SOUTH AFRICAN LAW COMMISSION: BRIEFING OF JUSTICE PORTFOLIO COMMITTEE: 22 FEBRUARY 1999
CONTENTS
A. REVIEW OF THE WORK OF THE LAW COMMISSION SINCE 1994: LAW REFORM
Introduction
Reports submitted to the Minister
B. OVERVIEW OF 1998
Introduction
Issue Papers
Discussion Papers
Reports
Investigation completed
C. PRIORITIES FOR 1999
A. REVIEW OF THE WORK OF THE LAW COMMISSION SINCE 1994: LAW REFORM
Introduction
During the past 5 years the Commission has made every effort to adhere and give effect to its objects of developing, improving, modernising and reforming all branches of our law. During this period it has produced 34 reports (including interim reports), 29 discussion papers (previously referred to as working papers) and 14 issue papers (since 1996). Discussion papers and issue papers are published for general information and comment and the former usually contain draft legislation. The Commission’s recommendations bear upon many important reforms of our law.
reports submitted to the minister
* Project 24 - Investigation into the courts’ powers of review of administrative acts
The Commission recommended that legislation was necessary to complement section 24 and other provisions of the Constitution, 1993. In terms of section 33 of the Constitution, 1996, everyone has the right to just administrative action and national legislation must be enacted to give effect to such rights. In the development of Justice Vision 2000 the review of administrative law was identified as one of the premier projects. On 23 January 1998 the Commission approved that an investigation into the "review of administrative law" be included in its programme. The Minister approved the inclusion in October 1998 (project 115). A discussion paper on administrative law was published for general information and comment. The closing date for comment is 31 March 1999.
* Project 41 - The division of pension benefits on divorce
The report, which addressed problems experienced in the administration of the Divorce Amendment Act 7 of 1998, was Tabled in Parliament on 12 October 1995. A former member of the Commission (Mr G G Smit) subsequently submitted a memorandum to the Minister on 7 November 1996 in which he pointed out that the whole system of the sharing of pension interests of spouses on divorce remained unsatisfactory. The Minister agreed and endorsed the inclusion of an investigation into the sharing of pension benefits (project 112) in the Commission’s programme. A discussion paper containing draft legislation was published for general information and comment on 6 May 1998. A draft report is being finalised.
* Project 42 - Time limits for the institution of actions against the state
In 1985 a report to the then Minister of Justice recommended the repeal or amendment of provisions that limited the institution of actions against government agencies. Legislation was never introduced in Parliament. A supplementary report highlighting the desirability of a uniform provision for actions against all government institutions was submitted to the Minister on 13 October 1998.
* Project 47 - Unreasonable stipulations in contracts and the rectification of contracts
A report recommending reform in respect of contractual unreasonableness, unconsciounability, or oppressiveness in all contractual phases was submitted to the Minister on 6 May 1998. The report was Tabled in Parliament.
* Project 50 - Investigation into the payments system in South African Law
The report recommended the repeal of the Bills of Exchange Act and its replacement by two separate Acts. The implementation of the recommendations are under consideration by the Minister of Finance.
* Project 52 - The legal consequences of sexual realignment and related matters
A change in a person’s outward sexual appearance is not recognised by law in that it does not alter the legal description of such a person as a man or a woman. The report addressed the legal problems in this regard. The implementation of the recommendations are under consideration by the Minister.
* Project 58 - Group and human rights
The extensive investigation started with the inclusion of the project in the Commission’s programme on 23 April 1986. A final report was handed to the Minister on1 December 1994. The primary purpose of the report was to assist the Constitutional Assembly in its task of drafting and enacting a final Bill of Fundamental rights. The report was made available to the Constitutional Assembly.
* Project 62 - The protection of a purchaser of shares
A supplementary report on section 138 of the Companies Act 61 of 1973 was referred to the Minister of Finance for consideration. The recommendations were not implemented.
* Project 63 - Review of the law of insolvency
From the ranks of market participants it was submitted that our financial markets were fraught with uncertainty regarding the risk exposures of market participants in the event of the insolvency of another market participant. The Commission’s interim report on the protection of the financial markets in the event of insolvency contained recommendations for remedying the problems in the law of insolvency in that regard. Act 32 of 1995 was passed.
According to current planning the entire review of the law of insolvency will be concluded in the course of this year.
* Project 66 - Reform of the South African law of bail
During November 1992 the Commission submitted a report on its investigation into the reform of the law of bail to the former Minister of Justice. At the request of the present Minister the Commission undertook an investigation into the law pertaining to bail. The Commission reconsidered and adapted its report against the background of sections 25(2)(d) and 33(1) of the Constitution, 1993. The view was held that a healthy balance should be struck between the rights of arrested persons and the community’s rights to safety and the combating of crime. Act 75 of 1995 was passed.
* Project 73 - The simplification of criminal procedure
Because of the extensive scope of the investigation, it is conducted in different phases. An interim report on appeal procedures is under consideration by the Minister following the report of the Hoexter Commission of Inquiry.
In the second phase of the investigation the Commission considered the reasons for delays in the finalisation of trials, abuses of the process, particular provisions of the Criminal Procedure Act which cause delays, as well as delays resulting from the administration of the process. These issues were addressed in a first interim report on the simplification of the criminal procedure. Act 86 of 1996 was passed.
* Project 74 - Debt collecting
An interim report on imprisonment for debt gave urgent consideration to the introduction of legislation to clarify the matter. The abolition of civil imprisonment for debt in the Magistrates’ Courts Act was recommended. Act 81 of 1997 was passed.
The Commission’s final report on debt collecting contained numerous recommendations relating to the debt collecting procedure, including extrajudicial debt collectors. Act 114 of 1998 was passed.
* Project 76 - Jewish divorces
The report on Jewish divorces addressed the rules relating to divorce under Jewish law. Act 95 of 1996 was passed.
* Project 78 - Interest on damages
Usually there is a lapse of time before claimants receive damages consequent upon an award for damages. The report addressed the need for awards of interest in those circumstances. Act 7 of 1997 was passed.
* Project 79 - Natural fathers of children born out of wedlock
The Commission came to the conclusion that the common law position in terms of which the mother of a child born out of wedlock had exclusive rights in regard to access, custody and guardianship should be reformed. Act 86 of 1997 was passed.
* Project 84 - Application of the trapping system
The report addressed the system of trapping in order to consider the reform thereof in the light of the impact of a human rights dispensation and trends in other parts of the world. Act 85 of 1996 was passed.
* Project 85 - Aspects of the law relating to AIDS
A first interim report contained recommendations on health-related aspects which appeared to be relatively uncontroversial. The Department of Health and the Department of Labour are giving attention to the implementation of the recommendations.
A second interim report on pre-employment HIV testing and a third interim report on HIV/AIDS and discrimination in schools were Tabled in Parliament on 13 August 1998. The recommendations in the second interim report were incorporated in the Employment Equity Act 55 of 1998. The Department of Education published the Commission’s draft national policy on HIV/AIDS for learners in public schools (contained in the third interim report) for public comment.
* Project 86 - Euthanasia and the artificial preservation of life
The report deals with a patient’s right to refuse medical treatment or to receive assistance in ending his or her suffering by the administering of a lethal substance. A report was approved by the Commission and will be submitted to the Minister in due course.
* Project 88 - The recognition of class actions and public interest actions in South African law
Class actions and public interest actions are part of the worldwide movement to make access to justice a reality by broadening standing in court in situations where a large number of persons have the same or similar claims or defences. A report was submitted to the Minister on 12 October 1998.
* Project 87 - Jurisdictional lacuna in the Supreme Court Act 59 of 1959
A jurisdictional lacuna existed in the fact that residents and persons domiciled in the Republic were unable to proceed with claims against foreigners notwithstanding the existence of assets belonging to the foreigner within the Republic. Act 122 of 1998 was passed.
* Project 89 - Declaration and detention of persons as State patients in terms of the Criminal Procedure Act, 1977, and the release of such persons in terms of the Mental Health Act, 1973, including the onus of proof regarding the mental condition of an accused or convicted person
Consequent upon a report dealing with the aforementioned issues, Act 68 of 1998 was passed.
* Project 90 - Harmonisation of the common law and the indigenous law
A report on customary marriages recommending certain changes to the customary law of marriage in order to bring the relationship between spouses in line with constitutional requirements was submitted to the Minister on 30 September 1998. Act 120 of 1998 was passed.
* Project 93 - Speculative and contingency fees
The report explored the desirability of a system of contingency fees in terms of which a prospective litigant is only liable to remunerate a legal representative in the event of successful litigation. Act 66 of 1997 was passed.
* Project 94 - Arbitration
The report contains important recommendations aimed at bringing South Africa’s arbitration law in line with international norms. It proposes the alignment of South Africa’s international arbitration law with that of several of its important trading partners in Africa and elsewhere. The report was submitted to the Minister on 12 October 1998.
* Project 98 - International cooperation in criminal prosecutions
The report dealt with the obtaining of evidence from, and providing of evidence to foreign states; the confiscation and transfer of the proceeds of crime; the execution of foreign penal orders and sentences; and extradition. Acts 75 of 1996, 76 of 1996 and 77 of 1996 were passed.
* Project 100 - Family law and the law of persons
A report on access to minor children by interested persons addressed the problem of visitation rights of grandparents and other persons with whom a minor has a special relationship. The matter is on the 1999 legislative programme.
An interim report on maintenance was submitted to the Minister on 6 May 1998. The report offers solutions to parts of the maintenance process where many practical problems arise such as the procedure leading up to the making of a maintenance order and the enforcement of maintenance orders. Act 99 of 1998 was passed.
The investigation into domestic violence was also completed during the year under review, although a report has not been published. Due to Parliamentary time constraints, a draft Domestic Violence Bill emanating from the project committee was introduced in Parliament by the Minister prior to finalisation of the Commission’s report. Act 116 of 1998 largely corresponds to the Bill drafted by the project committee, but it also contains provisions advanced by the Commission and developed by the Justice Portfolio Committee with the assistance of the researcher and the Department of Justice.
* Project 104 - Money laundering and related matters
The report recommended an administrative framework to control money laundering activities. The implementation of the recommendations are under consideration by the Minister of Finance.
* Project 111 - Jurisdiction of magistrates’ courts in constitutional matters
A report containing recommendations to confer constitutional jurisdiction on magistrates’ courts and to effect harmony between their constitutional jurisdiction and their ultra vires jurisdiction was approved by the Commission and will be submitted to the Minister in due course.
B. OVERVIEW OF 1998
introduction
The Commission’s three-year term of office expired on 31 December 1998. A new Commission has since been announced by the Minister.
The execution of the Commission’s mandate depends on establishing a creative and comprehensive process of consultation with South Africans to ensure that its work is responsive and accessible. The Commission has consequently broadened its consultative base. While maintaining close cooperation with academic institutions in the private sector, non-governmental organisations, in particular, have been closely involved in the work of the Commission. The Commission also extended its consultative process by conducting workshops countrywide in urban and rural areas. Inadequacies in the legal system have been approached from a multi-disciplinary perspective in appropriate cases.
issue papers
* Project 90 - The harmonisation of the common law and the indigenous law: Succession in customary law (issue paper 12)
An issue paper on succession was published for general information and comment on 28 April 1998. The closing date for comments was 30 June 1998. Now that the Constitution recognises customary law as a component of the legal system on a par with common law, it is necessary to clarify the rules of succession in customary law. In addition, ways must be found to harmonise those rules (and those of the common law) with the provisions of the Constitution. The development of a discussion paper on succession is receiving attention.
* Project 110 - The review of the Child Care Act (issue paper 13)
An issue paper was published in May 1998 for general information and comment. The closing date for comment was 31 July 1998. The scope of the issue paper was extremely wide, including a review of the common law rules and a variety of statutes affecting children, as well as a discussion of the position of children under customary law and various religious laws. The issue paper also focussed attention on the law as it relates to the many marginalised children in South Africa society: street children, children infected and affected by HIV/AIDS, children with disabilities, children in residential care, to mention but a few examples.
Nineteen workshops and several dedicated briefings on the issue paper were held throughout the country by members of the project committee. Active steps were taken to involve people with disabilities in the consultation process and sign language interpreters were used at several of the workshops.
To enable the project committee to proceed to a discussion paper with draft legislation, the members of the project committee and contract researchers are preparing consultation papers on ten selected issues as background documents to stimulate debate with specific focus groups.
* Project 108 - Computer related crime: Options for reform in respect of unauthorised access to computers, unauthorised modification of computer data and software applications and related procedural aspects (issue paper 14)
The issue paper was published during August 1998. The closing date for comments was 26 October 1998. Comments were invited on the need for legislative intervention to create offences relating to unauthorised access to computers and the unauthorised modification of computer data and software applications, as well as procedural provisions specifically to be applied in relation to computer related offences. The development of a discussion paper is receiving attention.
discussion papers
* Project 111 - Constitutional jurisdiction of magistrates’ courts (discussion paper 75)
A report on this issue has already been completed. See below under "reports".
* Project 90 - The harmonisation of the common law and the indigenous law: Conflicts of law (discussion paper 76)
A discussion paper on conflict of laws was published for general information and comment during April 1998 and the closing date for comments was 30 June 1998. Application of customary law should remain a matter of judicial discretion, but more exact guides to choice of law are needed to bring certainty to an issue that is currently vague and confused. These guides should be precise, flexible, simple and in keeping with the way courts have been used to solving problems. A draft report on conflict of laws was considered by the Commission on 27 November 1998. An amended draft report will be considered by the Commission at its next meeting.
* Project 112 - Sharing of pension benefits (discussion paper 77)
A discussion paper containing draft legislation was published for general information and comment on 6 May 1998. The closing date for comment was 31 July 1998. Separate legislation should be enacted to regulate the sharing of retirement fund benefits between spouses on their divorce. Comments received are being evaluated and a draft Bill was debated at a workshop. A draft report is being finalised.
* Project 105 - Security legislation: The Interception and Monitoring Prohibition Act 127 of 1992 (discussion paper 78)
During November 1998 a discussion paper on the Interception and Monitoring Prohibition Act 127 of 1992 was published for general information and comment. The closing date for comments on the discussion paper was 25 January 1998. It is recommended that the Act be amended to reflect certain amplifications, such as an obligation on telecommunication service providers to ensure monitoring of all communications, and making it clear that the general position is that the interception or monitoring without the knowledge or permission of the parties to a conversation or communication so as to gather confidential information concerning any person, body or organisation, is prohibited.
* Project 106 - Juvenile justice (discussion paper 79)
A discussion paper containing proposals relating to a new structure to govern children under the age of 18 years who are accused of having committed offences was published for general information and comment during November 1998. The closing date for comments on the discussion paper is 31 March 1999. In essence, the proposed system aims to ensure that children accused of less serious offences will be afforded the opportunity to pay their debts to society without obtaining a criminal record through a process known as diversion.
* Project 85 - Aspects of the law relating to AIDS: The need for a statutory offence aimed at harmful HIV-related behaviour (discussion paper 80)
The discussion paper was published for general information and comment in January 1999. The closing date for comments is 28 February 1999. The premise that the criminal law is not pre-eminently the means by which to combat the spread of HIV is confirmed. However, it is also accepted that where HIV-related behaviour results in harm to others, public health measures in themselves are insufficient and the criminal law undoubtedly has a role to play in protecting the community and punishing those who transgress.
reports
* Project 42 - Time limits for the institution of actions against the state (supplementary report)
In 1985 a report to the then Minister of Justice recommended the repeal or amendment of provisions that limited the institution of actions against government agencies. Legislation was never introduced in Parliament. A supplementary report highlighting the desirability of a uniform provision for actions against all government institutions was submitted to the Minister on 13 October 1998.
* Project 47 - Unreasonable stipulations in contracts and the rectification of contracts
A report recommending reform in respect of contractual unreasonableness, unconsciounability, or oppressiveness in all contractual phases was submitted to the Minister on 6 May 1998. The report was Tabled in Parliament.
* Project 85 - Aspects of the law relating to AIDS: Pre-employment HIV testing (second interim report)
- HIV/AIDS and discrimination in schools (third interim report)
A second interim report on pre-employment HIV testing and a third interim report on HIV/AIDS and discrimination in schools were Tabled in Parliament on 13 August 1998. The recommendations in the second interim report were incorporated in the Employment Equity Act 55 of 1998. The Department of Education published the Commission’s draft national policy on HIV/AIDS for learners in public schools (contained in the third interim report) for public comment.
* Project 86 - Euthanasia and the artificial preservation of life
The report deals with a patient’s right to refuse medical treatment or to receive assistance in ending his or her suffering by the administering of a lethal substance. A report was approved by the Commission and will be submitted to the Minister in due course.
* Project 88 - The recognition of class actions and public interest actions in South African law
Class actions and public interest actions are part of the worldwide movement to make access to justice a reality by broadening standing in court in situations where a large number of persons have the same or similar claims or defences. A report was submitted to the Minister on 12 October 1998.
* Project 90 - Harmonisation of the common law and the indigenous law: Customary marriages
A report on customary marriages recommending certain changes to the customary law of marriage in order to bring the relationship between spouses in line with constitutional requirements was submitted to the Minister on 30 September 1998. Act 120 of 1998 was passed.
* Project 94 - International arbitration
The report contains important recommendations aimed at bringing South Africa’s arbitration law in line with international norms. It proposes the alignment of South Africa’s international arbitration law with that of several of its important trading partners in Africa and elsewhere. The report was submitted to the Minister on 12 October 1998.
* Project 100 - Maintenance (interim report)
An interim report on maintenance was submitted to the Minister on 6 May 1998. The report offers solutions to parts of the maintenance process where many practical problems arise such as the procedure leading up to the making of a maintenance order and the enforcement of maintenance orders. Act 99 of 1998 was passed.
* Project 111 - Constitutional jurisdiction of magistrates’ courts
A report containing recommendations to confer constitutional jurisdiction on magistrates’ courts and to effect harmony between their constitutional jurisdiction and their ultra vires jurisdiction was approved by the Commission and will be submitted to the Minister in due course.
investigation completed
* Project 100 - Domestic violence
The investigation into domestic violence was also completed during the year under review, although a report has not been published. Due to Parliamentary time constraints, a draft Domestic Violence Bill emanating from the project committee was introduced in Parliament by the Minister prior to finalisation of the Commission’s report. Act 116 of 1998 largely corresponds to the Bill drafted by the project committee, but it also contains provisions advanced by the Commission and developed by the Justice Portfolio Committee with the assistance of the researcher and the Department of Justice.
C. PRIORITIES FOR 1999
* Project 25 - Statute law
The establishment of a Unit under the auspices of the Commission with USAID funding is receiving urgent attention. As a result of serious capacity problems and the number of high priority investigations attended to in the second half of 1998, the establishment of the unit could not receive attention. The outcome of a workshop hosted by Constitutional Affairs was also waited.
* Project 59 - Islamic marriages
On 17 December 1998 the Minister indicated that a project committee should be appointed. The appointed of the project committee by the Minister is awaited.
* Project 63 - Insolvency
According to current planning the investigation will be concluded in the course of this year.
* Project 82 - Sentencing
A new project committee was appointed during September 1998. The objective is to develop a comprehensive Sentencing Act that will provide a permanent framework for sentencing in South Africa. A discussion paper on a comprehensive Sentencing Act is receiving attention.
* Project 90 - Harmonisation of the common law and indigenous law
An amended draft report on conflicts of law will be considered by the Commission at its next meeting.
Research on traditional courts has been completed and a Bill is being drafted for inclusion in a discussion paper.
* Project 94 - Arbitration
A draft discussion paper on ADR (community courts) is being prepared.
* Project 105 - Security legislation
The closing date for comment on the discussion paper and draft legislation on telephone interception was 25 January 1999. The highest possible priority is being given to this investigation to finalise it for this session of Parliament.
* Project 106 - Juvenile justice
The closing date for comment on a discussion paper on juvenile justice is 31 March 1999. Workshops are currently being held. The aim is to finalise the investigation by the middle of the year.
* Project 107 - Sexual offences
The extended investigation is receiving high priority. A team of four researchers is fully engaged in the investigation. The preparation of a discussion paper is receiving attention.
* Review of the Marriage Act,1961
The preparation of a draft discussion paper is receiving attention.
* Project 110 - Review of the Child Care Act, 1983
Consultation papers on selected issues are being prepared as background documents to stimulate debate with specific focus groups.
* Project 112 - Sharing of pension benefits
A draft report is being prepared.
* Project 115 - Review of administrative law
The closing date for comment on a discussion paper is 31 March 1999. Given the need to adopt legislation before February 2000, this project is being conducted on a fast-track basis.
* Project 118 - Domestic partnerships
The investigation deals with, inter alia, same sex unions and the patrimonial consequences. An issue paper is being prepared.