South Africa’s new divorce laws get the green light

 ·15 Nov 2023

The National Assembly has passed four Bills – 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.

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

The Divorce Amendment Bill seeks to amend the Divorce Act following a Constitutional Court judgement, which declared the Bill unconstitutional as it excluded certain provisions and safeguards from Muslim marriages.

This meant that Muslim Marriages were only recognised in Islamic law and not civil law, meaning that a person could not approach the court of law for a divorce. This resulted in the failure to protect the interests of Muslim women and children from Muslim marriages.

The Act also failed to provide for the redistribution of assets and for the forfeiture of patrimonial benefits on the dissolution of the Muslim marriage in the same manner as other dissolved marriages.

Some of the key amendments in the Divorce Amendment Bill include:

  • To insert a definition of a Muslim marriage,
  • To provide for the protection and to safeguard the interests of dependent and minor children of a Muslim marriage.
  • To provide for the redistribution of assets on the dissolution of a Muslim marriage
  • To provide for the forfeiture of patrimonial benefits of a Muslim marriage.

However, the Bill does not replace an Islamic divorce for persons who wish to be granted a religious divorce, and they will still need to follow Islamic law.

The Regulation of Interception of Communication and Provision of Communication-Related Information Amendment Bill (RICA Bill)

The RICA Bill follows the Constitutional Court judgement wherein South Africa’s highest court ruled that RICA is unconstitutional as it fails to provide adequate safeguards to protect the right to privacy.

The Bill seeks to amend RICA by giving greater independence to RICA judges who approve surveillance warrants. This involves changes in how judges are appointed, establishing adequate procedures to ensure interception of communications is done lawfully, and creating procedures for data handling.

The Bill also provides for a post-surveillance notification, meaning that if someone’s communications are intercepted as part of an investigation, they will be notified, allowing them to take steps to protect themselves.

The Cannabis for Private Purposes Bill

Three years after being introduced to Parliament, the Cannabis for Private Purposes Bill has been passed. The Bill mainly looks at the right of privacy of adults using cannabis for private purposes.

The Bill allows for a prescribed quantity of cannabis that an adult can cultivate and possess in private. However, smoking and consumption of cannabis in public is still prohibited.

In September, the Portfolio Committee on Justice and Correctional Services requested permission from the National Assembly to extend the subject of the Bill to include the best interests of children, with the Bill prohibiting children from possessing, dealing, smoking or consuming cannabis.

The Marine Oil Pollution (Preparedness, Response and Cooperation) Bill

The Marine Oil Pollution (Preparedness, Response and Cooperation) Bill looks to comply with the International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990 (OPRC 90).

The OPRC 90 is an internationally recognised framework that facilitates international cooperation and mutual assistance in preparing for and responding to major oil pollution incidents.

The amendments, among others, state who bears the cost of marine oil pollution risk assessments and the timeframes in which they must be conducted.

Clarity is also given over what constitutes a small, medium or large spill by looking at the tonnage of spills and “transboundary” operations.

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