Reform of Customary Law of Succession & Regulation Bill: final mandates; Rules for Promotion of Administrative Justice Act

Meeting report

Reform of Customary Law of Succession and Regulation of Related Matters Bill: Final Mandates
Kgoshi L M Mokoena (ANC, Limpopo) said that during the last meeting, the Committee had made a few amendments to the Bill and requested the Department of Justice (DoJ) to draft these new amendments. He noted that the Committee would also deal with the outstanding issues on the Bill, as clarity was needed on several points.

Mr Lawrence Basset, DOJ Chief Director: Legal Services, noted that the Bill in its present form contained the proposed amendments from the Committee, as the formal amendments had been tabled to provinces. He said that the provincial legislatures had approved the amendments and the Bill was subsequently referred back to the Committee to pass it.

Mr Deon Rudman, DoJ Deputy Director General: Legislation, said that the Committee had proposed that Master of the High Court could either refer an inquiry to a magistrate or a traditional leader. He noted then when the Committee had proposed this amendment, the DoJ had argued that a magistrate shouldconduct the inquiry, with input and consultation with traditional leaders.

He added that after discussions with the Justice Ministry it was decided that the National Assembly (NA) would propose a new amendment that would seek to replace the amendment. He stated that the Justice Ministry proposed that a magistrate lead the inquiry as it was best equipped to deal with legal issues. He said that he was aware of the fact that provincial legislatures had already sent their final negotiating mandates and that the Committee was anxious to pass the Bill.

Mr Rudman noted that a further amendment would be drafted that would allow magistrates to consult with traditional leaders, within reason and where appropriate. He said this meant that the magistrate could refer a matter or ask for guidance and advice from a traditional leader if a magistrate had no knowledge of the local customs. He said that the DoJ understood that the Committee wanted to conclude matters, but thought it would be wrong not to propose the amendment, given the function of the DoJ.

Kgoshi Mokoena noted that no new amendments would be considered as the final negotiating mandates from provinces had arrived. He said that what the DoJ proposed would result in a referral of the Bill back to the provincial legislatures for reconsideration.

He added that the Committee had no mandate to insert new sections that had not been agreed upon by provincial legislatures. He said that the process would further be delayed if this should happen as it would then only receive attention by the new Parliament. He said that the DoJ was aware that the Committee wanted to finalise the Bill, but instead chose to propose new amendments so late during the legislative process. He stated that the Committee would not allow itself to be undermined by the executive.

Mr J Le Roux (DA) said that there had to be compelling reasons for the DoJ proposing the new amendment. He asked that the DoJ explained why they had proposed the new amendment.

Mr M Mzizi (IFP, Gauteng) said that the DoJ was fully aware of the procedure that stipulated that the Bill would have to be sent back to the provinces to consider the new proposals. He said that provinces must be allowed the opportunity to exercise their views on the matter. The Committee had no mandate to neither reject nor accept proposals.

Mr N Mack (ANC, Western Cape) said that provincial legislatures did not want to be briefed on the Bill anymore as they were busy concluding other matters and wanted to get on the campaign trail. He said that the provinces would also need to have a new round of public hearings, which would completely derail the process since there was no time. It was unfair that the same executive that made the new proposals would then force the Committee to pass the Bill in time. He noted that there must be some motivation for the proposal, but if there was none, then it should be considered as undermining the Committee.

Mr Basset replied that during the deliberations there had been reservations about a traditional leader heading an inquiry, especially since the Traditional Courts Bill would be revived. He said that the DoJ accepted the amendment by the Committee and that the process had been very rushed, as the DoJ was under severe pressure to finalise the Bill. He said that the discussion with the Justice Minister took place after that.

Mr Rudman added that Mr Basset had explained what the procedure was and that the DoJ would never undermine the Committee. He said that the DoJ had always respected the mandate of Members and that there had always been a cordial relationship. He noted that the DoJ had looked at the matter again and thought that the propose amendment would probably be the most appropriate route to take. He said the amendment had been drafted only two days earlier.

Mr A Moseki (ANC, North West) said that the DoJ had been aware of the implications of a late proposal as they had been busy drafting the amendments proposed by the Committee. He said that the Committee could not pass the Bill as it has to go back to provinces. He said that if the DoJ understood the implications of their actions, they would have realised that the process would be delayed by another three months, by which time the new Parliament would be in operation.

Mr Frits van Heerden (FF+) said that he did not think that the Committee was undermined by DoJ, as the latter had always provided sterling advice and guidance. He said that he did not believe the DoJ would give bad advice to the Committee.

Mr Le Roux added that he was sure that the DoJ would not intentionally undermine the Committee as the past 15 years had always been characterised by cordial relations. It would be in the best interest of any client to listen to the legal advice of their legal representatives and that it would be dangerous not to consider the input from the Justice Ministry.

Kgoshi Mokoena said that he was very concerned as the DoJ did not specify what they were advising the Committee on. He said that there would be serious implications if the proposals from the Justice Ministry had to be considered. He said that the proposals would have to be sent back to the provinces where further deliberations as well as public hearings would be necessary. He said this meant that the Bill would have to be referred to the Fourth Parliament.

He asked why the DoJ had not raised their objections to the amendments during deliberations, as the Bill was supposed to have been passed. He stated that he felt that the executive was undermining the Committee, as the DoJ had all the resources in the world to their disposal to fly across the country to conclude the Bill.

Kgoshi Mokoena said that the Committee was faced with two choices; refer the Bill back to provinces to consider the amendment by the Justice Ministry or pass the Bill in its current form.

Mr Mzizi said that he did not think that the DoJ was undermining the Committee as the DoJ had always been very hardworking and helpful. He said he thus found it strange that Mr Rudman and his delegation could make such a grave error, as they understood procedures of Parliament.

Ms F Nyanda (ANC,Mpumalanga) said that Parliament was dissolving within a few days which meant that the Bill would not be able to be passed, until the Fourth Parliament.

Mr Rudman apologised on behalf of the DoJ for the late proposal, as it had been drafted the previous day. He said that the amendments were drafted on the basis of a discussion by the Justice Ministry and supporting empirical research data that informed the premise of the amendment. He asked the Committee to grant him a 30 minute break, as he wanted to consult with his principals on the matter. He said that the DoJ wanted the Bill passed and did not want to delay the process.

Kgoshi Mokoena asked what the difference between the two formulations was.

Mr Basset said that the major difference between the two formulations was that the Committee proposed that the Master of the Court either approach a magistrate or a traditional leader to head an inquiry, whereas the DoJ proposed that a magistrate head an inquiry, with input and advice from traditional leaders.

Kgoshi Mokoena said that it seemed that the DoJ did not trust traditional leaders.

Mr Moseki said that the ANC was busy transforming South Africa and that Parliament led the charge to transform South Africa for the better. He said that the history of South Africa was testimony to the disregard and contempt, with which African traditions had been treated. He said that it must be understood that African traditions, cultures, norms and values would not be undermined under the current government.

Kgoshi Mokoena granted the request by the DoJ and adjourned the meeting for a five-minute tea break.

Mr Rudman informed the Committee that the Justice Minister wanted the Bill to be finalised prior to the rise of Parliament. He said that the Minister stressed the importance of the Bill, as it was required in practice.

He added that the Minister did raise the concern that the National Assembly might not approve the amendments, a situation which would ultimately head for the Mediation Committee.

Kgoshi Mokoena said that the Justice Minister had to engage with the Chairperson of the Justice Portfolio Committee, Mr Y Carrim (ANC) as it was within the mandate of the Minister to engage with the Chairperson. He said that he could engage in informal talks with Mr Carrim, but that the onus was on the Minister. He said that it would be unfortunate if the Bill was not passed as in terms of the Constitution Members would cease to be Members at midnight 21 April.

Kgoshi Mokoena asked for guidance from the Parliamentary Law Advisor (PLA).

The PLA said that Kgoshi Mokoena was correct, as NA Members were still Members of Parliament, despite the fact that the NA was rising.

The Committee decided to continue with deliberations, as they wanted to pass the Bill.

Mr Mokoena said that the Committee wanted the following outstanding matters investigated and a report submitted within six months, documenting recommendations. He said that the Committee wanted to know if the Bill clearly specified whether children could inherit from their stepmothers’ or stepfathers’ estates if one spouse entered the marriage without children and still could not produce any children whilst alive. He said the Committee also wanted to know whether a child who was brought into a man’s family due to the death of the man’s brother would be entitled to inherit from the estate of the deceased, as African culture dictated that the man was the ‘father’ of all the children under his protection. He further noted that the Committee was also confused as to whether children would be able to inherit from the estates of deceased spouses of their biological parent who was married under the Civil Union Act. He said that he had asked the Minister to review this, but that the Minister had informed him that not even the Law Commission could reach a conclusion.

He said that in some African cultures females ascended the Chieftaincy. In many instances these female chief would marry another female, who would bear the heir by having intercourse with a designated male family member of the female chief. In these instances the biological father gives up all rights on the child, as the female chief would be the dominant force in the life of the heir. He asked what would happen in a scenario where this heir claimed part of the inheritance from the estate of his biological father, despite the fact that the man was not responsible for the well-being of the heir and not regarded as the father.

Mr Mzizi said that the matter should be referred back to the Law Commission for investigation that should include a through consultation process with traditional leaders.

The PLA added that it was a very complex issue that needed further investigation. He said that he agreed with Mr Mzizi that traditional leaders should be consulted, as their input was central to the process.

Mr Basset said that the input of the Committee had been duly noted.

The Eastern Cape, Free State, Gauteng, Limpopo, KZN, Mpumalanga and Western Cape had sent their final negotiating mandates. The seven negotiating mandates supported the Bill.

Clause 1,2,4,5,6,7,8 and 9 were passed with amendments.

The Committee unanimously passed the Bill.

The Committee unanimously adopted the Report.

Kgoshi Mokoena thanked the drafters of the Bill and commended them on their hard work.

Draft Rules made in terms of Section 7(3) of the Promotion of Administrative Justice Act (PAJA), 2000 (Act No 3 of 2000): briefing
Mr Jacob Skhosana, DOJ Chief Director of Court Services, said that the current Rules were a culmination of several Rules that had been tabled before the Justice Ministry, the Speaker and Committees. He said that the current Promotion of Administrative Justice Act (PAJA) gave Parliament two options; either accept or reject the entire Act if the Rules could not be agreed upon. He noted that PAJA had been drafted in such a manner that did not allow for amendments. He noted that every time the Act was rejected, the DoJ had to start from scratch redrafting the Act.

He added that the DoJ had experienced some challenges, but that these challenges would be remedied as the process unfolded. He said this was the seventh version of the Rules, after the last draft Rules had been rejected after concerns had been raised. He noted that the Justice Minister had appointed a task team, lead by Mr Halton Cheadle (Special Adviser to the Justice Minister) and the Rules Board. He noted that the Rules were a product of an exclusive task team that guided the entire process.

He said that the DoJ had conducted public hearings and that the NA had passed the Rules with amendments. He said that the Rules comprised of three parts, namely; the application of the Rules, definitions and the requests for reasons.

Mr Skhosana said that the Justice Ministry, the Rules Board and the Chief Justice had discussed the application of the rules. He noted that these parties agreed that the Rules would be applicable to Magistrates Courts and High Courts. He said that other courts, as well as the Constitutional Court, would be able to adopt the Rules if they so felt. He said that the Chief Justice was entitled by law to draft the Constitutional Court own Rules.

The use of the Rules would bring down the court backlogs, it would also assist a person who had been through a mediation process to make an application to an administrative officer for further legal action if aggrieved. Although this process seemed protracted, it actually would prevent a long litigation process.

He said that any person could challenge and or ask for the disclosure of documents from an administrator. The DoJ had ensured that the Rules allowed for intervention if it was determined that the system was being abused. The DoJ had provided the necessary forms that had to be completed by individuals a well as the administrators.

He added that the DoJ was mindful that it would have problems, as there was no precedent to draw from. He noted that the South African Constitution, which was very advanced, was unrivalled. He said that the Rules would come into effect, once a Plan of Action had been implemented, that would also address the issue of the required training involved. As soon as this was done the Rules would be promulgated.

Mr Halton Cheadle (Special Advisor to the Justice Minister) said that currently the granting of firearm licences and fishery licences could be challenged in the High Court in terms of administrative review.  He said that an applicant had to bring a formal application (Rule 53 application) if records wanted to be accessed. The administrator had to comply with this order. The applicant could also supplement the records.

Mr Cheadle noted that this was problematic, as the applicant had two bites of the cherry and that impacted on costs as well as the possibility of ‘fishing’ expeditions. Aggrieved parties in the National Lottery process had made such an application, but at the end of the process, none of the documents had been taken. He said in procurement type cases, the records normally consisted of very large volumes.


He added that it was critical to emphasize the implications of Rule 53, as it entailed taking an administrator on review if access to documents was denied. This was an anomaly and the solution would be to provide for a pre-application procedure. The DoJ had adopted ordinary rules of discovery. This allowed opposing legal counsel to subpoena all the documents in the possession of the opposing counsel. If an applicant was serious, he/she could ask for discovery based on prima facie evidence, but that the documents could then not be reproduced or copied in any manner. The new provision would allow people to file an application to the Courts, based on these documents.

He said that the ordinary rules of discovery would thus be applied to administrative review processes, as it would relieve the DoJ of a massive burden, as the prescribed forms would guide the public on what was needed to ask for a review.

Mr Cheadle said that the United Kingdom was the first country to introduce Rules of Discovery in 1976 and that so far the system has only produced positive results.

Discussion
Dr van Heerden said that pre-application discovery sounded like a step in the right direction, but expressed his concern where sensitive and or secret document were concerned. He said in such cases the applicant should carry the financial burden involved if they wanted to have access to the whole record.

Mr Le Roux asked whether there was an urgency to adopt the Rules and whether the NA had adopted the Rules. He further asked whether a panel of experts would further brief the Committee.

Mr Mzizi asked who determined whether the process was being abused. He did not think that guilty parties would necessarily petition for administrative review, as only adversely affected individuals would file an application.

He added that an administrator might always refuse an application brought by an aggrieved party. He asked how sure a person could be that the files would not be tampered with, whilst the applicant was awaiting approval.

Kgoshi Mokoena asked whether a person would be allowed to access bulk information. He said that it seemed as if the DoJ was passing the buck to applicants to look for documents, whereas it could easily provide assistance.

Mr Cheadle replied that PAJA allowed requests by aggrieved parties, if valid reasons why access should be granted, had been given. He said that the process did not exclude a lawyer or an advocate from filing the application on behalf an individual, but that the onus was on the aggrieved individual to make sure that he/she followed all required processes. The process excluded applications that would be brought on behalf of more than one person. He cited NGOs as an example.

He added that the DoJ would not have been faced with this problem if requests for access to information were not such an arduous process. If an applicant sought the records as evidence in another judicial matter, then it fell outside of the scope of PAJA. He noted that the new process limited the influx of requests, as it was only available to individuals who were materially and adversely affected by a court decision.

Kgoshi Mokoena asked whether the DoJ had taken the needs of rural communities into account.

Mr Skhosana replied that the Portfolio Committee on Justice had adopted the PAJA Rules. The DoJ was doing everything in its power to ensure that Rules were adopted as they were long overdue - since 2000. He wanted to emphasise the time factor.

The Committee adopted the PAJA Rules.

The meeting was adjourned.