Repeal of Black Administration Act & Amendment of Certain Laws A/B: Department response

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
7 June 2006
REPEAL OF BLACK ADMINISTRATION ACT & AMENDMENT OF CERTAIN LAWS A/B: DEPARTMENT RESPONSE

Chairperson: Kgoshi L Mokoena (ANC, Limpopo)

Documents handed out:
Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill (2005)
Committee’s Report on the Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill, 2005
Report by the Department of Land Affairs
Report by the Eastern Cape Provincial Government
Report of the Provincial Government
Report of the Free State and Gauteng Provincial Government
Report of the Limpopo Provincial Government
Report of the KwaZulu-Natal Provincial Government: Part 1 & 2
Presentation on the repeal of Subsection 6, and proclamations/ regulations made under Subsection 25 and Subsection 30 of the Black Administration Act 38/1927: Part 1 & 2
[please email docs@pmg.org.za for documents]

SUMMARY
The Departments of Justice and Constitutional Development, Provincial and Local Government and Land Affairs responded to requests that had been made in the Committee’s report on the Repeal of the Black Administration Act and Amendment of Certain Laws Bill (2005). Some Members raised concerns about the North West province’s failure to respond to requests for a report. There was also a concern relating to the fact that despite South Africa’s democracy being more than a decade old, discriminatory legislation was still on the statute book. Members urged the departments to take care to avoid possible delays at a later stage resulting from their failure to consult with traditional leaders.

MINUTE
Department of Justice and Constitutional Development Briefing
Mr Lawrence Bassett, Chief Director of Legislation, said that interim legislation was aimed at facilitating the repeal of the Black Administration Act (BAA). He informed the Committee that the Department had approached Minister Brigitte Mabandla and came up with a policy framework that would culminate in the enactment of legislation. This would occur after consultation with all the relevant role players. For the process to be conducted in the appropriate consultative manner the Department requested an extension. This resulted in the amendment that would extend the repeal deadline to 31 May 2007.

He informed the Committee that the Portfolio Committee on Justice and Constitutional Development had suggested that, as a precautionary measure, the deadline should be further extended to 30 September 2007 to make sure that there would be no need to ask for a further extension if the legislation was not in place by 31 May 2007. The principals in the Department also felt that this was a good suggestion. He assured the Committee that the Department wanted to get the legislation on the statute book at the earliest possible time and would like to see this happen before 30 September 2007.

Responses to the Committee’s Report on the Repeal of the Black Administration Act and Amendment of Certain Laws Bill
Mr K Melalathoko, Principal State Law Advisor (Department of Justice), briefly spoke to the Department’s responses to the recommendations and requests the Committee made in its report. He elaborated on the review of the legislation that was still discriminatory. The South African Law Reform Commission (SALRC) assisted the Department in this regard. The SALRC would investigate all departments and not only the Department of Justice. The report also contained responses to questions around the protection of the propriety rights of all women whose marriages were not recognised in terms of the Marriage Act (1961) and how the Children’s Bill (2003) would impact on the property of minors who had been orphaned due to the HIV/Aids pandemic.

Department of Provincial and Local Government (DPLG) Presentation
Ms V Zini, Senior Manager: Legal Services (DPLG), reminded the Committee that the DPLG was a relatively new department and that the Black Administration Act did not apply directly to the legislation that was administered by the Department. The Department had received reports from seven provinces. The Northern Cape did not have traditional leaders (and was thus not effected by the legislation) and the North West province failed to respond to the request for a report. The reports indicated that provinces had alternative legislation in place so the repeal of the Act would not have unintended consequences. Some provinces had legislation that had the same requirements as the BAA. This posed a challenge to the exercise of the judicial functions of the traditional leaders in these communities.

Department of Land Affairs (DLA) Presentation
Ms M Chetty, Parliamentary Legal Officer (Department of Land Affairs) presented the report on behalf of the line functionaries who were unable to attend the meeting. The Department of Land Affairs had been asked to form a legal interdepartmental task team to investigate the unintended consequences of the repeal of the Black Administration Act. The DLA approached service providers to identify subordinate legislation that was enacted in terms of any of the provisions of the BAA. The report detailed the extent of the proclamations and regulations that were enacted, along with the relevant departments that were responsible for administering these pieces of legislation.

Discussion
The Chairperson wondered whether it was appropriate for Committees to subject the President to certain deadlines.

Mr Bassett agreed that the law would say that a law came into operation on a date fixed by the President.

Mr Fielding (DA, Northern Cape) wondered whether Section 12 and Section 20 were the only problematic Sections in the Black Administration Act (BAA).

Mr Bassett responded that the suggested date would also be applicable to Section 1(2), (4), (5) and (6) of the principal Act. The Department of Land Affairs and the Department of Provincial and Local Government would handle these sections. These two departments had also agreed to the extension. The date would apply to the sections of the principal act that included sunset clauses.

Mr Z Ntuli (ANC, KwaZulu-Natal) asked what had caused the delay and wondered how the Department of Justice had arrived at 31 May 2007 as the date for the extension.

Mr Bassett explained that some of the provinces had their own provincial legislation. In 1994 some legislation from the national level of Government was assigned to some of the provinces. This provincial legislation was still in place in some of the provinces. The BAA thus only applied to some parts of the country. The provincial legislation was largely limited to the geographical area of the former homelands and presented a different legal issue to the one contained in the BAA.

Mr Bassett gave a number of examples illustrating the discrepancies between the two systems.
The BAA gave the Minister of Justice and Constitutional Development the power to confer criminal and civil jurisdiction on individual traditional leaders. In the former Bophuthatswana for example the authority to deal with criminal and civil matters arising from customary law was not conferred onto individual traditional leaders but on tribal authority structures. Furthermore appeals from these traditional structures did not go to the magistrate’s courts but to a special court in the magisterial district in that part of the country. This court consisted of the magistrate and traditional leaders who were experts on customary law.

Mr Basset added that in the former Ciskei the provincial legislation gave chiefs automatic jurisdiction to deal with criminal and civil matters by virtue of their appointment as traditional leaders whereas in the rest of the country the Minister of Justice would be approached to confer that jurisdiction on those individuals. In terms of the BAA a traditional leader had the power to arrest a person who had been fined for a criminal offence but had failed to pay the fine. He or she could then be brought before the magistrate’s court. One would thus also have to consider matters where the BAA gave traditional leaders powers that encroached upon the powers of the South African Police Service (SAPS).

Mr Basset said the BAA contained a provision that stated that in civil matters an appeal could not be lodged if the monetary value of the issue in question was below R10. This raised questions around constitutionality: how could one limit a person’s right to appeal to a higher court. While the BAA gave the Minister the power to confer civil jurisdiction on traditional leaders, there did not seem to be any monetary value on the claims that the traditional leaders could deal with. The Department had a planning document and would be more comfortable with 31 May 2007 as a closing date.

Mr D Worth (DA, Free State) wondered whether the amendments would be of such a nature that it would have to go before the provinces for consideration and a mandate. Certain parts of the legislation only impacted on certain provinces.

Mr Bassett said that the substitute legislation would eventually have to go to the provinces. He imagined that it would be a Section 76 piece of legislation and would thus have to go to the provinces for a mandate.

Dr F Van Heerden (FFP, Free State) noted that the Memorandum to the Bill indicated that the state law advisors did not think it necessary to refer the Bill to the National House of Traditional Leaders. He was concerned that if the traditional leaders were not consulted they might at a later stage come up with concerns that might delay the process.

Mr Bassett reminded the Committee that Section 18 of the Traditional Leadership and Governance Framework Act required that any draft legislation that was introduced into the legislature pertaining to customary law or custom had to be referred by the secretary of the legislature to the National House of Traditional Leaders. He admitted that the Department was a bit concerned because the principal Act (a Section 76 piece of legislation) was referred to the National House of Traditional Leaders. The Department would be cautious and had requested advice from the State Law Advisors.

Ms F Nyanda (ANC, Mpumalanga) was also concerned about whether traditional leaders would be consulted or not.

Mr Bassett confirmed that the traditional leaders had not been consulted since the present discussion was merely about extending dates. The Department of Justice was working against a deadline. It needed to work towards getting the Bill passed by 31 July 2006. If provisions were to lapse come 31 July, there would be a legal vacuum as far as the judicial functions of traditional leaders were concerned.

Mr Fielding asked whether there were any sections, especially those related to customary marriages that would be left to the Department of Home Affairs to address.

Mr Bassett said that when the principal Act was adopted the previous year, the Department of Justice wrote to all other national and provincial departments asking whether they had any legislation that needed to be addressed prior to the repeal of the BAA. The Department of Home Affairs had submitted a very definite reply stating that the matter did not affect them.

The Chairperson requested the Department of Land Affairs to explain which additional legislation it had identified.

Ms Chetty said that they had identified the Black Areas Township Regulations of 1962 (Proclamation R293) and the Regulation for the Registration of Deeds in Towns. The Deeds Registry Amendments Bill that was in place now was aimed at continuing effecting the legislation in terms of the above-mentioned proclamations. About 35 000 transactions were registered in the Deeds Office in terms of these proclamations. People continued to transact with the rights acquired under the BAA.

The Chairperson asked whether there was a Bill that addressed these issues and whether both the National Assembly and the National Council of Provinces had been briefed on it.

Ms Chetty confirmed that the Deeds Registries Amendment Bill was before Parliament. The Portfolio Committee on Justice and Constitutional Development had been briefed and the Bill was scheduled to be debated in Parliament the following day. Hopefully the Select Committee would be briefed by the following week.

The Chairperson requested clarity on the involvement of the Deeds Office.

Ms Chetty explained that that the Deeds Registries Amendment Bill would enable the Deeds Office to continue registering transactions in terms of rights acquired under the BAA relating specifically to Proclamation R293 and Proclamation R403 of 1988.

Mr A Moseki (ANC, North West) was concerned that more than a decade after South Africa’s freedom, legislation dating back to the previous regime still existed. He wondered whether the departments present could give the Committee the assurance that all discriminatory legislation that was not in line with the Constitution would be removed in the next two years. He cautioned that if this matter was not dealt with Government might be faced with legal challenges against the State and the Constitution.

Dr Van Heerden remarked that it would take a long time for the Departments and the Law Reform Commission to eradicate all such legislation. He wondered whether other unconstitutional matters, apart from the Equality Clause, in existing legislation would also be addressed. He mentioned the fact that many complaints of unconstitutional provisions led to extensive and sometimes, protracted legislative processes.

Ms Zini said that it would be preferable to do away with all the unconstitutional legislation as soon as possible. Due to the complexity of some of the procedures that would have to take place in the case of some such legislation it would be very difficult to commit to a two-year period. Instead of summarily repealing such legislation and then having to face the unintended consequences of such hasty action, thorough investigation of each piece of legislation would have to be done.

Mr Basset agreed that it would be preferable that all laws complied with the Constitution but some would require a lot of investigation. He would like to see that the Law Commission’s investigation be an all-encompassing, intersectoral endeavour. Cabinet had endorsed the investigation and approved that money be set aside to adequately resource this project and to ensure that it was structured in such a manner that all departments would be able to participate. This project would help speed up the process.

Ms Chetty added that most departments, including the Departments of Agriculture and Land Affairs were in the process of doing a major overhaul of all their legislation to ensure that it was in line with the Constitution. She pointed out that there were hiccups but the Department of Land Affairs hoped that it would have dealt with all non-compliant legislation within the next two years.

Mr Bassett said that Section 9 of the Constitution and equality would be one of the focus areas. The project would also look at other obsolete and redundant provisions. The initial focus would be on discrimination.

Mr Moseki acknowledged the complexity of this matter but felt that more than a decade into South Africa’s democracy something needed to be done. He wondered whether law students could not be used to, in the context of government’s learnership programmes, give assistance in the speedy resolution of the matter.

Mr Worth asked whether old discriminatory legislation was not reinterpreted in terms of the Constitution. The Constitution would then override any such provisions, except perhaps when it was of a too technical nature.

Mr Bassett responded that the Courts have on many occasions declared that certain provisions were unconstitutional. The relevant departments would then be given time to remedy the situation.

Dr Van Heerden wondered about the impact that the fusion of customary and civil marriages would have on third party claims, divorce and maintenance and insolvency.

Mr Bassett requested leave to respond to this question at a later stage since he would have to do some research on it.

Mr Moseki felt the fact that the DPLG was a fairly young department did not justify some provinces failing to submit reports it was requested to. The Department needed to account for provinces that were allowed to ignore such requests. He wondered what action the Department had taken against the North West province.

Ms Zini said that Minister Sydney Mufamadi had signed the report she submitted to the Committee. The Minister was aware that the North West had failed to submit their report. The letters requesting the reports were addressed to the Premier and the relevant Member of the Executive Council (MEC). She was of the opinion that the North West’s report would be tabled at a political level.

The Chairperson appealed to the DPLG to follow up on the provinces that failed to submit reports.

The Chairperson noted that to his knowledge some courts could not try a case if the person being tried was not of the same race as that community. He wondered what the positive and negative aspects of this legislation were.

Mr Bassett said that this was one of the challenges the Department was faced with. The BAA said that for both criminal and civil cases the qualification for falling under the jurisdiction of a traditional leader was that one had to be a resident of that community and one had to be a black person.

The Chairperson wondered why men qualified for their pension grant at age 65, while women qualified at age 60. He felt that this was discriminatory. The Committee had also posed this question to the Commission on Gender Equality (CGE).

Mr Moseki wondered how this question could be addressed in the context of the equality clause.

Ms Zini said that the division was based on how the “genders were created”. The rationale was based on the notion that “generally men were stronger than women”.

Mr Bassett said that this question related to the functions of the Department of Social Development.

The Chairperson pointed out that in many African communities it was felt that if a woman were to ascend the thrown there would be a diversion from the clan system and the chieftainship would die out.

Ms Zini felt that the root of the problem was that children assumed the surname of the husband and thus belonged to the husband’s family. If society could move away from the principle that women should take the surnames of the men they married this question would partially be addressed. She felt that there was very little defence for this argument. Her understanding was that biologically the child’s “make up” was divided equally between the mother and the father.

Dr Van Heerden commented that this was a difficult and complicated issue. He had not given thought to the aspect of the debate that related to succession.

Ms Nyanda wondered what would happen if a chief married a woman and then passed away three years later without having had any children. His widow then took over his chieftainship and married another man. She wondered whether the children of this marriage would be eligible to the “thrown” if there was no other member from the first husband’s clan.

Ms Zini was of the opinion that if there was no one to succeed the deceased she would verify whether there was no one from the woman’s family who might be eligible instead of having the children of another man succeed to the thrown.

The Chairperson said that such a person would not be a direct descendant. He also pointed out that even if one assumed one’s husband’s name, one still was not a blood relation.

Ms Chetty requested permission to pass the questions the Committee had raised on to the relevant line functionaries from the DLA who would respond at a later stage.

The meeting was adjourned.

The following statements did not appear to have been addressed in the joint responses by the three departments.
The Chairperson commented that banks still discriminated when it came to the approval of loans. A loan was granted based on a client’s credit worthiness. They did not even consider whether one wanted to use the loan for a business endeavour.

The Chairperson said that apart from in Mafikeng, many communities only owned the surface of the land. He thought that such communities were being discriminated against. The Chairperson said that if a person decided that they wanted to own land communally then persons could be given permission to occupy (PTO). In his constituency people preferred that land be owned communally and not by individuals. This meant that no one could repossess houses. They would have to go to the magistrate so that they could agree on a way of coming to an agreement.

Mr Fielding commented that 7 out of the 23 Act 9 areas were situated in the Northern Cape. He sought clarity on how the repeal of the BAA would affect the Act 9 areas especially in relation to the Criminal Procedure Act (CPA).