Floor Crossing legislation & Reform of Customary law of Succession and Related matters Bill: Deliberations

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Justice and Correctional Services

30 July 2008
Chairperson: Mr Y Carrim (ANC), Imam G Solomon (ANC) and Ms N Mahlawe (ANC)
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Meeting Summary

The Committee considered the proposed amendments to the Floor Crossing legislation and expressed some concern that the matter be referred to other stakeholders, in particular the Portfolio Committee for Home Affairs, to ensure that there were no gaps. It was agreed that this be done. Matters were also raised around the style and drafting and it was agreed that the drafters would attend to making further changes to clauses 4, 6, the long title, clauses 7 and 9.

Members then considered the Reform of Customary Law of Succession Bill. Some concern was expressed whether the Master had the necessary capacity to deal with matters outlined in this Bill but no suggestions were made for re-wording. The distinction between personal and official property should be made more clear, and it was also suggested that there should be specific reference to constitutional considerations. Members discussed whether it was appropriate that certain practices of certain tribes be catered for in legislation of this nature, and it was suggested that perhaps certain clauses needed to be reconsidered in their wording. Clause 6 was discussed and Members expressed various views on whether the provision adequately catered for the situation where decisions would be taken in the interests of a tribe or community.  The drafters were asked to check that the clauses of the Bill adequately protected women in all relationships. The similarities between a child’s share in this Bill and the Intestate Succession Act were highlighted.

Meeting report


Constitution Fourteenth Amendment Bill, Constitution Fifteenth Amendment Bill, General Laws Amendment Bill (the Floor Crossing Bills): Deliberations
Co-Chairperson Mr Y Carrim asked for comments on the documents that had been circulated to the Committee.

Mr J Jeffery (ANC) said that he found reading the two documents difficult, because of their style of presentation. He suggested that everything to be deleted should be bracketed, and everything to be added should be highlighted, which he thought would be easier to understand.

Members and the Department discussed the possibilities, and it was decided that the style that had been used in the Child Justice Bill would be used in future.

Mr Herman Smuts, Principal State Law Adviser, Office of the Chief State Law Adviser, pointed out that there were always attempts to condense documentation, consistent with preventing errors.

Mr Jeffery said that there was a possibility that the two Bills would lead to lacunae in relation to floor crossing aspects of other legislation and he suggested that the drafts be referred to other parties for input.

The Chairperson suggested that this need not be in the form of a Committee report, but rather that requests could be made to the Executive. He would be hoping to get further reports.

Mr Johan  Labuschagne, Director, Department of Justice and Constitutional Development (DOJ),  cautioned that there might be difficulties with such an approach.

Mr Jeffery pointed out that he was only seeking clarification.

The Chairperson said that final decisions could be take by the Study Group on Monday.

Mr Jeffery noted the rejections and changes to clauses, as contained in the clauses. He believed that Clause 3 was not a consequential change and there were problems with the formulation. He did not think the proposed changes were all consistent with the Floor Crossing legislation.

The Chairperson expressed the opinion that the amendments were fairly routine and that the Independent Electoral commission (IEC) had approved of them.

Mr Jeffery said that Clause 4 related to Floor Crossing, Clause 5 was debatable, while clause 6 required the addition of a further sub clause.

The Chairperson felt the offences and penalties provisions were quite normal.

However, he added that the Long Title should also be amended and asked whether that would be a problem for the printers.

Adv C Johnson (ANC) wondered if the same would apply to the clauses.

Mr Deon Rudman, Deputy Director General: Legislative Development, DOJ,  pointed out that what was before the Committee was consistent with what had been done before. The Department always tried to keep its documents as short and concise as possible.

Adv Johnson said that documentation should be as user friendly as possible and Members should bear in mind that Bills and other documentation were also intended for the wider public and should be easily understandable to the public.

Mr Labuschagne cautioned that there were two points requiring attention; clause 7, and then also some other sections that did not deal with the floor crossing. 
The Chairperson said that is seemed that a cleaning up process was required.

Mr Jeffery stated that a repeal of the whole of Clause 9 was required, to prevent the penalisation of new situations which previously had not been penalized, and that Clauses 9A and 6A should be considered afresh.

Mr R Basson (IFP) said that he agreed.

Mr Labuschagne said that this would then have to be considered against the adopted principles.

Mr Jeffery added that Clause 4 and Clause 9 required re-working.

Mr Labuschagne undertook to do so and said that the changes consequent thereon would either be shown in square brackets or underlined.

The Chairperson advised that a vote would be taken on what had been considered but cautioned that Members should exercise caution when new matters cropped up.

Mr Jeffery then suggested approaching Institute for Democracy in South Africa (IDASA) for input concerning the Electoral System and suggested that parliament itself should give consideration to the electoral system and that the role of Parliament for the electoral system should be inclusive. He also suggested a referral to the Department of Home Affairs (DHA) to make the system more effective.

Members resolved to direct the two Constitutional Amendments on for further attention as suggested. 

Reform of Customary Law of Succession Bill: Deliberations
A Member referred to the Preamble where there was reference to “certain children”, and also line 21 where there is reference to “such a spouse” and sought clarification on this as also the provision in part B for a spouse getting a child’s share of the estate. There was also a concern that if the estate had insufficient assets, how it would be divided between the spouses and children.

The Chairperson complimented the Committee Researcher Gillian Nesbitt on a good report which had been produced, giving comparisons with the Intestate Succession Act, but he expressed concern about the provisions for the Minister determining, or providing, a figure for the determination of a Child’s share. He added that in respect of the various provisions that the Master provide information, facts or recommendations, he was concerned that the Master’s Office, based on his observations in Pietermaritzburg, was hopelessly overwhelmed with inadequate resources to handle its multitude of obligations.

Adv Johnson then requested elucidation of the distinction between personal and official property and stated that she felt that this was an area where a wife could be discriminated against.

Co-Chairperson Ms M Mahlawe said that certain clauses required re-working.

Adv Johnson asked whether Promotion of Administrative Justice Act (PAJA) did not apply.

Mr Jeffery pointed out firmly that there were other constitutional considerations as well; especially the Bill of Rights, and that State employees should be advised of these.

Ms Teresa Ross, Principal State Law Adviser, DOJ, advised that she did not feel so strongly about this having to be put in writing, as the Constitution applied at all times.

Mr Jeffery stated that he wished it to be specified, for if it was not then it would need to be considered whether other matters still applied.

Members discussed certain aspects of presentation, grammar and style. The Chairperson then suggested that Clause 5 be deleted. Co-Chairperson Imam Solomon suggested that clauses 4 and 4B be confirmed.

Ms Ross explained that the situation of a woman and another woman bearing a child on her behalf had been intended to cover the cultural practices of the Modadji people in Limpopo, where the tribal leaders were not supposed to marry but progeny were still required for the continuation of the tribal leadership.

The Chairperson asked whether it was reasonable to draft legislation to take into account the special needs of certain interest groups. She surmised that the Zulus too had special cultural practices yet doubted whether these would also be incorporated in legislation.

Ms Ross said that the Modadji had been considered, but the principle need not be confined to them.

Mr Jeffery stated that if a situation applied to a small group only then such group had to be considered. However, he again expressed his concern about the use of “and” where he felt an “or” should be used, or better still “if not one, then another.”

Ms Ross undertook to give consideration to this comment.

The Chairperson then directed the Committee to Clause 6  and the distinction between personal property and property held as a Traditional leader, and asked whether this distinction should not be expanded upon, and if so, how.

Mr Jeffery asked whether it was not all-encompassing as it seemed to him that nothing had been left out.

Adv Johnson asked whether the proposed Clause went far enough to distinguish between personal property and tribal property in the temporary custody of one person acting as a Tribal Leader, and whether there would not conceivably be confusion and thence bad blood and trouble in the tribe.

Mr Solomon suggested that the phrase “on behalf of the commonality” would avert potential troubles.

Mr Solomon and Mr Jeffery then made various suggestions but neither could provide a finally acceptable suggestion.

Ms Ross said that the words tribal and community were defined in other legislation, and this Bill should be read against such other legislation, which might answer the problems.

Mr Jeffery stated that he was satisfied, but remained troubled.

Ms Ross  gave an illustrative explanation of the intention and concepts of the Bill as viewed against what remained in force of the Black Administration Act of 1927. She said that there was a lacuna where a man had entered into traditional marriages with two women, and then conducted a civil marriage with another.  That would result in discrimination against the two prior spouses.

Adv Johnson asked that the State Law Advisers give more attention to such possibilities, so that no women need be discriminated against or unfairly treated.

Ms Ross stated that there was ongoing research and work in this regard but that it was difficult to anticipate or foresee all the variations and ramifications that could exist in reality.

Mr Smuts suggested that as the Black Administration Act had virtually been repealed in its entirety the Bill might require further consideration, but that Clause 7 would seem to be acceptable.

Ms Ross explained that there would conceivably always be problems with “Dualism” when one person sought to achieve the maximum personal benefit from one or other system, whatever such systems were.

Adv Johnson questioned a child’s portion or share of the estate, and asked whether the provisions of this Bill were analogous to a child’s portion in the Intestate Succession Act.

Adv L Joubert (DA) explained that a child’s portion was the minimum amount.

Ms Ross agreed and said that it had been put forward as a proposed solution and to try to achieve clarity.

Mr Jeffery noted that the concept was in the Intestate Succession Act. He then asked whether the reference to the Cabinet Minister declaring the minimum amount was a reference to the Minister of Justice, and if not then who was intended.

Mr Jeffery then asked whether the Committee was happy with the Schedules to the Bill.

No member raised any question.

Ms Nesbitt asked, for clarification, whether the Committee was content to allow for the Master’s recommendation as provided in the Bill.

Ms Ross confirmed that this was so.

The meeting was adjourned.

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