REPUBLIC OF SOUTH AFRICA
REPEAL OF THE BLACK ADMINISTRATION ACT AND AMENDMENT OF CERTAIN LAWS BILL, 2005
(As introduced in the National Assembly as a section 76 Bill; explanatory summary of Bill published in Government Gazette No 27845 of 28 July 2005)
(The English text is the official text of the Bill)
(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)
[B 25 —2005]
__________________________________________________________
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments
_______ Words underlined with a solid line indicate insertions in existing enactments
BILL
To repeal the provisions of the Black Administration Act, 1927, incrementally; to amend the Administration of Estates Act, 1965, so as to give the Masters of the High Courts jurisdiction over the property of all orphans and minors, including those who are governed by the principles of customary law; to amend the Traditional Leadership and Governance Framework Act, 2003, so as to regulate the liability of a traditional community in respect of the obligations of, or those incurred by, its traditional leadership; and to provide for related matters.
PREAMBLE
SINCE the Constitution of the Republic of South Africa, 1996, as the supreme law of the Republic, was adopted so as to –
AND SINCE the Black Administration Act, 1927 (the Act), is regarded as a law that -
* is repugnant to the values set out in the Constitution, particularly section 1and the Bill of Rights in Chapter 2 thereof;
* is reminiscent of past divisions and discrimination; and
* ought to be repealed as a matter of the utmost urgency;
AND SINCE the repeal of some provisions of the Act in the interests of legal certainty and good governance, necessitates the incremental approach adopted hereunder, by repealing those provisions of the Act requiring legislative alternatives on a fixed and reasonably foreseeable future date or on such date as the legislative alternatives are implemented by the role players in question, whichever occurs earlier;
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:-
Repeal of Act 38 of 1927 and savings
1. (1) Sections 1, 2(1), (2), (3), (5), (6) and (9), 3,
5(1)(a), 11(3)(a), 11A, 21A, 23(1), (2), (3), (5), (6), (7)(b), (8), (9), (10)(a), (b), (c), (e) and (f) and (11), 26(1), 27, 31, 33, 34, and the Second Schedule of the Black Administration Act, 1927 (Act No. 38 of 1927) (hereafter referred to as the Act), are hereby repealed.
(2) Section 2(7), (7) bis, (7) ter and (8) of the Act, the administration of which was not assigned to the relevant provincial authorities in the provinces of –
(i) Gauteng;
(ii) Western Cape; and
(iii) Northern Cape,
by Proclamation No. 139 of 1994 of 9 September 1994 made under Item 14(5) of Schedule 6 to the Constitution of the Republic of South Africa, 1996, is hereby repealed in as much as it applies in the said provinces.
(3) Section 2(7), (7) bis, (7) ter and (8) of the Act, the administration of which was assigned to the relevant provincial authorities in the provinces of –
(a) Kwazulu-Natal;
(b) Free State;
(c) Mpumalanga;
(d) North West;
(e) Limpopo; and
(f) Eastern Cape,
by Proclamation No. 139 of 1994 of 9 September 1994 made under Item 14(5) of Schedule 6 to the Constitution of the Republic of South Africa, 1996, is hereby repealed in as much as it applies in the said provinces on -
(i) 31 December 2005; or
(ii) such date in each of the said provinces when such province repeals the said provisions or their equivalent in its area of jurisdiction and enacts and implements corresponding provincial legislation envisaged in the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2004),
whichever occurs first.
(2) Section 2(7), (7)bis, (7)ter and (8) of the Act is hereby
repealed on –
(a) 31 December 2005 31July 2006: or
(b) such date when the last of the provinces of –
(i) KwaZulu-Natal
(ii) Free State;
(iii) Mpumalanga;
(iv) North West;
(v) Limpopo; and
(vi) Eastern Cape,
have repealed these provisions that were assigned to them or their equivalent and have enacted and implemented corresponding provincial legislative measures envisaged in the Traditional Leadership and Governance Framework Act, 2003 (Act No 41 of 2003) within their areas of jurisdiction ,
whichever occurs first.
Option 2 (First option is to insert section 5(1)(a) in clause 1(1)):
(4)(3) Section 5(1)(a) of the Act is hereby repealed on –
(a) 31 December 2005 ; or
(b) such date as national and provincial legislative provisions measures dealing with the boundaries of traditional communities and the merging or division of traditional communities referred to envisaged in the Traditional Leadership and Governance Framework Act, 2003, are implemented,
whichever occurs first.
(5)(3) Sections 12(1), (2), (3), (4) and (6) and 20(1), (2), (3), (4),
(5), (6) and (9) and the Third Schedule of the Act are hereby repealed –
(a) on 31 December 2005 31 July 2006; or
(b) on such date as national legislation to further regulate the matters dealt with in sections 12(1), (2), (3), (4) and (6) and 20(1), (2), (3), (4), (5), (6) and (9) and the Third Schedule of the Act the structure and functioning of traditional courts is implemented,
whichever occurs first.
(6)(4) Sections 22(7) and (8) and 23(1), (2), (3), (5), (6), (7)(b),
(8), (9), (10)(a), (b), (c), (e) and (f) and (11) of the Act are is hereby repealed –
(a) on 31 December 2005 31 July 2006; or
(b) on such date as national legislation to further regulate the matters dealt with in sections 22(7) and (8) and 23(1), (2), (3), (5), (6), (7)(b),(8), (9), (10)(a), (b), (c), (e) and (f) and (11) of the Act Customary Law of Succession is implemented ,
whichever occurs first.
(7)(5) Section 24 of the Act is hereby repealed on -
(a) 31 December 2005 31 July 2006; or
(b) such date as provincial legislation in KwaZulu-Natal in order to further regulate the matters dealt with in section 24 of the Act the Code of Zulu Law is implemented,
whichever occurs first.
(8)(6) Any –
(a) proclamation made under section 25(1) of the Act, including a proclamation validated by an Act of Parliament, and in force immediately prior to the commencement of section 5 of the Abolition of Racially Based Land Measures Act, 1991 (Act No. 108 of 1991), in an area, including a former self-governing territory;
(b) regulation made under section 30(2) of the Act or any by-law made under section 30A(1) of the Act and in force immediately prior to the commencement of section 8 of the Abolition of Racially Based Land Measures Act, 1991 (Act No. 108 of 1991), in an area, including a former self-governing territory,
which has not been repealed in terms of section 87 of the said Abolition of Racially Based Land Measures Act, 1991, is hereby repealed on –
(i) 31 December 2005 31 July 2006; or
(ii) such date as it is repealed by a competent authority,
whichever occurs first.
(9)(7) Sections 32, 35, 36, 37, the long title and First Schedule
of the Act are hereby repealed subject to the repeal of all the provisions referred to in subsections (1) to (8)(6).
(10)(8) (a) The repeal of sections 11A, 31, 34 and the Second Schedule any section of the Black Administration Act, 1927, by this Act should not be construed as derogating from any right which is not inconsistent with the Constitution and which was acquired in terms of those sections of the Black Administration Act, 1927 prior to the repeal thereof by this Act.
(b) Any restrictive condition contained in a deed which was imposed by virtue of the operation of section 34 of the Black Administration Act, 1927, and contemplated in the Second Schedule thereto, is hereby withdrawn and the Registrar of Deeds having jurisdiction must, without charge, upon application by the owner of the land in question, remove such restrictive condition from the deed.
(b) The Registrar of Deeds having jurisdiction must, without charge, remove any restrictive condition contained in a deed which was imposed by virtue of the operation of section 34 of the Black Administration Act, 1927, and contemplated in the Second Schedule thereto, if the Minister responsible for land affairs in writing approves an application by the owner of the land in question for such removal.
Amendment of section 4 of Act 66 of 1965, as amended by section 1 of Act 86 of 1983, section 26 of Act 57 of 1988, section 4 of Act 20 of 2001 and section 2 of Act 47 of 2002
2. Section 4 of the Administration of Estates Act, 1965, is hereby amended by the substitution for subsection (2) of the following subsection:
"(2) In respect of the property belonging to a minor, including property of a minor governed by the principles of customary law, or property belonging to a person under curatorship or to be placed under curatorship, jurisdiction shall lie-
(a) in the case of any such person who is ordinarily resident within the area of jurisdiction of a High Court, with the Master appointed in respect of that area; and
(b) in the case of any such person who is not so resident, with the Master appointed in respect of any such area in which is situate the greater or greatest portion of the property of that person:
Provided that-
(i) a Master who has exercised jurisdiction under paragraph
(a) or (b) shall continue to have jurisdiction notwithstanding any change in the ordinary residence of the person concerned or in the situation of the greater or greatest portion of his or her property; and
(ii) in the case of any mentally ill person who under the Mental Health Act, 1973 (Act 18 of 1973), has been received or is detained in any place, jurisdiction shall lie with the Master who, immediately prior to such reception or detention, had jurisdiction in respect of his or her property under paragraph (a) or (b).".
Repeal of sections 5 and 8 of Act108 of 1991
3. Sections 5 and 8 of the Abolition of Racially Based Land Measures Act, 1991, are hereby repealed on 31 July 2006,
Insertion of section 7A in Act 41 of 2003
3.4. The following section is hereby inserted in the Traditional Leadership and Governance Framework Act, 2003, after section 7:
"Liability of traditional community for obligation of traditional leaders
7A. (1) An obligation incurred by a traditional leader of a traditional community does not bind that traditional community or land owned or rights in land held by that traditional community unless that obligation has been authorised or adopted by the traditional community in terms of subsection (2) and in the case of -
(a) an obligation which relates to or impacts on that land or a right in that land, that obligation has thereafter been ratified in terms of section 24(2) of the Communal Land Rights Act, 2004 (Act No. 11 of 2004) by the Land Rights Board having jurisdiction or, in the absence of such a board, by the national Minister responsible for land affairs; or
(b) any other obligation, that obligation has thereafter been ratified by the Member of the Executive Council in charge of traditional affairs in the relevant province where that traditional community has been recognised.
(2) The decision by a traditional community in respect of an obligation contemplated in subsection (1) must be the informed and democratic decision of the majority of the male and female members of that traditional community who are 18 years or older and who are present or represented by a proxy at a general community meeting convened by the traditional council of that traditional community for the purpose of considering such obligation and of which adequate notice has been given.
(3) A written certificate by the Chairperson of the Land Rights Board or by the national Minister responsible for land affairs or by the relevant Member of the Executive Council in the province, as the case may be, that the obligation has been authorised or adopted and ratified in terms of this section, shall be evidence of those acts.".
Short title
4. This Act shall be called the Repeal of the Black Administration Act, and Amendment of Certain Laws Act, 2005.