Scorpions Closure: Public Submissions; Reform of Customary Law of Succession Act: deliberations

Meeting report

Scorpions Closure: South African Police Service (SAPS) Amendment Bill & National Prosecuting authority (NPA) Amendment Bill: Public submissions
The Chairperson noted that Adv Paul Hoffman, Director of the FW de Klerk Centre for Constitutional Rights, and Mr Gary Pienaar, Senior Researcher, Institute for Democracy in South Africa, had both made a submission to the National Assembly, but that he had considered that they should be allowed to address the Committee on some further points.

FW de Klerk Centre for Constitutional Rights (CCR) Submission
Adv Hoffman noted that the mission of the FW de Klerk Centre for Constitutional Rights (CCR) was to uphold the Constitution. He tabled a letter dated 13 November, setting out what the Constitutional concerns were, as well as a one-page document setting out seven words that he said represented the main concerns of the CCR:

He reminded Members that the ANC had passed a resolution at Polokwane calling for the dissolution of the Scorpions. He noted that the previous week he had asked Mr Jacob Zuma which was more important - the ANC or the Constitution - to which Mr Zuma had responded that the Constitution was the supreme law of the land, and was more important. He asked Members to remember that this was not a sovereign Parliament, but was a Constitutional democracy, therefore Parliament could act only in a way consistent with the Constitution. He was encouraged by the remarks of the Chairperson that this House would not act as a rubber stamp.

He submitted that there were seven reasons why the Directorate of Special Operations (DSO or Scorpions) should not be dissolved. The first was illegality. He submitted that there was arbitrariness and irrationality in doing away with the best crime fighting unit in South Africa. Parliament was constrained by Section 2 of the Constitution, which said that anything inconsistent with the Constitution was invalid.

The second point was unreasonableness, and he urged Members to read the Metro rail commuter case, in which the Court had decided it was incumbent on the rail authorities to put in place reasonable steps to deal with crime on the trains. He urged that these same principles be applied to the fight against crime in the country. The Constitutional Court had stated that important factors were the nature of the duty, the social and economic context, the performance and the threat. The DSO had already given evidence that if the DSO was dissolved, the fight against organised crime would be set back by twenty years. That was not something that this country could afford, especially since the Deputy Minister of Justice had recently said that he criminal justice system was dysfunctional.

On his third point, that of unconstitutionality, Adv Hoffman noted that Section 179(2) said that the National Prosecuting Authority (NPA) must have the necessary independence to function properly. If the DSO was moved to the SAPS, he feared this would undermine the independence of the NPA, and would not permit it to work "without fear, favour or prejudice".

He claimed that this decision was also running close to unfair labour practices. Section 23 of the Constitution guaranteed fair labour practices to all. The idea of removing the officials of the DSO from the NPA and putting them into a unit in the SAPS was an unfair labour practice, both procedurally and substantially.

Adv Hoffman said that the incoherence of the Bills arose because South Africa had undertaken to the United Nations (UN)  and African Union (AU) that it would keep independent corruption-fighting units available. The DSO, whose officials had been trained in and had worked at the Federal Bureau for Investigation (FBI) and Scotland Yard, had achieved this. The DSO would lose its independence if moved to SAPS, because the SAPS was under the political control of the Minister of Safety and Security. In the NPA, the National Director of Public Prosecutions would decide upon policy, and who would be prosecuted, but he was not a politician. He feared that the African Peer Review inspection would not find that the Directorate for Priority Crime Investigation (DPCI, or the new Unit) was independent.

Adv Hoffman noted that there had been unprocedural processes, since the Bills had been "rushed" through the lower House. He reminded Members of the statements of Ms Sotyu, who had expressed the view that she would only like to hear of improvements to the Bills, not that the Bills should not be passed. If the procedure as spelt out in the Doctors for Life and Matatiele cases was not respected, these bills too would be struck down.

Adv Hoffman submitted that these Bills were fundamentally at odds with the rule of Law, and in particular Section 9 of the Constitution, which said that everyone was equal before the law. This was a topic currently receiving much support in some quarters. A politician answerable to the discipline of his party (no matter which party) should not make the ultimate decision on who did or did not get prosecuted. That was why the National Director of Public Prosecutions (NDPP) had that function under the Constitution and why the decisions should be left at that level.

The main argument put up by the proponents of the Bills was that there must be a single police service. This had already been rejected by the Constitutional Court in the Botswana case. He did not believe that the job could be properly done without the DSO. Any "bad eggs" in the system must be treated by the labour law. It was not necessary to throw the entire Unit out because some of its members had behaved badly.

He urged Members to consider the seven points he had made. If only one of those seven points was correct, then the Bills would no doubt be struck down by the Constitutional Court when they were challenged. Mr Hugh Glenister had been told that the Constitutional Court expected Parliament to do its job properly and produce laws that were legally in order with the Constitution.

Institute for Democracy in South Africa (IDASA) submission
Mr Gary Pienaar, Senior Researcher, IDASA, noted that he had made a written submission. The primary focus of his oral submission would lie around Section 17I of the SAPS Amendment Bill, which made provision for direct Executive control and accountability. The Ministerial Committee would have the authority to devise what amounted to regulations defining the mandate and controlling the operations of the DPCI. This Unit would also be required to account to this Committee. He believed that this was a fundamental change from the context of the DSO at the moment. This was also a departure from the Constitutional buttressing that currently protected the DSO. The DSO was subject to control of and was accountable to the Courts. It was currently part of the NPA, and therefore had Constitutional obligations of impartiality monitored by the Courts. The proposed changes to the South African Police Service (SAPS) Bill were an improvement on the initial draft, but were not an adequate substitute for the institutional arrangements that currently characterised the DSO.

The location within SAPS was a removal of the Constitutional obligations of impartiality. IDASA did not believe that the relationship with Parliament, expanded though it had been in the SAPS Bill, would be a fair substitute. In relation to direct Executive control, the SAPS National Commissioner would play a role in the operational decisions. Even the insertion of the provisions around the judge, who would act as an ombud, would not be a guarantee,  as he could not investigate the Executive decisions and therefore would not guarantee effectively that there would be no interference in the operations or mandate. Although this judge could investigate allegations of interference but the nature of the regulations envisaged in the new Section 17 I could not be characterised in this manner and would fall outside his purview, so that he could not play the role that the Courts currently played. The outcome was that the new Unit would have less independence than did the DSO. For this reason IDASA believed that South Africa could not comply with its Constitutional or its international treaty obligations under three Conventions.

IDASA further believed that the proposal represented a major operational upheaval, when more modest, but equally effective, corrective action had been recommended by the Khampepe Commission. In its original submission, IDASA suggested, by way of possible compromises, that Parliament might want to accept the creation of a new unit, but that the investigative component could be made accountable to the Minister of Safety and Security. It had also suggested interposition between the new Unit and the Executive, by way of a Board comprising representatives of the relevant professions. IDASA still believed that the current levels of accountability were the most appropriate. The NPA Amendment Bill recognised that it was constitutionally acceptable for investigative units to remain part of the NPA. Therefore the “surgery” that was now being proposed was unconstitutional and illegal. He suggested again that “cosmetic surgery” could correct and control the acknowledged unacceptable features of the DSO to date.

Mr Pienaar said that there was no urgency associated with this legislation, because the NPA Amendment Bill accepted the legality of investigative units within it, therefore was not currently acting unlawfully. He asked this Committee to apply its mind very carefully before pursuing the legislative scheme proposed by the National Assembly.

Mr Pienaar said that even though these Bills had not taken effect, the practical implications were already making themselves felt. Business Day reported that staff members were already leaving, that the case loads had already decreased, and therefore that the efficiency of the Unit was declining. The proposed legislation left fundamental questions unanswered, such as what to do with cases, staff members, investigation and prosecution. Negotiations undertaken during the course of the legislative processes had been characterised by major disagreements, which had led to doubt, uncertainty and demoralisation. It seemed that staff were unable to buy into the model or the process.

He pointed out that the obligation that legislation must comply with Section 195, requiring that values and principles of public administration must be observed, to promote efficient, effective use of resources, was not being served by this legislation. Several times during the course of the proceedings in the NA, there was reference to perceptions regarding the DSO. He did not believe these were relevant, as it was the needs, not the perceptions, that should be addressed in legislation. The evidence placed before the National Assembly committees had largely put negated the perceptions regarding the DSO, and these misperceptions should not be allowed to constitute the basis on which to decide upon the Bills.

Discussion
The Chairperson noted that this Committee could accept the Bill without amendments, make amendments as it saw fit, or reject the Bills completely. Should the Committee decide not to pursue an outright rejection, he asked what suggestions were made for improvement by the CCR.

Mr Z Ntuli (ANC, Kwazulu Natal) said that the mention of Polokwane by Adv Hoffman suggested that he was biased and not impartial. His representations sounded more like a political debate than a constitutional exposition.

The Chairperson noted that Adv Hoffman had been asked to speak as he saw fit. He asked Members to try to confine their questions and remarks to points of clarity.

Mr Ntuli asked where the allegations of "rushing the Bill through" had emanated. He noted that there had been extensive hearings. This was the second time Adv Hoffman himself had appeared. He noted that there was a substantial difference between the Matatiele matter and this, as public hearings had not been held in the former case, and he therefore wanted some further clarity on the analogies being drawn.

Mr A Moseki (ANC, North West) agreed that the submissions had been helpful. He called for clarity on the statement that Parliament should not legislate on the basis of what a party said. The Constitution allowed all to express their views, so there was no reason why Parliament should not listen to any and every political party's views.

Mr Moseki noted that South Africa was a developing democracy, with the Constitution being the supreme law. However, that Constitution was not static, and there was not, in his view, justification for asking that everything should be made to fit within the existing provisions, without allowing for developments.

Mr Moseki noted that the Khampepe Commission had been held long before the Polokwane decision, and had raised queries about the coordination and integration of matters, which were highlighted as areas of weakness. Parliament had every reason to become involved to ensure that in future there would be better harmony and synergy. 

Mr Moseki asked Adv Hoffman if he had confidence in SAPS, since he had suggested that integration of the DSO into SAPS would mean that there was no unit that could fight crime. If Adv Hoffman indeed had no confidence, Mr Ntuli questioned why this was so, and what could restore his confidence. He pointed out that the DSO was to be incorporated into the SAPS - the biggest crime fighting unit - in order to give SAPS sufficient resources to fight crime.

Mr N Mack (ANC, Western Cape) noted that the duty of Parliament was to consult the masses of South Africa, irrespective of their parties. There had been public hearings held throughout the country. Some might disagree on how they were structured, but they were advertised and open to all to come and make submissions. Overwhelming support was expressed for the dissolution of the DSO. He therefore asked if Adv Hoffman had attended any of the public hearings, or if he had been at Polokwane, or any other party's conventions, to gain an objective viewpoint.

Mr Mack noted, in relation to the points on unfair labour practices, that the South African labour laws were amongst the most advanced in the world. They would cater more than adequately for any members of the DSO to bring a challenge should they feel they were being discriminated against. The argument of unfairness was not, to his mind, a strong one.

Mr Mack noted the suggestion of efficiency of the DSO versus the efficiency of the new Unit. He noted that the DPCI had not even been set up, so he questioned on what basis Adv Hoffman could suggest that it would not work. It was hardly fair to the Unit to express views upon its work before it had even begun. The new democracy in South Africa meant that it would continue to grow and transform and in the next three years there would also be a review of the system.

The Chairperson noted at this point that the presenters need not attempt to answer any political comment.

Mr M Mzizi (IFP, Gauteng) thanked the presenters. He too questioned the comments around the allegedly unfair labour practice. He noted that he had observed the operations of the DSO in his own constituency, and was in touch with his local police stations on a regular basis. It had been suggested that the bad elements in the DSO could be removed, leaving the core intact. Neither of the presenters had addressed the position of the SAPS. He asked for input how best to strengthen the capacity of the SAPS.

Mr Mzizi also noted that mention had been made of the dysfunctional justice system. He had already suggested that anyone claiming that an organisation was dead must prove it. "Justice" was not an entity in isolation, but was a combination of various sectors. The submissions had suggested that the SAPS Bill, despite improvements, remained fatally flawed for a number of reasons. He asked why this had been said.

Mr J le Roux (DA, Eastern Cape) said that he and everyone else “knew the real reasons” for dissolving the Scorpions. He commented that these submissions were trying to tell the Committee to stand firm and do the right thing. He had heard them suggest that this Committee must decide what was best for the country and not what was best for the ANC. He said that dissolving the Scorpions could never be the right thing. He asked what the Committee’s legal adviser said; where the flaws were in the arguments, and whether there was any doubt in their minds that what was being done might not be constitutional.

Mr B Mkhalipi (ANC, Mpumalanga) noted that it had been said that the DSO was the most effective crime-fighting unit in South Africa. He asked if there had been any analysis of statistical information to back up that assertion, and asked why the DSO, if it was so efficient, had not ended the crime wave in the country.

Mr Mkhalipi asked if the presenters could isolate the positive aspects in the Bill, and indicated what was correct and desirable.

Mr D Worth (DA, Free State) asked Adv Hoffman what could be done to make a new independent unit, situated within the SAPS, more fully independent.

Mr Worth asked Adv Hoffman's opinions about the cases that were currently with the DSO.

Adv Hoffman said that he would try to group his responses to the various questions, which often had overlaps, rather than answer each question individually. He said that the underlying motivation for these Bills was, in his view, not consistent with Constitutional values. The reason why these Bills were before this Parliament at this time was that 29% of the NEC of the ANC had found itself at the “stinging end” of the DSO. He believed that they were motivated by revenge and self-protection and that was not a good reason for introducing a law. If he were asked what amendments could be effective, his answer was that there was none and that the Bills should be rejected outright.

However, before rejecting them, he suggested that the members should see the report of the Ginwala Commission into the suspension of Vusi Pikoli. There was evidence by the Director General of the Department of Justice that he thought he had been in charge. It was important to know how the Commission used that line of thinking. The problem was that there was a perception amongst the top members of the Department of Justice that they were in charge of the NPA. That was not so; as the Constitution required that prosecutors work without fear, favour or prejudice and that reporting lines ended at the NDPP, and not the DOJ. The only successful way to improve this legislation would be to reconstitute the DOS under the NPA, and not to move it to the SAPS. It was impossible to have an independent unit under the police structures, because the police answered for what they did to the Minister of Safety and Security, whereas the DSO answered to the NDPP, who was not a politician.

Adv Hoffman reiterated, in relation to the consultation process, that there was no basis for urgency. The only reason for any urgency was that the ANC, at Polokwane, had said that it wanted this to be dealt with urgently. That was no basis for Parliamentary urgency. A consultation process would not impress the Constitutional Court judges, if crowds of people were bussed in and everyone in favour of retaining the DSO was shouted down. That was not public participation, but what Prof Kader Asmal would describe as “a farce”.

Adv Hoffman responded to the question by Mr Moseki about the limits of parliamentary power, which was at the core of this legislation. He said that Parliament, unlike the pre-1994 Parliament, could not do what it wanted. He reiterated that the Constitution was the supreme law. Laws or conduct inconsistent with the Constitution were invalid and the obligations imposed by the Constitution must be fulfilled. IDASA had spoken of Section 195 of the Constitution, which spoke of the values and principles underlying the public service in South Africa. It was necessary to have a public service that worked ethically and efficiently, where sound human resource management was in place. It was not sound practice to demote a “top-notch crime-buster” in the DSO to a “lower ranking official” in the SAPS. The reporting line in NPA was short and sharp, and he would see it as retrogressive to put them into SAPS. He was not attempting to insult the SAPS. The DPCI was a unit in the SAPS at an operational level, fitting into the whole SAPS structure by having a Director that would report up the line to the National Commissioner of Police, and the Minister of Justice.  DSO had also had only a few hundred members, as opposed to thousands of police force members, so that human resources within the NPA were at a higher level of management than they would be for DPCI. There were lower rates and lower positions in this than had operated at DSO.

Mr Mack raised an objection to Adv Hoffman’s constant reference to the decisions of Polokwane, carrying as it did an implication that the Members were voting only according to what had been said there. He was representing the people of South Africa, and he resented the implications against his integrity and intelligence.

Mr Ntuli commented that the Members had been asked not to make political remarks, but Adv Hoffman was doing precisely this. Adv Hoffman’s remarks had little to do with Constitutional imperatives, and more to do with politics and he therefore asked that Members should be allowed to debate with him at a political level.

An Eastern Cape delegate said that he resented the allegation that people were bussed into hearings, pointing out that much trouble had been taken to arrange hearings where anybody could appear.

The Chairperson asked the presenters to avoid making political remarks.

Adv Hoffman said that he was not here to talk politics but it was an unavoidable fact that if the Polokwane resolution had not been passed these Bills would not have seen the light of day.

The Chairperson repeated that he should not address political matters.

Adv Hoffman reiterated that these Bills were flawed because they took away the independence of the NPA, and those functionaries who could operate independently. The Khampepe Commission report made it clear that the problems stemmed from lack of activity and supervision from the Ministerial Coordinating Committee, which was why SAPS and DSO had tensions. Those tensions had to be managed if they were to work in a way that was responsive to the needs of South Africa.

Adv Hoffman noted that a batch of questions had been asked around whether he had confidence in the SAPS and how the new Unit could be made more efficient. His remarks had nothing to do with his personal viewpoint, but were based on what the Deputy Minister of Justice had told the NA. The Deputy Minister was surely genuine in his assessment that the criminal justice system was dysfunctional, but the question was what should be done about it. Adv Hoffman suggested that the solution lay in Section 206(5) of the Constitution, which provided that Premiers in the provinces could call Commissions of Inquiry when there were complaints that the police were not efficient. That would fit in well with the summits about which the Ministers had spoken. If such Commissions were appointed, presided over by a judge, at which the NPA and SAPS could present what they were doing, and where ordinary people could speak of the problems, then a report could be compiled that was based upon criminal justice expertise, which could be the basis for a Constitutionally compliant reform system in the administration of justice. This should be removed from the political process and Commissions of Enquiry should be allowed to report.

Adv Hoffman responded on the points about labour relations and unfairness. He said that it was not responsible for a Member of Parliament to suggest that a civil servant could sue and claim damages; it would have been more responsible to look carefully at the Bills, decide where they came from and vote against their acceptance.

Mr Pienaar referred to the questions by Mr Mack and said again that the realities informing needs, and not the perceptions, must be investigated. IDASA , when sitting in the public hearings, had understood that people were questioning what DSO had done for them personally, such as reducing crime in their own neighbourhood. That reflected a lack of knowledge about what the DSO did, and ignored the fact that the responsibility for reducing crime was not that of the DSO alone. There was a need not to weaken what was already there, but to strengthen it, which he thought that relocation to SAPS would not achieve. He asked why there was a need to change an entire system that was not in need of change. Certainly there were certain features that could be addressed, but his submission highlighted why the changes proposed would not achieve this. Whatever the weakness of the DSO and the NPA, their prospects had to be examined. Over the last ten years there had been constant change in SAPS, with specialised units formed and dissolved, staff relocated to different police stations, all without solving the problems. DSO, on the other hand, was a system that, by and large, was working. To take a functioning unit and locate it in another system that was acknowledged to be undergoing fundamental restructuring was not desirable. He reiterated that it would be possible to introduce more modest changes.

Mr Pienaar said that he could not make suggestions as to how to strengthen SAPS, but he urged that the Commission must consider whether the move would weaken what the DSO was doing. It was impossible to ringfence the DPCI from what would be happening around it. He had already alluded to the impact of the proposed changes already through reduction of staff and the numbers of cases. He would agree with some of what Adv Hoffman had said about the labour laws. His understanding of the proposed human resources was that current DSO officials would be able either to be promoted upwards, to the Head of the DSO, and then to move further upwards outside of DSO but within NPA, in order to progress their careers. However, DPCI would have a very specific function in the SAPS. The prospects offered there for career advancement were far more constrained, as the ceiling was the head of the DPCI, a post equivalent to Head of the DSO, but junior to Head of the NPA. The model itself seemed to be an unfair labour practice because it would restrict promotion and amount to effective demotion. 

Mr Pienaar noted that the presenters had been asked what other evidence and public comment they had studied. IDASA had looked to comparative international practice and experiences of other countries, who had not adopted the approach of the DPCI within SAPS.

Mr Pienaar, in response to the question whether there were positive features worthy of endorsement, said that the current Bills were certainly an improvement on the first draft. However, even these improvements were an inadequate substitute for what was currently in place and working. DPCI would not measure up to the DSO in terms of independence. He saw the DPCI as a step backwards, not even a step sideways. When Parliament approved the amendment to the NPA Act that created the DSO there had been guarantees for independence that were constitutionally far stronger than those buttressing the intended creation of the DPCI. This raised concerns both about the constitutionality, and whether it would comply with international obligations. The best option would be to retain, but strengthen the DSO in its current place. The second option, should there be a DPCI within SAPS, would be to have an independent panel, so that the reporting line was not to SAPS. This was similar to other jurisdictions.

Mr Mack was disturbed by Adv Hoffman’s inferences about taking an irresponsible attitude towards labour issues. There had been consultation with the unions. There would of course be some people who had an issue; and what he meant was that for those, the labour law challenge route was always open. Parliament was very sensitive to labour law issues and would not deliberately or negligently flout them. He noted that Parliament would also be supportive of and do its best to protect any officials who were ill-treated.

The Chairperson noted that these issues would require further and careful consideration.

Mr Worth asked if it was correct that the Director General of Justice had told the DSO that they would be allowed no promotion within SAPS for the next five years.

 The Chairperson asked, why, in relation to the NPA Bill, the DPP was permitted, as evidenced by the definitions of “investigating director” to do Section 28 investigations, as he had understood that the DPP would be prosecuting and not investigating.

The Chairperson asked, in Clause 3, at line 33 of page 3, the word "additional" had been removed. This seemed to limit the powers of the President to establish investigating directorates.

The Chairperson suggested that the Department compile a response and give this on Monday, when the Committee would consider the submissions made and whether any could usefully be incorporated. The Committee would meet for the full day. 

Reform of Customary Law of Succession and Regulation of Related Matters Bill (the Bill): Department of Justice response to comments raised by provinces and Members
The Chairperson asked the Department of Justice to brief Members on its response to comments made by the provinces in relation to the Reform of the Customary Law of Succession and Regulation of Related Matters Bill (the Bill)

Ms Theresa Ross, Senior State Law Adviser, Department of Justice, tabled a summary, which had been structured so that the comments from provinces were noted under each clause. Any province not noted would not have made a comment on that particular clause.

Clause 1
Ms Ross said that KwaZulu Natal (KZN) had raised a concern in relation to the definition of “descendants” about the period after the death of the deceased, saying that this could exclude some children. It had been suggested that the word "immediately" be omitted. She explained that descendants were all entitled to inherit, irrespective of the marital status of the parents, and the word was intended to serve a specific purpose of limiting dependency, since if it were omitted it might make it possible for a person who was not being a dependent at the time of death of the parent, to nonetheless claim entitlement. 

She further clarified that in respect of spouses who were separated at the time of death, regardless of the period of separation, the date of divorce and not of the separation would determine the status.

Mr Ntuli noted that under isi-Zulu and isi-Xhosa law there was no divorce, but merely a desertion or separation. He asked where this was accommodated in the Bill. 

The Chairperson pointed out that the bias to Western cultures had been raised at the last meeting. He suggested that this be noted as a point to be considered later.

Ms Ross said that Mpumalanga had recommended that adopted children be included in the definition, or alternatively that the definition of "descendant" should differentiate between biological and adopted children. However, she noted that the Intestate Succession Act, which governed the distribution of a deceased estate, already recognised the rights of adopted children and parents to inherit from each other. An adopted child, on the adoption, would cease to be regarded as a child of his biological parents. Section 242 of the Children's Act provided also that an adoptive child would be regarded as the same as a natural child. An adoptive parent and an adoptive child were separately defined.

North West had proposed an addition to the definition, namely that "those conceived and/or born consequent to the deceased's death" be included, as well as specific provision for those who may have been born out of wedlock. Ms Ross again pointed out that a child born out of wedlock had the right to inherit from either biological parent. However, such a child would acquire the right to inherit from the subsequent spouse of a parent only if adopted by that spouse, or if mentioned in a will. There was no need to make further provision for this.

Western Cape suggested that the definition of descendant should be limited to biological children. Ms Ross said this was not possible, and reiterated her response in regard to adopted children. She suggested that perhaps the definition could, however, be refined to "immediate family members" rather than to "blood relations"; the latter would not include those born of ancillary unions.

Mr Mzizi said that in customary law, a family member without any children could receive a child from other family members, to bring up as his or her own, although there was no formal paper work. He asked how that child would be recognised as a child of the "childless" family.

Ms Ross noted that the Western Cape had already made a proposal that "adopted child" include children adopted in terms of customary law. The Intestate Succession Act had a definition that placed all adopted children on par. There was however a distinction between children who had been adopted and those who had been fostered; the latter were still regarded as the children of their natural parents.

Clause 2
Gauteng suggested that the Bill assumed that customary unions were heterosexual, but pointed out that the Balobedu women would enter into a union with other women. Ms Ross reminded Members that this was a matter that had been raised previously.  Whilst the Bill did not make provision for these marriages as such, it did recognise the rights of children born out of ancillary unions, including the right of children to inherit from the woman on whose behalf they were raised.

Limpopo had suggested that the Bill should make provision for a single woman without children to enter a union with another woman for the purpose of raising children. Ms Ross said that her earlier response in respect of the Gauteng submissions applied here.

Clause 3
Mpumalanga had submitted that no matter the duration of the marriage there should be equal division of the estate. Ms Ross said that Clause 3(2) already did this.

Mpumalanga had also suggested that younger children, because of their differing needs, should be allocated a larger portion. Ms Ross responded that the Intestate Succession Act calculations would be used for the share of each child, and this Act treated all children equally. Unequal distribution could be challenged on the basis of unfair discrimination. There was nothing preventing the older children from helping with the maintenance of the younger ones. The proposal that senior spouses to a customary union should have a greater share could be answered in the same way.

Clause 4
Limpopo suggested that children born out of wedlock should inherit from their biological fathers only, and not their step fathers.  Ms Ross stated that such children already had the right to inherit from both their natural parents. They would only acquire the right to inherit from a natural parent’s new spouse through adoption or through a will. 

Limpopo also suggested that any children over 21 who were still attending school, but who might have been excluded from the will, should be entitled still to inherit. Ms Ross noted that if a will was valid, then it could not be interfered with.

Limpopo had also suggested that children born out of wedlock, in respect of whom damages were paid to the woman’s family, should not be entitled to inherit from their deceased biological father. Ms Ross pointed out that they would always be entitled to inherit; the damages were an entirely separate issue, and were paid to their mother's parents, not to the child

Mr Ntuli asked for an example of how a child would be adopted under a customary law.

The Chairperson and Mr Mzizi commented that in many cultures there was no formal documentation dealing with adoption; it would merely be a family and community decision.

The Eastern Cape delegate asked what would be the status of a child from another relationship outside marriage.

Ms Ross noted that in customary law, the adoption would be paperless. However, South African academics who had worked on this issue and compiled the South African Law Reform Commission Report (SALRC) on revision of child care had agreed that a clear understanding of the adoption within the community, together with certain rituals, would create the adoption status. This was already in the Schedule of the Bill, on page 7.

Mr Lawrence Bassett, Chief Director: Legislation, DOJ, added that adoption was not dealt with specifically in this Bill, in recognition of the procedural differences across communities and cultures. However, the concept of adoption by customary law was recognised, as it also was in the Children’s Act of 1995. The devolution of the estate would, in the majority of cases, not be problematic. Very few cases might end up in Court, and here it would be up to the Court to ask for sufficient evidence that the child had been adopted before making a ruling.

The Chairperson asked where adoption was defined.

Ms Ross said that this was defined in the Children's Act of 2005, which defined both an adoptive child and adoptive parents. This said that an adopted child was a person "adopted in terms of any law" - which would include customary law.

Mr Ntuli reiterated that nobody seemed to be clear on how an adoption would take place under customary law. He asked if examples could be given for each culture.

Mr Mack said that the position of the adopted child must also be considered; such a child might find it difficult to prove that he was indeed adopted.

An Eastern Cape delegate suggested that there was a danger of discrimination against the child. He said that until there was any certainty on what was adoption in each culture, the Committee could not proceed.

Ms Ross noted that one culture may have different requirements for customary adoption from another. For instance, one culture may regard paying lobola for the child of the bride as adoption, whereas the next culture would not.

Mr Mzizi agreed with the Eastern Cape delegate that the Department be given the opportunity to find out what exactly was done. Perhaps it would be necessary to put in further definitions. This law must be inclusive.

The Chairperson noted that the concept of "umgena" had also not been defined. Some cultures would require a man to “umgena” his brother’s widow upon death of the brother, whereas other cultures might demand “umgena” if the surviving husband was working away from home, such as in the mines.

Mr Ntuli noted that "umgena" did not mean that the child became that of the man; the context was that it was intended to benefit the family of the deceased, on the latter’s behalf, not for the benefit of the supportive man.

The Chairperson noted that in such instances responsibilities would appear to lie with the person who was performing “umgena” but the inheritance line would not follow the umgena; as the child would inherit from the deceased. He suggested that the Committee must return to this at some other time.

Ms Ross reiterated that the child, in the example given, would inherit from the deceased natural father, and not from the uncle in the “umgena” relationship. The Bill was not dealing with loose arrangements. It was intended specifically to deal with recognised and well-practised customary law.

The Eastern Cape delegate mentioned that the issue of "on whose behalf they were raised" did not apply in the Xhosa culture. If a person died, the family would meet to decide who would take charge of the family of the deceased, and whoever was nominated would be regarded as the father for all intents and purposes.

Mr Ntuli suggested again that this Bill be shelved until it was learned what was covered in other customs, as he was not sure that all the diverse customs were being recognised and covered.

The Chairperson asked if there was any urgency to the matter.

Ms Ross noted that this Bill emanated from a decision of the Constitutional Court that the matter of inheritance in customary law must be addressed, but that no date by which the Department must come up with legislation had been prescribed.

Mr Mzizi asked that the Department should consult properly, and he stressed that the amaKhosi must be consulted, rather than the academics.

Mr Mack urged that all cultures be taken into consideration, including San.

The Chairperson suggested that the Committee should liaise with the Department to decide when they could return for a further briefing

The meeting was adjourned