Administration of Estates Amendment Bill; Judicial Matters Amendment Bill: finalisation; Proposed Constitutional Amendment Bill

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
22 October 2002
ADMINISTRATION OF ESTATES AMENDMENT BILL; JUDICIAL MATTERS AMENDMENT BILL: FINALISATION; PROPOSED CONSTITUTIONAL AMENDMENT BILL ON FLOOR CROSSING: BRIEFING

Chairperson: Adv de Lange (ANC)

Documents Handed Out:
Administration of Estates Amendment Bill [B54-2002]
Judicial Matters Amendment Bill [B55-2002]
Committee Report on the Administration of Estates Amendment Bill (Appendix 1)
Committee Report on the Judicial Matters Amendment Bill (Appendix 2)
Portfolio Committee Amendments to Administration of Estates Amendment Bill (Appendix 3)
Administration of Estates Amendment Bill [B54B-2002] (Appendix 4)
Moseneke and others v Master of the High Court (link to Constitutional Court website)
Explanatory notes on the effect of the Moseneke judgement
Please email [email protected] for a copy of the following documents
Regulations for the Administration and Distribution of the Estates of Deceased Blacks, R200 of 1987
Proposed Amendments to the above Regulations, under the Black Administration Act
Section 23 of the Black Administration Act, 38 of 1927
Letter from Department of Health on Amendments to Criminal Procedure Act
General Notice 1991 of 2002, Publication of Bill Amending the Constitution

SUMMARY
The Committee unanimously passed the Administration of Estates Amendment Bill and the Judicial Matters Amendment Bill. The Committee was then briefed by the Department of Justice on the proposed Constitutional Amendment Bill to reintroduce 'crossing-the-floor' provisions for national and provincial legislatures.

MINUTES
Adv de Lange (ANC) noted that, due to the time restrictions, the Constitutional Amendment Bill would not be passed this week, instead it would be put to Parliament early in the following session. The NCOP had, in any event, said that they could not pass the legislation in the timescale available. Therefore, there was now a meeting scheduled on 12 and 13 November of three Committees to finalise the wording of the Bill.

This week, however, the Committee should finish two matters: the Judicial Matters Amendment Bill and the Administration of Estates Bill. The latter Bill was responding to the Constitutional Court's Moseneke Judgement. The Judicial Matters Amendment Bill dealt with the salary mechanism and put into effect the Constitutional Court's Satchwell judgement on 'same-sex' partners.

Ms Camerer (NNP) advised that she had received a reply from Minister Maduna regarding a query on Section 29. She passed a copy of the letter to the Chair.

Administration of Estates Amendment Bill
Adv de Lange said that, at the outset, he had told the Department that he would not be passing the Administration of Estates Bill unless the Regulations were also dealt with. Somehow the Department had forgotten this so they were now frantically trying to put together the requisite amendments to the Regulations. The purpose of the Bill was to bring the law into line with the terms of the Constitutional Court's ruling in Moseneke. The judgement had ordered that Section 23(7)(a) was unconstitutional and Regulation 3(1) was inconsistent with the Constitution. However, the Department said that altering Regulation 3(1) required consequential amendments, which were being drawn up now. Mr Cronje represented the Department of Justice.

Clause 1
Mr Cronje motivated for the removal of the words 'or assigned' as he considered them to be superfluous. Adv de Lange asked what the difference would be. Mr Cronje said there would be no difference to the clause reading 'delegated' or 'assigned' and having both terms was repetitious.
Adv Masuthu (ANC) said that the distinction in law was that power delegated was power retained by the superior, whereas powers assigned ceased to be exercisable by the superior.
Adv de Lange summed the resultant consequences to be that the powers would need to be expressly or implicitly delegated or assigned by the superior. On this basis, the Committee therefore decided to retain both terms.

Clause 2
Adv de Lange said that the Constitutional Court judgement had referred to the 'principles' of customary law. To reflect this, the Bill intended to alter the references to customary law to say 'principles of customary law.'

Clause 4
The Judgement had suspended the order of invalidity for a period of two years to enable Parliament to rectify the problem. The original judgement had been handed down on 6 December 2000. Adv de Lange said that, due to his apartheid education, Maths was not his strong point. Therefore, he thought the two year order of invalidity would end on 5 December 2002 and asked Mr Cronje to amend the date accordingly. He also asked for minor grammar corrections: the reference to "such earlier date" was to read "any earlier date" and the "persons which died" should become "persons who died". The reason for Clause 4(2) was to ensure that only estates which had not begun to go through the system would be affected by the Bill when it came into operation.

Adv Masutha queried whether the wording of the sub-clause adequately tackled this problem and, following a brief discussion with the Chair, he conceded that it did.

Mr Mzizi (IFP) asked the Chair to explain what was going on. Adv de Lange explained the situation surrounding the Moseneke judgement, the aim of the Bill, the current discussion and which document the Committee were perusing.

Mr Mzizi (IFP) said he was asking because, due to the changing nature of South African society, inter-racial marriage was resulting in situations where the 'coloured' or 'white' wives of 'African' men were refusing to go to the Magistrate and insisting on going to the Master. Adv de Lange referred him to the reports from the South African Law Commission (SALC) to show their progress on the customary law of succession.

Adv Masutha (ANC) began a discussion on the resultant consequences of the Bill. Historically, where a man had entered into his first two marriages under customary law, then his third had been a civil marriage, the practice was to ignore the customary law implications and administer the estate under the principles of common law. Would this Bill perpetuate this situation? Bearing in mind the desire to recognise customary marriages, would the Magistrate retain the ability to regulate whether the Estate fell to be distributed under customary or common law and would he or she have the power to decide as to the legitimacy of any alleged marriage? Or would these matters now fall under the Master's exclusive competence? Did the Act allow for the co-existence of different laws regulating the distribution of the estate?

Adv de Lange said that these issues did not arise under the Bill currently under consideration as it said the only people excluded by the Act were those whose entire estate fell to be distributed under customary law.

Adv Masutha asked who would have the power to determine whether the estate was to be devolved under customary law?

Adv de Lange (ANC) said this would be borne out by practice. Whether an estate was due to be distributed under customary or common law was a factual issue pertinent to the particular case in hand and could not be determined by legislation.

Ms Camerer (NNP) asked what was happening to the existing provision that common law estates which were being distributed by the Magistrate under common law could have their method of distribution appealed to the Minister? Mr Cronje said this was retained in the Regulations. Mrs Camerer said this was a very useful provision as it allowed for justice to prevail in very unjust situations. However, if all estates were now to be administered by the Master where would the supervision role lie?

Adv Masutha said these questions touched upon the complexity of the situation. To return to his point on the distribution of the estates, if the distribution of the estates was to be transferred to the Master, what was to happen to the expertise which had been built up in the Magistrate's Courts?

Adv de Lange said that the Constitutional Court had said that it was unconstitutional to treat the estates of intestate 'Blacks' different to everyone else's estates. Therefore the Committee had to rectify that. They could not enact provisions which were inconsistent with the Constitutional Court's judgement.

Adv Masutha (ANC) complained that the Committee were ignoring the current situation which perpetuated the inferior treatment of customary law widows over common law widows. Further, the current arrangements were subsuming customary law beneath common law.

Mr Swart (ACDP) asked who the people working in the Master's Office to carry out these 'assigned' tasks would be? Were they employed or were they agents?

Adv de Lange said that, ultimately, it would depend on the re-structuring of the Master's Office, and an arrangement had been entered into where the Magistrates who had been carrying out the tasks were overseeing the Master's Office.

Mr van der Merwe (Master's Office) said that he had drafted a memo on the establishment of a Chief Master. However, as the document was still with the State Law Advisers, Adv de Lange said the Committee would not deal with it at the moment.

Ms Camerer mentioned that the Joint Committee on the Quality of Life and Status of Women had been furious when they noted SALC's slow progress on this area.

The Bill was passed unanimously.

Adv de Lange congratulated the Committee on fixing up Moseneke. Mr Jeffrey (ANC) asked Mr Cronje if there was a translation of the Bill ready. Mr Cronje said there was, but the brief changes made by the Committee today would require the translation to be altered accordingly.

Ms Camerer said she was concerned that too much parliamentary time would be wasted on debating the Bill. She mooted that time be restricted or that only the Minister should speak to it.

Adv Masutha said that whilst he knew many words had been spoken on this subject, it represented a momentous stage in the development of South Africa. Also, for the sake of informing the public, the Bill should be given prominence.

Mr Jeffrey said that, in Ms Camerer's defence, she was not demeaning the importance of the Bill, rather she was saying that there was unanimous consensus on its passing, therefore, the worth of public debate would be limited.

Judicial Matters Amendment Bill
Clause 1 and 2
Adv de Lange reminded the Committee that they had initially decided to remove these two clauses and put them in the Insolvency Bill. However, the Committee had forgotten to do that when they passed the Bill. However, the Committee's initial decision was correct, so the Committee would still reject clauses 1 & 2 and they would be added to the Insolvency Act.

Clause 3
Adv de Lange said that, according to his notes of the previous meeting, the Committee had requested that the 'may' was to be changed to a 'must.' However, the document still contained the word 'may.' He asked Ms Ross, one of the representatives from the Justice Department, to call Mr Bassett at the Department to clarify the instructions given. She did this and confirmed that the instructions had been to make the necessary alteration and the mistake had been on the Department's side.

Clause 4
The Committee accepted the clause.

Clause 5
The Committee accepted it and a response from the Department of Welfare confirmed that they were happy with it too.

Clauses 6,7,8,9,10,11
These clauses were drafted by the South African Law Commission and the Committee accepted them.

Clauses 14,15 and 20
Mr de Lange (Department of Justice) handed out a letter which had been received from the Department of Health which indicated that, despite being unhappy that prisons were to be covered, they were not objecting to the provisions of Clause 14.

Clauses 16,17,18,19
Adv de Lange reminded the Committee that the Fertility Front had addressed them on these clause and the Committee had been in agreement with them.

Clause 20
This clause had been the work of Ms Chohan-Kota (ANC) who, despite some difficulty, had resolved the problems encountered and the Committee approved its terms.

Clause 21
The clause was rejected as it had been passed to another Bill.

Clause 22
Mr de Lange said that the Committee were being asked to reject the existing Clause 22 as it proposed to incorporate too simplistic a response requiring further consequential amendments. Instead, the Senior State Law Adviser asked that the Committee consider a revised clause, which took a more comprehensive approach. The Committee accepted the revised clause and it became the new Clause 21.

Clauses 12 and 13
Mr de Lange said that these were the difficult clauses. They followed on from consultations with Mr Bassett and related to evidence that would be inadmissible in a subsequent criminal trial.

Adv de Lange reminded the Committee that they had looked at jurisdictions throughout the world and had seen that everywhere the right to remain silent was not absolute. There were two broad approaches: the first was to allow the questioned party to remain silent; the second was to compel them to speak but then render that information inadmissible in any criminal trial.

The amendment sought to implement a consultation process between the Master's Office and the senior prosecutor for the division. It did not impose an obligatory solution, but rather allowed the parties to come together and then each decide on the best way forward.

Mr van der Merwe (Master's Office) said he was concerned that the proposed system would lead to delays.

Adv de Lange said there was no reason for it to lead to delays as the senior prosecutor could be notified before hand that an interrogation was planned.

Mr van der Merwe complained that the informal 'consultation' would then become a simple formality.

Adv de Lange said this was not the case as no prescribed course of action was being given to the parties. They were free to proceed as each saw fit: they merely had to talk to each other.

Mr van der Merwe then drew the Committee's attention to the fact that Section 69 of the Insolvency Act brought into effect a different set of provisions. Therefore, the Committee was proposing two different systems.

Adv de Lange asked Mr de Lange from the Justice Department to add that the Insolvency Act prescribed a different system and that any problems were to be reported back to the Committee.

Mrs Camerer (NNP) asked if Adv de Lange was aware if the Standing Committee on the Companies Act was aware of the proposed changes? As they had a 'bird's eye' view of the Act, their input may be invaluable.

Neither Adv de Lange nor the representatives from the Department or the Master's Office knew if they had been consulted and no comments had been received from them.

Long title
Mr de Lange said the Long Title had to be amended to exclude references to the Promotion of Access to Information Act and the Attorney's Act.

Adv de Lange read out the motion of desirability and the Committee unanimously passed it.

Adv de Lange then asked the Committee if they should add a date to the Bill or leave the enactment date up to the President. He was worried about leaving it up to the Presidential Office as so many Bills had failed to be enacted. However, if there was no date it would come into effect when published. This would have the undesirable effect of provisions of this Bill amending the Mental Health Care Act before the President had signed it. And there was a danger that the provisions in this Act would render the existing law null and void before the new provisions came into effect creating a lacuna.

The Committee decided to allow the Bill, except for Clauses 14 and 15, to come into effect when published and for the President to give a date for the remaining two clauses to come into effect.

In conclusion, Adv de Lange told the Committee that a substantive alteration had been proposed by the Law Society asking that all attorney's, after completion of their articles, had to attend a 'legal practice management course.' Whilst this may be a worthy amendment, it was far too late in the proceedings to admit such a suggestion when no-one had been given the opportunity to comment on it. Therefore, it was to be passed over to be brought to the Committee at a later date

Briefing on Proposed Constitutional Amendment Bill
Mr de Lange briefed the Committee on the Constitutional Amendment Bill due to be introduced by the Minister. This Bill related to judgement in the case on crossing the floor legislation.

Adv de Lange outlined the current situation where the Portfolio Committee had passed three Constitutional Amendment Bills and one piece of legislation. The constitutionality of the Acts had been called into question and the Constitutional Court had delivered three judgements on it. The first judgement was not relevant for the Committee's purposes. The second judgement was unclear. The Constitutional Court had said that where a matter falls within the exclusive jurisdiction of the Constitutional Court no other court is competent to grant interim relief. But then in the next part of the judgement, they said they would reserve judgement on that matter and, instead, work from the assumption that, if such relief is granted, it must only be done so within strict criteria which they go on to lay down. This was highly confusing. The third judgement, which is the one the Committee was interested in, related to the substantive issue in the case. They said that the Constitution did not prohibit crossing-the-floor. Accordingly, they allowed the amendments to the local government laws permitting these politicians to transfer their political allegiance. However, the Court rejected the changes at national level.

In essence, Adv de Lange said that the Constitutional Court had a problem with the Constitution being amended on a simple majority. The Court had not heard argument on the provisions the legislation had relied on during the Certification case. It appeared, to him, that what they had not done during the Certification case, they were attempting to do now.

Adv de Lange said that this position was strange, as the Membership Act had attracted the support of 85% of the Members of Parliament. As this was far in excess of the percentage required for a Constitutional amendment, the Court's concerns rang hollow.

He also outlined the terms of the Court's order where they said that the legislation was unconstitutional, yet they allowed for a fifteen days grace period to cover the people affected by their order of invalidity. This grace period ended at midnight tonight. It was peculiar that those acting under unconstitutional legislation were to be given protection. However, this protection had led to a new court case where a Member was asking for the grace period to be extended until such time as Parliament had enacted the proposed Constitutional Amendment.

Mr de Lange had been drafting a constitutional amendment in precisely the terms used for Local Government as the Constitutional Court said there was nothing unconstitutional about that legislation. There would also be a change made to Schedule 2 to reflect the Constitutional Court's dislike of the use of simple majorities.

Mr de Lange, the representative from the Justice Department, said that the preamble copied the format for the preamble for local government except that it did not say it relied on s21(c). Adv de Lange asked if it should not mention the Constitutional Court judgement. Mr de Lange said no, because this was a Constitutional Amendment, so it was not appropriate. Adv de Lange said he would discuss this matter later with him alone.

Mr de Lange went through the proposed Bill. Adv de Lange said he was not happy with Clause 1, outlining the definition of 'party' as it clashed with the content of Clause 4(4). Was a definition needed if it was to be outlined in 4(4)? Mr de Lange said that the definition had been included to simplify 4(4).

Mr de Lange said that a Clause 5(3) was to be introduced to say that the Speaker had to introduce the new lists.

Adv de Lange said he felt that Clause 6 should be moved to Clause 7(1)(c). Mr de Lange said that Clause 7 was aimed to deal with the Constitutional Court judgement where members had been left without a legal platform. Clause 6 was dealing with an unrelated issue.

Ms Camerer asked if Mr de Lange seriously believed that the proposed Clause 7(3) was constitutionally valid?

Did he have legal opinion to that effect and, if so, could the Committee see it? Mr Mzizi said he had precisely the same question.

Mr de Lange said that the Department had received some legal opinion on this matter. It did not seem to be blatantly unconstitutional and was being introduced under the lead of the Constitutional Court. The Court had invalidated the law on a technicality. This provision was ensuring that those people affected by the technicality did not suffer.

Mr Mzizi asked how those who had moved party were able to get protection at all as they had acted under the terms of an unconstitutional act? As the grace period ended tonight, what standing did they have to continue with Court actions? Adv de Lange said this was the subject of the on-going court action in KwaZulu-Natal.

Mr de Lange read from the Constitutional Court's judgement. If a Constitutional Amendment was passed by the correct procedural measures then the Constitutional Court could not question the substance of it and they were bound to interpret the Constitution and all its provisions as a harmonious whole.

Mr Jeffrey said the Bill was being published for public comment, so this was not the time for this debate.

Ms Camerer mooted whether the Court could make a ruling on a Gazetted provision.

Adv de Lange said that the issue was becoming less one relating to the constitutionality of proposed amendments and more a question of the desirability of proposed Amendments. The only other problem would be if the terms of the Amendment clashed with provisions of the Bill of Rights in such a way that the differences could not be reconciled.

Mr Mzizi (IFP) asked that, if the on-going court case went to the Supreme Court of Appeal, could it affect the Constitutional Court ruling? Adv de Lange said this was a separate court case.

Mr Jeffrey (ANC) asked whether there was a real need to say that this Amendment repealed the 'Membership Act' as the Constitutional Court said the Act was invalid?

Adv de Lange said it was a good 'cleaning-up' exercise, which was welcomed by Justice Chaskalson and it was the only way to formally remove acts from the statute book. The Court's order merely rendered them inoperable.

The meeting was adjourned.

Appendix 1:
Report of the Portfolio Committee on Justice and Constitutional Development on the Administration of Estates Amendment Bill [B54-2002] (National Assembly sec 75), dated 22 October 2002:

The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Administration of Estates Amendment Bill [B54-2002] (National Assembly-sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, presents the Bill with amendments [B 54B-2002] and endorses the classification of the Bill as a section 75 Bill.

Appendix 2:
Report of the Portfolio Committee on Justice and Constitutional Development on the Judicial Matters Amendment Bill [B55 - 2002] (National Assembly - sec 75), dated 23 October 2002: