Customary Law of Succession Bill; Compulsory HIV Testing of Alleged Sexual Offenders Bill and Sexual Offences Bill: hearings

Meeting Summary

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Meeting report

Joint Monitoring Committee on Improvement of Quality of Life and Status of Women [Consideration of Minutes, Consideration of Committee Recommendations re UNIFEM Report on Women, War and Peace, Briefing by Law Reform Commission on Customary Law of Success

JOINT MONITORING COMMITTEE ON IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF WOMEN
14 November 2003
CUSTOMARY LAW OF SUCCESSION BILL; COMPULSORY HIV TESTING OF ALLEGED SEXUAL OFFENDERS BILL AND SEXUAL OFFENCES BILL: HEARINGS


Chairperson:
Ms L Xingwana

Relevant Documents:
Status of Customary Law of Succession Report
Law Reform Commission on Interstate Succession Act
Commission on Gender Equality Presentation on Communal Land Rights Bill and Women
Women's Legal Centre Presentation on Communal Land Rights Bill and Women
Programme Land Agrarian & Class Studies - University of the Western Cape Presentation Communal Land Rights Bill and Women
Department of Justice Presentation on Compulsory HIV Testing and Alleged Sexual Offenders Bill and Sexual Offences Bill(document awaited)
Criminal Law (Sexual Offences) Amendment Bill [50-2003]
Compulsory HIV Testing of Alleged Sexual Offenders Bill [B10-2003]
Rape Crisis Centre Presentation on the Sexual Offenders Bill(document awaited)

SUMMARY
The Committee discussed succession of property in relation to Customary Law. It was noted that there was an absence of succession of status. The Committee agreed to have a detailed debate with the Legal Reform Commission, as there were many issues that were not adequately dealt with.

A submission was prepared for the Agriculture and Land Affairs Portfolio Committee based on submissions by the Commission on Gender Equality, The Women's Legal Centre and the Program of Land Agrarian and Class Studies - UWC on the Communal Rights Bill.

The Department of Justice submitted a presentation on the Alleged Sexual Offenders Bill dealing with HIV Testing. The Rape Crisis Centre made a submission and raised concerns around the Bill. The Committee agreed to discuss the issues in more detail in order to make a submission as they had various concerns with the Bill.

MINUTES
Ms Xingwana asked if the Minister had received the Alleged Sexual Offences Bill (ASOB) in June 2003 as agreed. Professor Bekker explained that the bill had not been before the Portfolio Committee yet. The proposed review still had to be looked at. The Bill still had to be looked at section by section.

Ms Xingwana (ANC) said that a report had been received. She asked if the report was the proposed Bill.

Professor Bekker said that the report was based on the Customary Law of Succession and not the ASOB.

Ms Xingwana asked for copies for the members.

Law Reform Commission presentation on Interstate Succession Act
Professor JC Bekker outlined the changes made to the Interstate of Succession Act in relation to the inheritance of property by wives and children. The presentation modified the customary law of succession bill in order to protect property rights in certain customary marriages and to protect the rights of certain children. Professor pointed out that the Act had taken so long because the Act still dealt with the Customary Law of Succession Act under the Black Administration Act. See presentation.

Discussion
Ms Xingwana asked if there were any additions from the other members of the Law Commission delegation.

Professor I P Maithufi (Project Leader: Customary Law) explained that the submission on Customary Law (CL) not only dealt with succession but also dealt with broad concepts of CL. There had been many difficulties because of the differences. Certain provinces could repeal some provisions while others could not. The Commission had to act with certain provincial bodies to try and reach a standardised law system. He pointed out that the preamble explained a lot about the difficulties that women and children faced in CL. All the complexities of CL had to be protected by the law.

Ms Xingwana raised a concern that the bill was still silent about the succession of women traditional leaders and chiefs. She admitted that she had only read the bill that shortly before the meeting but that it was clear that this issue, which had been the main concern in the last discussion on this issue, was absent.

Professor Maithufi explained that this particular bill dealt with the inheritance of property, which meant that the bill did not deal with succession of status. He suggested that this issue was part of another bill. The issue of succession of status was in the framework of the Bill of Traditional Authority and they were dealing with the succession of Inherited Property.

Ms B N Sono (DA) asked about the attempt to harmonize the provisions of the Common Law Bill and the Constitution. She said of Kwa-Zulu Natal (KZN) that there had been a legal framework before the legal dispensation. She pointed out that in harmonization throughout the provinces the differences could be technical because there was not much difference. She asked where exactly the problem was taking into account KZN.

Ms M P Themba (Deputy Chairperson) asked about the issue of Balobedy (women were chiefs and were given wives therefore creating an issue of the inheritance of the children of these women who were married to the Queen but had children with the her through her male relatives). She said that the law could not be made applicable to Balobedy only and what did that mean.

Ms Xingwana pointed out that some concerns were not in the CL or Customary Marriages Acts.

Professor Bekker explained that all the problems encountered were in another document. The Commission had received many inputs regarding the Common Law of Succession Bill. He said that in the Balobedy case the Queen Mother was technically not supposed to marry a man. Her acquired wives could have children with members of the royal family but the children belonged to the Queen. In death the children were inherited by the successor however the property belonged to the people and not the queen. This was one of the issues regarding inheritance. He said that there was a distinction between property belonging to the queen and property belonging to the people. This was one outstanding case but they could not make a 1 to 1 law. They were trying to cover all these issues. He said that in the case of KZN the Code of Zulu law was more advanced than the Black Administration Act.

Ms Xingwana asked if these codes were consistent with the Constitution. This led her to ask whether the Bill was assisting in any way. She said that the issue came down to whether women had equality.

Professor Bekker said that the Bill was assisting and equality was being achieved.

Ms Xingwana asked about the succession of women chiefs and traditional leaders.

Professor Bekker repeated that the Succession of Property was not the Succession of Status. He said that the issue dealt with the rules governing traditional leaders and the department of provincial and local government.

Ms Xingwana asked exactly where this issue was dealt with.

Professor Bekker said that it would be in the framework of provincial laws on traditional leadership. The status of traditional leadership was not part of assets, which is what they were dealing with.

Ms Xingwana said that succession should be dealt with as a whole. She questioned why the status of women in succession was not being dealt with. This issue had been the issue of contention with the Commission at the previous meeting before June. The issue had now been removed and there was nothing about the succession of status. The Constitution superseded all customs and traditions therefore why was it not being dealt with.

Professor Maithufi said that he understood the concern. The particular investigation on this issue had arisen from the Mthembu versus Lebsela case. This case dealt with the succession of traditional leadership and succession of property. However the mandate given to the Commission was to look at the acquisition of property after death. This was the inheritance of property and not the succession of status. The Commission was tasked to look at other strategies to look at property inheritance laws that denied women and children access after the father passed on. He pointed out that the preamble spoke to this. These were the inequalities that they had attempted to cure. The Interstate Amendment Act dealt with property at the time of decease and not with the succession of status because it was the inheritance of property. The succession to the status of women was covered with elsewhere and it was not the task they were given.

Ms Xingwana asked exactly where it was covered in the bill.

Ms L M Komape-Ngwenya (ANC) also asked where that issue was covered. Where was somewhere.

Ms Xingwana asked again where it was in the bill.

Ms N E Lamani (ANC) raised a concern about the public hearings particularly in East London. No one had come from the rural areas. Those that had attended had arrived with the Chief. Another session of public hearings were requested for rural areas like Umtata. This had not happened and women in the rural areas had been spoken for. Furthermore it was not clearly stated in the Bill that when a husband died the wife and children inherited the property. Something was needed that was unambiguous. It had to be clear what would happen in customary marriages regarding inheritances and women's voices needed to be heard through public hearings.

Ms Sono pointed out that Professor Maithufi had not responded to her question about KZN. She said on the Mthembu case the precedents being used were Roman Dutch Law. Women formed roughly 54% in the country therefore the Bill should also speak for them. The KZN system had a well developed traditional communal system therefore why were they not being used as precedents.

Ms Xingwana remarked that the country had to use the Constitution and not KZN law.

Ms Rajbali (MF) said that the Constitution provided for the entire country. In the preamble it had been explained what had being going on and that had to be changed. The Constitution had to be used to ensure the change. Women in South Africa had to be given the right to change the laws therefore what was in the document was unacceptable. She wanted clarity on Pg 2 clause (2) (2) (b).

Ms Xingwana explained that this was in relation to the Balobedy case. She proposed that because the Bill had been received shortly before the meeting the Committee should meet at a later stage to discuss all the issues then meet the Commission again.

Professor Maithufi agreed but requested that he respond to the concern about clause (2) (2) (b).

Reverend M Chabaku (ANC) underlined the concern of the Chairperson about the succession of status of women. Sexism was rife and prevented women taking up traditional leadership positions and older or younger brothers always took over instead of women.

Ms Xingwana hoped that Professor Maithufi would give the committee the article that covered the issue in the bill. Something had to be done in the law to deal with the issue.

Professor Maithufi explained that the proposed amendment clause (2) (b) referred to women married under CL. He said that it meant exactly what was written. He explained that in some cases a man died before having any children. His property is used as lobolo to get another women to have children for the house. It was common practice and there were many examples of this. He said that in this situation if the woman died her survivors should be the Interstate pair and the children. He explained that this particular bill arrived at the Interstate Amendment Act and it only contained provisions of a western nature basically Roman Dutch. CL marriages were not allowed to inherit. The Commission were trying to harmonize western and CL. The wives of CL needed to be placed on an equal footing as civil marriages in relation to succession.

Ms Xingwana asked where the issue of succession of status was covered in the bill.

Professor Maithufi said that because he was not part of the team that worked on the issue he would have to look for it in the bill.

Ms Themba asked about whether the workshops were done in the urban or rural areas.

Ms M Moloi (Law Reform Commission) said that in the draft bill responses from the workshops named the places that the workshops were done. Workshops were done in the rural areas. They spent a lot of time considering which response should be included in the bill. They had received a lot of responses from the rural provinces.

Ms Xingwana closed the discussion by reiterating that the Committee would look at the bill and then debate the issues.

Professor Maithufi agreed that this was a workable proposal.

Ms Xingwana said that the Committee had hoped that all the issues of succession would be dealt with under succession. It was clear that traditional leadership was not included. The Chairperson proposed that they would call on the Select Committee to look at the Traditional Leadership Bill and then make a strong submission regarding succession.

Ms Komape-Ngwenya agreed with the motion

Ms Lamani seconded the motion.

Professor Maithufi reminded that he had not been involved with the issue but that he thought that the issue was dealt with in the Traditional Governance Bill section (2) (3) (6), which prevented unfair discrimination.

Ms Xingwana thanked the Professor but that that the committee would still discuss the issue because it did not legitimise women. The provinces had to guide by the law. The first law of the country was the constitution and the equality principle superseded customs and traditions. She brought up the issue of why the bill had taken so long but indicated that there was not time to deal with the issue. She introduced the 3 women's groups and gave them 5 minutes to present their concerns with the Communal Land Rights Bill (CLRB).

Commission on Gender Equality Presentation on Communal Land Rights Bill
Ms Suraya Willams outlined the issues of Old Order Rights and PTO's. Please refer presentation.

Discussion
Ms Xingwana asked the committee if they had any questions.

Ms Rajbali said that all the Bills had just been given to them and the Committee had to go through everything thoroughly.

Ms Xingwana pointed out that they had agreed to ask for a time slot to make a submission to the Portfolio Committee on Agriculture and Land Affairs on the issue. They would make a longer submission to the Land Rights Bill but what were the rights now, which the Committee agreed on in principle.

Ms Williams said that Old Order Rights referred to PTO's.

Women's Legal Centre Presentation on Communal Land Rights Bill
Ms Sibongile Ndashe said that the main course of the CLRB was to give security of tenure because of past discriminatory laws. The Bill was creating mechanisms to do this. The Minister was using Old Order Rights (OOR) to do this, which was based on people who had land. PTO's laws to occupy were never given to women. Under CL women could not have land therefore the use of OOR excluded women. The Equality clauses were not part of traditional clauses therefore the transfer owners to OOR therefore went to men because they held it. The Right of Equality could not use OOR. The Minister could use New Order Rights but that was at his discretion. Women did not have direct access they only had access after the investigation of OOR. Women did have OOR holder entitlements. Women had to depend on what happened to OOR.

Discussion
Ms Rajbali asked if the Customary Law Bill covered community rights because under community rights women were entitled to inherit after the death of their husbands.

Ms Ndashe explained that the Customary Marriages Act recognised all marriages after 2000 and not before November 2000. Women married in CL lived on communal land because it was out of Community of Property. Black Administration Law and CL applied to women before 2000 and therefore they could not inherit.

Ms Lamani (ANC) said that there were serious issues being presented and that it was crucial that the Committee made a presentation.

Ms Komape-Ngwenya said that the inputs were the tip of the iceberg. The Committee had to persuade the Portfolio Committee on Agriculture and Land Affairs. On the issue of the Minister issuing OOR and NOR what did the constitution say about that kind of power. Why was there the exclusion?

Ms Xingwana asked for clarity on the Traditional Councils and the appointment of 30% women to the council. 60% of the councils were appointed so it was possible for the Chiefs to fill all the women's appointments with his wives.

Program Land Agrarian & Class Studies - University of the Western Cape
Presentation Communal Land Rights Bill and Women
Ms Aninka Claassens said that 40% of the Councils had to be appointed by the community and the Chief had to appoint what was leftover. There was no guarantee. See Presentation.

Discussion
Ms Williams pointed out that a clause had been included that women had to be appointed if women were underrepresented.

Ms Xingwana said that the Secretary would compile a report. They also approved a more detailed submission to the Select Committee to the NCOP. They would invite members to a more detailed discussion on November 17, 2003. She closed the issue and introduced the issue of HIV Testing of Sexual Offenders.

Ms T Ross (State Law Advisors) said that HIV/AIDS testing would eventually be compulsory. They were waiting for the Sexual Offences Bill to be finalised in order to see how to deal with the issue.

Ms Xingwana said that the Committee supported compulsory HIV testing. She said that the Committee would hear the submission by the Department of Justice then the issue would be interrogated together.

Department of Justice on Compulsory HIV Testing and Alleged Sexual Offenders Bill and Sexual Offences Bill
Mr Johan de Lange (State Law Advisors) outlined the various recommendations the broadening of the definition of rape, life imprisonments of some crimes, mental impairment recommendations, and new offences in view of children, age of consent for heterosexuals and homosexuals. See presentation.

Discussion
Ms Xingwana thanked the presenter and asked about treatment for victims because it had been excluded.

Mr de Lange said that proposal was that there should be treatment provided. The State should provide care to victims however the provision had been excluded until a costing exercise had been done. Treatment would be provided under other departments but the issue would be debated again after more research was undertaken.

Ms Xingwana asked for comments from the Committee.

Reverend A D Goosen (ANC) asked about clause 21 which discussed the investigation of alleged sexual offenders being discontinued. He asked for clarity and what would happen to the victim if there were a lack of information.

Mr de Lange explained that currently withdrawal of an investigation lay with the National Director of Public Prosecution. Then the case would proceed to the police and a docket would be opened for two years if nothing could be found. Under the proposal the decision not only lies with the police but also with the National Director of Public Prosecution. It was a problematic and contentious issue and the Portfolio Committee on Justice was debating it.

Rape Crisis Centre Presentation on Sexual Offenders Bill
Ms Nikki Naylor said that the Bill had some positive steps but outlined some concerns. The definition of rape into three sections was negative because it was a grading of offences, the prosecution of offenders who had life threatening diseases resulted in women being prosecuted because they were being tested more and it would discourage testing because with no knowledge of status meant no prosecution. Formal versus informal support of victims was raised, the issue of a national policy framework implementation was excluded and medical management were some issues that were raised. See presentation.

Discussion
Ms Xingwana had problems with the 3-tier definition of what rape was. Rape was rape regardless of the circumstances whether it was an oral violation or with an animal. All violations should be treated the same. The issue of disclosure was a problem and the Committee would need to discuss the issue. She agreed with the issue of informal support persons because it was of no cost to the government. Rape victims should have access. The Department was rolling out drugs therefore it should not be an issue. The Committee would have to sit down and come up with a submission, which would be discussed with the Speaker and the Department. She asked for comments from the Department.

Mr de Lange said that there was nothing on paper preventing a victim using informal support. The only issue was the cost to government of items such as travel. The provision of treatment was included through a clause that did not guarantee treatment to victims. The clause, which said the treatment to all victims of sexual offences, was a problem because there were twenty new sexual offences. The State needed to sit down and look at the cost. It was an issue of capacity. He reminded the Committee that the department did want to provide. The issue of HIV Testing was not in the department's hands. It was in the hands of the Portfolio Committee. The Committee wanted to deal with issues in conjunction, which included a mandate to the South African Police. The issue of the broad definition of rape was too difficult to comment immediately. Many submissions had been received saying that there would be problems with the definitions. At that moment rape only occurred when a penis forcibly entered a vagina and the redefining was an attempt to deal with the issue.

Ms Xingwana asked for a comment from the Legal Reform Commission

Ms Ross said that the indicators primary objective is whether HIV testing would still make women and children vulnerable. The objective would be taken care of.

Meeting was adjourned.

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