Two new laws coming for South Africa
The Department of Justice and Constitutional Development is working on two potential new laws for South Africa, with big changes for international criminal co-operation and divorces.
Ahead of the 2024 election, several new laws were passed through parliament and signed into law by President Cyril Ramaphosa.
Updates on potential new legislation have since been slow, as departments work on new potential pieces of legislation. However, the Department of Justice and Constitutional Affairs is progressing with two Bills.
The Minister of Justice and Constitutional Development, Mmamoloko Kubayi, has introduced the International Co-operation in Criminal Matters Amendment Bill to parliament.
The department noted that the International Co-operation in Criminal Matters Act of 1996 does not allow for giving evidence through an audio-visual link.
This form of communication is now possible as a result of technological developments. The department said that giving evidence in this way could substantially limit State expenditure in the future.
The Bill thus amends the Act to allow for the giving of evidence using an audio-visual link.
It also facilitates the provision of evidence to entities such as the International Criminal Tribunals or the International Criminal Court (ICC).
This ensures that South Africa complies with its international obligations. However, the Act does not explicitly allow for the rendering of legal assistance by the country to entities, but only to States.
The department also noted that there is a need to give clarity to the legal framework governing South Africa’s compliance with its international obligations relating to:
- Requests for the surrender of certain persons sought by entities for international crimes (for example, genocide, war crimes and crimes against humanity).
- This is because the Extradition Act, 1962 regulates the extradition of persons to States and does not explicitly refer to the surrendering of persons to entities.
- The provisioning of legal assistance to entities.
In a separate chapter, the Bill provides for the arrest, detention and surrender of persons to an entity having jurisdiction in respect of international crimes.
This can include war crimes, crimes against humanity and genocide, with these provisions no existing in current legislation.
These matters became a worldwide talking point in 2023, when Russian President Vladimir Putin was invited to attend the 2023 BRICS Summit.
The ICC had issued an arrest warrant on Putin following the invasion of Ukraine. Putin skipped the conference, with South Africa, a member of the ICC, obligated to arrest him on arrival.
South Africa previously drew the ire of the ICC for failing to execute an arrest warrant against Sudanese president Omar Al-Bashir when he visited in June 2015.
Divorce changes loading
This is not the only law that Kubayi plans to put forward for South Africa, with the Justice Minister also planning on introducing new divorce laws for South Africa.
Kubayi will soon publish the General (Family) Laws Amendment Bill, 2025, to parliament, which will give effect to changes ordered by the Constitutional Court in 2023.
The new laws are designed to make it easier for spouses married out of the community of property without accrual to get their fair share when a marriage ends in divorce or death.
When married out of the community of property, the estates of spouses are kept separate. Neither spouse has a claim against the other spouse’s estate, even if they contribute or help maintain it.
The Matrimonial Property Act of 1984 introduced the concept of accrual, allowing spouses who are married out of the community of property to share in the growth of each other’s estates while maintaining their separate estates.
Upon divorce or death, the spouse with the smaller accrual or no accrual has a claim against the spouse with the larger accrual.
However, marriages prior to 1984 did not have the option of accrual and would have to apply to a divorce court for a redistribution order, which was enabled through amendments to the Divorce Act.
The Constitutional Court found that to be invalid, as the Divorce Act did not apply for spouses who were married out of the community of property without accrual after November 1984.
It also did not apply to marriages that ended in death before or after the 1984 change.
The Bill thus seeks to amend certain aspects of the Divorce Act of 1979, which arise from the amendments to the Mediation in Certain Divorce Matters Act 1987.
It will provide for the transfer of assets by a court granting a decree of divorce regarding a marriage out of community of property for those entered into before the commencement of the Matrimonial Property Act of 1984.
It will also amend the Matrimonial Property Act to provide for the distribution of matrimonial property in a marriage out of community of property upon the dissolution of the marriage due to death.
The Bill will also amend the Mediation in Certain Divorce Matters Act of 1987 and provide for the functions of the Office of the Family Advocate.
The Act will also see amendments regarding long and short titles, as well as other connected matters.
The expected amendments will benefit spouses in financially vulnerable positions when their marriages out of community of property end.
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