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JUSTICE PORTFOLIO COMMITTEE
29 October, 1998
PREVENTION OF ORGANISED CRIME BILL [B118-98]; MAINTENANCE BILL [B 72-98]; RECOGNITION OF CUSTOMARY MARRIAGES BILL [B110-98]: DISCUSSION
Documents handed out
Latest version of Prevention of Organised Crime Bill with amendments
Latest version of Maintenance Bill with amendments Bill [MAN 58]
Committee Resolution to accompany the Maintenance Bill [MAN 57]
Recognition of Customary Marriages Bill, Third Draft [CSM 16]
Committee Resolution to accompany the Maintenance Bill (final published version)
Discussion continued on the Prevention Of Organised Crime Bill and the Maintenance Bill.
The committee held final discussions on, and reached substantial agreement on, the Maintenance Bill and the Recognition of Customary Marriages Bill.
Prevention Of Organised Crime Bill
The committee, in respect of section 48(1)(a)(I), still needs to decide whether it will accept the alternative to S48(1)(a)(I) as proposed by the Judge President of the Northern Cape or whether it will accept 48(1)(a)(I) in the form as currently put in the Bill.
There were no changes effected to S48(1)(b) and similarly there were no changes effected to 48(2).
No changes were effected.
Mr Smith explained to the committee that the clause in question is substantially the same or similar to clause 30(6) i.e. the clause dealing with restraint orders. The difference is that clause 50 envisages an anti-dissipation order and clause 30 envisages a restraining order. The committee agreed that 50(2)(b) and 50(2)(d) should be deleted from the Bill.
The chairperson wanted to know what would happen if a person acts contrary to the provisions of an anti-dissipating order i.e. such person disposes of the assets which are in terms of the order, prohibited from such disposal. Mr Smith replied by suggesting that the Bill should provide for a general offence clause, in which case such "breach" of the provision of the order would constitute an offence. The committee was in agreement with the suggestion.
The chairperson and Mr Hofmeyr felt that 54(2) creates a duplication of procedure which leads to an unnecessary extension of the audi alteram principle. The procedure envisaged by 54(2) is also not a cost-efficient procedure. Their reasoning here is as follows: at the time when the court grants the anti-dissipation order in terms of clause 43, the National Director should also give notice of such order to all persons known to him to have an interest in the property as well as in the Government Gazette. At this stage therefore, allowance is made for the "notification" to the "interested parties". "Interested parties" should therefore, after this notice is given, approach the court to state their cases. It is not necessary and the Bill cannot entrench or confer a right upon parties who have not adhered to the first notice, in terms of clause 54(2), once again of the said application. They further contended that, "interested parties" may only appear at the application proceeding and lead the required evidence, as envisaged in 54(3) if they can prove or show just cause for not adhering to the notice in terms of clause 48. In conclusion, the "notification" contemplated by 54(2) is not a necessary procedure because the audi alteram principle is already catered for by clause 45 and therefore 54(2) would lead to a duplication of procedure and would confer too many rights on "interested parties" to the case. Mr Smit was asked to redraft the clause.
The committee also felt that 54(3)(b) should also give breath to the "variation principle", in that it should read, " to apply for an order to exclude or vary the operation of the order in respect of his /her interest in the property". It was also further felt that the "form and manner" of the notice need not be spelt out here because it is provided for in clause 45. Mr Moosa (ANC, NCOP) raised the problem of failure to serve such notice on a person who wishes to appear, in terms of S54(3) , and the effect of such failure. Mr Smit replied by saying that the normal rules of service will apply. Moreover, the committee felt that the resolution to the Bill should advise the Minister to pursue consultations with the Rules Board so as to specify the applicable rules of the forfeiture procedure. The Bill only enunciates the principles but the Regulations should fully spell out the procedures.
The chairperson asked Mr Smit to check the definition clause to see whether the definition of "unlawful activities" does not cover "whether within the RSA or elsewhere" in 55 (1)(b). Clause 55(1) should also be reworded so as to bring it in line with the similar provision relating to restraining orders. The committee found the current S55(3) as put in the Bill provides stronger protection for the state and therefore did not accept the proposal by the Judge President of the Northern Cape. Moreover, even though it provides stronger protection for the state, a person adversely affected by the order can still apply to court to have the order varied or rescinded, therefore it is "reasonable" provision.
The committee must still decide whether it will accept option (2) or (3). Clause 56(2) incorporates a magistrate as well. The chairperson wanted to know why the provision incorporates magistrate, because here we are chiefly dealing with high court procedure. Mr Smit and Mr Hofmeyr contended that it should be and is done for the sake of convenience, and also the notice envisaged here does not have any serious legal consequences. The notice merely serves an informatory function.
Dr van Heerden wanted to know what the definition of a "reasonable suspicion" is. The chairperson responded by saying that it is a subjective opinion based on objective factors and that it is also the test for a search warrant. "Reasonable suspicion" does not mean conclusive suspicion. Mr Mahlangu wanted to know about the "importance of the giving" of this notice. The chairperson replied by saying that if a person to whom the notice has been given does not take steps to curtail the use of the property in (a) the commission of an offence, such person may stand to lose his/her property.
Mr Moosa, then added that the test should be higher because someone’s business enterprise may be adversely affected and "reasonable suspicion" is too weak a test in this regard, because it may destroy an " innocent owner’s" livelihood. Mr Hofmeyr replied by saying that as he understands the matter, it is a reasonable suspicion that the property is used in the commission of a crime and not a reasonable suspicion that the property may potentially be used in the commission of a crime and therefore the test cannot made too high because the "circumstance" would need urgent attention and therefore a reasonable suspicion is the right test. Moreover, it is not just any "suspicion" that would suffice, it has to be a reasonable suspicion which has to be exercised by the National Director only so as to prevent the capricious exercise of such suspicion. Furthermore this procedure will not be used in every single case, it will only be used in instances where there is not a likelihood of forfeiture being carried out. This issue was flagged.
Ms Jana felt that the preamble should mention the constitutional obligations in respect of children. The committee agreed to this.
Mr Moosa felt that the Regulations to the Bill should provide for a "quick and easy" procedure in cases where it is very evident that there is a duty of support. The committee agreed.
Ms Jana wanted to know why the "laws of discovery" were imported into the Maintenance Bill. Tthe chairperson said that clause 10 was agreed to by the committee in the last and previous discussions of the Bill and that it was so imported there in order to give structure to the maintenance proceeding. Ms Jana felt that a clause of this nature would seem overwhelming to the undefended complainant who is not legally trained because this clause is substantially similar to Rule 23 of the Magistrate Court Rules which only legally trained persons can understand. The committee further added that the provisions of this clause should not be made compulsory in order to accommodate those complainants who are not legally represented at the proceeding.
After lunch the committee continued to consider the draft of the Maintenance Bill (MAN 58).
The Chairperson, Mr De Lange (ANC), referred to an amendment proposed by the General Council of the Bar relating to discovery of documents (appearing as the new clause 10) which was aimed at increasing the likelihood of maintenance orders being enforced. He expressed his regret that due to the lateness of the proposal, neither the Ministry of Justice nor the committee had had time to properly consider it, and consequently it could not be adopted. He added that, rather than giving maintenance officers new powers, they should be encouraged to utilize the existing laws and sanctions in relation to enforcement of maintenance orders.
Mr De Lange referred to clause 12(a) which provides a monetary allowance for travel and subsistence to a person who attends a maintenance inquiry where a maintenance order may be made against him or her. The Committee agreed that 'necessary travel expenses' and 'necessary expenses of subsistence' was too vague and uncertain and would require a decision as to which expenses were 'necessary' to be made in relation to every claim. The Committee preferred to use 'prescribed' or 'allowed', and decided on the replacement provision:
Shall be paid the prescribed allowance for subsistence and for travel to and from the court;
Mr Moosa (ANC) referred the committee to clause 16 (Duty of Parents to Support their Children) and expressed concern that subclause 1 purports to remove the common law duty of a parent to support his or her child up until the issuing of a maintenance order. Mr Smith (law adviser) explained that the clause does not limit the common law duty, but merely ensures that a maintenance order only deals with the duty owed by the parent at the time of making the order, and does not deal with the duty owed by the parent at any time prior to making the order.
Mr Moosa was also concerned that the Bill may allow parents to contract out of their maintenance obligations. Mr De Lange said that the duty which a parent owes to a child continues for as long as the child is unable to look after himself or herself. Ms Ngwane (ANC) mentioned that many parents think that their duty ends when the child turns eighteen. Mr De Lange pointed to subclause 17 (1) which provides for a court to alter a maintenance order or agreement.
Mr Hofmeyr (ANC) expressed concern that clause 17(2) which deals with garnishee orders, appears to place a duty on maintenance courts to review all maintenance orders made before, and after, the commencement of the Act and determine whether it is practicable to make a garnishee order. The law adviser explained the court is only obliged to do that if a maintenance officer makes an application to it. Mr De Lange said he would like parties to be able to make an application, and asked for the words 'maintenance officer' to be taken out of the subclause. The re-writing of the clause resulted in a rather complicated provision and Mr De Lange expressed regret about that but he said that, as the committee is pressed for time, and the meaning is discernible, the committee would not spend time trying to tidy the provision up.
Mr De Lange asked why there is subclause 28(5)(b), which requires that when a maintenance court holds an inquiry in relation to a warrant of execution, it must consider the financial needs of the person maintained by the person against whom the warrant has been issued. He said that the financial needs of the person maintained should not be relevant at this stage, after the warrant has been issued, and this subclause can only diminish the priority of the warrant. Mr Smith said that this subclause applies when the person against whom the warrant is issued does not have enough property to satisfy the maintenance order and the parties ask the court to make alternative arrangements, and in this situation the financial needs of the person maintained are relevant. Mr De Lange was satisfied with that explanation.
Ms Jana (ANC) brought to the committee's attention that subclause 40(2) speaks of a residence and a place of employment being in a person's possession, and that this sounds very odd. The committee agreed and asked for the subclause to be re-drafted.
All remaining provisions were agreed to by the committee and Mr De Lange ended discussion of the Bill by stipulating that the next time the Bill is discussed only the preamble, and clauses 9 and 40 would be open for discussion, then voting would take place.
Recognition of Customary Marriages Bill
The committee debated whether subclause 2(3) which is intended to make polygamous customary marriages entered into before the commencement of the Act recognised as valid marriages, is drafted so as to adequately express that intention. The Committee eventually decided the wording was adequate.
Mr Moosa asked Professor Nhlapo (of the South African Law Commission) whether a customary marriage can be recognised as valid if one of the spouses is also a spouse in a civil marriage. Professor Nhlapo replied that a customary marriage which is tainted (in this case by a civil marriage) cannot be recognised at law. Mr Mossa pointed out that while the Bill makes polygamous customary marriages valid at law, it offers no such benefit to women who are in a customary marriage to a man who polygamously married at civil law. He asked why this discrepancy exists and said he would like equal benefit for such women. Mr De Lange said that the discrepancy is there because under the old law a valid marriage always took precedence over a customary marriage, rendering the latter invalid and it is not possible to retrospectively change the status of those marriages. He added that if this Bill were to give new status to those customary marriages it could become very complicated in terms of succession and property because acts that had been done on the basis that a competing civil marriage took priority would have to be unraveled. Professor Nhlapo said that he could not see any way to fix the situation. He explained that the options are either to legitimise only valid customary marriages or legitimise all customary marriages including the ones tainted by things such as child betrothment or similar unconstitutional arrangements. He then said that subclause 2(1), which provides:
'a marriage which is a valid marriage at customary law and existing
after the commencement of this Act is for all purposes recognised
as a marriage '
may achieve the result desired by Mr Moosa depending on the court's interpretation of 'valid marriage at customary law'.
The committee referred to clause 16 and debated whether the wording struck the right balance between guaranteeing equal legal rights to a wife in a customary marriage, and conferring unequal power in the marriage to the wife. The clause provides that:
A wife in a customary marriage has full capacity within the marriage,
including the capacity to acquire assets and, on the basis of equality
with her husband and subject to the matrimonial property dispensation
governing the marriage, to dispose of them, to enter into contracts and
to litigate, in addition to and rights and powers that she might have at
The committee agreed that the words 'within the marriage', limiting the wife's capacity, were unnecessary because of the limiting words 'subject to the matrimonial property dispensation governing the marriage'.
The committee read through the draft resolution which will accompany the Bill once the Bill is passed by the Committee.
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