Shortly after its establishment in 1973 the South African Law Reform Commission ("the Commission") undertook a revision of all pre-Union legislation, which resulted in the repeal of approximately 1 200 laws, ordinances and proclamations of the former Colonies and Republics. In 2004 the Commission included in its law reform programme an investigation into statutory law revision which entails a revision of all statutes from 1910 to date. While the emphasis in the previous investigation was to identify obsolete and redundant provisions for repeal, the emphasis in the current investigation will be on compliance with the Constitution. However, all redundant and obsolete provisions identified in the course of the current investigation will also be recommended for repeal.

On 9 July 2004 Cabinet considered this investigation and endorsed, among others -

• that the highest priority be given to reviewing provisions in the legislative framework that would result in discrimination as defined by section 9 of the Constitution, which prohibits unfair discrimination on the basis of race, gender, sex, pregnancy, marital status, ethnic and social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth;
• that the review would, amongst others, address the difficulties experienced with regard to practices such as joint bank accounts between husband and wife and similar instances which may be contained in various pieces of legislation; and
• that departments should be requested to participate in and contribute to the investigation as a matter of urgency.

Legislation on the South African statute book is not confined to primary or national legislation. It includes remnants of legislative enactments passed by the provincial legislatures, governments of the former self-governing territories and the so-called "homelands" of the previous political dispensation. It also includes a mass of subordinate legislation promulgated by these structures. As a starting point the focus is on national legislation and the idea is to extend the investigation to other areas as the investigation progresses and sufficient manpower becomes available. A rationalisation of laws project has been undertaken in KwaZulu-Natal, aimed at aligning all provincial laws in the province with the Constitution and purging the provincial statute book of legislation considered to be redundant or obsolete. Exploratory discussions were held between members of the Commission’s Secretariat and those involved in the KZN project to gather information regarding project planning and management in view of the evident parallels between the two projects.

In order to facilitate a structured approach to the investigation which can aptly be described as daunting, the initial focus of research will be on national legislation with particular reference to the grounds of discrimination listed in section 9 of the Constitution of the Republic of South Africa, 1996 (also known as the equality clause).

In determining whether legislation or provisions within legislation are either unconstitutional, redundant or obsolete, it will be necessary to establish a data-base of all statutes remaining on the statute book since 1910. These statutes will include Principal Acts, Amendment Acts, Supplementary or Additional Acts and Private Acts.

An overhaul of the statute book as far as unconstitutionality, redundancy or obsoleteness are concerned, should be accompanied by the revision of a key statute, namely the Interpretation Act 33 of 1957.

The general aim of the investigation would be the identification of unconstitutional statutes or provisions within statutes as well as the identification of redundant or obsolete statutes or provisions. Unconstitutional provisions should be rectified by means of remedial amending legislation, while redundant or obsolete provisions should merely be repealed. It is evident that the identification and rectification of unconstitutional provisions will constitute the biggest challenge, and that expertise found outside of the Commission’s secretariat should be drawn in. To this end representatives of the Commission held exploratory discussions with identified experts in the field of constitutional law.

Pursuant to these discussions the following proposed working methodology emerged:

• The investigation should initially focus on the grounds of discrimination listed in section 9 of the Constitution (the equality provision).
• National (primary) legislation should receive priority.
• Obvious discriminatory provisions in legislation should be targeted first, while provisions that are doubtful in terms of constitutionality, although they should be identified, should perhaps be left for adjudication by the Constitutional Court.
• The investigation should be limited to the identification of specific provisions in legislation considered to be unconstitutional (law revision) as opposed to the identification of broader transformation or policy issues (law reform).
• All judgments of the Constitutional Court should be analysed with a view to extracting a standard set of guidelines in terms of discriminatory provisions that may be used by participants in a uniform way.
• A themes-based approach should be followed, meaning that individual pieces of legislation should be scrutinized for unconstitutionality in terms of a particular theme, rather than attempting to identify all possible unconstitutional provisions in a specific statute in one go. The various themes will be provided by the grounds of discrimination listed in section 9 of the Constitution.
• A number of teams, consisting of individuals who need not be located in the same centre, should be established, with each team working on a separate theme. All team members should report to an appointed team leader, who should then report to the Project Manager, who will be responsible for managing and co-ordinating the investigation.
• In view of the likelihood that many pre-1961 statutes are redundant or obsolete (the identification of which will be done by the Commission), the initial focus should be on legislation adopted during the period 1961 to 1994 (approximately 1 800 statutes).
• Computer software should be developed to facilitate research and to promote uniformity of approach.

Internal capacity

• The Chief Director: Law Reform will take overhead control of the internal as well as external researchers and will be responsible for the planning and allocation of work as well as for the preparation and execution of action plans.
• Six researchers (once vacant posts have been filled) could be made available to assist with the redundant and obsolete leg of the investigation.
• Seven researchers (again once vacancies have been filled) could be made available to assist with the unconstitutionality leg of the investigation.
• The Commission’s working committee will monitor progress.
• The Commission will also monitor progress and will consider and evaluate reports for submission to the Minister.

• Individuals and institutions with the required expertise in constitutional law should be appointed for a limited duration to assist with the unconstitutionality leg of the investigation.
• Externally, control will be exercised by the Deputy Director-General: Legislative and Constitutional Development.

Feasibility study

Four main avenues of research were pursued in a feasibility study which had been undertaken in conjunction with the GTZ (German Technical Co-operation):

• First, a series of role-player interviews were conducted with representatives of all three tiers of government, Chapter 9 institutions, the legal profession, academic and civil society. The interviews revealed a high level of support for the project. It also appeared that there is very little research capacity outside the Law Reform Commission to do the work required.
• Second, an analysis of all decisions of the Constitutional Court until 2001 has been undertaken. The most problematic categories of legislative provisions were then identified. These included discriminatory provisions and reverse onus provisions. Guidelines summarising the Constitutional Court’s jurisprudence were compiled in respect of each category.
• Third, 16 randomly selected national statutes were tested against the guidelines. The outcome of the test was then compared against a control audit that tested the same statutes against the entire Bill of Rights, excluding socio-economic rights. A comparison of the outcomes revealed that a targeted revision of the statute book in accordance with the guidelines is surprisingly efficient.
• Finally, a survey of five countries (United Kingdom, Germany, Norway, Switzerland and France) was conducted. With the exception of France, all the countries have conducted or are conducting statutory revision exercises although the motivation for and the outcomes of these exercises differ.

In the beginning of 2004 the Secretariat informed all national State departments of the priority of the investigation into statutory law revision and conducted a workshop with representatives from these departments so as to elicit their participation.

All State departments on national level have been reminded in writing during July 2004 of the Commission’s investigation into statutory law revision and requested to submit any views or proposals on the investigation. Departments were also invited to bring to the Commission’s attention any particular problems relating to legislation administered by them, and requested to nominate a senior management official to assist the Commission on policy issues.

At the same time an audit of national legislation remaining on the statute book since 1910 was conducted. The audit showed that there are in the region of 2 800 individual statutes, comprising principal Acts, amendment Acts, private Acts, additional or supplementary Acts and partially repealed Acts. While a substantial number of these Acts serves no purpose anymore, many others contain unconstitutional provisions that have already given rise to expensive and sometimes protracted litigation.

All State departments were requested in August 2004 to study the provisional audit of national legislation referred to above and to confirm their respective responsibilities for administering the statutes attributed to them. It is important to establish departmental responsibility for each statute since any decision to repeal legislation that is considered to be redundant, obsolete or unconstitutional will have to be done in consultation with the relevant department.

All departments have responded by the end of October 2004. At that time a substantial number of statutes (328) were unaccounted for in terms of departmental responsibility, excluding all the Private Acts which do not fall within the public sector. Departments were again approached in the beginning of November 2004 in an attempt to establish departmental responsibility in respect of the statutes that were unaccounted for. This second round of correspondence managed to reduce the number of statutes for which no responsibility has been taken to 301.

The Secretariat thereupon lodged its own investigation in order to establish which Ministers introduced the 301 pieces of legislation referred to. A problem encountered in this regard was that some portfolios which existed at the time of introduction are not in existence today, and it is not clear which current departments inherited the legislation administered by "old" departments. The Secretariat therefore grouped the remaining legislation into various categories, and has submitted these categories to departments which may possibly be involved for further assistance. The return date for responses was 30 September 2005. The next step in the Commission’s investigation will be to supply all State Departments with an updated list of statutes for which they are individually responsible in terms of administration, and to request them to identify statutes which may be repealed – whether as a result of redundance, obsoleteness or unconstitutionality.

Unconstitutional and discriminatory legislation

As mentioned previously, representatives of the Commission held exploratory discussions with identified experts in the field of constitutional law with a view to determining possible interest and involvement in the investigation.

With the financial assistance of the GTZ an analysis of all Constitutional Court judgments for purposes of extracting a standard set of guidelines in terms of discriminatory provisions has been outsourced to an expert in Constitutional Law. The analysis has been received on 8 March 2006.

The following reports, proposing the reform of discriminatory areas of the law or the repeal of specific discriminatory provisions, were already finalised by the Commission:

• Repeal of the Black Administration Act, 1927
• Customary law of succession
• Recognition of Muslim marriages
• Traditional courts

Moreover, a review of the Interpretation Act, 1957, by the Commission is currently underway and its investigation into domestic partnerships is almost finalised.

Research focusing on discrimination on the basis of the various grounds listed in section 9 of the Constitution has commenced.

An amount of R3 million has been made available under the Commission’s budget for the next three financial years, specifically for the investigation into statutory law revision. There is a possibility that additional funds will be made available after that period.