NOTE ON IMPLEMENTATION OF LEGISLATION MANDATED BY
THE CONSTITUTION

1. IMPLEMENTATION OF THE PROMOTION OF ACCESS TO

INFORMATION ACT, 2000
1.1 The Act

All the provisions of the Act are in operation. The Act, with the exception of sections 10, 14, 16 and 51, came into operation on 9 March 2001. The remaining sections came into operation on 15 February 2002.


1.2 The regulations

1.2.1 Regulations were made with effect from 9 March 2001 to facilitate the implementation of the
provisions of the Act that came into operation on that date. These regulations were repealed
on 15 February 2002 when a new set of regulations came into operation dealing with all
aspects of the Act.

1.2.2 Representations were received for the amendment of certain regulations. Draft amendments
were formulated and published in the Gazette in April 2003 for comment. The amendments,
inter alia, deal with the deletion of the requirement that the manuals of public and private
bodies must be published in the Gazette and be made available on a website. A copy of the
publication in the Gazette is attached ("A"). Since the period of exemption for the compilation
of the manuals will expire at the end of August 2003 it is planned to advise the Minister on the
proposed amendments during June 2003.

1.3 The rules of procedure

1.3.1 In terms of section 79(1) of the Act the Rules Board for Courts of Law (the Rules Board) must,
within 12 months after the commencement of the said section, make and implement rules of
procedure for a court -

(a) in respect of an application in terms of section 78 (applications regarding the decisions of
information officers or relevant authorities); and

(b) to receive representations ex parte as is provided for in section 80(3)(a) of the
Act (representations regarding the disclosure of a record).

1.3.2 "Courts" are defined in the Act to include the Magistrates' Courts, the High Courts and in
certain circumstances also the Constitutional Court. In terms of section 79(2) of the Act an
application in terms of section 78 of the Act may, before the implementation of the rules of
procedure, only be lodged at a High Court.

1.3.3 The term of office of the previous Rules Board expired in March 2002. At the last meeting
draft rules of procedure were tabled for the Board to approve. The Board approved the rules
in principle but granted the members an opportunity to submit further comments. Proposals
were received for the amendment of the draft rules, which will be placed before the Board as
soon as it has been appointed. The Minister is in discussions with the judge, who will be
appointed as chairperson, relating to the appointment of the other members of the Board. (In
the absence of the rules of procedure only the High Court can be approached for relief. One
should, however, also keep in mind that magistrates still need to be designated in terms of
the Act before magistrates' courts can be used.)


1.4 Exemptions regarding fees

1.4.1 In terms of section 22(8) of the Act the Minister may, inter alia, by notice in the
Gazette-
(a) exempt any person or category of persons from paying any fee referred to in the section;
(b) determine that any fee referred to in the section is not to exceed a certain maximum amount;
(c) determine the manner in which any fee referred to in this section is to be calculated;

(d) determine that any fee referred to in the section does not apply to a category of records;
(e) exempt any person or record or category of persons or records for a stipulated period from any fee referred to in subsection (6); and
(f) determine that where the cost of collecting any fee referred to in the section exceeds the amount charged, such fee does not apply.
1.4.2 On more than one occasion the attention of interested parties was drawn to the provisions of section 22(8). A limited number of inputs has been received. A notice in this regard is in the process of being formulated. An exemption and determination in terms of paragraph (a) and paragraph (f) respectively, will be dealt with in the notice. In regard to paragraph (a) the idea is to exempt indigent persons from paying the fees.


1.5 Resolutions

When finalising the Bill the Justice Portfolio Committee adopted a report containing a number of resolutions. They are dealt with in the Annexure B.


2. IMPLEMENTATION OF THE PROMOTION OF ADMINISTRATIVE JUSTICE ACT, 2000

2.1 The Act


The Whole Act is in operation. The Act, with the exception of sections 4 and 10, came into operation on 30 November 2000. Sections 4 and 10 of the Act came into operation on 31 July 2002.


2.2 The Regulations

Regulations made under section 10 of the Act came into operation on 31 July 2002. The only outstanding matter pertaining to the regulations is the Code of Good Administrative Conduct, which is mandated by section 10. The Department is still working on the draft Code. Various drafts have been produced. The latest draft of the Code will be scrutinised on 11 June 2003 by various experts in the field of administrative law. Thereafter it will be finalised and submitted to the State Law Advisers, the State Language Services and then to the Minister. Should the Minister approve, the Code will be submitted to Cabinet and Parliament for approval, as is required in terms of section 10(4)(b) and (6) of the Act. The Code must be approved within two years after the commencement of the Act.



2.3 The rules

2.3.1 In terms of section 7(3) of the Act the Rules Board must, within one year after the date of commencement of the Act, make and implement rules of procedure for judicial review. Section 7(4) of the Act provides that before the implementation of the rules of procedure all proceedings for judicial review must be instituted in a High Court or the Constitutional Court. The Act also provides that any rule made under section 7(3) must, before publication in the Gazette, be approved by Parliament.

2.3.2 The previous Rules Board made rules under section 7(3), which rules were submitted to Parliament for approval. The Chairperson of the Justice Portfolio Committee raised some concerns regarding the procedure prescribed in the rules. Draft amendments have been formulated in accordance with the views of the Chairperson and have been submitted to him for discussion. The rules will be submitted to the new Rules Board once it has been established.


2.4. Resolutions

The Portfolio Committee adopted a Report on 24 January 2000. The Report contains a number of resolutions. These are dealt with in Annexure C.


3. IMPLEMENTATION OF THE PROMOTION OF EQUALITY AND THE PREVENTION OF UNFAIR DISCRIMINATION ACT, 2000


3.1. The Act

3.1.1. Sections 1, 2, 3, 4(2), 5, 6, 29 (with the exception of subsection (2), 32, 33 and 34(1) of the Act came into operation on 1 September 2000. These sections deal mainly with the application of the Act. those actions which constitute unfair practices and the establishment of the [quality Review Committee and the powers, functions and terms of office of the members of this Committee.


3.1.2. The proposed date for the commencement of sections 4(1), 7 - 23, 30,31 (with the exception of subsection (7)) is 16 June 2003. (A memorandum in this regard has already been submitted to the Minister.) The sections in respect of which commencement is recommended relate to the prevention of unfair discrimination and deal mainly with the institution of proceedings in equality courts by complainants in respect of allegations of unfair discrimination and the relief to be granted by the courts.
3.1.3. The remainder of the sections of the Act relates to the promotion of equality. No date has yet been set for the commencement of the provisions, as the regulations required to facilitate the implementation of these provisions of the Act have not been finalised. (See paragraph 3.1.2.)


3.2 The regulations

3.1.1. Regulations facilitating the implementation of the provisions of the Act referred to in paragraph 3.1.2 above (dealing with the prevention of unfair discrimination). have been approved by the Minister and Parliament, as is required in terms of section 30 of the Act. A memorandum has already been submitted to the Minister to make the regulations. The regulations will come into operation on 16 June 2003.
3.1.2. The SA Human Rights Commission (the SAHRC) was requested to assist the Department in drafting the regulations dealing with the promotion of equality. For this purpose, limited funding was made available to the SAHRC. Due to a lack of further funding, the mandate of the SAHRC was terminated and the Department was requested to proceed with the drafting process. in drafting the regulations, some experts were approached in regard to specific aspects. Much progress has been made and it is planned to have a draft ready within the next few weeks, which will then be published in the Gazette for comments in addition to letters which will be sent to stakeholders. It should be noted that there are various complex issues in respect of which regulations must be made and which require in-depth research and proper attention. (Although the Department fully realises the importance of the provisions dealing with the promotion of equality, the regulations relating to the prevention of unfair discrimination have been prioritised in order to ensure that complainants can at least approach the court for redress in cases of unfair discrimination.)



3.3. Resolutions

The Ad Hoc Joint Committee on the Promotion of Equality and Prevention

of Unfair Discrimination Bill adopted a report on the 25 January 2000. The
Report contains a number of resolutions. These are dealt with in Annexure
D.


4. REGULATIONS IN TERMS OF THE PROMOTION OF NATIONAL UNITY AND
RECONCILIATION ACT, 1995

4.1. Section 27(1) of the Promotion of National Unity and Reconciliation Act,
1995 (the TRC Act), provides that the recommendations by the Truth and Reconciliation Commission (the TRC) contemplated in section 4(f)(i) of the TRC Act must be considered by the President with a view to making recommendations to Parliament and to making Regulations. (Section 4(f)(i) provides that the TRC must make recommendations to the President with regard to the policy which should be followed or measures which should be taken with regard to the granting of reparation to victims or the taking of other measures aimed at rehabilitating and restoring the human and civil dignity of victims.)

4.2. Section 27(2) of the TRC Act provides that the recommendations referred to in the above paragraph must be considered by a Joint Parliamentary Committee and the decisions of the said Committee must, when approved by Parliament, be implemented by the President by making regulations. (Section 1 of the TRC Act defines "joint committee" as a joint committee of the Houses of Parliament appointed in accordance with the Standing Orders of Parliament for the purpose of considering matters referred to it in terms of the Act.)

4.3 Section 27(3) of the } ~'C Act sets out the matters in respect to which regulations must and may be made.

4.4. On 15 April 2003 the President tabled the report of the TRC in Parliament. On the following day it was announced in the media that the Speaker of Parliament indicated that the Joint Committee envisaged in section 27(2) would soon be appointed.

4.5. From the Order Paper of Parliament of 24 April 2003 under the Heading TABLINGS" it appears as if -



(a) the said Committee will consist of 19 Assembly members (the NA) and 9 National Council of
Province members (the NCOP) and
(b) the Committee must submit a report to both Houses by 12 June 2002.

4.6. From the minutes of the proceedings of the NCOP and the NA dated 13 May 2003 it appears
as if the decisions mentioned in paragraph 4.5 have been ratified.

4.7. On 14 April 2003, the day before the President tabled the TRC report in Parliament, the DC,
referring to the tabling of the report and the criticism against Government that it is not moving
fast enough on the issue of reparation, requested DRC (Mrs Ina Botha) to take immediate
steps to ensure that the regulations required for purposes of section 27 are finalised without
delay.

4.8. The following steps have been taken in order to expedite the process of drafting of the
regulations:

(a) Copies of the President's statement when tabling the TRC report. a note on the joint meeting
of the Economic and Social Cabinet Committees on 9 April 2003, a draft cabinet
memorandum (No 7 of 2003) setting out the response of the Government to the
recommendations of the TRC and a note on the progress made on the recommendations of
the TRC have been obtained.

(b) Volume 6 of the recommendations of the TRC containing relevant information on reparation
has been studied.

(c) The parliamentary Officer of the Department in Cape Town was requested to monitor the
Order Papers in order to inform Mr Rudman immediately once the names of the members of
the Joint Committee have been released. The idea is that the team responsible for the
drafting of the regulations must work in close conjunction with the members of the Joint
Committee so as to ensure that once the committee has made its decisions, the regulations
must be in an advanced stage of finalisation.

(d) Discussions were held with Mr Faruk Hoosen, the person in the Department responsible for
the administration of the money in the Presidents Fund. As a result of discussions information
has been obtained as to the process that was followed regarding the payment of interim
reparation and the problems experienced.

(e) The Deputy Chief State Law Adviser, in charge of the designation of State Law Advisers for
particular projects, was approached with the request to make a Senior State Law Adviser
available on the drafting team. Adv Piet Prinsloo of the Pretoria Office was identified. A few
legal questions have already been discussed with him. A further appointment has been made
with him to discuss further issues.

4.9. It is unfortunately not possible at this stage to make real progress in the drafting of the
regulations. Based on the documents that are available, some ideas as to how the regulations
should be worded have been formed.


5. Report on Implementation

A report on implementation which reflects the status of implementation of new

Acts since 1996, is attached as Annexure E.