ATC201126: Report of the Select Committee on Security and Justice on the Recognition of Customary Marriages Amendment Bill [B 12 – 2019] (National Assembly – sec 76), dated 26 November 2020

NCOP Security and Justice

Report of the Select Committee on Security and Justice on the Recognition of Customary Marriages Amendment Bill [B 12 – 2019] (National Assembly – sec 76), dated 26 November 2020:

 

The Select Committee on Security and Justice, having deliberated on and considered the subject of the Recognition of Customary Marriages Amendment Bill [B 12 – 2019] (National Assembly – sec 76), referred to it and classified by the JTM as a section 76 Bill, reports that it has agreed to the Bill with amendments and reports as follows:

 

1. Background

The Recognition of Customary Marriages Amendment Bill, 2019 (the Bill), aims to amend the Recognition of Customary Marriages Act, 1998,(the RCMA)  by further regulating the proprietary consequences of customary marriages entered into before the commencement of the RCMA in order to bring the provisions of the Act in line with the judgments of the Constitutional Court which the Court found to be constitutionally invalid because they discriminate unfairly against certain women in customary marriages.

The Constitutional Court, in Ramuhovhi and Others v President of the Republic of South Africa and Others [2017] confirmed the decision of the High Court of South Africa, Limpopo Local Division and held that section 7(1) of the RCMA inconsistent with the Constitution because it discriminates unfairly against women in polygamous customary marriages which were entered into before the commencement of the Act on the basis of gender, race and ethnic or social origin.

Currently, section 7(1) of the RCMA provides that the proprietary consequences of a customary marriage entered into before the commencement of the Act continues to be governed by customary law.  This, in effect means that such wives have no right of ownership and control of marital property and that the right of ownership and control of marital property is the sole preserve of the husband. This was found to be the case particularly in Venda customary law.

The Constitutional Court suspended the declaration of constitutional invalidity for 24 months to afford Parliament an opportunity to enact remedial legislation, that is before 30 November 2019. The suspension of the declaration of the invalidity was accompanied by an order for interim relief that would continue to apply should Parliament fail to correct the defect by the time set.

Clause 2 of the Bill amends section 7(2) of the RCMA in line with the judgment in Gumede v President of the Republic of South Africa 2009(3) SA 152 (CC) in which section 7(2) was declared constitutionally invalid because the section made only customary marriages entered into after the commencement of the RCMA where a spouse is not a partner to any other existing customary marriage to be a marriage in community of property.

The effect of this amendment is that all customary marriages whether entered into after or before the commencement of the RCMA will be marriages in community of property and of profit and loss unless the spouses decide to exclude that by means of an antenuptial contract.

 

1. Public participation process on the Recognition of Customary Marriages Amendment Bill [B 12 – 2019] (National Assembly – sec 76)

The Department of Justice and Constitutional Development briefed the Committee on 23 June 2020 and thereafter the permanent delegates briefed their Provincial Legislatures on the Bill.

The Committee submitted a proposed plan in line with the six-week cycle to the Provincial Legislatures:

• The Permanent Delegates briefed the provinces on the legislation between July and September 2020.
• The Select Committee received all nine Negotiating Mandates in October 2020.

• The Select Committee received eight Final Mandates in November 2020.

 

1. Public Participation Process

The Provincial Legislatures conducted the public participation process between September and November 2020 and invited stakeholders and interested persons to make written and oral submissions on the Bill.

The Committee requested all provinces to provide details of their public participation processes followed, including the following information:

• A list of the individuals or organisations and the total number of stakeholders who have been consulted in each province, as well as the number of public hearings held and all relevant details pertaining to the public hearings.
• Information pertaining to how widely and through which platforms advertisements were made on the Bill.
• In addition, information pertaining to the written submissions received in each province.

Due to the global COVID-19 pandemic and national restrictions on public gatherings, provinces were afforded additional time to conduct public participation through the virtual platforms.

 

1. Negotiating Mandates and Committee Deliberations

The Committee received all nine Negotiating Mandates, eight provincesbeing in favour of the Bill with the exception of the Western Cape Province not supporting the Bill.

On 10 November 2020, the Select Committee held the negotiating mandate meeting with permanent delegates presenting their province’s position on the Bill. The Select Committee received a briefing from the Department of Justice and Constitutional Development on its response to the Negotiating Mandates. The Department responded to all concerns raised as well as the proposed amendments by the Provincial Legislatures.

During the Committee’s deliberations, a concern was raised to the effect that the Bill fails to define the forms of property ownership at customary law, such as marital property, house property, family property and personal property.

 

The Committee, however, agreed with the Department’s explanation that the insertion of definitions of these terms in the Bill would require in-depth research, as well as extensive consultation with the relevant stakeholders, to avoid unintended consequences to the detriment of women in customary marriages, and whom the Bill aims to protect.

 

The Committee notes that the South African Law Reform Commission, with the Department of Home Affairs, is reviewing the South African marriage regime. The Committee agrees that this process is better placed to investigate the definitions of forms of property ownership at customary law and, therefore, requests that the Ministry bring the matter to the attention of the Commission for investigation. Further, the Committee recommended that many of the general comments received from Provinces in relation to marriages should also be referred to the Department of Home Affairs for their consideration and action.

 

The Committee further encouraged the Department of Justice and Constitutional Development to heed the calls made by Provinces for extensive public education on the Bill to ensure that all persons understand the amendments made to the Recognition of Customary Marriages Act, 1998.

 

The Committee was satisfied with the Department’s response to the submissions as raised by provinces in their negotiating mandates.

 

1. A-List of proposedamendments

The Select Committee met on 18 November 2020 and adopted the A-List of proposed amendments. The proposed A-List and the B-Bill, along with relevant documentation was forwarded to the Provincial Legislatures for their conferral of Final Mandates.

 

1. Final Mandates

The Committee received eight Final Mandates, seven provinces being in support of the Bill with the exception of the Western Cape Province not supporting the Bill. The North West Province submitted its final mandate which was in favour of the Bill, after the adjournment of the meeting.

The Select Committee met on 25 November 2020 to consider the Final Mandates. The Select Committee considered the B-Bill and adopted it, and there were no objections.(Please refer to the A-Bill attached hereto.)

The Committee met on 26 November 2020 to deliberate and adopt the report on the Recognition of Customary Marriages Amendment Bill.

 

 

7. Recommendation

The Select Committee on Security and Justice, having considered the Recognition of Customary Marriages Amendment Bill [B 12 – 2019] (National Assembly – sec 76), referred to it and classified by the JTM as a section 76 Bill, submits an amended Bill, namely the Recognition of Customary Marriages Amendment Bill [B 12B – 2019] (National Assembly – sec 76) for the Council’s consideration. 

 

Report to be considered.

 

 

 

 

REPUBLIC OF SOUTH AFRICA

 

 

 

 

SELECT COMMITTEE AMENDMENTS

TO

 

RECOGNITION OF CUSTOMARY MARRIAGES AMENDMENT BILL

[B-2019]

 

 

 

___________

 

(As proposed by the Select Committee on Security and Justice

(National Council of Provinces))

__________

 

 

 

 

[B 12A — 2019]

 

PROPOSED AMENDMENTS

______________

 

RECOGNITION OF CUSTOMARY MARRIAGES AMENDMENT BILL

 

[B 12-2019]

 

 

CLAUSE 1

 

1.         On page 2, from line 8, to omit the definition of “traditional leader”, and to substitute:

 

“traditional leader” means any person who, in terms of customary law of the traditional community concerned, holds a traditional leadership position and is recognised in terms of the applicable legislation providing for such recognition.”.

 

CLAUSE 4

 

1.         On page 3, in line 23, to omit “2019” and to substitute “2020”.