Reform of Customary Law Succession Bill [B10D-2008]: NCOP Amendments; Traditional Courts Bill & Superior Courts Bill: Committee Resolution

Meeting report

NCOP Amendments: Reform of Customary Law Succession Bill: briefing
Mr Lawrence Basset, Chief Director (Legal Services): Department of Justice, reported that, following the inclusion of the NCOP amendments, the D version of the Bill [B10D-2008] was now under consideration.

The Select Committee had considered the definition of “descendent” was too broad and requested that it be narrowed down. The Select Committee was concerned that it may give rise to the extended family and non-family members (people the deceased had taken in) benefiting from the estate, to the detriment of the blood relations.

There were two categories to “descendent”. As Clause 1(a) essentially ‘boiled down’ to adoption, the Select Committee noted that they were not aware of a comparable customary law on adoption and were uncomfortable with the clause. The legal advisors had pointed out that there was reference to adoption in customary law textbooks. The Select Committee was more comfortable with their amended wording, which boiled down to adoption but did not say it, in so many words. They had asked the legal advisors to research the references to adoption in customary law.

Clause 1(b) referred to a woman in ancillary unions, in terms of Clause 2(2)(b) and (c), and was also regarded as a descendent.

Clause 5 dealt with how disputes or uncertainties were dealt with. He read out Clause 5. The proposed amendment was to insert “or a traditional leader” after “magistrate” in Clauses 5(2), (3) and (4). The change here was that the Master of the Court may now direct either a magistrate or a traditional leader to hold an inquiry.

Mr Lawrence Basset said that in the deliberations with the Select Committee, the Department had pointed out its reservations regarding the unclear jurisdiction of traditional leaders. This was still being considered in the Traditional Courts Bill. The Traditional Courts Bill specifically excluded traditional leaders from anything related to succession matters. Additionally, there were reservations in certain quarters about giving traditional leaders this kind of jurisdiction.
They would have the jurisdiction to hold an enquiry, but the outcome of that enquiry would be to make a recommendation.

Mr Basset pointed out that the amendments in the Schedule were largely consequential.

The Chairperson agreed that the latitude in the initial definition of "descendent" was too wide.

Mr J Jeffery (ANC) responded that while he appreciated what they were trying to do with Clause 1(a), the amendments created potential for disputes. It gave rise to a situation where a child would have to prove that he or she was adopted. The problem with the definition of “woman” in Clause1(b) which stated a “a woman referred to in section 2(2)(b) or (c)” was that there were two categories of women, were both regarded as descendants. He was of the opinion that Clause 2(2)(b) was tautologous. This was just a wording issue. The question now was whether this was so fundamental that the Committee would have to vote against the NCOP amended Bill. It was clumsily phrased but this was not necessarily a reason to send the Bill to a Mediation Committee.

The Chairperson responded that they could not be intimidated by the possibility of mediation.

Adv C Johnson (ANC) commented that a definition was there to provide clarity. The body of the Bill deemed certain people to be descendants. In her view this repetition was nonsensical.

Ms Christine Silkstone, Committee Researcher, agreed.

The Chairperson asked if they could change the clause. He was uncertain if the only options were to adopt or reject the proposed amendments.

Mr Jeffery replied that in a Section 75 Bill they were allowed to effect consequential amendments that did not affect the body of the Bill. He was unsure as to the procedure in a Section 76 Bill, but thought that the consequence of a rejection was different.

The Chairperson responded that this would be a technical amendment as the current phrasing was tautological. He asked if such an amendment would be subject to a Section 76 mediation. He added that he did not see a problem with such an amendment.

Mr Jeffery replied that if they reject the Bill because of the amendment, the Bill would go for mediation. They would have to do it in the meeting, to allow time for mediation and for them to hear the mediation report.

The Chairperson asked if it constituted a rejection. He stated that if there were a grammatical error, surely, they had the right to change that.

Mr Herman Smuts, Senior State Law Advisor, responded that the Committee had to either pass or reject the Bill. The procedure for a Section 76(1) Bill was different to a Section 75 Bill. Small administrative typographical errors were a different matter. A change to Clause 1(b) had an impact and amounted to a rejection of the Bill.

Mr Jeffery replied that he was not aware that the Section 76 provision was as narrow as that. His experience had shown that they could effect further consequential changes in keeping with the amendments on Section 75 Bills. He asked why it was so narrow for Section 76 Bills. He suggested that the Committee get an opinion on this from the Parliament’s Legal Office.

The Chairperson continued with the consideration of the proposed amendments to clause 5. He noted that it was up to the Master to refer a dispute either to a magistrate or a traditional leader. He asked how the Master would make this decision or whether the Minister of Justice would decide on a policy framework.

Mr Basset responded that this would be included in the policy framework for Masters. Clause 5(5) also required the Minister to make regulations regarding any aspect of the inquiry referred to in the clause. It was difficult to see how that would be done as it would have to be factored into how Masters went about their work. Guidelines would have to be put in place.

The Chairperson asked for an example of typical criteria for determining if a dispute would go to a magistrate or traditional leader.

Mr Basset responded that one would have to look at the complexity and legality of the case.

The Chairperson asked what an Indian or Afrikaner magistrate would reasonably understand about Venda customary law. Would this be a case to allocate to a senior traditional leader?

Mr Basset responded that when magistrates held a legal enquiry, they would get inputs. If that issue was before the court and the magistrate had little knowledge of the customary law, the magistrate would be duty bound to bring pertinent evidence before the court. Nothing stopped the magistrate from getting that information from traditional leaders or experts so as to get enough information to judge the case.

The Chairperson replied that he was fine with Clause 5(5). The Committee would await the opinion of the parliamentary legal advisors.

[The Committee dealt with the Committee Resolution on Traditional Courts Bill and Superior Courts Bill while awaiting their opinion (see below)]

Mr Jeffery reported that upon the advice of Parliamentary Legal Advisor, Adv Frank Jenkins, he noted that the wording for Section 76 was different than the wording for Section 75 Bills:
- Section 75 procedure dictated that the National Assembly may pass the Bill again, with or without amendments. It did not stipulate "the" amendments, so these could be different amendments. The NA could also decide not to proceed with the Bill. This was a process that allowed for the kind of change the Committee had earlier discussed.
- The procedure for Section 76 Bills was that if the National Council of Provinces (NCOP) passed an amended Bill; the amended Bill would be referred to the NA. If the NA refused to pass the amended Bill, it would be referred to mediation. The result of procedure was that they could not, on their own, delete Clause 2(2)(b) from the definition in Clause 1(b).

Adv Johnson replied that it was implied that they must either accept the amended Bill or reject it.

Mr Jeffery asked if the tautology was strong enough to cause rejection of the Bill. Perhaps it was not worth it?

The Chairperson asked if they could compromise and state that the reason they would not pursue this further was because Parliament was rising. They did not think this was an amendment, they would have ideally accepted, but it was not fundamental enough to cause rejection of the Bill. They should just do their job and say that they were unhappy with the clause but accepted the Bill. They would formally vote on the Bill in the session commencing at 14:00.

Mr Jeffery raised a concern about what this meant for the quality of the Bill.

The Chairperson responded that this could be attended to when the National Assembly sat in March. They would vote on the Bill, but it would not go into the Announcements, Tablings and Committee Reports (ATC). If needed, the Committee would reconvene and on the day before the House sat and attend to outstanding matters on the Bill. This would appear on the ATC on the morning that the House sat.

[The Committee formally voted on the Bill in the afternoon session].

Committee Resolution on Traditional Courts Bill and Superior Courts Bill
The Chairperson asked the researcher to draft a committee resolution and determined that it should contain the following points:

- The Traditional Courts Bill would be the only Bill that the Committee would not finish in this five-year term. They mandated the Chairperson of the Committee and the Chairperson of the Sub-committee to approach Parliamentary structures to allow one final meeting of the sub-committee, within the next 14 days, to bring together traditional leaders and civil society to finalise the report.

The committee agreed to that.

- The Committee should note the standing resolution of the Portfolio Committee on Justice on the Superior Courts Bill that Bill is not technically before the Committee. The previous Minister of Justice, Ms Brigitte Mabandla, had agreed that the Bill would be withdrawn. The current Minister, Mr Enver Surty, had agreed that the Bill would be withdrawn in the following week.

That the Committee formally requested (in writing), that the Bill be withdrawn and refer the letter to all parties.

As far as the Committee was concerned, there was no such Bill before them.

The rules that apply to all other Ministries should also apply to the Ministry of Justice. It could not be treated exceptionally.

The Committee agreed to this. The Chairperson responded that this meant that the Committee would expect the Minister to withdraw the Bill by the following Friday - 27 February 2009.

The meeting was adjourned.