Parliament, Tuesday 14 November 2023 – The National Assembly (NA) has, during its hybrid plenary this afternoon, passed four Bills, including the Divorce Amendment Bill, the Regulation of Interception of Communication and Provision of Communication Related Information Amendment Bill, the Cannabis for Private Purpose Bill, and the Marine Oil Pollution (Preparedness, Response and Cooperation) Bill.

The Divorce Amendment Bill (B22 of 2023) seeks to amend the Divorce Act, which the Constitutional Court in the Women’s Legal Centre Trust v President of the Republic of South Africa and Others case earlier declared unconstitutional since it excluded Muslim marriages.

The non-recognition of Muslim marriages in civil law meant that a person, who is married in terms of Islamic law only, had no right to approach a court of law for a decree of divorce. This resulted in a failure to safeguard the interestsof Muslim women and minor or dependent children of Muslim marriages in the same way as children of other marriages on the dissolution of the marriage. Furthermore, the Act failed to provide for the redistribution of assets and to provide for the forfeiture of patrimonial benefits on the dissolution of the Muslim marriage on the same terms as other dissolved marriages.

The Bill seeks to rectify these failures and allow persons in Muslim marriages to get divorced in terms of the civil law. The Bill, however, does not constitute or replace an Islamic divorce and persons, who are in Muslim marriages and wish to be granted a religious divorce, will still need to follow Islamic law.

The Regulation of Interception of Communication and Provision of Communication-Related Information Amendment Bill (RICA Bill) emanates from theConstitutional Court judgement of Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others wherein the Constitutional Court confirmed that RICA is unconstitutional in that it fails to provide adequate safeguards to protect theright to privacy as reinforced by the rights of access to courts, freedom of expression and the media, and legal privilege.

The Bill seeks to amend RICA by, among others, boosting the independence of RICA judges who approve surveillance warrants by changing how they are appointed, putting in place adequate procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully and creating procedures for the handling and deletion of any data collected through surveillance.

The Bill also seeks to provide for post-surveillance notification. This means that if someone’s communications are intercepted as part of an investigation, they should be notified after the fact and this would help to ensure that when someone is spied on unfairly, they can eventually take steps to protect themselves. Furthermore, the Billensures that additional safeguards are in place for when the person being targeted is a practising lawyer or journalist, since people in these jobs have a professional duty to communicate confidentially.

The Cannabis for Private Purposes Bill was introduced in Parliament on 1 September 2020. This Bill aims to address the Minister for Justice and Constitutional Development and Others v Prince (Prince) judgment, which broadly focused on considerations relating to the right of privacy of adults using cannabis for private purpose.

This iteration of the Bill as tabled and deliberated on by the Portfolio Committee on Justice and Correctional Services up until its meeting on 12 September this year, had a narrow adult-centred focus of the private-purpose use of cannabis.

Following this meeting, the committee requested permission from the National Assembly to extend the subject of the Bill to include considerations for what is in the best interest of children. This means that the committee now had to extend its scope and also look at the use and/or possession of cannabis by a child.

According to the Bill, there is a prescribed quantity of cannabis that an adult can cultivate and possess in private and smoking and consumption of cannabis in public is prohibited.

With reference to children, children are prohibited to possess, deal and smoke or consume cannabis.

The Marine Oil Pollution (Preparedness, Response and Cooperation) Bill was introduced in 2022 to give effect to the International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990 (OPRC 90). The OPRC 90 is the international instrument that provides a framework designed to facilitate international co-operation and mutual assistance in preparing for and responding to major oil pollution incidents.

In the Bill, several definitions were amended and inserted. Amongst others, the amendments clarify who bears the cost of marine oil pollution risk assessments and the timeframes within which this must be done.

Clarity is further provided on what would constitute a small, medium or large spill by making reference to tonnage of spills and “transboundary” operations.

All Bills will now be sent to the National Council of Provinces for concurrence.


Enquiries: Moloto Mothapo