1. The South African Law Commission wishes to thank the Joint Monitoring Committee on Improvement of Quality and Life and Status of Women (the Committee) for the opportunity to give a presentation on matters in the Law Commission’s research programme that fall within the ambit of the Committee’s monitoring activities.

2. The following briefing documents are attached:

3. On 22 August 2001 the Department of Justice and Constitutional Development was requested to brief the Committee on, inter alia, an audit of discriminatory laws that are to be removed. Since the Law Commission has a statutory law revision project, the Director-General indicated that the Law Commission should provide a more extensive briefing on the issue.

4. The attachment to your letter of 14 August 2001addressed to Mr Pikoli points out that the Committee reporting will cover HIV/AIDS, poverty and violence against women. The Law Commission’s extensive investigation into the legal aspects relating to AIDS has recently been completed. A briefing document on the completed reports and their status is attached for your information.

5. The paramount difficulty experienced by the Law Commission in the process of the finalisation of draft legislation relates to capacity. At present there is a 30% shortage of researchers on the establishment of the Law Commission. In the previous financial year sufficient funds to fill vacancies were not allocated. Sufficient funds have, however, been approved in the course of this financial year and the Law Commission is in the process of filling vacancies as a matter of extreme urgency.

1.1 The drafting of legislation to combat the sexual exploitation of children was one of the priorities identified in the National Plan of Action for Children. The Minister for Justice accordingly requested the South African Law Commission to include an investigation into sexual offences by and against children in its law reform programme late in 1996 and a project committee was appointed on 4 December 1996. As such this investigation was one of three investigations on the Commission’s programme related to children: the other two being Project 106: Juvenile Justice and Project 110: The Review of the Child Care Act.

1.2 It became clear during the course of the investigation that any proposed changes to the law relating to sexual offences will have a far-reaching effect on the position not only of children but of adults as well. In the latter half of 1998 the Commission was requested by the Justice Portfolio Committee and the Department of Justice to extend its terms of reference to include all facets of sexual offences.

1.3 In so doing the investigation lost its particular child focus.

2.1 The project is managed by a project committee established under the auspices of the South African Law Commission. The project committee plans the investigation, does or has the necessary research done, and will submit its findings in the form of issue papers, research papers, discussion papers and reports to the Commission. The report(s) with draft legislation will be submitted to the Minister for Justice and Constitutional Development who may then implement the recommendations proposed by introducing the draft legislation.

2.2 The project leader is Mrs Joan van Niekerk of Childline Durban. The other members of the Project Committee are:

Dr Roseline September, Institute for Child and Family Development, UWC

Ms Charlotte McClain, South African Human Rights Commission

Ms Bronwyn Pithey, formerly at Rape Crisis and now with the NDPP

Professor John Milton, School of Law, UN

Mrs Lebo Malepe, previously at Tshwaranang and now with the Department of Justice

Ms Zubeda Seedat, Chairperson and member of the SA Law Commission

Judge Thumba Pillay, Mrs Evanthe Schurink and Mrs Edmara Mthombeni resigned from the Project Committee for various reasons.

2.3 The Project Committee brings together experts from various disciplines and constituencies - from law and social science - from government, the NGO and the private sector. This reflects the realisation of the need for a multi-disciplinary approach, inter-sectoral co-operation, and the importance of involving all stakeholders in the process of drafting legislation.

3.1 It is Commission policy to publish first an issue paper and then to consult broadly on the issue paper. After this consultation process a discussion paper is prepared taking into account the submissions made and inputs received. The discussion paper contains the preliminary recommendations of the Commission. These recommendations are usually embodied in the draft legislation that accompany the discussion paper. The discussion paper and draft legislation are subjected to a comprehensive consultation process where particular emphasis is placed on the draft legislation. After taking into account the comments made and submissions received, a report is prepared. The report contains the final recommendations of the Commission. These final recommendations are embodied in the draft legislation which forms part of the report. Once the report is handed to the relevant Minister, the Commission becomes functus officio. It remains the prerogative of the Minister to implement the recommendations made by the Commission by introducing the draft legislation in Parliament. Once introduced in Parliament, another process starts.

3.2 It is also important to ensure that the community is on board when these processes are taken forward. The voice of the community, and especially the voices of women and children, must continue to be heard. A broad process of consultation will continue to be followed and will involve various state departments, tertiary institutions, local and international experts, various bodies supporting democracy, other relevant NGO’s, FBO’s, CBO’s, and obviously women and children. The Commission believes a properly conducted consultation process on the discussion paper and draft legislation will ensure broad support for the eventual legislation introduced in Parliament. Such a consultation process will also bring to light deficiencies and gaps in the draft legislation before the Parliamentary legislative process starts. In our experience, insufficient consultation at draft discussion paper stage can actually delay the eventual passage of the legislation in Parliament.

4.1 After the appointment of the Project Committee in December 1996, the process started smoothly and an issue paper on sexual offences against children was published in May 1997 for general information and comment. The issue paper was workshopped extensively. The closing date for comment was 30 September 1997 but this was extended at the request of numerous respondents.

4.2 During 1998 the project was reassigned to another researcher and it suffered a setback. The Commission reassessed its priorities in the beginning of 1999, accorded the investigation an A+ priority and addressed the research capacity problems experienced by reassigning the project to a senior researcher and assigning two newly appointed researchers to the investigation.

4.3 The Commission has decided that the most effective way of dealing with the myriad of issues that have arisen during the investigation into sexual offences is to compartmentalise this project into four overarching focus areas, i.e. the substantive law, process and procedural law, adult prostitution and child pornography. As part of this incremental approach, the Commission released the discussion paper on the substantive law relating to sexual offences in August 1999. This discussion paper including a draft Bill was widely workshopped over a two month period.

4.4 In February 1999 the then Deputy Minister of Justice and Constitutional Development commissioned a discussion document on the Legal Aspects of Rape in South Africa. This document was jointly compiled by Rape Crisis (Cape Town), Women & Human Rights Project, Community Law Centre, UWC and the Institute of Criminology (UCT). After being briefed by the researchers at the Commission on the ambit of the sexual offence investigation, the Deputy Minister agreed that the Commission process should be supported and that the work done by the abovementioned group and their recommendations should be incorporated into the Commission’s papers. As far as is possible this has been done.

4.5 The approach adopted by the Commission in the discussion paper on sexual offences: the substantive law was purposely a liberal one: For instance, the gender neutral statutory definition of rape proposed by the Commission in this discussion paper was very wide and included the penetration of all body orifices. Some of the other contentious issues raised in this discussion paper are the commercial sexual exploitation of children, harmful HIV related behaviour, female genital mutilation, and stalking.

4.6 Numerous submissions were received in response to the recommendations contained in this discussion paper. Following the collation of these submissions and further deliberations by the Sexual Offences Project Committee the draft Bill which accompanied this discussion paper has been substantially revised. As a result of the revision of the draft Bill on the substantive law the Project Committee has decided to release the revised draft Bill with the discussion paper on the process and procedural law in order to ensure the widest possible public participation.

4.7 In this regard, it is perhaps interesting to note that the Commission has considered afresh the question of what the role of the criminal law should be in enforcing morality and specifically whether bestiality (sex between persons and animals) and incest (sex between consenting adult family members) should be criminal offences.

4.8 A final draft of the second discussion paper dealing with the process and procedural law relating to sexual offences will be tabled at the next Sexual Offences Project Committee meeting scheduled for 6 and 7 September 2001. It is envisaged that this discussion paper will be released by the Commission for public participation by the latest during November 2001.

4.9 The contentious issues related to this aspect of the investigation is further discussed below.

4.10 The second draft of a discussion paper on adult prostitution is nearing completion and it is envisaged that a discussion paper on this contentious issue will be released by the Commission for public participation by the latest during November 2001. Due to a lack of research capacity this discussion paper is being compiled by a consultant, Ms Helene Combrinck. Child prostitution has been dealt with in the discussion paper on the substantive law. The Commission unequivocally condemned child prostitution and made legislative proposals, contained in the draft Bill, to this effect. This document will address the benefits and disadvantages of four legal options in respect of adult prostitution, further criminalisation, decriminalisation, legalisation and regulation.

4.11 The fourth discussion paper will deal with child pornography. This discussion paper will receive attention once the joint report on the substantive and process and procedural law relating to sexual offences and the report on adult prostitution have been completed.

4.12 After submissions and input from the workshop process have been integrated into the proposals and draft legislation, a joint report on the substantive and process and procedural law relating to sexual offences and a report on adult prostitution will be prepared which will be submitted to the Minister for Justice and Constitutional Development for his consideration. Separate reports will be prepared in respect of adult prostitution and child pornography. These reports will be accompanied by final recommendations containing draft legislation where appropriate.

5.1 The extended terms of reference of the sexual offences investigation touches on many facets relating to sexual offences which could easily be justified as necessitating investigations on their own. The investigation into the substantive law relating to sexual offences necessitated not only the gender sensitisation of codified and common law sexual offences but also the drafting of very progressive new offences. An example of the former is the Commissions recommendation relating to incest in which this common law offence is retained in the common law. However its ambit is expanded to make this offence gender neutral. Presently fathers cannot be found guilty of the crime of incest in relation to their sons and similarly mothers with their daughters. The recommended changes address this issue. With regards to the latter, an example is the enactment of a statutory provision called child molestation aimed at prohibiting sexual acts with children below 16 years of age.

5.2 The scope of this investigation is such that existing and proposed new legislation is affected thereby. Due to the specific focus on sexual offences the draft Discussion Paper on Process and Procedure proposes, to name but a few, the repeal of the existing Sexual Offences Act, the repeal, amendment and enactment of new provisions in the Criminal Procedure Act, the Riotous Assemblies Act and the Prescription Act. Furthermore, constant interaction has been necessary with several other investigations at the South African Law Commission, such as the Review of the Child Care Act Project, the HIV/AIDS Project; the Sentencing Project and the Simplification of the Criminal Procedure Act Project. The aim is to prevent unnecessary overlap whilst retaining a focus on the issues pertinent to sexual offences. The impact of this overlap has led to joint project committee meetings on common issues which have not always resulted in consensus.

5.3 In compiling the process and procedural law discussion paper the researchers assigned to the sexual offences investigation have been faced over and over again with the reality of addressing a variety of complex topics which could easily justify separate investigations. In certain circumstances after an intensive investigation recommendations have been made that certain aspects dealt with should form the basis of investigations of their own. For this reason the Commission have in principle approved the inclusion of trafficking and stalking onto the Commission programme as soon as a researcher becomes available to deal with it. No foreign jurisdiction could be found which has attempted to address the topic of sexual offences in as comprehensive a manner as is being done in the draft discussion paper. To the contrary, foreign jurisdictions have separated their investigations into several investigations, for example concentrating on the single issue of hearsay evidence in relation to sexual offences. The draft discussion paper on process and procedure attempts to as comprehensively as possible address, and where apposite, make proposals for legislative and other recommendations regarding the manner in which the pre trial, trial and post trial matters are dealt with within the criminal justice system. Despite the need for legislative amendments and enactments the researchers have also been mindful of the fact that the law is not a panacea for all ills and where appropriate have made recommendations for training and re-skilling of officials within the criminal justice system.

5.4 Throughout this investigation the researchers have had to be mindful of several legal challenges to the Sexual Offence Act, for example the Constitutional challenge regarding prostitution in the recent Jordaan case and the Constitutional approval of a right to sue the Ministers for Justice and Constitutional Development and Safety and Security in the Carmichele case relating to accused persons being released on bail and committing further sexual offences. Not only has this branch of the law been in flux, cognisance had to be had to the roll out of the sexual offences courts orchestrated by the office of the National Director of Public Prosecutions and the Sexual Offence Court Task Team chaired by Professor Loots and the subsequent formation of the National Intersectoral Coordination Committee under the auspices of the Directors General of the relevant Government Departments including the Departments of Education, Welfare and Health. The pilot phase of the roll out of the sexual offence courts, specifically the evaluation of the Wynberg Sexual Offence Court and the developments and changes in this regard, are ongoing and therefore continuously inform the process.

As mentioned above, the investigation now holds the highest possible priority rating at the Commission, namely A+. Presently, despite other pressing investigations, two researchers are assigned in a full time capacity to this investigation. As a result of the present lack of research capacity and in order to fast track the process even further, whilst still doing justice to each aspect of the investigation, a consultant has been appointed to compile a discussion paper on prostitution. The Project Committee was expanded to include two legally qualified representatives of the National Network of Violence Against Women, Ms Pithey and Ms Malepe, of whom Ms Pithey also co-authored the discussion document commissioned by the Deputy Minister, referred to above, and a Professor in Criminal Law from the University of Natal. In addition to these arrangements the Project Committee have taken responsibility for the consultation and workshop process.

7.1 The Discussion Paper on Process and Procedure, including the revised draft legislation on the substantive law, will be tabled in final form at the next Project Committee Meeting to be held in September 2001, for its approval. Thereafter, in terms of the Commission’s operational plan, it will be tabled for the approval of the Commission in October 2001. It is envisaged that this discussion paper accompanied by the revised substantive law bill and the proposed process and procedural Bill, will be published for comment and public participation in November 2001. Consultations with experts in the process and procedural arena will follow alongside with consultations and workshops with the broader public from December 2001 till March 2002. The consultation process will be short and focussed, concentrating on the proposed new Sexual Offences Bill. Preference will be given to consulting with essential stakeholders such as the National Director of Public Prosecutions. Evaluation of the comment and input received will be done thereafter. Once the input has been collated and where appropriate given effect to, the joint report will be tabled before the Project Committee, then the Working Committee of the Commission and thereafter, if approved, the final report will be tabled before the full Commission for its approval. The report accompanied by recommended draft legislation, where appropriate, will then be forwarded to the Minister for Justice and Constitutional Development.

7.2 According to the Commission’s operational plan the Discussion Paper on Prostitution will follow the same timeframes as the Discussion Paper on Process and Procedure. Compliance with these timeframes are however dependant on timeous delivery by the appointed consultant.

7.3 It is envisaged that the legislative amendments and enactments relating to sexual offences will be tabled in the second session of Parliament in 2002.

1. Time frame

1.1 The project leader’s resignation with effect from 1 October 2000 delayed the completion of the investigation. On 30 March 2001 Professor IP Maithufi was appointed as the new project leader.

1.2 The following time frames have been included in the Law Commission’s operational plan:

A project committee comprising of the following persons has been established:

Professor IP Maithufi

Professor T Bennett

Judge Y Mokgoro

Ms LG Baqwa

Professor Charles Dhlamini

Ministerial response for the appointment of Professor Mqeke, Mr P Mawila, Professor Chuma Himonga and Ms Likhapha Mbatha to this project committee is awaited.

A Discussion Paper was published for general information on 8 August 2000. The closing date for comment on the Discussion Paper was 22 September 2000 but was extended to 31 December 2000 due to the public requesting enough time to comment. Comments received on the discussion paper have been collated.

To ensure that all the necessary measures are taken to make the development of law reform on customary succession law inclusive of all, the Centre for Applied Legal Studies and the South African Law Commission are hosting an ‘expert meeting’ on 30 August 2001 to discuss the recommendations made by the Law Commission. A further conference which will include all identified stakeholders will be held during November 2001.

Workshops will be held in all the provinces starting from 02 October 2001 as appears in the following table:

The dates are subject to confirmation and are dependent on the response received from the participants invited.

No specific difficulties have been encountered to date, except for the organising of workshops on dates that would be suitable to all identified stakeholders.

The discussion paper is available on the Law Commission’s Website at:

1. In this Act, unless the context indicates otherwise,

‘customary law’ means the laws and customs traditionally observed by the indigenous African peoples of South Africa which form part of the culture of those peoples, whether or not such laws and customs are codified;

‘Minister’ means the Minister of Justice;

‘personal belongings’ mean a deceased person’s articles of clothing, personal use or adornment, furnishings and other items of household equipment, simple agricultural and hunting equipment, books, motor vehicles or means of transportation; the term does not include money or security for money or articles used by the deceased for business purposes;

‘traditional leader’ means any person who in terms of customary law or any other law holds a position in a traditional ruling hierarchy.

Succession2. (1) Notwithstanding any law to the contrary, a person’s estate must upon that person’s death devolve in accordance with that person’s will or, failing a valid testamentary disposition, either wholly or in part, according to the law of intestate succession prescribed by the Intestate Succession Act, 1987 (Act No 81 of 1987).

(2) The Intestate Succession Act, 1987 (Act No 81 of 1987), applies with the changes required by the context to the intestate estate of a person who, before this Act comes into force, entered a valid customary marriage which subsisted at the time of that person’s death.

The object of this investigation is the ultimate establishment of a permanently simplified, coherent and generally accessible statute book. It is a task of immense proportions and deals with, inter alia, the constitutionality of legislation; the rectification of discriminatory legislation and gender insensitive provisions; the repeal of obsolete and redundant provisions; and the systemisation of the statute book by ordering provisions that belong together. The repeal of the Black Administration Act, 1927 has been identified as the first priority.

2.1 Cabinet considered a submission of the Commission’s involvement submitted by the Minister on 11 May 2000. Cabinet endorsed the investigation into statutory law revision and indicated that the investigation should be extended to include and audit of the statute book to eliminate inconsistencies with the right to equality.

2.2 On 8 February 2001 the Cabinet Committee for Governance and Administration recommended that the Directors-General Clusters should investigate all legislation enacted prior to 1994 with the view to identifying provisions of legislation that are in conflict with the Constitution and develop new legislation that is aligned to the Government’s policy and the new political dispensation.

2.3 On 14 February 2001 the Cabinet resolved that -

3.1 The purpose of the German Technical Co-operation (GTZ) Legislative Drafting Project is to assist South Africa in developing and partially implementing a law reform policy in core areas. The project started in 1998 and the first phase ended in December 2000. In July 2000 a project progress review took place to evaluate the first phase of the Legislative Drafting Project. The recommendations of this review (approved in August 2000) were, inter alia -

3.3 In May 2001 the revision of the South African statute book was identified as a focal area proposed for the second phase of the Legislative Drafting Project. An envisaged output is the creation of structures which allow for the continuing development of an ordered and accessible statute book.

3.4 The design of the second phase of the project has to be accepted by the Federal German Ministry for Economic Co-operation and Development.

3.5 In July 2001 Government to Government negotiations took place in Germany at which occasion a proposal for the funding of the project on statutory law revision was put forward. The outcome of the negotiations are expected by 30 September 2001.

There had been no budget allocation for the statutory law revision project at the time when Cabinet endorsed the project (see paragraph 2.1 above). Additional funds of R350 000 have been obtained recently and will be transferred to the Commission’s budget in September 2001 in order to commence with the investigation pending the acquisition of donor funding.

5.1 The Law Review Project (a section 21 Association) is undertaking the "Good Law Project" which overlaps with the Law Commission’s investigation into statutory law revision. The Minister has indicated that ways to coordinate the efforts should be investigated. This has already been effected.

5.2 It is envisaged to establish a statutory law revision unit by November 2001 and a statutory law revision project committee by January 2002. Research should commence in February 2002.

6.1 Role-player interviews formed an essential part of the feasibility study referred to in paragraph 8.1 below.

6.2 Crosscutting consultations are an important aspect of the Law Commission’s working methods and the envisaged project committee will consult with all role-players.

At the outset the following issues had to be addressed:

8.1 The Law Commission and the GTZ commissioned the Centre for Applied Legal Studies (CALS) at the University of the Witwatersrand to undertake a study to determine the feasibility, scope and operational structure of revising the South African statute book for constitutionality, redundancy and obsoleteness. Four main avenues of research were pursued:

8.2 The final report on the study (April 2001) supports an investigation into the revision of the statute book and the following recommendations are made:

8.3 The project committee which is to be established is ultimately responsible to the Law Commission and therefore the abovementioned recommendations are not peremptory. The feasibility and implementation study conducted be CALS does, however, serve as a valuable core document in the development of the project.

D: ASPECTS OF THE LAW RELATING TO AIDS

Certain aspects concerning HIV/AIDS in the health care setting warrant urgent intervention. From a scientific, medical and legal viewpoint the reforms appear to be relatively uncontroversial.

The recommendations include:

Draft Regulations for Hazardous Biological Agents were published by the Department of Labour on 1 November 1999. The draft regulations include provisions relating to the implementation of the Commission's recommendations relating to the use of non-disposable syringes and the utilisation of universal precautions in the work place. The closing date for comment was 31 January 2000. The draft regulations are being finalised by the Department for promulgation.

The Department of Health is in the final stages of implementing the recommendations relating to an international standard for condoms and a national policy for HIV testing. As regards the latter the Department on 10 December 1999 published a national policy on testing for HIV, based on the Commission's recommendations, for public comment. The closing date for comment was 10 February 2000. The policy is currently being finalised for promulgation.

No action has been taken by the Department of Health to realise the recommendation in respect of the promulgation of the 1993 Draft Regulations relating to Communicable Diseases and the Notification of Notifiable Medical Conditions.

There has been no specific statutory prohibition on pre-employment testing for HIV in our law. There has also been no clarity as to the circumstances under which an employer could require an applicant for employment to take an HIV test. Legislative intervention aims to attain the twin objectives of maintaining otherwise healthy persons with HIV in productive employment, and protecting the rights of persons with HIV in the workplace.

Principles recommended by the Commission for legislative intervention on pre-employment HIV testing are as follows:

The principles of the Commission's recommendations regarding pre-employment HIV testing were embodied in the Employment Equity Act 55 of 1998.

A national policy for HIV/AIDS in schools is urgently required in order to protect learners with HIV from unfair discrimination in the school environment. However, such intervention will have to take into account the rights of all learners and should aim for a fair balance between the rights of learners with HIV and those without HIV.

The Minister of Education, under the National Education Policy Act, 1996, should determine national policy on HIV/AIDS in schools.

It was recommended that such a policy:

The Department of Education adopted the Commission’s recommendations in promulgating a policy as suggested on 10 August 1999. The Department, however, also made the promulgated policy applicable to educators in public schools, and to students and educators in further education and training institutions. The Commission's recommendations give rise to Universities starting to address the position of students with HIV/AIDS in tertiary education institutions. A policy in this regard is currently being drafted.

The need for compulsory HIV testing of sexual offenders was raised by the Parliamentary Justice Portfolio Committee. The request was made against the background of mounting public concern and pressure on the authorities to take appropriate action with regard to the deliberate transmission of HIV infection. This has come about largely in response to a number of widely publicised incidents of deliberate transmission of HIV, together with the very real concern that for the most part women and young girls are exposed to HIV infection in this manner.

In general, our law at present provides for HIV testing only with the informed consent of the person concerned; every person is entitled to privacy regarding medical information; and no general legislation exists which allows for disclosures. Furthermore, neither currently available public health law nor criminal procedure makes provision for compulsory HIV testing of persons arrested for having committed sexual offences with a view to disclosing their HIV status to victims.

The Commission concluded that there is a need for statutory intervention to provide for compulsory HIV testing of arrested persons in sexual offence cases at the instance of the victim. The intervention is necessary in the light of women's undoubted vulnerability in South Africa today to widespread sexual violence amidst the increasing prevalence of a nationwide epidemic of HIV and in the absence of adequate institutional or other victim-support measures. In these circumstances there is a compelling argument for curtailing an arrested person's rights of privacy and bodily integrity to a limited extent to enable his or her accuser speedily to know whether he or she has HIV. The benefit to alleged victims of the knowledge is not only immediately practical in that it enables them to make life decisions and choices for themselves and people around them; it is also profoundly beneficial to their psychological state to have even a limited degree of certainty regarding their exposure to a live threatening disease. That the arrested person's rights are infringed must be acknowledged and this must be reflected in procedural and substantive safeguards built into the process created.

It is therefore suggested that the proposed change to the law should be based on the following principles:

A report on compulsory HIV testing of persons arrested in sexual offence cases was submitted to the Minister for Justice and Constitutional Development on 7 December 2000 and Tabled in Parliament on 26 June 2001. According to the legislative programme as on 24 July 2001it is not envisaged that the Compulsory HIV Testing of Sexual Offenders Bill will be finalised in the 2001 session of Parliament.

Harmful (i e unacceptable) sexual behaviour by persons with HIV or AIDS could transmit HIV or expose others to HIV. As in the case of the Fourth Interim Report, this enquiry was also undertaken at the request of the Parliamentary Justice Portfolio Committee. The request was made against the same background of public concern and pressure for appropriate action regarding deliberate or knowing transmission of HIV infection. The concern resulted from a number of widely publicised incidents of deliberate transmission of HIV, accompanied by the very real concern that mostly women and young girls are being exposed to HIV infection in this manner.

The recommendations cover only consensual sexual activity. Transmission of or exposure to HIV can also occur during non-consensual sexual acts such as rape. The need for further measures in the latter regard will be dealt with under the Commission's investigation into sexual offences.

The Commission concludes that the creation of a statutory offence is neither necessary nor desirable and recommends that the current legal position be maintained. The Commission is of the view that arguments against legislative intervention override arguments supporting such step.

In concert with this recommendation, the Commission identifies a pivotal need for the development of practical mechanisms by government departments to utilise effectively the existing common law crimes in cases of harmful HIV-related behaviour; and to encourage a culture of responsibility regarding HIV status.

These mechanisms may include:

Major reasons for the Commission's conclusion are the following:

A report on the need for a statutory offence aimed at harmful HIV-related behaviour was submitted to the Minister on 6 June 2001.