Repeal of Black Administration Act and Certain Laws Amendment Bill: adoption

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
21 June 2006
REPEAL OF BLACK ADMINISTRATION ACT AND CERTAIN LAWS AMENDMENT BILL: ADOPTION

Chairperson: Kgoshi L Mokoena (ANC, Limpopo)

Documents handed out:
Repeal of Black Administration Act and Certain Laws Amendment Bill (B11B-2006)
Committee Programme for third term
 
SUMMARY
The Committee unanimously adopted the Repeal of the Black Administration Act and Certain Laws Amendment Bill after inputs by the Department of Justice and Constitutional Development. The Committee also adopted its work programme for the third term of the 2006 parliamentary session, including oversight visits.

MINUTES

Repeal of Black Administration Act and Certain Laws Amendment Bill: Consideration and Adoption

The Chairperson thanked Members for the commitment they displayed the previous Monday when they attended a meeting that had been rescheduled at the last minute.

He reminded the Committee that the Department of Justice and Constitutional Development (DOJCD) had already informally briefed the Committee on the Repeal of the Black Administration Act and Certain Laws Amendment Bill (B11-2006).

Mr Lawrence Basset, DOJCD Chief Director: Legislation, would now formally table the Bill before the Committee. He had already explained the reasons why the Bill needed to be passed before the Committee adjourned for its constituency period. The reasons for the amendments had already been vigorously discussed.

The Committee agreed that since the matter had already been discussed at length it would only be necessary for Mr Basset to summarise the major points relating to the amendments.

Mr Basset said that the main purpose of the Bill was to extend the deadline for the provisions in the Repeal of the Black Administration Act (BAA) and Certain Laws Amendment Bill that was passed in 2005. The sunset clause said that certain provisions in the BAA would be repealed on 31 July 2006 or on such earlier date that substitute legislation was in place. The Department had encountered various problems with the preparation of substitute legislation dealing with the judicial functions of traditional leaders. The Committee had already been informed of the nature of these concerns and challenges. The Department approached Cabinet with a request for the sunset clause of 31 July 2006 to be extended to 31 May 2007. The Portfolio Committee on Justice and Constitutional Development then suggested that as a precautionary measure this date should be extended further to 30 September 2007. The B version of the Bill contained the amendment proposed by the Portfolio Committee and accepted by the National Assembly. The Department thus had four months longer within which to formulate substitute legislation.

Mr A Manyosi (ANC, Eastern Cape) asked Mr Basset to expand on the reasons that had led to the need for an extension.

The Chairperson said that this question had been raised at the previous meeting and had been thoroughly discussed.

Mr Basset said that one of the main surprises that arose related to the fact that there was provincial legislation dealing with conferring judicial functions on traditional leaders. In 1994 in a process of assigning legislation to the provinces some legislation dealing with the judicial functions of traditional leaders were assigned to some areas of some provinces. The Department had been unaware legislation of this nature had been assigned to some provinces because judicial functions were a national competence. One of the main challenges related to Sections 12 and 20 of the BAA. These sections dealt with the judicial functions of traditional leaders and applied to certain parts of the country while provincial legislation applied to other parts (particularly those of the former homelands).

The Department found that in the North West (the former Bophuthatswana) the authority to deal with criminal and civil matters had been conferred, by virtue of their provincial legislation, not on individual traditional leaders but on an authority. This was a big departure from what applied to the rest of the country. In addition appeals from this traditional structure did not go the magistrates’ courts (as was the case in terms of the BAA) but went to a special court that consisted of the magistrate and two additional members from the traditional authority.

In the former Ciskei traditional leaders had the authority, by virtue of their appointment, to deal with criminal and civil matters arising from customary law and custom. In terms of the BAA the Minister of Justice conferred that power on the traditional leaders.

In terms of the BAA traditional leaders had the power to arrest and bring before a magistrate any person who had failed to pay a fine that a traditional leader had imposed upon him or her. The magistrate could then sentence the defaulter to a fine or imprisonment. This raised concerns around traditional leaders encroaching upon the powers of the police.

Another provision in the BAA said that in civil cases if there was an appeal, the value of the dispute in question had to be more than R10. Civil appellants could not go on appeal if the value of the dispute was less than R10. This led to questions around the constitutionality of prohibiting a person from appealing to a higher court.

Questions also arose around consenting to the jurisdiction of a traditional leader. In terms of the BAA a person who was resident in the area of jurisdiction of the traditional leader in that particular area was automatically subject to that leader’s jurisdiction. Questions arose as to whether litigants should not be able to consent to the jurisdiction of a traditional leader.

The Department had to reconcile two different systems that applied in different parts of the country and had to make provisions for transitional arrangements and other technical and very difficult issues. It had had considerable difficulty in trying to establish what the law stated because there seemed to be conflicting views.

The Chairperson said that he felt the Committee could not prescribe to the President when he should sign the legislation. In matters that were of a very serious nature the Committee would insist that they could not prescribe deadlines to the President.

The Committee agreed that it was desirable to pass the legislation.

The Committee also approved its report stating that they had passed the Bill without any amendments.

The Chairperson said that he would make a statement to the House, on behalf of the Committee, to indicate that they had passed the Bill.

Other Committee business
Adoption of the Committee Programme for the third term of Parliament

The Chairperson said that in the second week of the term, the Committee would visit correctional facilities, magistrates’ courts, etc. in the North West. The Committee would then be able to determine whether procedures were being followed. He reminded Members that the programme could be changed if necessary.

Mr Manyosi was pleased that the Committee would know in advance what their activities for the following months would be. He requested that the programme be reconciled with the Select Committee on Local Government and Administration programme.

Mr l Fielding (DA, Northern Cape) wondered when the Committee would be able to visit Springbok and the surrounding areas.

The Chairperson suggested that Mr Fielding and Mr Motseki determine whether there was any chance of making such a visit.

Mr A Motseki (ANC, North West) reminded Members that when they discussed the oversight visits in 2005 they had agreed to visit the Northern Cape after they had visited the North West Province.

The Chairperson said that unfortunately the Committee would not be visiting KwaZulu-Natal since they had been told to give advance warning of their oversight visits. The Committee would not work in that manner.

The Committee unanimously adopted the programme.

Statements to be made in the National Council of Provinces (NCOP)

On 19 June the Committee had passed a report dealing with the magistrates. This report now had to be formally tabled in the NCOP. Mr Motseki volunteered to, that afternoon, make a statement to the NCOP on behalf of the Committee.

The Chairperson said that the Committee had passed resolutions about the magistrates who had behaved “unbecomingly”. Magistrate Makamu was convicted and his case had been finalised.

The Committee might be expected to make a statement to confirm their approval of his dismissal.

Mr D Worth (DA, Free State) agreed to make the statement to the NCOP.

The meeting was adjourned.