Voting on Magistrates' Courts Amendment Bill; Briefing on Recognition of Customary Marriages Bill & Discussion on Proposed Domestic Violence Bills

Meeting report

SECURITY AND JUSTICE SELECT COMMITTEE
9 September 1998
VOTING ON MAGISTRATES' COURTS AMENDMENT BILL; BRIEFING ON THE RECOGNITION OF CUSTOMARY MARRIAGES BILL AND DISCUSSION ON PROPOSED DOMESTIC VIOLENCE BILLS

Documents handed out
Draft Amendment to the Magistrate Court Amendment Bill
Two Domestic Violence Bills proposed by the S.A Law Commission

SUMMARY
The committee voted on the Magistrates' Courts Amendment Bill.  Two Domestic Violence Bills proposed by the South African Law Commission were discussed and rejected by the committee.  A briefing on the Recognition of Customary Marriages Bill was also given.

DETAILED MINUTES
Public Protector Amendment Bill
The chairperson stated that the ANC needed more time to deliberate on this Bill.  It would, however, impinge on the committee's time to discuss the Bill.   The Bill would be discussed after the parliamentary recess, in the first week of October.

Magistrates' Courts Amendment Bill [B33B-98]
Mr Johan De Lange, from the Department of Justice, said the period of imprisonment was arbitrary.  It could be changed in the future, but would do in the meantime. 
Section 93 ter (b):  The section would only be relevant if magistrates failed to make it a condition, it would be an enforcement mechanism. 

Mr Johan De Lange said that section 109A should be added as a new clause to the Bill.  There was some controversy whether the word “summons” in the English version and "aangesê" in the Afrikaans version had the same implications.  In response, Mr De Lange said that one should not confuse the word “summons” and “summoned” with each other.

Mr Surty (ANC, North West Province) said "aangesê" meant “to order”, “summon” meant "to request" and "summons" is by way of litigation.

The Chairperson, Mr Moosa (ANC, Gauteng), commented that the intention was not for the assessor to be summoned. The assessor need not have to go to trial.  He only agrees to assist.  He cannot however withdraw his decision after he has made his decision.

Mr Surty responded that he would be happier with the word “notified” rather than “summons”.  The Chairperson said that on refusal to assist as an assessor, no punishment would follow, but if an assessor had agreed to assist and then refused, the Bill would have to provide some form of punishment.

Mr De Lange said that the new clause referred to proceedings already in motion and not prior to proceedings.  Prior to proceedings an assessor could refuse to assist.  However, once the proceedings had already begun, the refusal would not be accepted.

The committee members all agreed with that explanation. 

Adv. Pienaar (FF, Western Cape) said that assessors should  be declared unfit and removed from the role of assessors, once found guilty of an offence.  The Chairperson remarked that he did not see any harm in adding this as a form of punishment.

Mr Surty referred to section 93 quat. If the Minister had passed regulations already, further sanctions should not be repeated.  Mr De Lange said that the members were confusing the Act.  They must not contradict the idea behind the legislation. He agreed with Mr Surty but saw no problem with adding it as a form of punishment.  Mr Surty said that this Bill must not create unqualified disqualification of an assessor, reason being that no one can see into the future. An assessor might have a valid reservation that might excuse him. Adv. Pienaar suggested the word “may” be inserted.

When the motion of desirability was read, the committee rejected the words “has been summoned” and proposed “for any person who accepts an appointment”

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

Domestic Violence Bill
Submission made by the South African Law Commission, represented by Mr Michael Palumbo.

Mr Surty said that where the court encountered a case of domestic violence, this should be regarded as aggravating circumstances which was a crime.  Mr Palumbo said that the Project Committee had taken this into consideration.  It was part of civil procedure, but clause 3 made provision for it to be a criminal offence as well.

The Chairperson said that the definition was there to  protect women and children who had been abused but the definition goes much wider (clause 1(vii)).  Mr Palumbo said the Project Committee of the South African Law Commission had decided to define all elements of domestic violence.

The Chairperson asked whether the National Assembly had done anything about clause 14?  Mr Palumbo said that it had been directly taken over from the Child Care Act.  He said that the last sentence of clause 14 did not spell out a procedure.  The question of whether this should be amended was raised.  It was noted that this clause also existed in the Prevention of the Family Violence Act, although it was not exactly the same. 

Mr Surty asked whether the protection which applied to children in clause 4 also applied to women.  He asked whether this citation would not disempower women, and whether there should not be a legal duty to report any form of domestic violence to women as is the case with children.

Mr Palumbo said that he would like the committee to focus on the two proposed Bills by the South African Law Commission.   The South African Law Commission felt that the Bill should speak for itself.  The domestic violence definition was of a general nature and it had been abbreviated.

Clause 2 in the proposed Bill set out the procedure that the police had to follow in point form.  This made it easier to enforce as opposed to clause 2 in the Introduced Bill, which was in a paragraph format. The Chairperson asked what would happen if the police failed  to do one of the procedures in clause 2(1).  Mr Palumbo said that in that situation, the court had the discretion.  Mr Surty said that clause 2 made no provision for any punishment in such regard. Mr Palumbo then referred to clause 20(b).

With regard to the second proposed Bill, Mr Palumbo said the idea behind this Bill was to make  the court easily accessible to women who has been victims of domestic violence, thus this Bill rejected the motion procedure which was available to such women.  The Chairperson wanted to know how the police could conform to this Bill as it did not make provision for any procedure.  Mr Surty stated that the Bill did not make any provision for punishment or conviction.  He wanted to know how this could be a balanced Bill.  The Chairperson asked whether this Bill was the result of having taken into account what was heard in the public hearings?  Mr Palumbo said that it did not take the public submissions into account.  The committee rejected the second proposed Bill of the South African Law Commission.

Recognition of Customary Marriages Bill [B110-98] – Represented by Prof. R T Nhlapo of the South African Law Commission
The aim of the Bill was to give full recognition to African Customary Marriages. The Bill had to balance customary and statutory law. This Bill tried to preserve the shape of the African family. The age limit of children would be 18 years and above and not 18 years for boys and 16 for girls [clause 3(3)(c)].

The registration of customary marriages was now allowed but failure to register would not be punishable. Prof. Nhlapo said the most important clause was clause 7 with 7(4), 7(5) being two very important provisions.

Dissolution of customary marriages would have to be done in a court of law. It could no longer be done privately i.e. by the families, because it bears too many risks for the wife and children.

Clause 10 provided for a stricter system which did not allow the partners a choice of a matrimonial regime. One, however, could change one’s customary marriages into a contractual marriage.

An ANC committee member said the woman had no protection. Prof. Nhlapo stated that clause 7(2),(4),(5) provided adequate protection to the first wife where the husband had married a second woman.

Another member wanted to know what would happened if a man, who had married under customary marriage in the rural areas, married another wife under civil law. What protection was there for the first wife? Prof. Nhlapo answered that the Bill did not allow two wives under different system. The first marriage would be valid, whereas the second one would be annulled. Prof. Nhlapo also stated that the Bill was retrospective in terms of Registration.

The Chairperson asked whether customary marriages conformed to antenuptial agreements or community of property. Prof. Nhlapo stated that clause 10(2)(b) made provision for it either to be antenuptial or in community of property. On the question of polygamy, Prof. Nhlapo stated that the automatic Property Act becomes community of property. Clause 7(4) and(5) were important because it was no longer possible to leave one’s wife without regard to the ruling of a competent court. In terms of this Act and the Constitution of South Africa, a women’s right to remarry could not and must not be limited.

This is an incomplete record of the committee meeting's proceedings.