1 JUDICIAL MATTERS AMENDMENT BILL 2019BILL 13 2019

1 JUDICIAL MATTERS AMENDMENT BILL, 2019(BILL 13 -2019) Presentation to Select Committee on Security and Justice 29 May 2020 1

2 BACKGROUND This Bill aims to amend two Acts administered by the Department of Justice and Constitutional Development by addressing technical issues and issues that arose in the practical application of the Acts. The Bill amends section 7(3) of the Divorce Act, 1979, and section 12(4) and (6) of the National Prosecuting Authority Act, 1998, in order to give effect to the judgments of the Constitutional Court(“the Court”). The amendments in this Bill aim to give effect to Constitutional Court judgments where the court ordered that remedial legislation be put in place. 2

3 Clause 1 § Clause 1 is intended to amend section 7(3) of the Divorce Act, 1979(Act No. 70 of 1979(“the Divorce Act”) in order to give effect to the judgment of the Court in Holomisa vs Holomisa and Another in terms of which section 7(3) of the Divorce Act was declared constitutionally invalid. § Section 7(3) of the Divorce Act empowers a court granting a decree of divorce in respect of a marriage out of community of property to order a just and equitable redistribution of assets, taking into consideration the contribution, whether in money or otherwise of the parties to the marriage. 3

4 Clause 1(continued) The challenge is that section 7(3) only covers persons married out of community of property before the commencement of the Matrimonial Property Act, 1984, where there is an antenuptial contract which excluded community of property, profit and loss and accrual in place, and those who were married out of community of property before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, including those who married in community of property under section 22(6) of the repealed Black Administration Act, 1927. Effectively, section 7(3) excludes persons married out of community of property under the repealed Transkei Marriage Act, 1978. 4

5 Clause 1(continued) Section 39 of the Transkei Marriage Act, provided that a civil marriage between Africans was not in community of property, unless where the parties intending to get married give a month notice before a competent official that they intend their marriage to be in community of property. While the Marriage and Matrimonial Property Law Amendment Act, 1988, and section 7(3) of the Divorce Act brought relief to persons whose marriages were automatically out of community of property, persons in the former Transkei who were in the same predicament could not realise this benefit. This situation was turned around by the enactment of the Recognition of Customary Marriages Act, 1998 5

6 Clause 1 (continued) The Constitutional Court found that section 7(3) of the Divorce Act discriminates against women married out of community of property under the Transkei Marriage Act in that it excludes them from the benefits of a possible just and equitable transfer of assets on divorce and therefore fails the test of rationality under section 9(1) of the Constitution, providing for equal protection and benefit of the law. Clause 1 amends section 7(3) by extending its protection and benefits to marriages out community of property entered into in terms of any law applicable in a former homeland, where no ante-nuptial contract or any other agreement was entered into in terms of that applicable law. 6

7 Clause 2: Clause 2 of the Bill aims to amend section 12(4) Prosecuting Authority Act, 1998(the NPA Act). of the National Section 12(1) of the NPA Act provides that the National Director of Public Prosecutions(NDPP) and a Deputy National Director (DPP)holds office for a non-renewable term of 10 years and must vacate office at the age of 65 years. Section 12 (4) empowers the President to extend the term of office of the NDPP or a DPP beyond the age of 65, by a period of up to two years. In Corruption Watch NPC and Others vs the President of South Africa, the Court declared section 12(4) constitutionally invalid in that it undermines and compromises the independence of the office of the NDPP. 7

8 Clause 2 (Continued) The Constitutional Court also declared section 12(6) of the NPA Act constitutionally invalid to the extent that it permits the President to suspend the NDPP or a DPP for an indefinite period and without pay. Therefore, the amendments in clause 2 of the Bill are intended to(i) do away with the powers of the President to extend the term of office of the NDPP or a Deputy National Director; (ii) provide that the period of suspension of the NDPP or a DPP may not exceed 12 months; and (iii) provide that the NDPP or a DPP who is on suspension be entitled to their full salary during the suspension period. 8

9 Conclusion In terms of the order of the court, the amendments in clause 1 must be in operation by 22 October 2020, while those in clause 2 must have been in place by 12 February 2020. THANK YOU 9