Recognition of Customary Marriages: Briefing; Domestic Violence, Maintenance Bill & International Treaties: voting

Meeting report

SECURITY & JUSTICE SELECT COMMITTEE
3 November 1998
RECOGNITION OF CUSTOMARY MARRIAGES: BRIEFING; DOMESTIC VIOLENCE, MAINTENANCE BILL & INTERNATIONAL TREATIES: VOTING

Documents handed out:
Proposed amendments to Domestic Violence Bill [B75B-98]

Report emanating from the meeting
Amendments agreed to by the committee

SUMMARY
The committee had a briefing on the Recognition of Customary Marriages and agreed to the Domestic Violence Bill, Maintenance Bill and four international justice treaties. The Domestic Violence Bill was agreed to with amendments, while the Maintenance Bill and international treaties were agreed to without amendments.

MINUTES
Recognition of Customary Marriages [B110B-98]
Professor Nhlapo, from the South African Law Commission, gave the committee a briefing on the Recognition of Customary Marriages Bill. He listed the changes which were made to the tabled Bill. A general question asked in clause 2 was which marriages had to be recognised. The amended subsection 2(1) specified that it had to be marriages under customary law and it had to exist at the commencement of the Act.

Mr Pienaar (IFP, Western Cape) wanted to know if that clause extended to the Jewish culture as well. Professor Nhlapo replied that it was only for those who were under the African customary marriage. Religious marriages were different to African customary marriages. The issue of religious marriages was being covered by the South African Law Commission. The report would be available the following year.

Professor Nhlapo continued with clause 3. He said subsection 3 was reworded so as to included the aspect of labola.

Clause 4 had a more coherent sequence of events, placing the responsibility to register the customary marriage on either spouse.

Clause 6 gave equal status to spouses. Initially the feminist groups objected to the wording of the clause in the tabled Bill, as it could be interpreted as a woman's status raised to a man's. The IFP also objected to the clause as it clashed with some of their traditions. After several drafts, the sixth one produced the language which appeared in the B-version of the Bill. It also took into account the submission from the House of Traditional Leaders of the Eastern Cape.

Another important change in customary marriage appeared in clause 7. Subsection 2 dealt with monogamous marriages after the Act had been passed. Community of property only applied if a monogamous marriage was entered into.

Clause 8 focussed on divorce in customary marriage. Subsection 5 was not in the tabled Bill. It was formulated by the joint sitting of the portfolio and select committees.

According to clause 10, a couple could move from a customary marriage to a civil one. However the reverse could not occur.

The most notable repeal of laws was the Black Administration Act, 1927.

After the briefing, the Chairperson told the members that he would only allow a few questions as the Bill had been dealt with extensively in the joint meetings and further discussion would occur the following week.

Mr Pienaar asked if it was possible for the husband to exclude his wife from his will, based on clause 7. Prof. Nhlapo replied that propriety rights would be dealt with in the Amendment of the Customary Law of Succession Bill the following year.

Mr Radue (NP, Eastern Cape) wanted to know if subsection 7(5) dealt with community of property. The answer given was that it allowed spouses to change their property system.

Ms Direko (ANC, Free State) asked if a man had wife in the rural area, and one in the city, would both wives have equal status? Prof. Nhlapo replied that it was only if the marriage was entered into after the commencement of the Act. Then subsection 7(6) would come into effect. The man would have to apply to the court to enter into a further customary marriage.

Domestic Violence [B75B-98]
Mr de Lange (law advisor to the Department) briefed the committee on the changes in the tabled Bill. He said the original provisions of the Bill were retained. The prescribed forms were not included and the preamble had been reworked. Under definitions, applicant had been omitted and victim had been redefined as a complainant.

Clause 2 had been reworked so as to prevent the South African Police Services from repeating the notice at every incident.

The Australian and New Zealand legislation were borrowed for subsections 6(3) and 7(7) respectively.

Clause 8, subsections (4), (5), (6) were new. These subsections made it unnecessary to refer to the Criminal Procedure Amendment Act, 1998.

Subsections (1) and (2) of clause 9 were not changed, but subsection (3) was new. The Chairperson asked if the figure of R200 was not too low. Mr de Lange replied that an arbitrary figure was chosen.

Initially, provision had only been made for the applicant in clause 10, now the respondent could also apply.

Clause 11 used to be clause 16 with "proceedings in camera" as the original heading. The proviso in the clause was also new.

The documents required have been substantively reduced in clause 13 as it would cost the state too much money.

Clause 15 was borrowed from the revised Bill of the South African Law Commission.

Clause 18 was new and clause 19 had broad regulations.

The Family Violence Act, 1993 was repealed in clause 21, except the clauses dealing with marital rape and harm to children.

Mr de Lange drew the committee's attention to amendments proposed by the portfolio committee on Justice. The committee did not agree to the proposed amendment of (viii)(j) under definitions. They said it was merely a stylistic amendment.

The committee agreed to the omission of the proposed amendments under (ix)(a) and (b) of the definitions as the phrase was repetitive.

The omission under clause 4(5) was agreed to by the committee.

The proposed amendment to substitute "imminent harm" for "undue hardship" in subsection 5(b) was rejected by the committee. They said that urgency existed when a protection order from the court was sought by a victim after working hours. Prima facie there would be "imminent harm".

They agreed to the insertion of "if a protection order is not issued immediately" in that subsection.

The insertion in Clause 9(a) was agreed to by the committee.

Mr Radue suggested that "make" change to "issue" in Clause 7(5)(b) for grammatical reasons. The committee agreed to that proposal.

Before the committee voted on the Bill, Mr Radue informed the committee that his party was not satisfied with the definition under (vii)(b). That definition equated same sex marriages to heterosexual marriages. The National Party wanted "in the nature of marriage" to be removed. The Chairperson responded by saying that the removal of the phrase would widen domestic violence definition, it would not solve the party's problem with homosexuality.

The committee voted on the Bill. It was agreed to with amendments.

Maintenance Bill [B72B-98]
Mr Basset gave the briefing on the Maintenance Bill, highlighting the changes made to it since its tabling. Under the definitions, "court in the Republic" was inserted and "maintenance officer" was amended.

Clause 2 was drafted so as to eliminate the perception that the Bill was merely for the maintenance of children. This clause assured maintenance for all types of relationships.

The appointment of maintenance investigators was dealt with in clause 5 with the duties of both maintenance officers and investigators listed in clause 7.

The Chairperson asked whether there were maintenance investigators in place. Mr Basset replied that there were none presently.

The structure of clause 9 had changed and clause 11 had been redrafted to improve the language.

Subsection 15(4) eliminated the discrimination of children from second marriages.

Banks could be ordered to release monies from investment accounts if the one responsible for paying maintenance was not employed, according to subsection 16(2)(a).

Clause 16(3)(a)(ii), which was in the tabled Bill, was taken out of the amended Bill.

Although the rest of the meeting was not monitored, it was later established that the committee voted on the Bill. It was agreed to without amendments.

The committee had a briefing on the international justice treaties. These treaties were:
1) The Convention of the Prevention and Punishment of the Crime of Genocide
2) The Convention against Illicit Traffic in Narcotic Drugs and Psychotropic substances
3) The Ratification of the International Covenant on Civil and Political Rights
4) The Convention on the Elimination of all Forms of Racial Discrimination.
The committee voted and it was agreed to without amendments.