RESOLUTIONS OF PARLIAMENTARY COMMITTEE IN RESPECT OF LEGISLATION OF DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: PROGRESS REPORT

NO.

RESOLUTION

ACTION REQUIRED

STATUS

1999

1.

Resolution of the Portfolio Committee on Justice and Constitutional Development in respect of the Prevention of Organised Crime Amendment Bill, 1999, dated 24 February 1999

The Committee urged the Department of Finance to finalise and submit the Money Laundering Control Bill to Parliament as soon as possible.

The Financial Intelligence Centre Act, 2001, became law on 28 November 2001.

2.

Resolution of the Ad Hoc Joint Committee on Prevention of Organised Crime Second Amendment Bill, 1999, dated 31 August 1999

The Ad Hoc Joint Committee on the Prevention of Organised Crime Second Amendment Bill, 1999, requested the Department of Justice and Constitutional Development to consider the comments of role-players regarding the principal Act, especially in the light of judgments of the High Courts on the provisions of the Act, with the view to identifying and addressing any possible uncertainties and problems, and, if necessary to bring such matters to the attention of the Portfolio Committee on Justice and Constitutional Development.

The Prevention of Organised Crime Act, 1998, has been amended to address some problems experienced in the implementation of the Act, eg the retrospectivity of certain provisions thereof. The Head of the Asset Forfeiture Unit is in the process of has also prepareding a Bill, containing numerous amendments to the Act, to address problems and uncertainties. A 1st working draft has been prepared by the Asset Forfeiture Unit. Once the final draft is received, it will be dealt with in the normal course of events.When this draft is received it will be evaluated and submitted to role-players for comments with the view to submitting it to Cabinet.

2000

1.

Resolution of the Ad Hoc Joint Committee on Open Democracy Bill, 1998 (Promotion of Access to Information Bill, 1998), dated 24 January 2000

1. The Minister for Justice and Constitutional Development must-

(a) inform all public bodies of the importance of proper record-keeping in line with the National Archives of SA Act, 1996;

(b) do an audit in respect of the feasibility and desirability of existing legislation dealing with record-keeping and suggest remedial action where necessary.












2. The Minister for Justice and Constitutional Development must, within 12 months after the commencement of section 6 of the Promotion of Access to Information Act, 2000, amend the Schedule to the Act to include provisions of all legislation which provide for or promote access to records of public and private bodies and must initiate an audit among public bodies in preparation hereof.

3. The Minister for Justice and Constitutional Development must undertake an audit of all legislation to determine what prohibits or restricts the disclosure of a record of a public or private body and to recommend remedial action.

4. The Minister for Justice and Constitutional Development must do research into and submit Privacy and Data Protection legislation with specific reference to the correction of personal information in the hands of another person.

 

 

 

 

 

 

 

5. The Minister for Justice and Constitutional Development must consider exempting certain private bodies from making available the prescribed manual, giving particulars of its record, etc, as required by section 51.

 

 

 

 

 

 

 

 

 

 

 

 

 

6. The Minister for Justice and Constitutional Development must consider the amendment of the Interpretation Act, 1957, to bring it into line with the principles of constitutional democracy and practices of interpretation which Parliament and the courts have used since 1994.

 

 

 

 

 

 

 

7. The Department of Justice and Constitutional Development must investigate the feasibility of establishing an Information Commissioner as an enforcement mechanism and report to the Committee within 12 months after the Act has been put into operation.

 

 

 

 

 

 

8. Legislation on the protection of "whistle-blowers" must be

finalised by the end of February 2000.

 

9. Departments that administer legislation dealing with environmental and public safety issues should review their legislation or enact legislation, if necessary, to oblige public bodies to disclose records that reveal a serious public safety or environmental risk.

1. Letters to all Cabinet Ministers under the signature of the Minister for Justice and Constitutional Development were despatched in June 2000, providing them with a copy of the resolution and requesting them and the provincial and other structures falling under their jurisdiction to provide comments. Justice College was also requested to provide training to information officers, with the assistance of representatives of National Archives. The response to these letters has been dismal (only 5 departments responded) and towards the end of 2001 the Director-General: Justice and Constitutional Development sent strongly worded letters to national and provincial Directors-General, highlighting the Minister's previous request and requested them to respond, where necessary, to the directions of the Committee before 15 February 2002. No response was forthcoming in this regard. A letter was sent to National Archives inquiring about any developments in this regard.

2. Only 13 national and 5 provincial governments responded, primarily with respect to the requirement contained in section 6 of the Act by providing information on legislation administered by them which provide for or promote access to records. A working document willis being prepared on the information which has been made available. Departments that have not responded will be approached again. be compiled for purposes of final consultations with a view to promoting the required amending legislation.

3. The project of the South African Law Commission dealing with statutory law review will include this aspect in its investigation.same position as above applies.

 

4. The South African Law Commission was requested by the Minister for Justice and Constitutional Development to include such an investigation in its programme. The Minister approved the inclusion of the investigation in the Commission's programme in December 2000. Research has commenced. The researcher at the Commission attended the 23rd International Conference of Data Protection Commissioners in France from 23 to 26 September 2001. A project committee has been appointed and had its first meeting on 22 July 2002. The research has commenced and a substantial Issue Paper will be submitted to the Commission during March 2003.

5. All the remaining sections of the Act came into operation on 15 February 2002. On 12 May 2000 the Department published a notice in the Gazette, inviting interested parties to make submissions for purposes of the Act. In this invitation attention was specifically drawn to the provisions of section 51(4) in terms of which the Minister may exempt a private body from compiling and updating the manual. No response was forthcoming. Subsequently, the Minister has received 3 applications from private bodies for exemption. One application was unsuccessful and the Minister's decision in respect of the other 2 is still pending. Public and private bodies were given until 28 February 2003 to publish the prescribed manual. It is understood that a report on the implementation of the Act is being prepared for submission to the Department.

6. The South African Law Commission was requested to include such an investigation in its programme. On 17 November 2000 the Commission decided that the review of the Interpretation Act, 1957, should be considered as part of its existing project on statutory law revision, mainly to ensure the necessary human and financial resources. This was approved by the Minister. The research has commenced. The GTZ has agreed to provide funding for the remuneration of an expert legal drafter to assist with the investigation. An agreement with the expert has been concluded in November 2002. A draft discussion paper and draft legislation will be finalization during the second quarter of 2003.

7. All public bodies were informed through their Ministers or MEC's in June 2000 of the request of the Committee in this regard. They were informed of the importance of submitting statistics to the SAHRC in terms of section 32 of the Act. The Act has now been in operation for 2 years and the SAHRC has been approached for statistics. Some public bodies have already provided the Department with some statistics in this regard. On receipt and evaluation of the statistics received, the Department will do a feasibility study, including a costing of such a mechanism.A request for statistics were included in the letters referred to in paragraph 1 above. Statistical information over a 24 month period will, however, yield better results and the Committee is requested to consider extending the 12 months (9 March 2002) within which to report back on the feasibility of establishing an Information Commissioner.

8. The Protected Disclosures Act, 2000 (Act 26 of 2000) was enacted in 2000 and put into operation in February 2001.

9. In the above-mentioned letter this aspect was highlighted. Although there was no specific request for Departments to report back on this particular aspect, Departments have been requested to provide any feedback on this issue.The Department will send a reminder on this issue to the relevant departments.

2.

Resolution of the Portfolio Committee on Justice and Constitutional Development in respect of Administrative Justice Bill, 2000 (Promotion of Administrative Justice Bill, 2000), dated 24 January 2000

1. Justice College must ensure that training programmes in respect of administrative law and related matters for magistrates are initiated and developed.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2. The Minister for Justice and Constitutional Development must-

(a) request the Judges-President of the High Courts to consider the establishment of circuit courts specialising in administrative matters, especially until such time as magistrates' courts deal with matters of this nature; and

(b) monitor the number of appeals to the High Courts noted in respect of decisions by designated magistrates' courts, once section 1(iv)(b)(ii) comes into operatio magistrates' courts start hearing cases arising from the application of the Actn.

 

 

 

 

 

 

 

 

3. The Advisory Committee contemplated in section 10(2)(a), if established, must investigate the impact of this Act on laws which provide for procedures for the review of, or appeal against, administrative actions. (In the meanwhile, the Minister must direct his Department to start such an investigation.)

4. The Department must submit a progress report on the drafting of the code of good administrative conduct as contemplated in section 10(1)(e) of the Act.

 

5. When drafting the rules of procedure for the judicial review of administrative actions, the Rules Board for Courts of Law must also consider the advisability of framing a tariff structure to be applicable in respect of such reviews and the Department must report to the Committee on the Board's views.

1. A letter was sent to the Head of Justice College, bringing this aspect of the resolution to her attention. A task team was established to take responsibility for training. This task team consisted of representatives of Justice College, GTZ (German donors) and 2 academics from the University of the Witwatersrand. A guide for administrators and a "train the trainers" manual have been developed, as have an "Administrative Justice Act" (AJA) Benchbook (by Currie and Klaaren), a citizen's pamphlet and an AJA Booklet for NGO's. A training workshop for NGO's took place on 19 March 2002. As far as administrators are concerned, a number of courses on administrative justice have been held for other departments. The Act and the Promotion of Access to Information Act, 2000, form part of all training courses at Justice College for prosecutors, clerks of the court, Registrars and Masters of the High Courts. SAMDI is to appoint trainers to train other departments. Justice College started training these trainers in April 2002. Specialised training courses have been developed for magistrates, 4 of which were held in 2001 and at which 50 magistrates were trained. Two more of these courses are scheduled for 2002. A training course has also been provided for the Legal Aid Board and State Attorneys.

2. (a) Letters were sent to the Judges-President by the Minister for Justice and Constitutional Development, requesting them to consider the establishment of circuit courts. The general response has been that this will not be an easy task, for the following reasons, among others: the lack of accommodation, libraries and supporting administrative staff. This matter was subsequently discussed at a meeting between the Minister and Heads of Court. The Heads of Court undertook to attend to the matter. A letter has been sent to the Chief Justice requesting feedback on the issue.

(b) Once magistrates' courts start hearing cases arising out of the application of the Act, the Department will communicate with the relevant role-players, requesting them to keep relevant records with the view to supplying the National Office with statistics. This information will then be evaluated and a report will be submitted to the Committee.The Department sent letters to all departments requesting information in this regard. The information received must be evaluated, after which a report will be submitted to the Committee.

3. It has been decided to shelve the establishment of such an Advisory Council for the time being and the Department will initiate an investigation in this regard as soon as circumstances permit.

 

4. The regulations under the Act will beere published on 31 July 2002. A 2nd draft framework for the codecode has been prepared in consultation with Justice College and GTZ for purposes of preparing a working document which will be distributed to role-players for comments.and has been submitted to role-players for comments. The deadline for comments is 28 February 2003.

 

5. This was brought to the attention of the Chairperson of the Rules Board. The matter was referred to the Costs Committee of the Board. It will be dealt with once the rules of procedure have been finalised. The matter was raised again at the Rules Board meeting on 9 February 2002, where it was confirmed that the matter should be dealt with once the rules of procedure have been finalised.

3.

Resolution of the Ad Hoc Joint Committee on Promotion of Equality and Prevention of Unfair Discrimination Bill, 2000, dated 25 January 2000

1. The Minister for Justice and Constitutional Development must give special consideration to the inclusion of additional prohibited grounds (HIV/AIDS status, socio-economic status, nationality and family responsibility and status), after the Equality Review Committee (ERC)has made recommendations to the Minister, which the ERC is supposed to do within one year of the commencement of the Act.

 

 

 

 

 

2. The Minister for Welfare and Population Development (Social Development) must investigate unfair discrimination against elderly persons and adopt appropriate measures.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3. The Minister for Justice and Constitutional Development must-

(a) table legislation dealing with the criminalisation of hate speech; and

(b) take other measures necessary to give effect to the Convention on the Elimination of all Forms of Racial Discrimination and the Convention on the Elimination of all Forms of Discrimination against Women.

4. The Committee urged the Minister for Justice and Constitutional Development to establish the Equality Review Committee and Equality Courts as a matter of urgency.

7

 

 

5. Parliament was requested to consider the establishment of an ad hoc parliamentary committee to oversee the implementation of the legislation.

6. Cabinet was requested to direct a process of departmental auditing of legislation in order to eliminate any inconsistency with this legislation and to introduce measures which re-inforce fairness and equality.

1. The Equality Review Committee (ERC) was established in September 2000. The ERC commissioned the South African Human Rights Commission to undertake research regarding the inclusion of the said prohibited grounds. The former Chairperson of the South African Human Rights Commission has requested an extension of time within which to submit its recommendations in this regard. It is understood that a report is in the process of being finalised whereafter it will be submitted to the Minister. A letter has, however, been written to the Chairperson of the South African Human Rights Commission requesting feedback in this regard.

2. A letter was written to Minister Skweyiya, Minister for Social Development, informing him of the request of the Committee. His Department is currently reviewing existing legislation in this regard to align it with requirements of the Constitution. That Department is responsible for the administration of the Aged Persons Act, 1967, among others. This Act provides for the protection and welfare of certain aged and debilitated persons, for the care of their interests, for the establishment and registration of certain institutions and for the accommodation and care of such persons in such institutions. The Act was amended in 1998 in order to provide for the establishment of management committees for homes for the aged, to require reporting on the abuse of aged persons and to regulate the prevention abuse of aged persons. That Department is currently drafting a Bill on the status of older persons. A reminder has been sent to the Department, requesting feedback on this issue. The South African Law Commission is also giving attention to disabilities of all adults, including the elderly. An Issue Paper has already been published for comment and the development of a discussion paper, which will be submitted to the Commission in the first half of 2003 is in progress.

3. The A Bill has been finalisepreparedd and will be submitted to the Minister, whereafter it will be submitted to role-players for comments. It is doubted whether this Bill will be submitted to Parliament during the 2002 session of Parliament. The Equality Review Committee has also been requested to assist as far as paragraph (b) is concerned.

 

 

 

4. The ERC has already been established. Forty eight pilot equality courts have been identified in all the provinces and funds have been allocated to all these courts in order to equip the courts. It is anticipated that the courts will be ready for use in March 2003 when the provisions of the Act relating to prevention of unfair discrimination can be put into operation. The Equality Courts will be established once amendments proposed by various role-players, which are intended to address various areas of alleged unconstitutionality in the principal Act, are enacted. This amending legislation will facilitate the implementation of the principal Act. A Bill has been drafted and submitted to Cabinet for approval.

5. Parliament must still decide on this matter.

 

 

6. The matter was submitted to Cabinet in May 2000 which approved that the South African Law Commission carries out such an audit. (See remarks under resolution number 5, paragraph 5.) The project of the South African Law Commission dealing with statutory law review will include this aspect in its investigation.

4.

Resolution of the Portfolio Committee on Justice and Constitutional Development in respect of the Protected Disclosures Bill, 2000, dated 12 May 2000

1. The Minister for Justice and Constitutional Development must consider referring the following proposals to the South African Law Commission for investigation:

(i) The possibility that a worker can also make a protected disclosure relating to the conduct of a person other than his or her employer, as has been done in section 43C of the British Public Interest Disclosure Act, 1998;

(ii) the possibility of including criminal and civil liability for making a protected disclosure in the legislation;

(iii) the possibility of introducing the concept of punitive damages in the legislation, that is the creation of a new cause of action for an employee who has been victimised by an employer in contravention of a provision of the legislation, which would be aimed at the person who acted in contravention of the legislation or at both the employer (vicarious liability) and such person; and

(iv) the possibility of creating offences in the legislation, in terms of which an employer would be committing an offence by unlawfully subjecting an employee to an occupational detriment and an employee would be committing an offence by making a false disclosure.

1. The request was referred to the South African Law Commission and the Minister approved the inclusion of the investigation in the Commission's programme. A newly appointed researcher has recently been allocated to undertake the investigation. A discussion paper is ready for consideration by the project leaderAn Issue Paper on Protected Disclosures was published in November 2002. The return date for comment is 28 February 2003.

5.

Resolution of the Portfolio Committee on Justice and Constitutional Development in respect of the Limitation of Legal Proceedings against Government Institutions Bill, 1999 (Institution of Legal Proceedings against Organs of State Bill, 1999), dated 26 September 2000

1. The Minister must request the South African Law Commission to include an investigation on its programme dealing with the harmonisation of the provisions of existing laws which provide for different periods of prescription.

 

2. The Department of Labour must be requested-

(a) to investigate the repeal or amendment of section 44 of the Compensation for Occupational Injuries and Diseases Act, 1993 (Act 130 of 1993), with the view to bringing those provisions into line with the Institution of Legal Proceedings against Organs of State Bill, 2000, and, if necessary, with the Constitution, and to identifying possible consequential amendments to the Act as a result of such repeal or amendment; and

(b) where necessary, to submit legislative proposals regarding the matter to Parliament for its consideration.

 

3. The Department of Transport must be requested-

(a) to consider and evaluate any recommendations of the Road Accident Fund Commission regarding the prescription of the right to claim compensation from the Road Accident Fund in respect of any loss or damage, as provided for in section 23 of the Road Accident Fund Act, 1996 (Act 56 of 1996);

(b) in any event, to investigate the repeal or amendment of the said section 23 with the view to bringing it into line with the Institution of Legal Proceedings against Organs of State Bill, 2000, and, if necessary, with the Constitution, and to identifying possible consequential amendments to that Act as a result of such repeal or amendment; and

(c) where necessary, to submit legislative proposals regarding the matter to Parliament for consideration.

4. The Department of Transport must be requested-

(a) to investigate the repeal or amendment of provisions of the South African Transport Services Act, 1989 (Act 9 of 1989), dealing with specific notice periods in respect of claims for compensation for livestock killed or injured by a train or for property destroyed or damaged by a fire caused by a burning object coming from a locomotive or train, with the view to bringing those provisions into line with the Institution of Legal Proceedings against Organs of State Bill, 2000, and, if necessary, with the Constitution, and to identifying possible consequential amendments to the Act, as a result of such repeal or amendment; and

(b) where necessary, to submit legislative proposals regarding the matter to Parliament for consideration.

5. (a) Each member of the Executive who is responsible for a Department that administers specific sections of the Black Administration Act, 1927 (Act 38 of 1927), and especially the Ministers who are responsible for Departments of Home Affairs, Justice and Constitutional Development and Land Affairs be requested to review sections which their Departments administer, with the view to bringing those sections into line with the Constitution.

(b) This matter must be brought to the attention of the

President and the Minister for Justice and Constitutional

Development must consider referring the review of the entire Act

to the South African Law Commission as a project of the highest

priority.

1. The matter has been included in the programme of the South African Law Commission. and an issue paper will be published shortly. The research is in progress. A draft Issue Paper on Prescription Periods will be considered by the Commission in the first quarter of 2003.

2. The matter was brought to the attention of the Minister of Labour who responded to the effect that the repeal or amendment of section 44 of the Compensation for Occupation Injuries and Diseases Act, 1993 (Act 130 of 1993), will impact negatively on the other provisions of this Act and, more importantly, on the administration of the Compensation Fund. To harmonise this Act with the Bill, will, in the opinion of the Labour Minister, not be in the interests of an injured employee. He indicated that officials of his Department can appear before the Committee to motivate this viewpoint should this be necessary.

3. Feedback is awaited from the Minister of Transport. His office might not have received a letter requesting comments on the resolution of the Committee. A reminder has been sent to the Minister of Transport requesting feedbackThe matter will be followed up.

 

 

 

 

 

 

 

 

 

 

 

4. Feedback is awaited from the Minister of Transport. His office might not have received a letter requesting comments on the resolution of the Committee. The matter will be followed upA reminder has been sent to the Minister of Transport, requesting feedback.

 

 

 

 

 

 

 

 

 

 

5. (a) & (b) The Minister for Justice and Constitutional Development wrote to the Ministers of Home Affairs, Provincial and Local Government and Agriculture and Land Affairs, requesting them to give effect to the directives of the Committee. As requested, the Minister also wrote to the President informing him of the report of the Committee. The Minister for Justice and Constitutional Development wrote to the Chairperson of the South African Law Commission, requesting the Commission to consider reviewing the entire Black Administration Act, 1927, as a project of the highest priority. The project of the South African Law Commission dealing with statutory law review will include this aspect in its investigation as a matter of priority. It can, however, be mentioned that, in the mean while, further provisions in the Black Administration Act, 1927, have either received attention or are receiving attention, eg amendments to the Act in 2002 flowing from the judgment of the Constitutional Court in the Moseneki case, the Law Commission has recently completed its report on traditional courts which will have an impact on the Act in question, the Law Commission is giving urgent attention to the investigation dealing with customary law of succession and the Recognition of Customary Marriages Act, 1998, also brought about some changes to the Act.The Commission discussed this request on 17 November 2000 and indicated that, although it would be willing to assist, it would require additional resources, human and financial. GTZ (German donors) have undertaken to assist and to resource this request under the project, Statutory Law Review. The ultimate aim of this project is the establishment of a permanently simplified, coherent and generally accessible Statute Book. It is a task of immense proportions and deals, among others, with the constitutionality of legislation, the rectification of discriminatory legislation and gender insensitive provisions, the repeal or amendment of obsolete and redundant provisions and the systemisation of the Statute Book by arranging the provisions that belong together. Guidelines based on the South African constitutional jurisprudence have been developed against which all legislation can be tested. A considerable amount of research in this regard has been obtained. The Law Commission and the GTZ have invited tenders with a view to undertaking a review of the Black Administration Act, 1927. An agreement with consultants has been concluded in November 2002. Provisions will be identified for repeal incrementally. The Portfolio Committee will be briefed on the planning and execution of the remainder of the investigation.

6.

Resolution of the Portfolio Committee on Justice and Constitutional Development in respect of the Directorate of Special Operations Bill, 2000 (National Prosecuting Authority Amendment Bill, 2000), dated 26 October 2000

The Committee referred to clause 18 of the Bill which inserts a new section 40A in the National Prosecuting Authority Act, 1998, which, in turn, creates offences relating to unlawful access to, tampering with or modification of, computers belonging to the National Prosecuting Authority, including the programmes of, or data held in, such computers, which is similar to legislation pertaining to the South African Police Service and the Department of Correctional Services. In the light of the increasing reliance on computers and the rapid development of information technology systems and because the safeguarding of these systems by means of appropriate legislation is still the subject of comprehensive research in the country, the Committee recommended that similar provisions should, in the meanwhile, be considered by all departments. The Committee requested all departments to look into the matter and, if appropriate, to prepare the necessary legislation for submission to Parliament.

Letters were sent to all Directors-General and heads of provincial administrations, bringing this request of the Committee to their attention. There has been no reaction from any of these functionaries. It can, however, be mentioned that the whole issue of computer-related crime was at one stage included in the South African Law Commission’s research programme. The purpose of the investigation was to develop legislation to combat the use of computers to commit crimes. A discussion paper on computer-related crime, dealing with the unauthorised access to computers, unauthorised modification of computer data and software applications and related procedural aspects was published for general information and comment in May 2001. The Commission concluded that the activities of obtaining unauthorised access to computer data and software applications and of unauthorised modification of computer data and software applications could not be dealt with satisfactorily in terms of the present provisions of our criminal law. The introduction of new offences by way of legislation was considered by the Law Commission to be necessary and it was proposed that a "Computer Misuse Act" be developed for this purpose. However, in the light of the enactment of the Electronic Communications and Transactions Act 25 of 2002, it was decided to remove this investigation from the programme of the Law Commission. The aim of the Act is, among others, to prevent abuse of information systems. CHAPTER XIII of this Act relates to cyber crime and deals with unauthorised access to, interception of or interference with, data, computer-related extortion, fraud and forgery, attempt, and aiding and abetting and provides for penalties.

7.

Resolution of the Portfolio Committee on Justice and Development in respect of the Judicial Matters Amendment Bill, 2000, dated 26 October 2000

1. The Bill originally contained an amendment to section 2 of the Interpretation Act, 1957 (clause 3). The definition of "law" which does not encompass the common law, means that the common law falls outside the scope of the Act. The amendment was intended to include the common law in the definition. The Committee was hesitant to proceed with the amendment because it did not know the effects it could have on existing laws which were drafted on the premise that "law" does not mean the common law. The Committee, referring to a report of the Ad Hoc Joint Committee on the Open Democracy Bill in which that Committee requested that the entire Interpretation Act, 1957, be revisited, urged the Minister for Justice and Constitutional Development to consider the inclusion of such an investigation in the programme of the South African Law Commission.

2. The Committee pointed out that the Bill, among others, inserts new sections 52A and 52B in the Criminal Law Amendment Act, 1997, dealing with minimum sentences. The Committee requested the Minister for Justice and Constitutional Development to make timely arrangements to enable Parliament to publish a proclamation in the Gazette on the date of commencement of this legislation, which will provide for the extension of the operation of these new sections to be the same date to which the operation of sections 51 and 52 of the Criminal Law Amendment Act, 1997, had been extended.

1. The South African Law Commission was requested to include such an investigation in its programme. On 17 November 2000 the Commission decided that the review of the Interpretation Act, 1957, should be considered as part of its existing project on statutory law revision as a matter of priority. The research has commenced. The GTZ has agreed to provide funding for the remuneration of an expert legal drafter to assist with the investigation. An agreement with the expert has been concluded in November 2002. A draft discussion paper and draft legislation will be finalized during the second quarter of 2003.

(See also the remarks under resolutions number 1, paragraph 6 and number 5, paragraph 5).

2. This matter has already been attended to and finalised by way of the Judicial Matters Amendment Act, 2001 (Act 42 of 2001). The operation of the sections has been extended until the end of April 2003. The further extension of the operation of the sections is presently being considered. Comments from role-players were requested in November 2002 and comments are being received.

8.

Resolution of the Select Committee on Security and Constitutional Affairs in respect of the Cross-Border Insolvency Bill, 2000, dated 1 November 2000

Noting that clause 2(2) of the Bill will only apply in respect of States designated by the Minister for Justice and Constitutional Development by notice in the Gazette and that clause 2(3) gives the Minister the power at any time to withdraw such notice, whereupon the State referred to ceases to be a State for the purposes of the legislation, the Committee requested the Department to investigate the possibility of creating a mechanism in the legislation which will regulate proceedings which are pending at the time of such withdrawal notice and to report within 6 months of this report.

The Department has prepared a draft with the view to inserting it in a Judicial Matters Amendment Bill.The request of the Committee will be investigated as soon as circumstances permit.

9.

Resolution of the Select Committee on Security and Constitutional Affairs in respect of the National Prosecuting Authority Amendment Bill, 2000, dated 7 November 2000

Noting that clauses 8 and 11 of the Bill make provision for the determination of salaries and the making of regulations by the Minister for Justice and Constitutional Development, in consultation with the National Director of Public Prosecutions, the Select Committee on Security and Constitutional Affairs pointed out that it may be inappropriate for these powers to be exercised only with the concurrence of the National Director of Public Prosecutions and that it might be expedient for these powers to be exercised after consultation with the National Director of Public Prosecutions. The Committee requested the Minister for Justice and Constitutional Development to consider this matter and, if necessary, to submit appropriate amendments to Parliament for consideration.

The request of the Committee was addressed in the Judicial Matters Amendment Act, 2001 (Act 42 of 2001).

2001

1.

Resolution of the Portfolio Committee on Justice and Constitutional Development in respect of the Joint Investigation Report into the Strategic Defence Procurement Packages of 10 December 2001

1. The Prevention of Corruption Bill must be introduced into Parliament as a matter of urgency.

2. The National Director of Public Prosecutions must submit a progress report to the Portfolio Committee on a mutually agreed date in February 2002 regarding further possible criminal investigations and public prosecutions emanating from the procurement packages.

1. The Bill has been introduced into Parliament and is being discussed by the Portfolio Committeeawaiting deliberations.

2. The trial of Messrs Yengeni has been postponed to a date in February 2003 to enable Mr Yengeni to obtain legal representation.Three weeks have been set aside in the Regional Court, Pretoria, in July 2002, for the trial of Messrs Yengeni and Woerfel on charges of corruption and fraud. It is presumed that further details will be provided by the Office of the National Director of Public Prosecutions when its report in this regard is submitted to the Committee.

2.

Resolution of the Portfolio Committee on Justice and Constitutional Development in respect of the Judicial Officers Amendment Bill, 2001, dated 30 October 2001.

1. The Department of Justice and Constitutional Development must investigate the position of a judge who is impeached in terms of section 177 of the Constitution, that is the benefits, if any, payable to such a judge on his or her impeachment and submit appropriate legislative proposals to the Committee at the beginning of 2002 when it considers the remainder of the provisions of the Judicial Officers Amendment Bill.

2. The Department of Justice and Constitutional Development must ensure that the Constitution of the Republic of South Africa Amendment Bill is enacted into law before the Judges' Remuneration and Conditions of Employment Bill, 2001, but not later than 20 November 2001.

3. The Department of Justice and Constitutional Development must, within 3 months after the adoption of this resolution, prepare and promote one set of regulations in terms of section 16 of the Judges' Remuneration and Conditions of Employment Act, 2001, to replace the 3 sets of existing regulations in terms of the legislation which existed prior to the enactment of this Act.

1. An investigation in this regard has commenced and information is being sought on the position in other jurisdictions. A submission will be made to the Committee as soon as possible.

 

 

 

2. The Constitution of the Republic of South Africa Amendment Act, 2001 (Act 34 of 2001), came into operation on 21 November 2001 and the Judges' Remuneration and Conditions of Employment Act, 2001 (Act 47 of 2001), on 22 November 2001.

3. The regulations were published in the Government Gazette on 5 July 2002.

3.

Resolution of the Portfolio Committee on Justice and Constitutional Development in respect of the Criminal Procedure Second Amendment Bill, 2001, dated 30 October 2001.

1. The National Director of Public Prosecutions (NDPP) must-

(i) until such time as the directives contemplated in the new section 105A(11) of the Criminal Procedure Act, 1977, have been issued by the NDPP, authorise only senior members of the prosecuting authority to apply the provisions in question;

(ii) give immediate attention to the issuing of the directives; and

(iii) be made aware of the new section 105A(11)(b)(iv) and (12) in terms of which the prosecuting authority is required to keep comprehensive records and statistics relating to the implementation and application of that section and to submit those records and statistics to Parliament.

2. This resolution must be forwarded to the NDPP for his attention.

1. The matters mentioned in the resolution are receiving the attention of the Office of the NDPP. A presentation in this regard was made by a representative of that Office at the recent Prosecutors' Conference at which the Chairperson of the Committee was present.Directives have been issued and were submitted to role-players under the cover of a memorandum, in which role-players were also requested to keep comprehensive records and statistics relating to the implementation and application of the provisions in question. A letter has been written to the Office of the NDPP, requesting information on developments for purposes of reporting back to the Committee.

 

 

 

 

 

 

2. The Department, in a letter dated 2 November 2001, submitted a copy of the Bill, as approved by Parliament, and a copy of the resolution of the Committee to the NDPP for his attention.

4.

Resolution of the Portfolio Committee on Justice and Constitutional Development in respect of the Judicial Matters Amendment Bill, 2001, dated 25 October 2001

1. The Department of Justice and Constitutional Development must introduce legislation into Parliament as soon as possible to regulate appeals from the lower courts to the High Courts pursuant to the declaration of unconstitutionality of sections 309B and 309C of the Criminal Procedure Act, 1977.

2. The Department of Justice and Constitutional Development must introduce appropriate amending bail legislation into Parliament during 2002, requiring presiding officers to take the personal circumstances of accused persons more closely into account when determining the amount of bail to be set and to set an amount which they can afford to pay.

1. A Bill has been introduced into Parliament and is being discussed by the Portfolio Committee.prepared and will be submitted to Parliament shortly.

 

 

 

2. This legislation will be prepared and submitted to Parliament as soon as circumstances permit, possibly in a Judicial Matters Amendment Bill towards the end of 2003.

2002

1.

Resolution of the Portfolio Committee on Justice and Constitutional Development on the Reinstatement of Enrolment of Certain Legal Practitioners Bill, 2002, dated 27 May 2002 (and corrected on 31 May 2002)

The Minister for Justice and Constitutional Development must cause the Department, in conjunction with relevant role-players, including representatives from the legal profession, to report back to the committee, within 3 months after adoption of the Report by the National Assembly, on possible options available to honour the memory of such reinstated persons.

The resolution was brought to the attention of all Judges President of the High Courts, Lawyers for Human Rights, Independent Association of Advocates, South African Criminal Bar, the Legal Resources Centre, Black Lawyers Association, NADEL, the individual provincial law societies, as well as the Law Society of South Africa and the General Council of the Bar, requesting their comments. Comments are being received and a report will be submitted to the Committee once all comments have been received and evaluated.

2.

Resolution of the Portfolio Committee on Justice and Constitutional Development on the International Criminal Court Bill, 2001, dated 7 June 2002

1. The Department of Justice and Constitutional Development must explore the possibility of giving the South African courts universal jurisdiction to deal with the prosecutions mentioned and must consequently-

(i) undertake the necessary research in this regard, taking all the implications of such an approach into consideration, particularly those of a financial nature and the difficulties which may arise as a result of competing requests from different countries; and

(ii) report back to the Committee within six months after the adoption of this Report by the National Assembly.

2. (a) (i) The Cabinet member responsible for correctional services must, in consultation with Cabinet and with the approval of Parliament, decide, as soon as is practicable, whether South Africa should be placed on the list of States willing to accept sentenced prisoners and determine the conditions pertaining to such acceptance.

(ii) This decision must be submitted to the Court.

(iii) Similar procedures apply in the event of South Africa wishing to revoke or vary such an acceptance.

(iv) Once South Africa has been placed on the abovementioned list, the Court can designate South Africa as a State to accept a particular prisoner in a particular case for purposes of serving a sentence of imprisonment. This designation is referred, via the Central Authority, to the Cabinet member responsible for correctional services, who is given a discretion whether to accept the designation in question or not.

(v) The Court must be informed as soon as possible whether the designation is accepted or not.

(vi) A warrant of detention issued by the Court in respect of a person referred to in South Africa for purposes of serving a sentence of imprisonment is deemed to be a valid warrant for the purposes of section 6 of the Correctional Services Act, 1998.

(b) The Committee requests the Cabinet member responsible for correctional services to initiate an investigation, as soon as possible, into the possibility of placing South Africa on the list of States willing to accept sentenced prisoners for purposes of serving their sentences of imprisonment in South African prisons and, if so accepting, to determine the conditions pertaining to such acceptance, as contemplated in Clauses 31 and 32 of the Bill and, in the process thereof, to consider all possible implications thereof, particularly those of a financial nature.

3. The Department of Justice and Constitutional Development is requested to ensure that the proposed legislation can be put into operation on or before 1 July 2002 and to ensure that the required subordinate legislation is prepared and promulgated timeously.

1. This will be investigated and a report will be submitted to the Committee as soon as circumstances permit.

 

 

 

 

 

 

 

 

 

 

2. The resolution was brought to the attention of the Department of Correctional Services and a follow-up letter has been sent to the Commissioner: Correctional Services.

 

 

 

 

 

3. The Act, together with the required subordinate legislation, came into operation on 16 August 2002

 

 

3.

Resolution of the Portfolio Committee on Justice and Constitutional Development on the Insolvency Amendment Bill, 2002, dated 7 June 2002

The Minister for Justice and Constitutional Development must request his Department to consider the inclusion of the proposals dealing with notice to trade unions and employees of applications for the sequestration of an employer's estate, service of court orders on trade unions and employees and the creation of an offence for failure to give certain notices in the proposed uniform legislation that deals with corporate and individual insolvencies.

The request has been accommodated in the Insolvency Second Amendment Bill, 2002, and has already been incorporated in the Insolvency and Business Recovery Bill, which deals with the review of the insolvency laws.

4.

Resolution of the Portfolio Committee on Justice and Constitutional Development on Crossing-the-Floor Legislation dated 10 June 2002

1. It is imperative that the administrative structures and mechanisms, in particular the designation of officers by the Independent Electoral Commission, to deal with those procedures must be in place at the time of commencement.

2. (a) The Committee recommends that the Independent Electoral Commission be urged to ensure that steps are taken timeously in order to ensure that the provisions of item 7 of the new Schedule 6A, as provided for in the Constitution of the Republic of South Africa Amendment Bill [B16B-2002, could be implemented smoothly in the local government sphere.

(b) The Committee also recommends that the Secretaries of Parliament and of the various provincial legislatures be urged to ensure that steps are taken timeously in order to ensure that the provisions of the new item 23A(4), as provided for in the Loss or Retention of Membership of National and Provincial Legislatures Bill [B25-2002], could likewise be implemented smoothly in the national and provincial government spheres.

3. The Committee is of the view that the relevant functionaries may wish to ensure that uniform practices and procedures are developed for this purpose. The Committee offers the drafts contained in the Annexure to this Report as a contribution to promote such uniformity. It is further suggested that the Independent Electoral Commission should, as soon as possible, publicise a list of all officers designated by the Commission to facilitate the necessary procedures in the local government sphere and submit the list to political parties.

4. The Committee further recommends that the Department for Justice and Constitutional Development be requested, in conjunction with the relevant role-players-

(i) to research the laws pertaining to the regulation of political parties in order to ascertain whether or not any such laws should be amended in order to expedite the regulation of new parties emerging as a result of the new provisions, in particular the subdivisions of parties. It should be noted that the Independent Electoral Commission expressed the view that, at present, the Independent Electoral Commission Act, 1996, does not make provisions for the subdivision of parties;

(ii) to review laws pertaining to the funding of political parties, in particular parties represented in a legislative, and to take such steps as may be necessary to ensure that those provisions are aligned with the changes effected in terms of the above legislation;

(iii) to consider all legislation which may need to be amended in order to be brought into line with the new laws referred to in paragraph 1, and to make recommendations regarding such changes as may need to be effected;

(iv) to revert to the Committee within two months of the commencement of the said legislation regarding steps it has taken or will be taking as a result of the above matters.

5. An important principle is established by the amendments to the Local Government: Municipal Structures Act, 1998, in so far as the reconstitution of metropolitan subcouncils is concerned after changes of party membership or mergers or subdivision of parties has taken place. In terms of the relevant amendment, metro councils may determine their own mechanism for the appointment of councilors in the proportional representative component of metropolitan subcouncils. It is desirable for some degree of uniformity to be maintained by the respective metro councils and the Minister for Provincial and Local Government is requested to issue guidelines to metro councils on a possible model for such a mechanism.

6. The Committee further recommends that a copy of this resolution, together with the abovementioned Bills, be forwarded as a matter of the utmost urgency to the-

* Speaker of the National Assembly and the Chairperson of the National Council of Provinces;

* Speakers of the provincial legislatures;

* Independent Electoral Commission;

* Department of Home Affairs;

* Department of Provincial and Local Government; and

* South African Local Government Association.

1. This has been attended to.

 

 

 

2(a) and (b) This has been attended to.

 

 

 

 

 

 

 

 

 

 

 

 

 

3. This has been attended to.

 

 

 

 

 

 

 

 

4(i), (ii) and (iii) This is being attended to in conjunction with the Department's Chief Directorate: Constitutional Development.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4(iv) The relevant legislation is still being considered by Parliament and is expected to be deliberated on further in the first quarter of 2003.

 

5.

 

 

 

 

 

 

5.

Resolution of the Portfolio Committee on Justice and Constitutional Development on the Interception and Monitoring Bill, 2002, dated 13 September 2002

1. The Minister of Correctional Services must be requested to ensure that when regulations are referred to the Parliamentary Committees which deal with his Department, those regulations relating to the interception of communications in prisons are also specifically referred to the Portfolio Committee on Justice and Constitutional Development for consideration.

2. The provisions of the National Key Points Act, 1980 (Act No. 102 of 1980), should be brought to the attention of the Minister of Defence and the Minister of Intelligence in order for them to consider declaring the proposed interception centres, to be established by clause 32(1) of the Bill, National Key Points in terms of section 2(1) of the National Key Points Act, 1980.

1. A letter has been sent to the Commissioner: Correctional Services bringing the resolution to his attention.

 

 

 

2. A letter has been sent to the Chief of the South African National Defence Force and the Director-General of the National Intelligence Agency, bringing the resolution to their attention.

6.

Resolution of the Portfolio Committee on Justice and Constitutional Development on the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill, 2002, dated 25 September 2002.

1. The question has been raised whether the Equality Review Committee should continue to exist due to the financial implications involved, and since Parliament already fulfils an oversight function. The Department is requested to investigate and report back to Parliament, by the end of February 2003, on the feasibility and viability of the Equality Review Committee, bearing in mind the financial and other scarce resources it uses, and to address the matter appropriate, including the introduction of legislation, if necessary. Relevant parties, specifically the South African Human Rights Commission, must be consulted in this regard.

2. The Department is requested to investigate the concern of the potential unprotection of "intersexual" individuals and address it in an appropriate manner, including the introduction of appropriate legislation, if necessary. The Department is requested, during its investigation, to consult broadly, including the South African Law Commission, and to report back to Parliament by the end of February 2003.

1. Letters have been sent to the SAHRC, the Commission on Gender Equality, the members of the Equality Review Committee and the component in the Department that accommodates the secretariat of the ERC for their comments.

 

 

 

 

 

 

2. Discussions have been held between a representative of the Department and an intersexual person and comments have been requested from the South African Law Commission, the SAHRC, the Commission on Gender Equality and the Department of Home Affairs.

7.

Resolution of the Portfolio Committee on Justice and Constitutional Development on the Regulation of Interception of Communications and Provision of Communication-related Information Bill, 2002, dated 12 November 2002

The Committee requested the Department to investigate the compulsory black-listing/grey-listing of stolen or lost cellular phones and submit a progress report on the investigation to the National Assembly by not later February 2003.

Interested parties (MTN, Vodacom, Cell C, SAPS, NIA and NDPP) were approached for their comments on 13 December 2002. Some comments have been received and a report will be submitted once all comments have been received and evaluated.

8.

Resolution of the Portfolio Committee on Justice and Constitutional Development on the Judicial Matters Amendment Bill, 2002, dated

1. The Committee requested the Department to revisit clause 22 of the Bill dealing with problems experienced by attorneys and more particularly candidate attorneys in the former homelands, to consult with role-players, particularly those who had submitted representations at an advanced stage of the Bill and to address all outstanding issues, including the necessary transitional arrangements.

2. The Committee requested the Department to prepare the necessary amendments proposed by the attorneys' profession in consultation with role-players, making it compulsory for all newly admitted attorneys and sole practitioners to complete a legal practice management course.

3. The Committee requested the Department to consider the desirability of amending the Insolvency Act, 1936, in a similar manner to the amendments of sections 415 and 417 of the Companies Act, 1973, effected by the Judicial Matters Amendment Bill, 2002.

1. The matter has been referred to the attorneys' profession, requesting comments which are awaited

 

 

 

 

 

2. The required amendments have been drafted and submitted to the attorneys' profession for comments. Feedback is awaited.

 

3. The request of the Committee has been brought to the attention of the Masters of the High Courts, the Association of Insolvency Practitioners and the legal profession. Comments are awaited.