ATC080807: Report on Reform of Customary Law of Succession and Regulation of Related Matters Bill
Report of the Portfolio Committee on Justice and Constitutional Development on the Reform of Customary Law of Succession and Regulation of Related Matters Bill [B10 – 2008](National Assembly – sec 76), dated 7 August 2008.
The Portfolio Committee on Justice and Constitutional Development, having considered the Reform of Customary Law of Succession and Regulation of Related Matters Bill [B10-2008] (National Assembly – sec 76), referred to it and classified by the Joint Tagging Mechanism as a section 76 Bill, reports the Bill with amendments [B10A – 2008].
The Committee reports further as follows:
1. The Bill originates from an investigation and report of the South African Law Reform Commission (SALRC). The purpose of the Bill is –
(i) to abolish the customary rule of primogeniture in as far as it applies to the law of succession in order to bring it in line with the Constitution; and
(ii) to give effect to the judgment of the Constitutional Court in the case of Bhe and Others v The Magistrate, Khayelitsha and Others CCT 49/03, Shibi v Sithole and Others CCT 69/03 which declared the principle of male primogeniture incompatible with the Bill of Rights.
2. The approach of the Committee in processing the Bill revolved around the need to ensure:
Respect for customary law which is recognised by the Constitution.
Recognition that the primogeniture rule as applied to the customary law of succession cannot be reconciled with current notions of equality and human dignity as contained in the Bill of Rights.
Provision is made for the variety of supporting unions in customary law.
3. The Committee acknowledged that the Bill was drafted to provide for matters of succession in respect of the different types of family structures that exist within customary law. The female partners too and children born of unions that fall outside of customary marriage, including all related and supporting customary unions as well as ancillary unions entered into by women had to be accommodated in respect of inheritance.
4. The Portfolio Committee organised public hearings on the Bill on the 17th June 2008. The Committee received two written submissions, one from the National House of Traditional Leaders (NHTL) and the other from the Women’s Legal Centre (WLC). The WLC also made an oral representation to the Committee. The NHTL expressed their support for the Bill and the provisions it offered to those women and children in customary unions who had been excluded from the protection of the law. The WLC raised certain queries that were addressed during the deliberation process.
5. During deliberations on the Bill certain amendments were made to make the Bill easier to read, to maintain consistency and uphold plain language principles. The word ‘traditionally’ was deleted from the definition of ‘customary law’ in light of the Shilubana and Others v Nwamitwa  ZACC 9 judgement of the Constitutional Court where the court stated that to define customary law as something traditionally observed ignores the contemporary practice of the community in question. The definition of the term ‘house’ was also simplified. The concerns expressed by the WLC around Clause 5 relating to the exclusion of property held by a traditional leader have been accommodated by ensuring that the exclusion relates only to official property held by a traditional leader on behalf of a traditional community referred to in the Traditional Leadership and Governance Framework Act, 41 of 2003.
6. There was some debate by the Committee around Clause 7, which is a savings clause. Before 2 December 1988 a man married by customary law could enter a civil marriage with another woman, thereby dissolving the customary law marriage. The Marriage and Matrimonial Property Law Amendment Act 3 of 1988 prohibits customary law spouses from concluding civil marriages except with each other. Clause 7 provides that where a man enters into a civil marriage with another woman before 2 December 1988, other than a customary law spouse, the customary law spouse and any children must inherit on par with the civil law spouse and any children from that marriage. The Department indicated that such women were in fact protected by a savings clause in the Repeal of the Black Administration and Amendment of Certain Laws Act 28 of 2005 and that Clause 7 amounted to duplication. However, the Committee, after considering the input from the representative from the South African Law Reform Commission (SALRC) was of the view that given the imminent demise of the Black Administration Act such women should be protected and the Clause should be retained. The Department accepted the retention of this clause. It was also pointed out that despite the prohibition that existed before and after 2 December 1988, as well as after 20 November 1998 to date, civil marriages continued to be contracted during the existence of a customary marriage and customary marriages are still contracted during the existence of a civil marriage. The Committee was of the view that some consideration should be given to the SALRC suggestion around a possible investigation into the amendment of the Recognition of Customary Marriages Act 120 of 1998 to make provision for cases where civil and customary marriages exist simultaneously.
7. The Committee has some reservations around the capacity of the Masters Office to deal with these customary law estates, despite assurances from the Department that the Acting Chief Master has indicated that their offices do possess the necessary capacity.
8. The Committee also has concerns about three areas that may not have been adequately addressed in the Bill, namely, the fairness of allocating a child ’s portion to a woman (known in customary law as a ‘seed-raiser’) in Clause 2 of the Bill; the failure to take into consideration ‘marriages from the grave’; and the lack of definition around the proposed Regulations in respect of Clause 5 of the Bill. The Committee believes that these can be further examined by the NCOP when it considers the Bill.
Report of the Portfolio Committee on Justice and Constitutional Development on the General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Bill [B 64 - 2008] (National Assembly - sec 75), dated 7 August 2008:
The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Bill [B 64 - 2008] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B 64A - 2008].
The Committee wishes to report further, as follows:
1.1 The Committee notes that the Public Funding of Represented Political Parties Act, 1997 (Act No. 103 of 1997) (the Funding Act), will, after the repeal of section 6A, provide for two scenarios where a political party has to repay the unspent balances of all moneys that have been allocated to it in terms of section 5 of the Funding Act to the Electoral Commission:
(a) where a political party ceases to qualify for the allocation of moneys from the Represented Political Parties’ Fund (the Fund) (section 5(4)); and
(b) if Parliament and every provincial legislature are dissolved in terms of the Constitution or if Parliament or any provincial legislature is so dissolved in any other circumstances (section 9(3) and (4)).
1.2 The Committee notes that section 9(1) of the Funding Act creates a third scenario where a political party, under certain circumstances, has to repay a certain amount of the unspent balances of moneys that have been allocated to it in terms of section 5 of the Funding Act to the Electoral Commission. This section provides that any unspent moneys at the end of a financial year, in the special banking account kept by a political party in terms of section 6(1)(a) of the Funding Act, will be shown in the party's relevant books and records of account as a credit balance carried forward to the next financial year. Provision is, however, made that the moneys have to repay their unspent balances of moneys in terms of that may be carried forward may be limited to an amount representing a prescribed percentage of the allocations that had been made to the political party concerned for that financial year.
1.3 The Committee's attention was also drawn to its Report on the Constitutional Matters Amendment Bill [B 22B—2005] (now the Constitutional Matters Amendment Act, 2005 (Act No. 15 of 2005)), dated 19 August 2005. In the Report, the Minister for Justice and Constitutional Development was requested to direct her Department to, amongst other issues, investigate the desirability of:
(a) bringing the provisions of sections 5(4) and 9(3) and (4) of the Funding Act into line with section 6A of the Funding Act; and
(b) making the offences in section 9A of the Funding Act applicable to the accounting officers of political parties that sections 5(4) and 9(3) and (4) of the Funding Act.
The Report noted that, if necessary, the Minister should submit legislation to Parliament to effect this. The Committee was informed that some of the clauses in the Bill, as introduced, sought to address the matters raised by the Committee in its above-mentioned Report.
1.4 Following submissions received during the public hearings, in particular by the Electoral Commission, the Committee realised the complexity of the whole system of repayment of unspent balances of moneys to the Electoral Commission in terms of sections 5(4) and 9(1), (3) and (4) of the Funding Act, and has concluded that it needs to be reviewed, in conjunction with the relevant role-players. Hence the Committee agreed to only retain the clauses in the Bill that relate directly to the abolition of floor crossing or that are not controversial and to reject the clauses in the Bill that seek to amend the Funding Act:
(a) so as to further regulate the repayment of the unspent balances of moneys to the Electoral Commission by a political party; and
(b) which are not consequential to the abolition of floor crossing.
The effect is that the clauses seeking to address the matters raised by the Committee in its Report referred to in paragraph 1.3 above, with the exception of clause 2(c), have been deleted from the Bill.
1.5 Due to time constraints and the urgent need to pass the Bill and ensure its implementation before the next window period for floor crossing on local government level, that is due from 1 September 2009, the Committee was not in a position to conduct a review of the system as referred to above.
In light of the above, the Committee recommends that the Minister for Justice and Constitutional Development be requested to direct her Department to conduct the review referred to in paragraph 1.5 above with a view to submitting amending legislation, if necessary, to Parliament at the earliest opportunity.
Inevitably, issues about the electoral system arose during deliberations on the Bill. The Committee feels that consideration should be given to reviewing the electoral system within the first two years of the term of the next parliament. Consideration should be given to whether it is necessary to have some inclusive electoral system made up of both constituency and proportional list MPs.
The Committee feels that within the current proportional list system the Speaker’s Office should consider ensuring greater accountability of MPs to the voters through constituency work. Currently, MPs are allocated to constituencies by their respective political parties and are allocated funds by Parliament to run Parliamentary Constituency Offices (PCOs). MPs account to their respective parties for the constituency work they do. The Committee feels that, in addition to this, the Speaker’s Office should consider whether MPs should provide reports to Parliament for the constituency work they do and if so, whether these reports should be published, including on Parliament’s website. The Speaker’s Office might also want to consider some system of co-operation between political parties on how they allocate PCOs to ensure a greater distribution of these offices throughout the country.
Following exchanges with IDASA during the public hearings, the Committee requested IDASA to offer suggestions on how MPs could be more accountable to voters within the current electoral system. IDASA made a brief submission in this regard. The Committee has not discussed IDASA’s proposals and has no particular views on them, but will refer their submission to the Speaker’s Office. Without necessarily endorsing them, the Committee refers to two interesting proposals from IDASA’s submission:
“Location: Parties decide where to establish their PCOs. This leads in some cases to multiple PCOs in a single area, each run by a different party, reaffirming the party, and not parliamentary, nature of these offices. Parliament should investigate some way of ensuring a sufficiently even distribution of offices bearing in mind the political limitations. Discussions bringing together party leaders about locations or introducing total limits on money given to any single area to fund PCOs may help this problem.
Civic Education: It is vitally important to the success of PCOs that citizens are familiar with them as an institution and understand what they can expect from them. If citizens start to expect more from their representatives, MPs will begin to understand the advantage of having closer links to them.
A general civic education programme should be explored that will teach citizens about MP accountability, the differences between ward councillors, MPLs and MPs and the role of PCOs and PDOs…..”
Report to be considered.
Report of the Portfolio Committee on Justice and Constitutional Development on the Constitution Fourteenth Amendment Bill [B62-2008] (National Assembly - sec 74), dated 7 August 2008.
The Portfolio Committee on Justice and Constitutional Development, having considered the subject matter of the Constitution Fourteenth Amendment Bill [B62-2008] (National Assembly - sec 74), referred to it, and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B62A – 2008].
Report of the Portfolio Committee on Justice and Constitutional Development on the Constitution Fifteenth Amendment Bill [B63-2008] (National Assembly - sec 74), dated 7 August 2008.
The Portfolio Committee on Justice and Constitutional Development, having considered the subject matter of the Constitution Fifteenth Amendment Bill [B63-2008] (National Assembly - sec 74), referred to it, and classified by the Joint Tagging Mechanism as a section 74 Bill, reports the Bill with amendments [B63A – 2008].
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