Five months into the term of the sixth parliament, members of parliament are already well set into crafting laws, giving oversight to the executive and ensuring that the lives of South Africans are changing for the better. This past two months alone, the justice and correctional services portfolio committee started to process three important bills that affect our marriage laws, the funding of political parties and the term of office of South Africa’s top prosecutor.
The legislation which comprises of the Recognition of Customary Marriages Amendment Bill, the Promotion of Access to Information Amendment Bill and Judicial Matters Amendment Bill are all in response to Constitutional Court judgements and the deadlines, set by our apex court to rectify the laws, are looming. In other words, the Concourt instructed parliament to improve or tighten up these pieces of legislation that already exist.
The proposed amendments to the Recognition of Customary Marriages Act is based on the Concourt judgment in the case brought before that court by Ramuhovhi and others. The amendment bill seeks to regulate the proprietary consequences of customary marriages in as far as it unfairly discriminates against women in customary or polygamous marriages who are often left vulnerable after the divorce or death of their husband. It now provides that the spouses in such marriages have joint and equal ownership, of a marital property.
The bill was introduced into parliament in September and also referred to the National House of Traditional Leaders. In terms of the Traditional Leadership and Governance Framework Act, any new law, being introduced and which has an impact on customary law, must be submitted to the National House of Traditional Leaders as well for consideration. A 30 day period is prescribed for the submission of comments by anyone, especially members of the public.
Another piece of legislation that parliament is also considering to amend is the Promotion to Access to Information Act. This was prompted by the Concourt judgment in the matter brought before that court by the non-profit organization My Vote Counts. The bill pertains to the provision of information on the funding of political parties. The bill requires registered political parties to disclose the particulars of their funders.
The bill further obliges the head of a political party ( which includes an independent candidate) to create and keep records of any donations that have been made to such political party or candidate which exceed the prescribed threshold in a financial year and the identity of the persons or entities who made those donations. The records must be made available on a quarterly basis and be kept for a period of at least five years.
The portfolio committee invited comments on the bill and public hearings were also held in September. The right to information of each citizen is therefore promoted and strengthened in this bill. Citizens must know where their political parties and candidates, whom they are voting for, are receiving their funding from. In this way, these political parties and candidates may be more accountable to the citizens, who voted for them, and not the funders.
The Justice & Correctional portfolio committee will also have to give consideration to a third matter which arose from the Concourt judgment in the case of Corruption Watch NPS and Others vs President of the RSA. The primary aim of the bill dealing with this matter is to amend the National Prosecuting Authority Act (NPA Act) which came into existence in 1998. This law deals with aspects pertaining to the term of office of the national director of public prosecutions and its deputies. The NPA Act, 1998 provides that the President may provisionally suspend the National Director Public Prosecutions (NDPP) or a Deputy NDPP for misconduct pending an enquiry into his or her fitness to hold office. However, the NPA Act placed no limit on such suspension period. The ConCourt declared that the relevant provision of the NPA Act is unconstitutional and invalid.
The bill proposes that the period between the moment the President decides to suspend the NDPP or its deputies to the moment these are removed from office may not exceed twelve months. The NDPP or the deputies must be suspended on full pay. These measures are put in place to ensure the independence of the office of the national director public prosecutions.
All three bills are being prioritised through their passage in parliament. Parliament is therefore currently seized with one of its primary responsibilities of strengthening the rights of the ordinary citizens of our country.
Advocate Hishaam Mohamed is an ANC Member of Parliament and the former head of the Department of Justice & Constitutional Development in the Western Cape. He writes in his personal capacity.