adjourned at this point.