JUDICIAL MATTERS AMENDMENT BILL 2019 BRIEFING TO PORTFOLIO

JUDICIAL MATTERS AMENDMENT BILL, 2019 BRIEFING TO PORTFOLIO COMMITTEE ON JUSTICE AND CORRECTIONAL SERVICES ON 5 NOVEMBER 2019

2 Background • The primary aim of the Judicial Matters Amendment Bill, 2019 (the "Bill"), is to amend the Divorce Act, 1979 and the National Prosecuting Authority Act, 1988. • The two Acts are administered by the Department of Justice and Constitutional Development (the "Department"). • The provisions in the Bill are non-contentious, and are intended to give effect to the decisions of the Constitutional Court in which certain provisions in the Acts were declared unconstitutional. There is not much room for leverage. The Constitutional Court has made it abundantly clear what is required in the remedial legislation, which the Bill seeks to do.

3 The Bill The provisions in the Bill can be summarised broadly as follows: * Clause 1 of the Bill inserts a new paragraph (c) in section 7(3) of the Divorce Act in order to give effect to a judgement of the Constitutional Court. * In Holomisa v Holomisa and the Minister 2018 ZACC 40 the Constitutional Court declared section 7 (3) of the Divorce Act constitutionally invalid. * Section 7(3) empowers a court granting a decree of divorce in respect of a marriage out of community of property to order a just redistribution of assets in certain circumstances. * The provisions of section 7(3), however, apply only in respect of marriages entered into before the commencement of the Matrimonial Property Act , 1984, and in respect of civil marriages between Africans entered into in terms of section 22(6) of the Black Administration Act, 1927, before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988.

4 The Bill – Section 7(3) was enacted to protect women married out of community of property from the potential harsh consequences flowing from such a proprietary regime. – Section 7(3) does not, however, apply to persons married out of community of property under the Transkei Marriage Act, 1978. – The Constitutional Court found that section 7(3) 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 transfer of assets on divorce and it fails the test of rationality in terms of section 9(1) of the Constitution. – The provisions of clause 1 of the Bill seek to address this gap and extend the application of section 7(3) to persons married out of community of property, not only under the Transkei Marriage Act, but under also under any other law in the Republic, the impact of which excludes the benefits accruing to spouses in terms of this section.

5 The Bill * Clause 2 of the Bill amends section 12 of the National Prosecuting Authority Act, 1998, by deleting subsection(4) and by inserting paragraph (a. A) in subsection (6) after paragraph (a), in order to give effect to a judgment of the Constitutional Court. * In Corruption Watch NPC and Others v the President of South Africa and Others CCT 333/17 the Constitutional Court declared section 12(4) constitutionally invalid. * Section 12(4) empowers the President to extend the term of office of the National Director of Public Prosecutions (the NDPP) or a Deputy National Director of Public Prosecutions (Deputy National Director) beyond the age of 65, for a period not longer than 2 years. * In terms of section 12(1) the NDPP and a Deputy National Director hold office for a nonrenewable term of 10 years and must vacate office at the age of 65 years.

6 The Bill * The Constitutional Court also declared section 12(6) constitutionally invalid to the extent that it permits the President to suspend the NDPP or a Deputy National Director for an indefinite period and without pay. * The Constitutional Court held that the provisions in question undermine and compromise the independence of the office of the NDPP. * The proposed provisions in the Bill therefore seek to : • remove the powers of the President to extend the term of office of the NDPP or a Deputy National Director; • provide that the period of suspension of the NDPP or a Deputy National Director may not exceed 12 months; and • provide that these functionaries are entitled to their full salary during the suspension period.

7 CONSTITUTIONAL COURT DEADLINES The Constitutional Court set deadlines in respect of both of these judgments by when the identified defects must be remedied. They are as follows: The Holomisa matter: section 7 of the Divorce Act, 1979: 22 October 2020. The Corruption Watch matter: section 12 of the NPA Act, 1998: 12 February 2020