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Parliament Seeks Comment on Judicial Matters Amendment Bill

November 1, 2019

Portfolio Committee on Justice and Correctional Services

1 November 2019

The Portfolio Committee on Justice and Correctional Services seeks comment on the Judicial Matters Amendment Bill.

The bill was tabled in parliament in October 2019.

The bill aims to amend:

• the Divorce Act, 1979, so as to further regulate the division of assets and maintenance of parties in divorce proceedings in accordance with a judgment of the Constitutional Court; and
• the National Prosecuting Authority Act, 1998, so as to deal with aspects pertaining to the term of office of the National Director of Public Prosecutions and the Deputy National Directors of Public Prosecutions in accordance with a judgment of the Constitutional Court; and
• to provide for matters connected therewith.

Clause 1 of the bill flows from a Constitutional Court judgement that declared Section 7(3) of the Divorce Act constitutionally invalid.

The court found that Section 7(3) discriminates against women married out of community of property under the Transkei Marriage Act of 1978 in that it fails to extend to them the protection of a just and equitable redistribution of property on divorce.

Clause 1 inserts a new paragraph (c) into Section 7(3) that ensures that any marriage out of community of property that excludes the benefits accruing to spouses falls within the scope of Section 7.

Clause 2 of the bill seeks to amend Section 12(6) of the National Prosecuting Authority Act to provide that the period of suspension of a National Director or a Deputy National Director by the president may not exceed 12 months.

The bill also aims to amend Section 12(6)(e) of the act to provide that a National Director or a Deputy National Director on suspension is entitled to full pay.

The committee has also called for comment on the Recognition of Customary Marriages Amendment Bill.

The bill was tabled in parliament in September 2019.

In an earlier statement, the justice and constitutional development department pointed out that the draft bill brings section 7(1) and (2) of the Recognition of Customary Marriages Act of 1998 in line with a 2017 Constitutional Court judgment which declared the provisions constitutionally invalid.

The sections discriminate unfairly against women in customary marriages.

The bill aims to amend the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998 (“the Act”), by further regulating the proprietary consequences of customary marriages entered into before the commencement of the Act so as to bring the provisions in this regard in line with judgments of the Constitutional Court which the Court found to be constitutionally invalid because they discriminate unfairly against certain women in customary marriages and to provide for matters connected therewith.

It flows from a Constitutional Court confirmation that a Limpopo High Court order declaring section 7(1) of the act to be constitutionally invalid was the correct decision.

The High Court had ruled that section 7(1) discriminated against women in polygamous customary marriages entered into before the commencement of the act.

The bill aims to:

• amend the Recognition of Customary Marriages Act, 1998, so as to further regulate the proprietary consequences of customary marriages entered into before the commencement of the said Act; and
• provide for matters connected therewith.

Comment on both bills is invited until 21 November 2019.

Public hearings on the bills will be held in parliament.