REPORT ON ISSUES RAISED BY THE PORTFOLIO COMMITTEE ON THE REPEAL OF BLACK ADMINISTRATION ACT AND AMENDMENTS OF CERTAIN LAWS BILL, 2005


1. INTRODUCTION


On 11 October 2005 the Portfolio Committee on Justice and Constitutional Development, having considered the Repeal of the Black Administration Act and Amendment of Certain Laws Bill, 2005 [B25 - 2005] (the Bill, a copy of which is attached for ease of reference), presented its report to the National Assembly. In the report the Committee directed various authorities, including the Department of Justice and Constitutional Development, to report to it by 31 January 2006 on certain issues in order to monitor progress being made before the expiry of the sunset clauses of 31 July 2006, contained in the Bill. A copy of this report is attached for ease of reference


2. BACKGROUND


The Department of Justice and Constitutional Development was instructed to report back on the following issues:


a) Progress made with the enactment and implementation of appropriate legislation, substituting the legislation dealing with the judicial functions of traditional leaders and traditional courts, currently dealt with in sections 12 and 20 and the Third Schedule of the Black Administration Act, 1927 (Act 38 of 1927) (the Act). (See paragraph (ii) of the report which relates to clause 1(3) of the Bill).


b) Progress made with the enactment and implementation of appropriate substitute legislation dealing with matters currently regulated in section 22 (7) and (8) of the Act, and progress made in the investigation of the proprietary rights of other categories of women in relationships that are not recognised by the Marriage Act, 1961. (See paragraph (ii) of the report which relates to clause 1 (4) of the Bill).


c) Report back on paragraph (iv) of the report, where the Department was requested to forward to all relevant role-players the table prepared by the Department, containing particulars of subordinate legislation passed under the Act and which still seems to be in operation and which needs to be either repealed, amended or substituted (This relates to clause 1 (6) of the Bill).


3. REPORT


3.1 Judicial Functions of Traditional Leaders (sections 12 and 20 of the Act)


As mentioned during the briefing by the Department on the Bill, the South African Law Reform Commission investigated and reported on the judicial functions of traditional leaders and made legislative recommendations in this regard.


The Department is in the process of evaluating these recommendations but, because they have financial implications and because the issue of traditional courts should ideally be dealt with in the larger project of the Department on the rationalisation of the courts, it has been decided that the substitute legislation to regulate the judicial functions of traditional leaders should be "minimalist" in nature, pending the enactment of permanent and more comprehensive legislation in this regard.


A Bill, giving effect to this approach, has been prepared and is based largely on the existing provisions contained in sections 12 and 20 and the Third Schedule to the Act. The only real changes relate to terminology. It is planned to submit this Bill to Cabinet at the first available opportunity, where after it can be submitted to Parliament for consideration. The purpose of the interim Draft Bill is to address the lacuna that will be created by the repeal of sections 12 and 20 and the Third Schedule of the Act on 31 July 2006.


3.2 Section 22 (7) and (8) of the Act: Civil marriages entered into during the subsistence of customary marriages


3.2.1 The partial recognition of customary marriages by the country's legal system, prior to 1994, and, more particularly, prior to the enactment of the Recognition of Customary Marriages Act, 1998 (Act 120 of 1998), led to legal anomalies. The most obvious one was the effect that a civil marriage had on an existing customary marriage. The civil marriage automatically nullified any existing customary marriage that a party may have entered into prior to contracting a civil marriage.


This meant that the wives and children of the customary marriage were left without any legal protection. Section 1 (2) of the Marriage and Matrimonial Property Law Amendment Act, 1988 (Act 3 of 1988), however, put an end to the practice of men deserting their customary marriage wives in order to enter into civil marriages by providing that "no person who is a partner in a customary union shall be competent to contract a marriage during the subsistence of that union".


Section 22(7) of the Act was, at the same time, also amended to provide some kind of protection to the wives and children whose husbands or fathers in a customary marriage had subsequently entered into civil marriages between 1 January 1929 (that is the date of commencement of section 22 of the Act) and 2 December 1988 (that is the date of commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988 (Act 3 of 1988)).


The effect of this provision was to equate the civil marriage which was contracted during the subsistence of a customary marriage before 2 December 1988 with a customary marriage, in that the estate of the civil marriage was treated as house property on the death of the husband. In other words, the proprietary rights of those who were deserted were taken care of by section 22(7) of the Act. The above legal position means that any civil marriage entered into after 2 December 1988, during the subsistence of a customary marriage, is null and void. A similar provision is contained in section 3(2) of the Recognition of Customary Marriages Act, 1998 (Act 120 of 1998), which provides that"... no spouse in a customary marriage shall be competent to enter into a marriage under the Marriage Act, 1961 (Act 25 of 1961), during the subsistence of such customary marriage."


3.2.2 The Recognition of Customary Marriages Act, 1998, by virtue of section 2(1), recognises customary marriages that were valid in terms of customary law and that were entered into prior to the commencement of the 1998 Act (which was on 15 November 2000). However, the question arises whether this provision validates those nullified customary marriages referred to above .The presumption against retrospectivity does not allow the validation of those customary marriages, unless this is expressly stated in the Act. The validation of such marriages would also be in conflict with the principle of legality.


It would also mean that these customary marriages would co-exist with civil marriages, in conflict with the principle of monogamy, which is at the heart of a civil marriage. In the interests of good governance and to avoid chaos in the administration of justice the Recognition of Customary Marriages Act, 1998, therefore, could not and did not attempt to validate those customary marriages which were null and void before the coming into operation of the 1988 Act. Hence the continued need for the protection afforded by section 22(7) and (8) of the Act, which is not covered by the Recognition of Customary Marriages Act, 1998.


3.2.3
The Department is of the view that vested rights created under section 22(7) and (8) of the Act are already protected. Clause 1(8)(a) of the Bill contains savings provisions. This clause makes provision for the protection of vested rights and provides that the repeal of any section of the Act, including sections 11A, 31 and 34 and the Second Schedule of the Act , by the Bill does not affect any rights acquired in terms of those sections prior to their repeal.


3.2.4 Moreover, section 12(2)(c) of the Interpretation Act, 1957 (Act 33 of 1957), dealing with the effect of the repeal of a law, provides that when a law repeals any other law, then, unless the contrary intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed.


3.2.5 The rights acquired in terms of sections 22(7) and (8) of the Act are therefore protected by the above two provisions. However, the Department intends making sure that the rights acquired by the category of women and children in question will be protected by inserting a clause, along the lines of section 22(7) and (8) of the Act, in a Judicial Matters Amendment Bill, which is being prepared.


3.3 Other categories of relationships not recognised by the Marriage Act 1961,


3.3.1 Customary marriages entered into during the existence of a civil marriage


3.3.1.1 One of the categories of women who are in relationships that are not recognised or regulated by the Marriage Act, 1961, is that of those persons who entered into a customary marriage while the other partner is a spouse in a subsisting civil marriage. This may have been done with or without the knowledge of the other party, the wife in particular. The legal position is that such a customary marriage is void ab initio.


3.3.1.2 A civil marriage has always enjoyed a superior position and is strictly monogamous. A civil marriage has been defined as "the legally recognized voluntary union for life in common of one man and one woman to the exclusion of all others while it lasts".


3.3.1.3 Section 35 of the Act contains a definition of "customary union" and "marriage". "Customary union" is defined as "the association of a man and a woman in conjugal relationship according to Black law and custom, where neither the man nor the woman is party to a subsisting marriage". A "marriage" means "the union of one man with one woman in accordance with any law for the time being in force in any Province governing marriages, but does not include any union contracted under Black law and custom or any union recognized as a marriage in Black law under the provisions of section one hundred and forty-seven of the Code of Black Law contained in the Schedule to Law No. 19 of 1891 (Natal) or any amendment thereof or any other law".


3.3.1.4 Our courts, guided by these provisions, have held in a number of cases that a customary marriage, contracted during the subsistence of a civil marriage, is null and void.


3.3.1.5 This position also serves as an illustration of a clear distinction between customary law and the common law. Customary marriages are potentially polygynous, in that, during the subsistence of a customary marriage, the husband faces no legal barrier to entering into a second or subsequent customary marriage. An argument may be raised that since such a marriage is valid in customary law it was validated by section 2(1) of the Recognition of Customary Marriages Act, 1998, but, as pointed out above, it cannot co-exist with a civil marriage.


3.3.1.6 The Recognition of Customary Marriages Act, 1998, confirms the legal position as discussed above. Section 10(4) of this Act

provides that," , no spouse of a marriage entered into under

the Marriage Act, 1961, is, during the subsistence of such a marriage, competent to enter into any other marriages".


3.3.1.7 The issue that must be considered is the protection of proprietary rights of partners (and children) in such relationships. This category cannot be covered by the limited protection of section 22(7) of the Act. This subsection protects proprietary rights acquired during the subsistence of a customary marriage before the partner contracts a civil marriage which then nullified the customary marriage. The position in the category under discussion is reversed, meaning that the customary marriage does not even begin to exist. Customary marriages which were entered into after the solemnisation of a civil marriage were automatically null and void.


3.3.2 Domestic partnerships

3.3.2.1


The number of people living in unrecognised, marriage-like relationships has increased worldwide and also in South Africa. There is mounting dissatisfaction with the failure of the law to adapt to changing patterns of domestic partnerships in a country espousing democracy and equality.


3.3.2.2 Government is in the process of looking into the issue of domestic partnerships.


3.4 Religious Marriages not recognised or regulated by the Marriage Act, 1961


3.4.1 Islamic Marriages


3.4.1.1
Islamic marriages fall within the category of relationships not recognised as marriages by the Marriage Act, 1961. Under the new dispensation various endeavours on the part of the Muslim community to seek legal recognition of aspects of Muslim Personal Law finally led to the establishment of a Project Committee of the South African Law Reform Commission in respect of its investigation into Islamic Marriages and Related Matters.


3.4.1.2 The Law Reform Commission has presented a report to the Minister, which is currently being evaluated by the Department.


3.4.2 Hindu Marriages

Spouses in Hindu marriages do not seem to experience problems of the kind mentioned above. It would seem as if Hindu spouses conclude civil marriages which are then followed by traditional Hindu marriage ceremonies if the priest presiding at the traditional ceremony is not a marriage officer in terms of the Marriage Act, 1961. It is, however, understood that more and more Hindu priests who preside at traditional Hindu marriage ceremonies are marriage officers in terms of the Marriage Act, 1961, obviating the need for two "marriages". This is similar to the position of Christian and Jewish marriages. This was confirmed by Mr A Trikamjee, President of Maha Sabha of South Africa, a body representing the Hindu community.


4. Subordinate Legislation in terms of the Act

The Department undertook a preliminary investigation to identify subordinate legislation enacted in terms of the Act and which has been kept alive by virtue of sections 5 and 8 of the Abolition of Racially Based Land Measures Act, 1991, and produced a table containing the results of such investigation. In line with the instructions contained in paragraph (iv) of the Portfolio Committee's report to bring this table to the attention of any role-player who may possibly be responsible for the administration of the identified subordinate legislation, the Department forwarded this table, under cover of a letter explaining the issues, to all possible role-players in November 2005.