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

NCOP Security and Justice

26 October 2005
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Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
26 October 2005
REPEAL OF BLACK ADMINISTRATION ACT AND AMENDMENT OF CERTAIN LAWS BILL: ADOPTION

Chairperson:
Mr M Mokoena (ANC)

Documents handed out:
Repeal of Black Administration Act and Amendment of Certain Laws Bill [B25B-2005]
Black Administration Act [No 38 of 1927]
House of Traditional Leaders: Eastern Cape

Free State Provincial Legislature Mandate (Appendix A)
House of Traditional Leaders Eastern Cape Comments on the Bill
Eastern Cape Provincial Legislature Mandate (Appendix B)
Kwazulu-Natal Negotiating Mandate (Appendix C)
Mpumalanga Legislature Negotiating Mandate (Appendix D)
Northern Cape Legislature Negotiating Mandate (no copies available)
North West Legislature Negotiating Mandate (Appendix E)
Gauteng Legislature Negotiating Mandate (Appendix F)
Limpopo Legislature Negotiating Mandate (Appendix G)
Western Cape Legislature Negotiating Mandate (Appendix H)

SUMMARY
The Department of Justice outlined the minor technical amendments that had been requested during previous briefings on the Repeal of the Black Administration Act and Amendment of Certain Laws Bill [B25A – 2005]. All provincial legislatures provided mandates supporting the Bill. The Free State and KwaZulu-Natal made amendments, which were accepted. Provinces had expressed concern that the Repeal of the BAA was long overdue, over a decade into democracy.

The Justice Department presented a draft report based on the input by the Committee after the last Department briefing. It included the need to undertake an audit of all discriminatory legislation on the statute books and the protection of the proprietary rights of all categories of women whose marriages were still not recognised as valid in terms of the Marriage Act. The report would add the proposals and instructions given at the meeting that day regarding the issue of estate and property rights for children. It would also include the Committee’s instructions to the Departments of Justice, Land Affairs, and Provincial and Local Government, as well as the provinces to prepare progress reports for the Committee for 31 January regarding legislation on traditional leaders, subordinate legislation, land issues, and legislation on traditional courts.

MINUTES

Repeal of Black Administration Act and Amendment of Certain Laws Bill: amendment requests from briefing
Mr L Bassett (Chief of Justice Department and Senior State Law Advisor) outlined the minor technical amendments that had been requested during previous briefings. The Committee agreed with the proposed changes.

Eastern Cape Provincial Legislature Mandate
The mandate supported the Bill.

Free State Provincial Legislature Mandate
The mandate supported the Bill. The province suggested minor technical changes to grammatical inconstancies in Clause 1, which Mr Bassett agreed would improve the Bill.

The Committee supported the proposal

Gauteng Provincial Legislature Mandate
The mandate supported the Bill.

Kwazulu-Natal Provincial Legislature Mandate
The mandate supported the Bill, subject to the following amendment: The deletion, from the Preamble, of the following:
"to amend the Traditional Leadership and Governance Framework Act, 2003, so as to regulate the liability of a traditional community in respect of the obligations of, or those incurred by, its traditional leadership;"

Mr Bassett agreed the phrase should be removed from both the Preamble and the Long Title.

The Committee agreed with the proposal.

Limpopo Provincial Legislature Mandate
The mandate supported the Bill.

Mpumalanga Provincial Legislature Mandate
The mandate supported the Bill.

North West Provincial Legislature Mandate
The mandate supported the Bill.

Northern Cape Provincial Legislature Mandate
Mr Fielding (DA) had briefed the province but had not received a written mandate. However, he reported that the province supported the Bill.

The Chairperson stated that the Rules of Parliament and the NCOP Section 5 Clause (10) required that any quoted document should be forwarded to the table staff for record purposes. He instructed the Member to arrange for the mandate to be sent in writing, which was agreed.

Western Cape Provincial Legislature Mandate
The mandate supported the Bill.

Mr Mosoeka had to leave and Mr S Sheceka (ANC) assumed the chair.

Provinces had expressed concern that the Repeal of the BAA was long overdue, over a decade into democracy. The Chairperson concluded that all provinces supported the Bill. The amendments proposed by Free State and KwaZulu-Natal would be incorporated into the amendment document being drafted by Mr Bassett.

The Chairperson noted that the repeal of the Act affected the Departments of Land Affairs, and Provincial and Local Government, and six provincial administrations, namely Limpopo, Free State, KwaZulu-Natal, Eastern Cape, Mpumalanga and Northwest. The Departments of Land Affairs and Provincial and Local Government were present, and the Chairperson asked how far they had proceeded in closing any ‘legal vacuums’ that might exist when the sunset clause expired on 31 July 2006.

Department of Provincial and Local Government
Professor W Sobahle (Department Chief Director) said that the Department was on course in making sure the deadline was met. Provinces were supposed to have drafted their provincial specific legislature by 24 September. That deadline had not been met. Political intervention had been made and an extension had been granted until the end of November. If all Provincial Bills were passed at that time, there would be no problem with meeting the deadline on the Bill.

All provinces responded that the Bill had already been passed or was in the process of being passed.

The Chairperson asked what process the Department of Justice and Constitutional Development had undertaken in the area of traditional courts to ensure that any possible legal vacuum would be closed. Mr Bassett noted that his Department was working on legislation and had prepared a draft Bill and submission to the Minister in that regard. It would be ready by 31 July 2006. The legislation would be interim in nature, as a number of policies needed to be resolved.

The Chairperson asked that a progress report on that process be given to the Committee on 31 January 2006.

Department of Land Affairs
Department Deputy Director, Mr Havenga, reported that the Department was on course and had had several internal discussions. All subordinate legislation to the Black Administration Act was being investigated to make sure about possible unintended consequences. The results would be ready by 9 January and a progress report would be made to the Select Committee on 31 January.

Discussion
Mr Bassett noted that subordinate legislation would be dealt with by the Departments of Land Affairs and Provincial and Local Government. The subordinate legislation had been ‘kept alive’ by the abolition of the racially-based Land Measures Act. The DLA had been mandated by the Portfolio Committee to be the lead department in that regard, in conjunction with DPLG and the provinces.

The Chairperson noted that the Law Review Commission needed to present the Committee with a progress report on all laws that were in conflict with Chapter One of the Constitution and the Bill of Rights in the coming year. This would help avoid a similar situation, where offensive laws were still in place eleven years after democracy.

Draft Report by Department of Justice and Constitutional Affairs
The Department had drafted a report based on the input by the Committee after the last Department briefing, and Mr Bassett wanted feedback on whether it was a fair reflection of that discussion. The first issue had been reflected in the first paragraph of the draft as follows:

"The Committee wishes to report further as follows
1. The Committee expressed its concern that the Black Administration Act is only being repealed after ten years into the new constitutional dispensation and raised the question whether there is still other discriminatory legislation on our statute book. The Committee consequently directed the Department of Justice and Constitutional Development to undertake an audit of all discriminatory legislation administered by it, that is still in force, and report this back to it in this regard by 31 January 2006."

The Law Reform Commission would in fact be the body reporting on that issue. Mr Bassett asked for guidance on the wording, suggesting that from the discussion that day, the Committee might want it to go wider than just legislation administered by the Justice Department, and include all discriminatory legislation on the statute book. The above statement would therefore need to be amended to reflect that position.

In the second paragraph of the report the issue raised was reflected as follows"
"The Committee instructed the Department to further research the question of the protection of the proprietary rights of all categories of women whose marriages are not recognised as valid marriages in terms of the Marriage Act, for example Muslim marriages, and to report by 31 January 2006 on progress made in this regard, giving an indication specifically of the scope of any legislation that might be necessary in order to provide the protection envisaged."

Those were the two issues raised at the previous briefing. In addition, the Department would add the proposals and instructions proposed at this meeting. The report would be adapted to include the new issues for consideration at the Committee’s next meeting. In summary, it would include the instructions to the various departments and provinces on progress made regarding legislation on traditional leaders, subordinate legislation, land issues, and legislation regarding traditional courts.

Discussion
The Chairperson agreed with Mr Bassett’s summation. He added that the issue of estates and property rights for children needed to be addressed. In South Africa, illness such as HIV/AIDS had resulted in children becoming heads of households. Children were not however legally allowed to own property. He requested the Justice Department survey the Black Administration Act’s clauses concerning those areas and report the results at the 31 January meeting.

The Chairperson welcomed provinces supporting the Bill, especially KwaZulu-Natal that had a high concentration of traditional leaders. He suggested that the House of Traditional Leaders brief the Committee at some stage.

The meeting was adjourned

Appendix A: Free State Provincial Legislature Mandate

FREE STATE LEGISLATURE

FINANCE, OFFICE OF THE PREMIER AND LEGISLATURE COMMITTEE

 

Report on the provincial inputs regarding Repeal Of Black Administration Act and Amendment of Certain Laws Bill [B25B-2005]

 

1. Terms of Reference

The Repeal Of Black Administration Act and Amendment of Certain Laws Bill [B25B-2005] has been referred to the Finance, Office of the Premier and the Legislature Committee by the Speaker on 14 October 2005.

2. Briefing

(1) On the 21 October 2005, Adv. J. Machaka, Assistant Legal Advisor of the Free State Legislature briefed the Committee on the legal substances and effects of the Bill.

(2) A Permanent Delegate, Mr D. Worth, briefed the Committee on the content of the Bill.

(3) The Bill seeks to repeal the provisions of the Black Administration Act , 1927, incrementally; to amend the Administration of Estates Act, 1965, so as to give the Masters of the High Courts jurisdiction over the property of all minors, including those who are governed by the principles of customary law; to amend the Traditional Leadership and Governance Framework Act, 2003, so as to regulate the liability of a traditional community in respect of the obligations of, or those incurred by, its traditional leadership; and to provide for matters connected therewith.

3. Consultation

There is no need to provide any stakeholders with copies of the Bill, or to invite their inputs.

4. Consideration

The Committee considered amendments to the Bill and further effected the following amendments:

Clause 1 ( 5 )

Page 3 to delete "on" after "repealed" clause 1 (5), and to insert "on" before "31 July 2006" in clause1 (5) (a) and insert "on" before "such date" in clause 1 (5)(b).

Motivation: To maintain consistency with clause 1 (3).

Clause 1 (6)

Page 3 to delete "on" after "repealed" in clause 1 (6), and to insert "0n" before "31 July 2006" in clause 1 (6)(i) and insert "on" before "such date" in clause 1 (6)(ii).

Motivation: to maintain consistency with clause 1 (3).

 

5. Resolutions

The Committee resolved that:

1. The following negotiating mandate be conferred:

To support the Bill with the aforementioned amendments.

 

 

______________

MR P. MALOKA: ACTING CHAIRPERSON

FINANCE, OFFICE OF THE PREMIER AND LEGISLATURE

Free State Legislature

24 OCTOBER 2005

 

 

 

Appendix B: Eastern Cape Provincial Legislature Mandate

EASTERN CAPE PROVINCIAL LEGISLATURE


REPORT OF THE PORTFOLIO COMMITTEE ON LOCAL GOVERNMENT AND TRADITIONAL AFFAIRS


(EASTERN CAPE PROVINCE)


Negotiating Mandate on Repeal of Black Administration Act and Amendment of Certain Laws Bill


1. Terms of reference


Repeal of Black Administration Act and Amendment of Certain Laws Bill referred to the Portfolio Committee on Local Government and Traditional Affairs by the NCOP Business Committee for Consideration.


2. Briefing


The Committee was briefed on the contents and effects of the Bill by Hon. Le Roux, NCOP Permanent Delegate, on 26th October 2005 and also received inputs from the Committee members. Hon. Le Roux did in his presentation indicate to the members the urgency of the negotiating mandate that has to be forwarded and effect the repeal.


3. Consultation


The Committee conducted as tele-conference with the permanent delegate. The Committee didn't conduct any public hearing as there repeal deals with the provisions of the act of 1927.


4. Concerns


The Committee does not have any concerns on the Bill.


5. Resolution


The Committee having considered the proposed amendment Bill resolved that the following negotiating mandate be conferred:


(1) To support the Bill as proposed.

Dated: 26/10/2005

Hon. N. B. J Hoosain

Acting- Chairperson Portfolio Committee on Local Government

And Traditional Affairs

Eastern Cape Provincial Legislature

BHISHO

 

Appendix C: Kwazulu-Natal Negotiating Mandate

KWAZULU-NATAL PROVINCIAL PARLIAMENT


NEGOTIATING
MANDATE


PROVINCE
: KWAZULU-NATAL

BILL : REPEAL OF BLACK ADMINISTRATION ACT AND AMENDMENT OF CERTAIN LAWS BILL [B25B-2005]


PROVINCIAL
PROCESS:


Provincial Portfolio Committee/s : Traditional and Local Government Affairs


Portfolio Committee meeting date/s : Tuesday, 25th OCTOBER 2005


Provincial NCOP meeting date/s : Tuesday, 25th OCTOBER 2005


Consultation : Parliamentary Legal Advisors, Special and Permanent Delegates


VOTE
OF THE KWAZULU-NATAL PROVINCIAL LEGISLATURE:


The Provincial Standing Committee on National Council of Provinces Matters met today, Tuesday, 25th of October 2005. and agreed to mandate the KwaZulu-Natal delegation to the National Council of Provinces to support the Repeal of Black Administration Act and Amendment of Certain Laws Bill [B25B-2005] subject to the following amendment:


[A]
Preamble


The deletion, from the preamble, of the following:


"to amend the Traditional Leadership and Governance Framework Act, 2003, so as to regulate the liability of a traditional community in respect of the obligations of, or those incurred by, its traditional leadership;"


The delegation is further mandated to consider any additional amendments, providing that-


1) the amendments does not alter the essential elements of the Bill; and


2) consensus is reached on the proposed amendment/s by the KwaZulu-Natal delegation.


PROVINCIAL - ENDORSMENT


CHAIRPERSON : KWAZULU-NATAL STANDING COMMITTEE ON NATIONAL COUNCIL OF PROVINCES MATTERS


DATE TUESDAY, the 25th of October 2005

 

 

 

 

Appendix D: Mpumalanga Legislature Negotiating Mandate
OFFICE OF THE SPEAKER


The Portfolio Committee on Local Government and Housing met on the 20 October 2005 for the briefing by the permanent delegate of the National Council of Provinces of the Repeal of Black Administration Act and Amendment of Certain Laws Bill (B25-2005) (the Bill). Present at the meeting was the Mpumalanga Department of Local Government and Housing.


After consideration of the Bill, the Committee agreed to the proposed amendments and supports the Bill as it stands.


The permanent delegates representing the Province of Mpumalanga in the National Council of provinces and conferred with authority and mandated to vote in favour of the Bill


HONG~SINDANE: DATE

CHAIRPERSON: PORTFOLIO COMMITTEE ON LOCAL GOVERNMENT AND HOUSING

 

 

Appendix E North West Legislature Negotiating Mandate
PORTFOLIO COMMITTEE ON DEVELOPMENTAL LOCAL G
OVERNMENT AND HOUSING


REPORT ON THE NEGOTIATING MANDATE: REPEAL OF BLACK ADMINISTRATION ACT AND AMENDMENT OF CERTAIN LAW BILL


1.
TERMS OF REFERENC5

The Repeal of Black Administration Act. and Amendment of Certain Law Bin was introduced in the national assembly and referred to the National Council of Province as it affects provinces.


On the 20111 October 2005, permanent member of the NCOP, Hon, A. Moseki briefed the Portfolio Committee on the above mentioned bill.


2.
CONCERNS

After the presentation of the NCOP, the Portfolio Committee raised the following concern:

  • that the Act be repealed as it is in contract with the new Constitution.
  • the Act contradicts the Traditional Leadership and Governance framework Act, 2003.
  • all relevant Acts must be availed to the Portfolio Committee so as to take informed decisions when final mandates are required.
  • all department which were responsible for the Black Administration Act must together for the speedy repeal of this Act,


3. CONCLUSION

Having heard the submission of the Select Committee on Security and Constitutional Affairs, the Portfolio Committee resolved to support this essence and the intentions of the Bill.


Signed


Hon M.L. Mahlakeng : Chairperson; Portfolio Committee on Developmental Local and Housing

 

 

 

 

Appendix F: Gauteng Legislature Negotiating Mandate
GAUTENG LEGISLATURE


LOCAL GOVERNMENT PORTFOLIO COMMITTEE NEGOTIATING MANDATE ON THE REPEAL OF BLACK ADMINISTRATION ACT AND AMENDMENT OF CERTAIN LAWS BILL [B25B-2005] –[SECTION 76]


1 INTRODUCTION


The Chairperson of the Portfolio Committee on Local Government, Ms R Letwaba tables the Committee's Negotiating Mandate on the Repeal of Black Administration Act and Amendment of Certain Laws Bill (B25B-2005] - Section 76 as follows:


2.
PROCESS FOLLOWED


On the 14th October 2005, The Speaker formally referred the Repeal of Black Administration Act and Amendment of Certain Laws Bill [B25B-2005] - Section 76 to the Local Government Portfolio Committee, in terms of Rule 232(1 )(a) read with 235(4) and (6).


The Committee in its meeting of the 20" October 2005, received a provincial briefing from the Permanent Delegate to the National Council of Province (NCOP), Honourable S. Shiceka.


On the 25th October 2005 the Portfolio Committee convened in terms of Rule 235(4)(a), to give the Department of Local Government an opportunity to present the views of the Executive Council on the referred Bill. Noting the views expressed by the Department of Local Government, which in principle are in support of the Bill and further confirmed that the Bill wilt impose no financial and adverse social implications for the Province, the Portfolio Committee deliberated and considered the principle and detail of the Repeal of Black Administration Act and Amendment of Certain Laws Bill [B25B-2005] - Section 76


3.COMMITTEE POSITION


The Portfolio Committee supports, with no proposed amendments, the Bill as passed by the National Assembly and transmitted to the NCOP for concurrence,


4. EXPLANATION OF THE COMMITTEE POSITION


The position adopted by the Portfolio Committee to support the Bill is among other things based on-


i. the views of the Executive Council as expressed by the Department of Local Government


ii. the briefing received from the NCOP Permanent Delegate


iii. the Bill ensures the promotion of the values and principles enshrined in Chapter 2 of the Constitution' - Bill of Rights, in enhancing our Constitutional Democracy.


5. SOCIAL AND FINANCIAL IMPACT ASSESSMENT OF BILL FOR THE PROVINCE


The Bill does not have any financial implications for the Province.


6. CONSTITUTIONALITY OFBILL


The Bill seeks to give effect to Chapter 2 of the Constitution - the Bill of Rights, in ensuring that among other things, issues of equality before the law, human rights, human dignity, life, e.t.c. are upheld in our democratic society, hence the repealing and amendment of those statute? that sought to entrench racial discrimination as an acceptable norm in our society


NEGOTIATING
POSITION ADOPTED BY THE COMMITTEE


The Portfolio Committee supports the principle and detail of the Repeal of Black Administration Act and Amendment of Certain Laws Bill [B25B-20051- Section 76


HONOURABLE R. LETWABA :CHAIRPERSON : LOCAL GOVERNMENT PORTFOLIO COMMITTEE

 

 

 

 

Appendix G: Limpopo Legislature Negotiating Mandate
LIMPOPO LEGISLATURE


PORTFOLIO COMMITTEE ON SAFETY AND SECURITY


NEGOTIATING MANDATE ON REPEAL OF BLACK ADMISTRATION ACT AND AMENDMENT OF CERTAIN LAWS BILL [B25B - 2005]


1
INTRODUCTION

The National Council of Provinces referred the Repeal of Black administration Act and Amendment of certain Laws Bill to the Legislature. The B ill was upon receipt by the Legislature, referred to the Portfolio Committee on Safety and Security for consideration.


2.
PURPOSE OF THE BILL

To repeal the provisions of the Black Administration Act, 1927, incrementally; to amend the Administration. of Estates Act, 1965. 80 as to give the Master of the High Courts jurisdiction over the property of all minors, including those who are governed by the principles of customary law; to amend the Traditional Leadership and Governance framework Act, 2003, so as to regulate the liability of a traditional community in respect of the obligations of, or those incurred by, its traditional leadership, and to provide for matters connected therewith.


3.
BRIEHNG BY THE NCOP DELEGATES

The permanent delegates to the National Council of Provinces briefed Members of the Portfolio Committee on Safety and Security on the above mentioned Bill on 21 October 2005.


4.
NEGOTIATING MANDATE

The Committee having been briefed and considered the Repeal of Black Administration Act and the Amendment of Certain Laws Bill hereby recommend that the NCOP delegates negotiate the Bill to allow it to serve the country better and in line with current constitutional obligations.


COMMITTEE CHAIRPERSON

 

Appendix H: Western Cape Legislature Negotiating Mandate

NEGOTIATING MANDATE OF THE WESTERN CAPE PROVINCIAL PARLIAMENT

Report of the Standing Committee on Governance on the Repeal of Black Administration Act and Amendment of Certain Laws Bill [B25-2005] (NCOP), dated 19 October 2005, as follows:

The Standing Committee on Governance having considered the subject of the Repeal of Black Administration Act and Amendment of Certain Laws Bill [B25-2005] (NCOP), referred to the Provincial Parliament in terms of the rules of the National Council of Provinces (NCOP), begs to report that it confers on the Western Cape's delegation in the NCOP the authority to support the Bill without amendment.

 

MR PC MCKENZIE

CHAIRPERSON

19 OCTOBER 2005

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