Portfolio Committee on Justice and Constitutional Development, 2 June 2026

追加: 2026-06-03

[00:16:59]chippers. Thank you. Thank you very very much and uh greetings to to the minister and and all members of the the committee. I'm uh joined by um advocate uh Steve Ralequa, the acting uh deputy director general for legislative development and also advocate CC cibila uh who's been working on on this area. chairperson. Really, I'm not going to to dwell at at length.

[00:17:34]Um the the issue before the the committee today um is the the family laws amendment uh bill. And really the bill seeks in essence to give effect to a number of constitutional court judgments.

[00:18:00]Um and for that reason it's it's quite focused um on attending to to those matters.

[00:18:09]We are very very heartened by the fact that the that we've had a very very substantial um public participation uh in this uh process and in particular we would want to single out the banking association of South Africa and also an organization focused on uh the rights of of of fathers.

[00:18:40]Now I think that bears testament to the ongoing richness of our constitutional democracy. the fact that we have such um active participation by citizens in the legislative process and I think members would see also that the the department has gone to great lengths to to analyze those submissions to engage with them and to to make its views known and also the fact that a number of those proposals have been uh accepted. Uh and in particular, I would want to to single out the proposals by the banking um association regarding the need for uh clarity on uh transitional uh measures.

[00:19:40]So all in all, the the legis the the draft bill also seeks to to bring greater equity um to our uh marital laws dispensation.

[00:19:56]Um in particular also the very important area of um expanding sorry I'm just my yeah I think to to to promote fairness in divorce proceedings and property redistribution to recognize both financial and non-financial contributions made by spouses during marriage and to access expand access to mediation and family dispute resolution services.

[00:20:33]Now I don't want to preempt the the presentation because I think it will be very detailed but just to say that the most significant uh inputs and um proposals which have been taken into account revolve around the need to to clarify that these amendments are prospective and not retrospective that the redistribution orders are not automatic and that a party must apply for them and that the courts will assess each case on its merit and that there is a need to provide clarity um that the amendments apply to existing marriages and to pending divorce proceedings at the commencement of the the act. I think lastly, chairperson to just indicate that there are many many other areas of our um family and and and marital laws that do require attention.

[00:21:34]Those are receiving uh attention. Um there is a broader reform underway. The South African Law Reform Commission is reviewing the matrimonial property law, that a new marriage bill is currently before parliament, and that more comprehensive reform of family law may follow on these processes. In particular, the the law reform commission, I think it's project 100, is looking at um the the broader mediation reforms um and we await those anxiously.

[00:22:09]uh and uh will then be coming back to to parliament once those matters have been pro uh processed. So chairperson with that I would like to hand over to DDG Steve Riqua and Miss Advocate Cibila to take the committee through the uh proposed the public comments that have been received and analyzed by the department and we look forward also to to the department's view or the committee's views. Thank you.

[00:22:38]DG good morning chairperson good morning minister deputy minister members of uh the committee um with your permission chair um I'm going to flight the presentation and advocate major will then lead uh with the presentation thank you chair >> thank You advocacy major may take uh the committee through the presentation. Thank you chair.

[00:23:41]>> Uh good morning chairperson minister, deputy minister and uh members of the portfolio committee if I may be allowed to switch on the camera off the camera.

[00:23:52]Uh my network seems to be a bit uh poor.

[00:23:56]>> That's okay.

[00:23:58]>> Thank you. Thank you chair. The I think we can start on slide three. Uh just basically slide two is just the purpose of the presentation in which we are uh presenting the responses that we have made as uh DMs indicated.

[00:24:20]>> Uh can we go to slide three?

[00:24:22]>> Yeah. I I I seem to be having an issue with moving the slides. Um I don't know if uh someone else can try and share.

[00:24:35]I'm not sure if it's visible on your side. Chair >> committee secretary. Can you help?

[00:24:45]>> Chair, I will I'll get somebody from the department to share from their side. My network is also very good.

[00:24:54]>> Okay.

[00:25:44]Yes sir. Thank you. Uh on slide three chairperson and members of the portfolio committee the it is the list of the commentators or people who submitted or institutions who submitted their uh inputs. It is the national house of traditional and quisan leaders. It's the banking assoc association of South Africa w not sure whether it's a Mr. Miss Sean Bryet Naidu Fathers for Justice South Africa I think in brackets for saying they're supported by Franchual divorce and there was an article by Amanda Barat not certain where it aminates from but we have nonetheless have a look at it. If you can go to the next slide.

[00:26:28]We've done a table uh that indicates firstly on the left the plots that the comments relate to and the essence of the the comment because some were lengthy we tried to summarize them and uh the department's response and at the end the if there are proposed amendments we do make a a a a proposal based on the comments that we have looked at. Now the firstly the the National House of Traditional and Quisan leaders uh they are basically supporting the amendments and as well uh banking association of South Africa they've raised the need as the deputy minister has indicated to clarify how the provision uh in relation to section 7 would apply in practice whether that uh the removal of the words before the commencement of the maternal property act 1984 in section 73A will cover those marriages that have already been dissolved or at the commencement date or it will apply only uh to the ones that are pending h or there are new divorces that are still to come and again Basa has proposed that uh they should be transal provisions that clarifies the application of these amendments Furthermore, in the comment se section, Basa has raised as well an issue that the bill does not specify whether the repeal of subsection 7C will affect the divorce orders or settlement agreements that have already been made. Uh uh so we needed a bit of clarity. Then as a response we're saying the changes will not operate retrospectively but prospectively and as the section uh provides the provisions will apply when the court has a divorce matter before before it. So it already the act indicates that the section can be applied on those cases that they are busy considering or hearing and therefore that will be before the granted degree of divorce that a person can apply for a discretionary order by the court and in invoking the the provisions of section 73. It is an application that one has to make. It is not automatic that the court will invoke section 73.

[00:28:57]uh therefore uh the court will then after the application uh deal with the rest redistribution order. The although we had said there might not necessarily be a need for a transition provision. We have however uh provided a proposed amendment uh to the bill which will insert at clause 9 as transitional provisions that will read uh the amendments to the provisions of section 7 3 and uh 7 apply to the marriages marriages that are in existence and those that are pending have pending divorce proceedings at the commencement of the act. So this will take care of the concern raised by uh Basa Banking Association of South Africa that there needs to be clarity as to how the provision would apply. If you can move to the next slide please.

[00:29:52]The this is still further some comments that relate to uh clause two. It it was further for justice uh South Africa which are supported by Franch Divorce that confirms that indeed the bill does implement the conial court judgment in the conial court order in the EB and others and as well as the KG matter.

[00:30:17]However, their position as they put it, they say it's bluntly saying that where parties feel freely to choose out of commit of property without acrual, their agreement and the type of the maternal property regime must stand as they yet chosen. Therefore, meaning that we should don't we should not temper with the arrangement or agreement that the parties would have decided to agree on.

[00:30:42]H therefore they they are they are saying the court's orders must be met with the narrowest tightly cabined implementation consistent with the conal compliance but not as a blank check meaning we should not allow the court to basically order a reduh order that discretionary power. Therefore they are saying if section 73 must apply more widely. They propose some guard rails to prevent abuse. That is to say, there must be a high threshold. Meaning, when a person applies to court uh for a redistribution order, there must be a higher test that is met to prove that a person has indeed uh contributed to the growth of the other spouse uh estate.

[00:31:31]And this they're saying uh that the test uh must be we must apply caution and be specific about what can be motivated for. Uh there must be a clean hands test and the temporary limits proportionality cap and express respect for antiual choice. Basically they are not agreeing to a discretionary uh remedy of uh the court. Uh we we have already indicated uh the response is still the same to say we we we have the view that we need to have this discretionary and we do not necessarily need to to cartail what the court should look at because the provisions of section between section 73 and 5 do guide the court or does apply to the applicant who says I need the court to invoke section 73. There is a need for you to to motivate for why should the court invoke section 73. If you can move to the next slide.

[00:32:35]The next slide talks to clause 5. Uh it is Basa again here saying the scope of the proposed section 24A should be explicitly clarified in order for the interpretation uh to be clear and whether this will apply in relation to the interstate succession and we should specify what agreement includes in in the provision whether a will and the effect thereof will be taken into account. Furthermore, they're saying as to what is there is is there is time frame for section 24A application to say when is it going to apply because we are saying it will apply it will not apply when an estate has been wound up but then they want to get a clarity in terms of what is the meaning of wound up as a response you're saying the provision applies to any death whether there's a will or a person dies interstate and we're saying A will serves its purpose and it must not be confused or conflated with the application of the provision.

[00:33:40]The timing of the application uh of the section is very clear for us from the provisions of subsection 2 that such an application cannot be made after the winding up of a deceased estate. Winding up has its meaning as contemplated in the relevant legislation which is the administration of estates act and there is no need to define it as what is this act provides is not in conflict with that act or it is not intended to change the meaning and understanding of winding up. Basically when something has been wound up the administration of estates act does indicate uh that they would have distributed all the property in the estates or the assets in the estates and therefore we're saying one cannot apply once the estate has been finalized.

[00:34:30]If you can move to the next slide.

[00:34:34]So therefore we're not proposing any amendment in that regard.

[00:34:39]uh clause six which uh talks to the mediation in certain divorce matters act. Uh the National House uh of Traditional and Koisan Leaders is in support of the the changes that have been made to the law because it currently serves only those who are undergoing divorce proceedings and they agree that mediation should be expanded to parents and interested parties who are not in a divorce but are involved in disputes relating to their parental responsibilities. The we have just noted that because they are just in support and indicating how the section would apply. And next slide.

[00:35:19]A further on clause six fathers for justice South Africa uh supports the expanding and the clarification of the role or the mandate of the family advocates office and the title changes uh changing the the short title or the the the short title of the act. uh and therefore they're saying it is in line with the judgment in the center for child law versus tears and others and it will improve access beyond divorce only matters. Furthermore, they are recommending adding a provision to the act that will deal with the statuto service levels, a duty to try it to private mediation arbitration where it is appropriate with the enforcable timelines, a case management power to propose the interim contact frameworks pending the final orders. And also they recommending that we have automatic mandatory mediation at the point of separation of the parties or at the commencement of the divorce proceedings which must automatically be concluded within 90 days. However, as a response we are saying the the first proposal of statuto service levels is not supported.

[00:36:30]H this is a matter that should be dealt with as an administrative issue and furthermore the holistic uh review of the act is underway where there are certain considerations that we will take into account thoroughly as they proposed because we are realigning the act uh basically but we're still doing that review. This is the first step wherein we are uh putting clearly the mandate of the family advocates office. Again with respect to mediation, we're saying there there is a SDM has uh already indicated that the South African law reform commission is uh dealing with certain aspects to assist us. There's also a report that they've issued under the project 108A which is under the title care and contact with children and alternative dispute resolution in family matters which amongst others uh recommends a mediation to resolve family disputes. uh the report has been issued and we are considering the draft bill uh so that we are able to then finalize and will ultimately submit it for approval.

[00:37:34]Therefore we are not recommending any uh proposed changes. Next slide please. The next slide deals with the short title to the mediation sorry the short title to the bill and the basa again is saying the clause only provides for the short title and it does not include the commencement provision and they're saying while this is acceptable at the drafting stage they note that a sim similar amendment bills usually provide for commencement by proclamation to allow time for implementation and the wording that they are proposing to be added Clause 9 uh is that uh the words and come into operation on a date fixed by the president by proclamation in the gazette. As a response uh chair and uh members, we are saying there's no need for provision for commencement date to be proclaimed. The act uh comes into operation on a date of publication in the Gazette following ascendant signature by the president. This practice is the practice is that we normally do do provision where there are regulations that the act expects or requires uh the minister uh to make regulations and therefore the for us there's no need for delaying implementation as there's then no reason uh to provide for commencement provision. the the benefits that are to acrue or to be to come with this act is that the the those that have not divorced and they're contemplating divorce will then benefit. Those that have pending provisions will also benefit in that they will then have uh to make an application to the court to consider the distriution remedy.

[00:39:20]Therefore, we are not proposing any any amendment.

[00:39:27]The then the next slide.

[00:39:33]Thank you. These are general comments that were not necessarily uh specific to a particular clause but wholly regarding the the bill. The comments is that all assets of the disease must be shared to the spouse and to all children of the disease irrespective of the kind of the matrimonial property regime. Sorry, which is just missing there. And also there's a support for the bill that the proposed reforms which aim to create fairness in postmarital redistribution and recognize both the financial and non-financial contributions of the other spouses during the marriage. There's also support uh of the bill in the fact that the bill does not change how customary marriages are concluded but it ensures that they are treated equally in court uh with regard to financial and property matters. There's also a comment that the proposed amendments to the legislation must consider not only the provisions of the current divorce act and the maternal property act but also acknowledge that this uh the statutes are presently under review and subject to potential amendment and this is what we're saying uh chairperson and the members of the portfolio committee and accordingly they are proposing that any legislative changes should be sufficiently flexible to accommodate future developments in the broader legal framework which will include amendment be reviewed for the marriage legislation. I think uh basically this relates to the fact that there is a marriage bill before parliament and as well the review under the law reform commission. Therefore, these changes that are going to come with the review and the marriage bill will necessitate the overview generally of the divorce act and which is what we as if the chairperson may recall that in 2024 when we were dealing with the divorce uh amendment bill which is now in act. We did mention that there is still a need for for for us to review the divorce at whole because part of it is that section 7 is highly litigated and which deals with the material property issues as well. There's a comment that by granting broad judicial discretion uh to override valid marital contract there's a risk of undermining the very certainty and predictability that the law should provide.

[00:41:55]Furthermore, the next slide, the comment is that the bill strengthens the office of the family advocate, but parliament can go further and it is recommended that there there should be a mandated pre-action mediation and expanding of the scope beyond redistribution remedies to include alternative dispute resolution clocks, enforcement, which are called three strikes and timely ruling clauses. The article uh that I indicated that is uh by uh I think Amanda Barat. It analyzes basically and discusses the conalial court judgment in the EB and KG matter and the application of the discretion that the courts enjoy as well as arguing that while is the courts have discretion based on the particulars of a particular case before them.

[00:42:47]They have no wholly unfettered discretion and their discretion the court's discretion is cailed by policy objectives and substantive aims of of the legislation. And the article then further highlights that where legislature is able to provide clear guidance on how to exercise the discretion that is desirable to do so in the legislation as individual judges should not have unfettered discretion regarding the substantive objectives and the policy aims. The next slide.

[00:43:20]Thank you. The this therefore we are saying as a department wholly with regard to the general commence is that the department is of the view that the concerns that have been raised uh are matters that courts will carefully consider when applying the law whenever any application is made uh to the courts as they have to consider the evidence that is placed before them if the claimants deserve that there is discretion be invoked The therefore there's a guidance between uh in in provided for in section 73 to 7 basically for the court to say when you make an application there are particular requirements that you have to meet for the court to invoke the provisions of section 73 73 to order a redistribution remedy. Furthermore, the some of the suggested wedding that relate to informed consent and the conscious opt out of the parties to to make they negate the very essence of the amendments and the judgment because they have an effect of perpetuating prejudice against the vulnerable spouse those that would have contributed to the growth of the spouse of the other but then benefit uh nothing at the end of the day even if it's under the antiual contract. the the report of the South African law reform commission which I indicated earlier does provide for mediation to resolve family disputes and as I indicated earlier chair and committee members uh the the report of uh there's a draft bill with the report that we are busy we are now considering uh the next slide the the analysis that we have done So the analysis of the article we have noted it generally however we are saying as a department h as we have indicated earlier on the law reform commission is conducting an investigation into the matrimonial property regime the reform thereof as well as that there's a new marriage bill which is certainly going to bring a lot of changes that we have to then review the divorce act. The current amendments are only limited to satisfying the judgment and any other issues not properly researched and argued should uh in our view await the investigation and finalization of the marriage bill for us to be able to do a proper and conceptual uh to have proper and contextual discussions and engagements on the issues that are raised even in the article as well as many other issues still before the courts with regard to section section 7 which I indicated earlier that it is highly be contested.

[00:46:04]Uh chair, that is the end of my presentation and uh I would hand back to yourselves. Thank you.

[00:46:12]>> Thank you so much. Uh Mr. Sab uh members that is the presentation from the department.

[00:46:22]Can we by the show of hands interact with the presentation?

[00:46:30]SWA in that order.

[00:46:50]>> Thank you, chairperson. Greetings to you and the minister and the deputy minister and colleagues and members from the department. Thank you um for the presentation. And firstly I I want to commend the minister for being on the platform. Um in all my years I've not seen a minister attending legislative briefings and mostly it's led by the DM.

[00:47:13]So minister if you're still on the platform you've set a very high standard for other ministers who seldom attend portfolio committee meetings. So commendations from our side in that regard. Chair, thank you for the input from the DM.

[00:47:28]And Mr. Sebum, I really appreciate it. I really just want to take a step back and comment on the state of marriages in the country as a matter in general and the concerns about high levels of divorces and urge in line with the comment about pre-action mediation involvement with pre-action meditation mediation um and and urge faith-based organizations to be engaged in supporting spouses and trying to alleviate the impact on children. What I particularly welcome here is the attempt to grant broader judicial discretion to protect those vulnerable spouses.

[00:48:21]uh considering the the the the the discretion being given to the courts for post-maritable marital redistribution and recognizing not only financial but also non-financial considerations chair just one or two points that I just wanted to raise firstly I appreciate that the office of the family advocate will now be given additional work and chair in all my years we've never really engaged with the office of the family advocate as to their constraints and this the question is um will they have sufficient capacity this is a welcome move given the strong focus that will also come in on on mediation as well um that that is an aspect that we would have to have a look I think chairperson a lot of focus was placed on the section seven and sadly I think the comment was made that this is where a lot of litigation is concerned and that is always very sad because what happens at the end of the day is the assets are often liquidated to pay the legal costs and the spouses and children then lose out at the end of the day particularly given high levels of litigation in divorce matters.

[00:49:49]And I think that then is an aspect which needs focus. I I welcome the comments about the South African Law Reform Commission looking into the aspect of mediation, the impact of children with that project that they are busy with. Um I I understand that we're dealing here with the constitutional court order and possible deadlines, but one would like to get an idea of a time frame when that additional legis the bill that the that is before the department now flowing from the South African law reform commission which seems to be more comprehensive.

[00:50:28]that obviously is desirable to have that um looked at as as quickly as is feasible possible ch I think the the important point made by the DM that is that this is proscriptive obviously it can't be retroactive as much as one would like that to be but it's proscriptive and I would like to get an idea what does it mean when it is before the court is that defined I don't remember reading that particular definition. Is it at the point of issuing a summon or is it at the point when the matter is enrolled?

[00:51:11]What what what is the definition of a pending matter before the court? I also appreciate the fact that there would have to be an an application brought for this intervention to allow the broader judicial discretion.

[00:51:28]I think that that um that is necessary.

[00:51:31]It's not automatic. I'm fully um I'm fully aware of the concerns that have been expressed by fathers for justice and their concerns about any attempts to convert the agreement. disturbs the certainty of it, but at the same time that's got to be weighed with the aspect of vulnerability of spouses, fairness and equity. So I I I'm broadly in support of these provisions. Um and also appreciate the explanation of the administration of estates act. Um it's very clear that after winding up in terms of that legislation. So chair all in all I really appreciate the presentation. Well done to the department. um if we could just get responses to those questions. Thank you so much.

[00:52:20]>> Thank you Mr. SW Mr. Glober.

[00:52:23]>> Uh thank you chairperson and uh thank you for the presentation. I really only have two short questions. Um the first question I do apologize uh my ter my network was terrible and I don't know if it was confirmed. I think it was I heard parts of it. Um I just wanted to find out that does the provisions really expressly protect uh finalized divorce orders and settlement agreements from being reopened? I think that what was being said. Um and then the second I just wanted to find out um would there be resource implications for the office of the family advocates and and if there were to be um any you know uh implications would there be additional resources provided to the office of the family advocates to carry out this uh expanded mandate? Uh chair that's all I actually have to ask. Thank you.

[00:53:12]Thank you very much members for those insightful reactions to to the presentation. Uh dear I think let's give the DDG and Mr. Le I I hope I'm pronouncing your surname properly then >> my apologies chair I got it very wrong as well from my >> okay Mrs. uh TM will will give you to do the parting shots after uh they've uh responded to the technical issues.

[00:53:48]But before that, let's take honorable honorable Yo, I think I'm getting old now. H I'm trying to un >> Yeah, we can hear you now.

[00:54:19]>> No, thanks so much. I'm say maybe I'm getting old. I'm trying to unlock but I can't unmute the the the the the mic. So, greetings uh everyone. Um members and all people that are in this meeting, we welcome this submission and um with regard to the national house of traditional and coan leaders. They say they support the bill and support expanding the role of family advocate to assist families and children even outside divorce matters. So our view is um I think is a very good uh submission.

[00:55:01]Many children and families face disputes even when there is no divorce.

[00:55:07]We are support the expansion of the family advocates role because it may improve access to support services for ordinary service families. However, parliament must satisfy itself that the bill will not create additional responsibilities without ensuring adequate state capacity.

[00:55:28]So it's a problem. Sometimes we speak about those things and uh when you look there's no resources. So that is something that must be taken care of so that we don't just draft the bills for the sake of drafting the bills and when uh we had to uh the fiscal thing have to be done there's nothing h that covers that and then in terms of the banking association of South Africa which is the basa h they said that they want the bill to clearly state who will be affected by the amendments and from what date on that point the ef F agrees that the legislation must be clear and avoid confusion. We support the inclusion of transitional provisions if they improve legal certainity. However, legal certainity must not be used to weaken the objective of the bill which is to address unfair outcome suffered by vulnerable spouses.

[00:56:26]Um And then with regards to the baza speaking about the existing divorce settlement the bill does not clearly explain whether previous divorce settlement or court orders will be affected. So we view we have a belief that parliament should provide clarity on this matter. The objective should be to avoid uncertainity while ensuring that the bill remains focused on correcting unfairness identified by the constitutional the constitutional court.

[00:57:07]And lastly, chairperson in terms of fats for justice respect for marriage contracts they say people who voluntarily enter and touch into antiuptial contract should remain bound by those agreements. Uh so we we have a a little bit of disagreement on that suggestion that every man that with the sgested with the suggestion that every marriage contract automatically reflects equality between the parties. Many spouses particularly women entered marriages under unequal social and economic conditions. the bill exists precisely because strict reli reliance on contracts has often produced unfair outcomes. So we need to look at that as well because I I really don't agree with fathers for justice view on this matter.

[00:58:09]Yeah, there's a lot chairperson I'm just trying to scroll down.

[00:58:16]Uh And then where the fathers for justice also spoke about the stronger distribution claims. They said the bill should introduce stricter conditions before court can order redistribution.

[00:58:38]The EFF is concerned if restrictions undermine the purpose of the bill.

[00:58:45]too many before applicant vulnerable spouses may once again be denied relief.

[00:58:56]Um yeah, there's a um with regards to the public sus submission recognition of non-financial contributions. The bill should recognize both financial and non-financial contribution made during marriage.

[00:59:12]um uh chap raising children, maintaining a household and supporting spouse careers are available contributions that have historically been ignored by the law. So the parliament should ensure that the bill the bill fully recognize this contributions.

[00:59:30]H we strongly support that view. Um and lastly chair with regard to public sub submission as well equal treatment of customary marriage. What they said they said the bill should ensure equal treatment of customary marriage. The EFF support fully this principle. Women in customary marriage have historically experienced unequal treatment regarding property and inheritance rights.

[00:59:57]Parliament must ensure that the bill advances equality and dignity for all spouses regardless of the form.

[01:00:05]I think I can pause. And the other last one is the judges overriding marriage contracts. Giving judges pro may create uncertainity and undermine valid contract. We acknowledge the concern but but believe that judge justice and equality must remain central. The purpose of the bill is not to disregard contracts but to ensure that con contracts do not perpetuate unfairness and equality. Chap I thank you.

[01:00:39]>> Thank you so much.

[01:00:45]Maybe it will be important that the department also makes a Honorable.

[01:01:00]Thanks.

[01:01:06]I was trying to raise the hand here, but I'm also part of another set for the question.

[01:01:17]Now these are just few in that I would like to but uh in terms of the consultation process we we we we have been told that it's the consulted but has long been the master of the department family advocate and so forth. Has there been any extensive uh process of engagement or consultation with something? We know that in other ent sections or other functions of parliament this has created a bit of a problem in that as it relates to another commit of of women and persons with disabilities.

[01:02:19]Some of the decisions that they've taken have they been uh reversed by the constitutional court as a result of lack of sufficient yeah a lack of sufficient consultation.

[01:02:37]How also it one of the issues also that we thought that we must check is whether there have been an inclusion of a pension in patrimonial benefit.

[01:02:59]Now I think the last one I would have to check It's it's a or let's limit let's limit them to that but the major concern that I would have have chair is to get a sense whether the consultation process has been able to be done sufficiently and also what is the plan to responding to the problems that have been encountered by other committees with regard to the subision consultation. Thank you.

[01:03:46]Thank you so much honorable and and the the consultation process I think will also include the legal profession itself which deals with these matters on a daily basis.

[01:04:05]which litigates on behalf of beneficiaries in respect of matrimonial property.

[01:04:15]So if um the department can also take us into confidence whether the consultation process has extended also to the legal profession and all the relevant bodies respect of this bill.

[01:04:33]So we'll give u Mr. Zi and the DDG then the DM will come and do the parting shots.

[01:04:45]Thank you chair and um honorable members. Uh chair I just want to respond to the question by honorable SWAT and then uh advocate civil will deal with the remainder of the questions asked by the honorable members. Um and that is with regards to a matter that is pending before court. Basically what we mean there is that um it would be a case or a matter that has been filed before court but not yet resolved. So it's not at the point of um filing the or rather prefiling the matter but at the point when a matter is before court and there's no final judgment on it such that uh we are now awaiting uh the outcome of that matter and so that's basically what we mean for example um a sos will be issued served on um the other side we can call that a defendant for purposes of this response and the matter will then run its course in terms of the court rules. So up until such time that a final judgment is handed down on that matter then we would consider that matter as pending before court. Thank you chair and I'll hand over to advocate major to deal with the remainder of the questions.

[01:06:13]>> Yes. Uh uh thank you chair. Just to also add on on that aspect is that the section 73 currently as it provides uh it it says a court granting a decree of divorce. So meaning when it is considering granting it has had all the the issues that have been raised and now they're considering granting a decree of divorce. Then as it goes further it says may subject to the provisions of subsections four five and six which is the guidelines basically uh on application. So meaning it is not automatic that the courts will uh out of its own accord grant a registration order. So this must be invoked by an application which must then comply with the requirements that are set. So the the I just wanted to also add that that factor that the fact that proceedings are pending doesn't automatically mean section 73 will be invoked. The the the other questions I think mostly were were comments uh which we appreciate the issue around the family advocate. We we have consulted with them as we're preparing uh the bill drafting the the proposed provisions and already the they appreciate that there is an increase in in the number of applications or matters that they're going to have to deal with some of which they've been dealing with uh assisting where the the parties would have come to them and requested by however that I would leave to uh the deputy minister and the minister with regard to the issues around what the family advocate may raise as the need for an additional capacity or so. H but however they've been consulted and they are fully aware of the expanded uh mandate and I think just to I think there's the other one is a comment with regard to the properly looking at section 7 which we are saying it's it's indeed highly litigated. There's still quite a number of cases that are still before the courts with regard to the aspects about material property issues. The yeah pending before the court has been raised. I think from honorable fart the rest of the there was one specific question but I think I thought the rest were more of the comments. uh and the from honorable member Klopp also the issue was responded to as earlier on regarding the expanded mandate. the uh I the way I had honorable Mala was more raising the responses to the comments and basically they in agreement with what we have raised unless I missed a particular question and I could not hear honorable to properly except that I had most of the emphasis on the lack of consultation consultation the the bill basically as we have made a presentation is dealing mostly with compliance with conalial court judgments. And then we we had consulted internally within government all the departments that uh we even social development as well in terms of the issues or changes regarding the issues of children and also internally with the masters uh regarding the changes that we are bringing and also the provision around the that an application cannot be made once a an estate has in wound up. We've consulted with them to agree on the wedding to make sure that we properly contextualize it in respect of the administration of estates act. I think uh if I miss something uh I'll be I'll appreciate uh that it be highlighted but otherwise I hand over back to chair and the >> deputy honorable honorable Zates asked about an inclusion of pension interest in patrimonial benefits that was not part of the concord judgment.

[01:10:35]Did you get that?

[01:10:41]>> Yes. Yes. Uh the there is a judgment uh I think as well and there's another matter I think which is also before the courts that deals with the the issue. Uh so it it it is subject to the courts basically and the there is and in the litigation that I'm also referring to the there is a an issue that relates to that being not being done under the divorce act but necessarily within the the the pension laws but it it it is part of the the the decisions of the courts. I I'll just look for the specific uh judgment about it if uh just before we finish the meeting.

[01:11:32]>> Thank you.

[01:11:35]>> Thank you J.

[01:11:38]>> No, chairperson. Thank you very much and and thank you very much to to the honorable members both for their support uh for the general direction of the bill but also for raising quite a number of issues that the department needs to to look at more carefully. I think one of the crucial areas is the point raised by the honorable to toti in relation to pensions and I think uh advocate cibila could either respond by the end of the meeting or I think maybe what would be best is for him to prepare a more detailed and comprehensive note and forward that to to the committee because I know that that is one of the areas where the courts have pronounced and I I think it would be important for the committee to to have clarity on that. I think maybe just to to to to indicate that we we we we we appreciate the the general expression of support by the committee. I think to say also that this legislation was publicized for for for public comment. the department has received the comment that we've reported on that obviously doesn't preclude uh further comment uh as the bill goes through the parliamentary process. I'm sure that the the committee itself will also uh you know have further engagements with with any interested parties and I think that that would be important.

[01:13:17]I think just to to to recap that really the the core messages that that are being sent by the tableabling of of of this legislation um is that we we we seek to to bring our marital and family law dispensation increasingly in line with the values and the ethos of the constitution. And I think that's particularly important in this year that we celebrate the 30th anniversary of the the constitution.

[01:13:56]And as we've indicated, we we celebrate the 30th anniversary of the constitution under the theme one constitution, one nation, reflect, renew, and and recommmit. And I think what we're busy with here today as as a committee is a very very clear exemplification that we are reflecting, we are renewing, and we are recommitting. And that the constitution continues to have a very profoundly transformative impact on our legislation. as the constitutional court has demonstrated by its application of the provisions of the constitution to to existing uh legislation.

[01:14:43]So I think for to to move towards conclusion is to say I think the the key takeaways are that firstly we are um agreeing to the introduction of a transitional uh provision to clarify that the divorce act amendments apply to existing marriages and to pending divorce proceedings at the commencement of the act. And I think that that uh question has been clarified uh by advocate Raleigh and advocate Bilamecha. Secondly, that the courts will have broader powers to address unfair outcomes in marriages where one spouse made a significant contribution but would otherwise leave the the marriage disadvantaged.

[01:15:29]Secondly that this that the role of the family advocate is being expanded beyond divorce matters to broader family and child related disputes. I think there the committee has very correctly raised the issue of capacity and resources. As advocate indicated, the engagement with a family advocate has started, but that needs to continue and chairperson really an appeal also to the committee to to take to incorporate the concerns that have been expressed here in the committee's final report, but also to take this conversation into the process that you proposed earlier. of an engagement with the appropriations committee and the parliamentary budget office. The challenge that very often that we as the in the executive find is that our budgetary processes often work on the basis of legislation which is already in place. It's not very often the Treasury would agree to to preemptive budgeting so to speak. Um and therefore you often find the situation that legislation gets passed and only then does the process of budgeting for its implementation start. And I think that is a is a very real challenge that we need to be very mindful of. Um and and certainly we take the council of the the the committee to to heart and I think as as the bill progresses through the legislative process, we should be coming back and giving at least some preliminary indications of what the capacity needs uh would would would be.

[01:17:24]Furthermore, I think that the department views the bill as as an intram uh constitutional compliance measure while wider reforms to marriage, divorce and matrimonial property are being developed. And I think the overall message that we want to send is that we appreciate the the support from a a wide range of of of stakeholders.

[01:17:46]Um, and I think it's as as the honorable Musla also pointed out that really the essence here is how how do we remain focused on balancing fairness for vulnerable spouses against preserving certainty in in marital uh property arrangements.

[01:18:06]Um so at this stage we really want to keep focused on giving effect to the constitutional court's uh rulings whilst we embark on on on on broader family uh reform um in in in future legislation.

[01:18:23]But chairperson, thank you very very much to yourself and to to to members of the committee for the very constructive uh engagement. Thank you >> Mr. Beller.

[01:18:38]>> Thank you. Thank you chair. Just to indicate that I think I would go with the proposal by deputy minister to do a note for the portfolio committee on the issue of pension interest. Thank you.

[01:18:49]>> Yeah, just do it in writing and submit to the committee secretary.

[01:18:55]>> Thank you so much members. And indeed as Orala said, we we welcome the the presentation and uh we appreciate the expeditated process in terms of attending to this bill. It is a very crucial bill in the familiar arrangement. It has at some point left some beneficiaries uh disgruntled with nothing to go to school with because of uh the lack of regulation, the lack of strict and concise regulation in respect of matrimonial property.

[01:19:44]So we we do appreciate the effort the department is making to ensure that we for the best interest of the people of South Africa who would have voluntarily entered into marriages that uh unfortunately had to end in protection of the beneficiaries of every estate in South Africa. Uh we we do appreciate this effort and we we would like the department to accelerate the process so that the bill is um expedited and uh concluded in time so that we don't leave leave our people disgruntled as the conal court has directed us to do. We also appreciate the the active citizenry You know in a working democracy, it would be a concern for us when we want to do consultations when when we advertise for public care submissions and no one shows up.

[01:20:58]It would mean that we actually are on our own. We are not really leading our people. But I think we must express that we need to DM extend consultation to various stakeholders who may whose life may be affected uh with the enactment of this bill. And of course we expect everyone to voluntarily submit when we call for public submissions. But I think also the consultation process also helps a a a lot.

[01:21:40]Honorable I think you are correct. We have never had an interaction with the office of the family advocate and I would uh call upon our team the committee secretary and the content advisor to first prepare document analysis document on the prevailing issues affecting the family advocate the office of the family advocate then we'll be in contact with the department and have a meeting with them to try and re resolve together the issues that may have besieged the office and DM correctly the issue of the resources is something that we have always been committed to attend to we still commit to attend to those issues uh most importantly after we have concluded the budget vote process PPS and the budget and all that process. So we still commit to that. We are going to do it. It's just that there are lot there's a lot that is happening. There's a new committee now that has been established by parliament yesterday.

[01:23:02]It has elected its own chairperson.

[01:23:06]So we've got piling up work that runs our time and our energies as the committee.

[01:23:14]We're going to ensure that we provide as much support as we can, not only in this bill, but in all the bills that we are to deal with, including the recent rotated disclosures act, which I think the department acted swiftly in trying to mitigate the outcry in society of a butchering of whistleblowers.

[01:23:47]So I think that's one of the things that is um we we have noted and we want to also working with the department to prioritize to ensure that uh South Africans do have the law that protects them and their interest. So members thank you very much uh uh for the insightful engagements with the report presentation by the department the minister uh who joined when she was also attending to other commitments. the deputy minister, the team from DOJ.

[01:24:35]We thank you so much DM your hand is up.

[01:24:40]Yeah, person I hope I'm not out of order or preempting but just just I just wanted before we adjourned to indicate that in relation to the portfolio committee meeting tomorrow. I don't want to speak on for the minister but I know that cabinet is sitting tomorrow. I long ago accepted uh an invitation to address a gathering organized by the IEC um at exactly the same time as the the portfolio committee. So really with with with great respect we we would want to to apologize to say that we might not be available tomorrow. uh we will see if there is a a possibility of at least attending the the beginning of the meeting but even that might not be possible. So we just wanted to alert the committee and say it's please don't uh interpret it otherwise it's really scheduling issues that were decided long ago. Thank you.

[01:25:42]>> Thank you so much DM. We know sometimes we have got >> no sorry about that. I'm struggling with my budget. I see here we received a notice uh from Mr. Romano of um meetings that are happening this week and next week.

[01:26:01]>> It say which is today.

[01:26:05]Oh, okay. No, see I can see the DG.

[01:26:08]Okay. Judges matters and everything. No, I'm covered now. Thank you so much.

[01:26:17]>> Okay. Okay.

[01:26:19]Thank you so much colleagues. Thank you so much. We'll meet tomorrow. Uh the meeting is agend