Report of the Portfolio Committee on Justice and Constitutional Development on Reform of Customary Law of Succession and Regulation of Related Matters Bill [B10D – 2008] (National Assembly – section 76), dated 19 February 2009:

The Portfolio Committee on Justice and Constitutional Development, having considered the Reform of Customary Law of Succession and Regulation of Related Matters Bill [B10D -2008] (National Assembly – section 76), amended by the National Council of Provinces and referred to the Committee, reports that it has agreed to the Bill.

The Committee, however, wishes to make the following comments:

1. The National Council of Provinces amended the definition of “descendant” in clause 1 of the Bill to provide as follows:

“‘descendant’ means a person who is a descendant in terms of the Intestate Succession Act, and includes –

(a) a person who is not a descendant in terms of the Intestate Succession Act, but who, during the lifetime of the deceased person, was accepted by the deceased person in accordance with customary law as his or her own child; and

(b) a woman referred to in section 2(2)(b) or (c).”.

2. Clause 2(2)(b) and (c), provides as follows:

“In the application of the Intestate Succession Act –

(b) a woman, other than the spouse of the deceased, with whom he had entered into a union in accordance with customary law for the purpose of providing children for his spouse’s house must, if she survives him, be regarded as a descendant of the deceased;

(c) if the deceased was a woman who was married to another woman under customary law for the purpose of providing children for the deceased’s house, that other woman must, if she survives the deceased, be regarded as a descendant of the deceased.”.

3. The Committee raised the question whether paragraph (b) of the new definition of “descendant” was necessary since clause 2(2)(b) and (c) already states quite clearly that these women are to be regarded as descendants. The Committee expressed the view that to include these women in the definition while clause 2(2) already deems them to be descendants amounts to tautology.

4. The Committee, however -

(a) taking into account the benefits that will derive from the Bill when it is passed into law, particularly for women and children; and

(b) realising that any changes to the Bill at this late stage shortly before Parliament is to dissolve for the 2009 general election, will probably give rise to a delay in enacting and implementing the Bill,

has decided to approve the Bill as amended by the National Council of Provinces, notwithstanding its reservations about the above aspect.

5. The Committee, however, requests the Department to consider the reservations expressed and to revert to Parliament as soon as possible after the election, with an amendment if the definition, as it has been adapted by the National Council of Provinces, could give rise to unintended consequences or if it would improve the quality of the Bill.

6. The Committee wishes to express its concern about the speed in which the amended Bill was referred to it for finalisation and wishes to communicate its concern in this regard to all relevant stakeholders, including the National Council of Provinces, the programme structures in Parliament and the Department. The Committee urges that we desist from dealing with draft legislation in this manner in future.

Report to be considered.