I have the honour to submit to you, in terms of section 7(2) of the South African Law Reform Commission Act 19 of 1973, the Commission's report on all its activities from 1 April 2009 to 31 March 2010.
To be a centre for excellence, producing ground-breaking research pivotal to the improvement and renewal of the legal system of South Africa.
The continuous reform of the law of South Africa in accordance with the principles and values of the Constitution to meet the needs of a changing society operating under the rule of law.
In the execution of its duties the SALRC strives to uphold the values of equality, integrity, inclusiveness, professionalism, impartiality, excellence, responsiveness, efficiency and respect for the dignity of others.
Telephone: (012) 392 9540 Fax: (012) 323 4406 E-mail: Reform@justice.gov.za Internet: http://salawreform.justice.gov.
South Africa has been immortalised in the history books as the first African country ever to be afforded the opportunity to act as host for one of the greatest sporting events in the World: the FIFA Soccer World Cup. Apart from proving itself as a major competitor in sport such as soccer, rugby and cricket, South Africa now also has the opportunity to prove itself as one of the great host nations for international sporting events.
However, it is not only on the sport field that South Africa has proven itself worthy. South Africa also excels in the field of law reform.
Law Reform Commission (SALRC) and legislation recommended and adopted since the nineties, demonstrates that South Africa has much to be proud of in the area of law reform. This period was especially challenging for law reformers due to the dramatic changes that South Africa's political landscape underwent during that time.
On 26 October 1994 the South African Law Commission (as the SALRC was known at the time) was awarded the Humanitas award. The Humanitas award was 'Awarded to the South African Law Commission for outstanding research into human rights and constitutional models.' The research into human rights and constitutional models was conducted as part of the process of drafting the Constitution of the Republic of South Africa Act 200 of 1993, which in turn informed the drafting of the Constitution of the Republic of South Africa Act, 1996.
The SALRC dealt with a number of investigations that flowed from the requirements of the Constitution or that dealt with human rights issues. Project 115 - Review of administrative law preceded the adoption of the Promotion of Administrative Justice Act 3 of 2000. Section 33(3) of the Constitution requires the adoption of national legislation which gives effect to the right to just administrative action.
Project 118 - Domestic partnerships. Some of the recommendations made in this investigation were incorporated in the Civil Union Act 17 of 2006, which allows persons, such as homosexual people, that were previously unable to get married under the Marriage Act 25 of 1961, to enter into a valid marriage or civil union that is recognised by law and that has the same legal consequences as a marriage concluded in terms of the Marriage Act.
Constitution (section 28 of the Constitution) for protection of the rights of children. One of the major considerations in Project 110 - Review of the Child Care Act was the meaningful expansion and support of this provision of the Bill of Rights as contained in the Constitution. The comprehensive and ground-breaking Children's Act 38 of 2005 was passed in two parts in 2005 and 2007 and will become fully operational on 1 April 2010. While the Children's Act of 2005 deals primarily with the protection of children through civil processes, the Child Justice Act 75 of 2007 deals with children in conflict with the law. The Child Justice Act of 2007, which is the result of the SALRC's recommendations made in the Report on Juvenile Justice (Project 106), brings about a major shift in the manner in which South Africa deals with juvenile offenders.
The protection of children is further enhanced by the provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The Act is the result of the first and second stages of Project 107 - Sexual offences. The Act creates new categories of sexual offences, such as sexual grooming, sexual violation and sexual assault, and focuses strongly on the protection of children against crimes of a sexual nature. The third stage of this investigation, looking at adult prostitution, is currently in progress.
Section 39 of the Constitution determines that every court, tribunal or forum, when interpreting legislation and when developing the common law or customary law, must promote the spirit, purport and objects of the Bill of Rights. Project 90 - Customary law dealt with, amongst others, the harmonisation of the common law and indigenous law.
120 of 1998 and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009.
South Africa was proactive in realising the need for an investigation into aspects of the law relating to AIDS. This extensive project, Project 85 - Aspects of the law relating to AIDS, led to the adoption of a National Policy on HIV/AIDS for learners in public schools by the Department of Education, the promulgation of subordinate legislation (Regulations on Hazardous Biological Agents promulgated in December 2001), legislation on pre-employment HIV testing incorporated into the Employment Equity Act 55 of 1998, and provisions in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 to provide for the need of victims of sexual offences for information relating to the HIV status of alleged perpetrators.
Another legal innovation heralded by an SALRC investigation was the amendment of the Criminal Procedure Act 51 of 1977 to authorise prosecutors to enter into plea and sentence agreements with accused persons in certain circumstances. Plea and sentence agreements make a significant difference to the time, costs and resources expended on criminal cases. The Criminal Procedure Second Amendment Act 62 of 2001 which achieved this change, was the result of Project 73 - The simplification of criminal procedure: Fourth interim report: Sentence agreements.
The review of security legislation (Project 105) was initiated by the Minister of Safety and Security after some ground work on terrorism had been done by the South African Police Service. The investigation was conducted in two stages.
Prohibition Act 127 of 1992, while the second stage focused on terrorism. The two stages of the investigation resulted in the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002, and the Protection of Constitutional Democracy against Terrorism and Related Activities Act 22 of 2004.
The objective of Project 113 - Use of Electronic Equipment in Court Proceedings was to determine whether the use of electronic equipment in court proceedings is a viable option to save costs or prevent delays in civil and criminal trials. The office of the National Director of Public Prosecutions requested the SALRC to expedite the investigation and to conduct a separate investigation into the possibility of postponement of cases via video conferencing. The Commission's report titled The Use of Electronic Equipment in Court Proceedings (Postponement of Criminal Cases via Audiovisual Link) recommended the use of audio-visual links for applications for leave to appeal and appeals in respect of accused persons in custody in prison. The recommendations of this report have been incorporated into the Criminal Procedure Amendment Act 65 of 2008.
It is clear that the work of the SALRC has had a major impact on the legal landscape of South Africa. The SALRC is indeed living up to its vision 'to be a centre for excellence, producing ground-breaking research pivotal to the improvement and renewal of the legal system of South Africa'.
The Full-time Commissioner resigned with effect from 15 October 2009 to take up her appointment as Public Protector of South Africa. As an interim arrangement until the Presidential appointment of a new Full-time Commissioner, the Chairperson of the SALRC, who has retired from the Constitutional Court, performs the functions of Full-time Commissioner.
Project 90 - Customary law: Traditional Courts: introduced into Parliament on 2 April 2008 as the Traditional Courts Bill [Bill 15 - 2008], re-introduced into Parliament on 7 July 2009.
Project 124 - Privacy and data protection: introduced into Parliament on 25 August 2009 as the Protection of Personal Information Bill [Bill 9 - 2009].
Project 130 - Stalking: introduced into Parliament on 8 February 2010 as the Protection from Harassment Bill [Bill 1 - 2010].
Prevention and Combating of Trafficking in Persons Bill [Bill 7 - 2010].
submitted to DOJCD in May 1998.
Project 59 - Islamic marriages: submitted to DOJCD in July 2003.
Project 63 - Review of the law of insolvency: submitted to DOJCD in February 2000.
Project 73 - Simplification of criminal procedure: Appeal by the Director of Public Prosecutions on questions of fact: submitted to DOJCD in December 2000.
Project 73 - Simplification of criminal procedure: Out of court settlements: submitted to DOJCD in August 2002.
Project 73 - Simplification of criminal procedure: A more inquisitorial approach to criminal procedure - police questioning, defence, disclosure, the role of judicial officers and judicial management of trials: submitted to DOJCD in August 2002.
Project 82 - Sentencing: A new sentencing framework: submitted to DOJCD in December 2000.
Project 88 - The recognition of class actions in South African Law: submitted to DOJCD in September 1998.
Project 90 - Customary law: Conflicts of law: submitted to DOJCD in September 1999.
Project 94 - Arbitration: Domestic arbitration: submitted to DOJCD in June 2001.
Project 94 - Arbitration: International arbitration: submitted to DOJCD in July 1998.
Project 96 - The Apportionment of Damages Act, 1956: submitted to DOJCD in July 2003.
Project 101 - The application of the Bill of Rights to criminal procedure, criminal law, the law of evidence and sentencing: submitted to DOJCD in June 2001.
Project 112 - Sharing of pension benefits: submitted to DOJCD in June 1999.
Project 114 - Publication of divorce proceedings: submitted to DOJCD in August 2002.
Project 121 - Consolidated legislation pertaining to international judicial co-operation in civil matters: submitted to DOJCD in April 2008.
Project 123 - Protected disclosures: submitted to DOJCD in November 2008.
Project 134 - Interim report on administration of Estates: submitted to DOJCD in August 2008.
Project 86 - Euthanasia and the artificial preservation of life: submitted to the Department of Health in 1999.
Project 109 - Review of the Marriage Act 25 of 1961: submitted to the Department of Home Affairs in May 2001.
The Commission approved the report on Project 82 - Sentencing: A compensation scheme for victims of crime in South Africa in April 2004. The report was submitted to the Minister for approval for publication again in November 2009.
The first of the Project 25 reports reviewing legislation for redundancy, obsoleteness and constitutionality of legislation, namely Project 25 - Statutory law revision: Redundancy, obsoleteness and constitutionality of legislation - Legislation administered by the Department of Transport was submitted to the Minister on 16 February 2010 for approval for publication.
This annual report covers the period from 1 April 2009 to 31 March 2010.
Issue Paper 27 - Electronic evidence in civil and criminal proceedings: Admissibility and related issues was published on 16 March 2010.
Discussion Paper 1/2009 - Sexual Offences: Adult Prostitution was published on 6 May 2009. All discussion papers published by the Commission are listed in Annexure B.
The Minister approved publication of the Report on privacy and data protection (Project 124) on 25 August 2009. The report was released by media statement on 27 August 2009.
The Report on consolidated legislation pertaining to international judicial co-operation in civil matters was one of the papers tabled in Parliament that was referred to the Portfolio Committee on Justice and Constitutional Development on 2 February 2010.
The South African Law Reform Commission's Thirty Sixth Annual Report for 2008-2009 was referred to the Portfolio Committee on Justice and Constitutional Development on 2 February 2010 for consideration and report.
Ajudge of the Constitutional Court, the Supreme Court of Appeal or a High Court, as Chairperson.
Section 7A of the SALRC Act provides for the establishment of committees of the Commission.
Under the first category of committees, the Commission has established a working committee which consists of members of the Commission co-opted for meetings according to their availability (section 7A(1)(a) of the SALRC Act).
(Section 7A(1)(b) of the SALRC Act).
Commission's practice to appoint a project leader for an investigation on its research programme. A project leader could be a Commissioner, a member of an advisory committee appointed by the Minister (section 7A(1)(b)(ii)), or any other person who is not a Commissioner and who is not a member of an advisory committee (section 8(2)).
The Commission is assisted in its task by a full-time Secretariat consisting of officials on the establishment of the Department of Justice and Constitutional Development. The Secretariat consists of a research component and an administrative component. A Deputy Chief State Law Adviser serves as the Secretary of the Commission. Mr Michael Palumbo was appointed as Deputy Chief State Law Adviser with effect from 1 June 2008.
Law reform cannot be delivered without high quality research.
African Law Reform Commission (SALRC) are qualified legal professionals, the majority of whom have vast experience in the law reform environment. The result has been the development of scholarly research publications and the involvement of the researchers in various activities as highlighted in Chapter 5.
Four posts of Senior State Law Adviser are vacant.
One post of Senior Secretary and one post of Administrative Officer are vacant.
Mr Fanyana Mdumbe the SALRC. Specific areas of Newsletter.
Ms Ronell Bronkhorst The compilation and distribution by Ms Nerisha Singh was released on 26 February 2010. Printed copies were distributed on 16 March 2010.
Marketing of the Commission The Ismail Mahomed Law Reform Essay Competition Liaison with DOJCD on the Justice Today Newsletter awarded to the joint winners, Mr Chris McConnachie and Ms Suzanna Harvey. The 2009 Ismail Mahomed Law Reform Essay Competition was launched in September 2009, when letters calling for entries were sent to the law faculties of 15 universities. SALRC officials attended the University of Limpopo Law Week Conference on 29 September 2009 to promote the competition.
The evaluation panel met on 27 January 2010 to evaluate the essays submitted for the 2009 Competition.
Mr Fanyana Mdumbe (chairperson since October 2009) Coordination of study visits from foreign study groups, delegations and other law reform agencies. vision, mission, objectives and working methods at every induction session for new DOJCD personnel.
Mr Pierre van Wyk Commissioners, researchers, agencies.
Ms Maryna Oosthuizen administrative staff.
Ms Patricia Mashabela 23 and 24 April 2009: Zambia - child-related legislation.
Ms Nerisha Singh (involvement limited to assisting with interns) 13 to 17 July 2009: Somaliland - visit to the SALRC, the Constitutional Court, Justice College and the Centre for Human Rights at the University of Pretoria.
8 September 2009: Vietnam - historical background, mission, activities and day to day operations of the SALRC. 8 October 2009: Combined Unites States of America, New Zealand and Canadian delegation - family law issues, sexual offences and children. 30 November 2009: Nigeria - activities and working methodology of the SALRC, functioning of the library. 8 to 12 March 2010: Namibia - study visit. 10 March 2010: Uganda - issues relating to sexual minorities.
The committee continuously liaises with HR: Learning and Development regarding the possible recruitment of legally qualified interns and paralegals for the SALRC.
responsible for considering the acquisition of publications course of the period under review to consider the acquisition of new publications for the Commission.
Ms Maureen Moloi holdings of the SALRC library.
Ms Sindiswa Gule for publications and subscriptions to electronic data bases. The purposes.
(Rules Board) principal librarian at the DOJCD. met with representatives of the Rules Board and the Principal Librarian of the DOJCD to discuss the acquisition of publications by the Rules Board and measures to be adopted to integrate the publications of the Rules Board in the acquisition register of the SALRC.
Mr Linda Mngoma (chairperson) Mr Willie van Vuuren Ms Dellene Clark Ms Edith Louw Mr George Maseko The Occupational Health and Safety (OHS) Committee was established on 11 April 2007 in terms of section 19(1) of the Occupational Health and Safety Act 85 of 1993. The Committee also liaises with the landlord of the building on OHS issues and matters such as evacuation plans, power outages and problems with the lifts. The OHS Committee liaised with the Operations Manager of the Middestad Centre during the period under review to address issues such as the safety of the lifts and other general matters. An inspector from the Department of Labour and a technician from Schindler inspected the lifts at Middestad Centre on 10 July 2009. On 17 November 2009 the SALRC conducted an emergency evacuation drill. All staff members and visitors who were at the SALRC offices on this day participated in the drill. A delegation from DPW visited the SALRC offices for general inspection on 18 February 2010.
Mr Willie van Vuuren (chairperson) Ms Ananda Louw Ms Maureen Moloi Ms Ronel van Zyl Mr Tshepang Monare Mr Jacob Kabini Ms Nerisha Singh (for purposes of the operational manual) The Process and Procedure Committee was established in February 2005. This Committee is responsible for: Review and documentation of existing SALRC policies and procedures. Development of new policies and procedures on working methods and operational systems for the SALRC. Corporate identity matters such as business cards and the appearance of SALRC publications. The Committee met several times during the period under review to discuss and finalise the new appearance and layout of SALRC reports and the policy document. The Chairperson of the Commission has approved the new layout of SALRC reports. The policy document was approved by the Commission at its meeting on 13 March 2010. Work is in progress on developing an operational manual for the SALRC. The Committee has also facilitated the development of new banners and brochures for the SALRC. The new SALRC banners were delivered to the SALRC in January 2010.
Ms Dellene Clark (chairperson) Ms Anna-Marie Havenga Ms Carien Pienaar Mr Linda Mngoma Ms Nerisha Singh Mr Ajay Singh Ms Natalie Pillay The Training Committee was established in February 2005 to identify training needs and to source and coordinate training for the SALRC's personnel. The tasks of the Committee include the following: Identify training needs Source and liaise with service providers The Committee arranged for a presenter from the National Credit Regulator to address staff on debt management on 5 May 2009. Ms Pienaar and Mr Singh attended a NSDF meeting on 17 June 2009. The Committee facilitated training for the following officials: 8 to 12 June 2009: Mentorship training - the Full-time Commissioner, Mr Fanyana Mdumbe and Ms Nerisha Singh. 5 to 16 October 2009: Legislative drafting at Justice College - Ms Ronel van Zyl, Ms Carien Pienaar and Mr Linda Mngoma.
Legislative Development at the Development as per directive of the Director-General.
Forum Due to budget constraints all training initiatives have been suspended. The Justice Programme on project management and all managerial training courses have been suspended for the duration of the current financial year. Training will be pursued again in the next financial year.
Commission may also include matters in the programme of its own accord. Consultation, in particular, is timeconsuming, but the Commission regards it as an indispensable part of the law reform process.
In addition to the reports on particular investigations, the SALRC Act provides that the Commission must annually submit to the Minister a report on all its activities during the previous year.
1996 are available on the SALRC website.
The annual report, papers in the research series and reports on investigations are available from the Commission's offices. All reports on investigations published since 1996 and the Commission's most recent annual report are available on the SALRC website.
The Commission met during the reporting period on 1 August 2009, 10 October 2009 and 13 March 2010.
The Advisory Committee for Project 100 - Family law and the law of persons met on custody and access of minor children on 22 June 2009.
The Advisory Committee for Project 100 - Family law and the law of persons: Hindu marriages met on 23 November 2009.
A number of meetings of advisory committees appointed to assist with Project 25 - Statutory law review: Redundancy, obsoleteness and constitutionality of legislation took place during the year under review.
The Advisory Committee assisting with the review of legislation administered by the Department of Defence and Military Veterans met on 17 July 2009.
Five of the eight members of the Advisory Committee additionally appointed by the Minister in July 2009 to assist with the review of legislation administered by the Department of Justice and Constitutional Development met on 25 August 2009.
The Advisory Committee assisting with the review of legislation administered by the Departments of Basic Education and Higher Education and Training met on 22 September 2009.
Three of the eight Advisory Committee members additionally appointed by the Minister in July 2009 to assist with the review of legislation administered by the Department of Justice and Constitutional Development met on 29 September 2009.
The Advisory Committee assisting with the review of legislation administered by the Department of Rural Development and Land Reform met on 18 November 2009.
It is axiomatic that the extent to which the South African Law Reform Commission (SALRC) can add value will to a large extent be influenced by the nature of the work it undertakes and its particular experience and suitability to do so. In selecting topics for law reform there is a need for independence from, but good liaison with, government. It is therefore important for the Commission to understand how its work will contribute to the government's overall strategic outcomes and priorities. There should also be explicit recognition by government of the particular contribution the SALRC can make to the overall law reform environment.
The Commission decided on 10 October 2009 not to include an investigation into conditions of service and rules governing student activities impacting on the right to academic freedom at higher education institutions in its programme.
The Commission decided on 13 March 2010 not to include an investigation into the unconstitutionality of provincial legislation governing funding of political parties in its research programme.
The Commission approved the inclusion of an investigation into multi-disciplinary legal practices in the SALRC's programme on 25 October 2008. The SALRC requested the Minister of Justice and Constitutional Development (JCD) during November 2009 to approve the inclusion of the investigation. The Minister approved the inclusion of Project 136 - Multi-disciplinary legal practices in the SALRC's programme on 23 March 2010.
The Commission approved the inclusion of an investigation into witchcraft legislation in the SALRC's programme on 1 August 2009. The SALRC requested the Minister of JCD during November 2009 to approve the inclusion of the investigation. The Minister approved the inclusion of Project 135 -Review of Witchcraft legislation in the SALRC's programme on 23 March 2010.
State of the Nation Address delivered by President Jacob Zuma on 11 February 2009, Government's current Programme of Action and the medium term strategic framework for the Department of Justice and Constitutional Development (DOJCD) for the period 2010 to 2014.
In the State of the Nation Address, the President reiterated the current administration's undertaking to work harder to build a strong developmental state. He reminded the nation of the promise to be a state that responds to the needs and aspirations of the people, and which performs better and faster.
The focus of Project 25 - Statutory law revision at present is constitutionality of legislation in view of section 9 of the Constitution, and repeal of redundant and obsolete provisions. The review will go a long way towards ensuring the constitutionality of the entire statute book. The review will, in addition, improve government's ability to deliver services by 'cleaning up' the statute book through the repeal of redundant and obsolete legislative provisions. In this manner the review will make a meaningful contribution towards making the state more efficient and responsive to the needs and aspirations of the people.
The investigation into assisted decision-making relating to adults with impaired decision-making capacity (Project 122) will greatly add to meeting the needs and aspirations of the people by providing measures to deal with the shared problems faced by persons who need assistance with decisionmaking. This will address the needs of especially older people and other adults who need support in exercising their legal capacity. The Project 100 family law and the law of persons investigations into custody of and access to minor children; review of aspects of matrimonial property law; and investigation into Hindu marriages are also aimed at assisting members of the community to exercise their rights and protect their interests and the interests of their children.
The President highlighted government's commitment to five priorities, namely education, health, rural development and land reform, creating decent work, and fighting crime. He ensured the nation that the government will further its work to reduce serious and violent crimes, and to ensure that the justice system works efficiently.
(Project 126). The Commission's investigation into sexual offences: adult prostitution (Project 107) is aimed at crime prevention and the protection of vulnerable groups.
The President stated that the government will intensify efforts to promote the interests of South Africa globally. The SALRC's investigation into privacy and data protection (Project 124) and subsequent report and proposed draft Protection of Personal Information Bill is a vital step in achieving this objective. In terms of South Africa's international trade obligations the country needs a credible personal information environment to deal with the challenges of the surge of personal information collection and protection confronting us.
The President reiterated the duty of the Public Service to respond to the call to make this term one of faster action and improved state performance. He reminded public servants that the government requires excellence and hard work. An overview of the output delivered by the SALRC (refer to Annexure C for a complete list of all the investigations included in the SALRC's programme since its establishment and the outcome of the investigations) indicates that the SALRC is rising to the challenge.
Government's Programme of Action (GPA) sets out government's planned actions to achieve identified results during a particular period. In the GPA for the period 2010 to 2014 the government identifies 10 priority areas.
Intensify the fight against crime and corruption.
Pursue African advancement and enhanced international cooperation.
Build a developmental state, improve public and strengthen democratic institutions.
As indicated previously under the discussion on the President's State of the Nation address, the review of the law of evidence (Project 126) will support the fight against crime and corruption. The proposed Protection of Personal Information Bill, which flowed from the investigation into privacy and data protection (Project 124), will enhance international cooperation. The GPA expands on enhancing international cooperation in the chapter on 'International cooperation, trade and security' and states the objective to: 'Enhance relations with the developed North, including the G8 countries (Canada, France, Germany, Italy, Japan, Russia, the United Kingdom and the United States of America) and our strategic partnership with the European Union.' One of the important recommendations made in the Report on privacy and data protection, which includes the proposed Protection of Personal Information Bill, is that the European Union adequacy requirements in terms of the Data Protection Directive 95/46/EC should be met. The Directive provides that personal data should only be allowed to flow outside the boundaries of the European Union to countries that can guarantee an 'adequate level of protection' of the data.
A number of investigations, such as the investigation into assisted decision-making relating to adults with impaired decision-making capacity (Project 122), the investigation into custody of and access to minor children; review of aspects of matrimonial property law; and the investigation into Hindu marriages (Project 100) are important to support the building of a developmental state and the improvement of public institutions.
The Minister of JCD convened a Strategic Review Conference on 22 November 2009 to define the new vision and priorities of the Department of Justice and Constitutional Development for the future. The Conference developed a number of strategies that will inform DOJCD's priority areas. These are set out in DOJCD's Medium Term Strategic Framework for the period 2010 to 2014.
Implement the 7 Point Plan of the Criminal Justice System Review.
Review the Civil Justice System.
Improve delivery of the Master of High Court services.
The review of the law of evidence (Project 126) will support both the priority areas of the criminal justice system review, as well as the review of the civil justice system. The investigation into the administration of estates (Project 134) will play a major role in improving the delivery of services by the Master of the High Court.
Promoted constitutional development to ensure effective citizenship and community empowerment.
Developed and implemented justice policies and legislation.
Protected and promoted the rights of vulnerable groups (children, women, the aged, and the disabled).
Administered deceased and insolvent estates, the Guardian's Fund, trusts and curatorship.
Supported NPA in its provision of prosecution against charged offenders.
The review of the entire South African statute book for constitutionality in view of section 9 of the Constitution (part of Project 25) will make a major contribution towards the promotion of constitutional development. The right to equality is one of the founding principles of the Bill of Rights as enshrined in the Constitution.
A number of Bills currently before Parliament that have been introduced by the Minister of JCD resulted from SALRC investigations and reports. The Protection of Personal Information Bill [Bill 9 - 2009], that resulted from Project 124 - Privacy and data protection, was introduced into Parliament on 25 August 2009. The Protection from Harassment Bill [Bill 1 - 2010], that resulted from Project 130 - Stalking, was introduced into Parliament on 8 February 2010. The Prevention and Combating of Trafficking in Persons Bill [Bill 7 - 2010], that resulted from Project 131 - Trafficking in persons, was introduced into Parliament on 15 March 2010. DOJCD has indicated that it is ready to introduce the Protected Disclosures Amendment Bill, which emanates from Project 123 - Protected Disclosures. This illustrates that the SALRC is instrumental in the development of justice legislation.
The investigation into assisted decision-making relating to adults with impaired decision-making capacity (Project 122) will have a significant impact on the protection and promotion of the rights of vulnerable groups such as the aged and the disabled. The investigation into custody of and access to minor children (Project 100) is equally important for the protection and promotion of the rights of children.
As indicated above, the investigation into the administration of estates (Project 134) will be pivotal in achieving an improvement in service delivery by the office of the Master of the High Court. The review of the law of evidence (Project 126) will support the NPA in its provision of prosecution against charged offenders.
In 2004, the Commission embarked upon a major investigation aimed at revising the complete statute book with a view to removing or adapting legislative provisions considered to be unconstitutional, redundant or obsolete. An audit of all national legislation (excluding provincial and secondary legislation) by the Commission revealed that there are close to 3 000 statutes on the statute book, comprising Principal Acts, Amendment Acts, Supplementary or Additional Acts and Private Acts. The constitutional validity aspect of this investigation focuses on statutes or provisions in statutes that are clearly inconsistent with the right to equality entrenched in section 9 of the Constitution.
unfairly discriminate on grounds which impair or have the potential to impair a person's fundamental human dignity as a human being.
Consequently, a law or a provision in a law which appears, on the face of it, to be neutral and nondiscriminatory, but which has or could have discriminatory effect or consequences, will be left to the judicial process.
In January 2010 a progress report on the investigation was forwarded to DOJCD for submission to the Minister of Justice and Constitutional Development (the Minister) with a view to informing Cabinet about the progress made in the investigation. The progress report was placed on the agenda for the Cabinet meeting on Governance and Administration held on 16 February 2010.
The Commission considered the status of Project 25 on 23 June 2007. The Commission noted that internal research capacity to conduct statutory law review was limited due to the fact that the majority of researchers are attending to other projects on the Commission's programme. The Commission approved in principle the appointment of advisory committee members by the Minister to increase the Commission's research capacity in respect of fourteen national state departments that administer a high number of statutes. The departments at the time were the Departments of Agriculture; Communications; Defence; Education; Environmental Affairs and Tourism; Health; Home Affairs; Justice and Constitutional Development; Labour; Land Affairs; Minerals and Energy; National Treasury; Provincial and Local Government; and Trade and Industry.
The SALRC submitted a memorandum to DOJCD in September 2007 proposing the appointment of advisory committees by the Minister. The Minister appointed 112 advisory committee members on 31 July 2008.
Project 25 - Statutory law revision are now assisting with the review of legislation administered by the Departments of Agriculture, Forestry and Fisheries; Basic Education; Communications; Cooperative Governance and Traditional Affairs; Defence and Military Veterans; Energy; Environmental Affairs; Health; Higher Education and Training; Home Affairs; Justice and Constitutional Development; Labour; Mineral Resources; National Treasury; Rural Development and Land Reform; Tourism; Trade and Industry; and Water Affairs.
The statutes of the remaining Departments that administer a smaller number of statutes are being or will be reviewed by SALRC researchers, namely Arts and Culture; Correctional Services; Human Settlements; International Relations and Cooperation; Police; Public Enterprises; Public Service and Administration; Public Works; Science and Technology; Social Development; Sport and Recreation; State Security; Transport; and Women, Youth, Children and People with Disabilities. The review of the legislation administered by the Department of Transport has been finalised.
Fisheries (DAFF) or unconstitutional in order to develop a consultation paper with repeal and amendment proposals.
Ms Ronel van Zyl the SALRC will develop the consultation paper in-house, using the research submitted by advisory committee members. The target date for submitting the draft discussion paper to the Commission for consideration and approval is December 2010.
Arts and Culture (DAC) The review of the statutes administered by DAC has commenced to determine which provisions are redundant, obsolete or unconstitutional.
Ms Lowesa Stuurman since the researcher, who resigned in January 2008, developed the first draft consultation paper on the matter. The draft consultation paper therefore needs to be augmented with additional research. The matter was assigned to Ms Lowesa Stuurman on 31 March 2010. Subject to her involvement in other projects, the provisional target date for submitting the consultation paper to DAC for comment is 30 September 2010. It is envisaged that a draft discussion paper will be submitted to the Commission by 31 March 2011 for approval of publication for general information and comment.
Basic Education (DBE) The committee member initially assigned to compile the draft consultation paper in respect of legislation administered by DBE was unable to do so due to lack of time.
Mr Linda Mngoma committee meeting held on 29 September 2009 the committee agreed to nominate another advisory committee member to compile the draft consultation paper. The committee also took note of the resignation of two committee members. The target date for the finalisation of the draft consultation paper for consideration by the project leader is 30 April 2010.
Ms Maureen Moloi is receiving attention, and it is envisaged that it will be submitted to DOC for comment by 31 May 2010. It is envisaged that a draft discussion paper will be submitted to the Commission by 30 September 2010 for approval of publication for general information and comment.
Cooperative Governance and Traditional Affairs (DCGTA) Mr Linda Mngoma The consultation paper in respect of legislation administered by DCGTA was forwarded to DCGTA for comment on 28 July 2009. Comments from DCGTA were received on 22 October 2009. On 21 January 2010 a draft discussion paper was forwarded to the new project leader for consideration. However, in February 2010 it transpired that the review of the Black Laws Amendment Acts was not included in the approved consultation paper. The researcher was requested to prepare a supplementary consultation paper and to forward same to the Road Accident Fund, DHA and DCGTA for further comment. The target date for completion of the supplementary consultation paper is 31 May 2010.
Defence and Military Veterans (DDMV) Ms Maureen Moloi The analysis of the statutes administered by DDMV to determine which are redundant, obsolete or unconstitutional in order to develop a consultation paper with repeal and amendment proposals was finalised during the period under review. The consultation paper was submitted to DDMV for consideration and comment on 26 March 2010. The researcher briefed DDMV on the consultation paper at a workshop arranged by DDMV on 30 March 2010. The return date for comment from DDMV is 31 May 2010. It is envisaged that a draft discussion paper will be submitted to the Commission by 31 August 2010 for approval of publication for general information and comment.
Mr Pierre van Wyk was finalised during the period under review. The consultation paper was submitted to DOE for comment on 2 October 2009. Comment from DOE was received in February 2010. Incorporation of the comment from DOE commenced in February 2010. The target date for the submission of a draft discussion paper to the Commission for consideration and approval is 31 May 2010.
Ms Ronel van Zyl is receiving attention. The researcher has to augment the draft consultation paper with additional research. The target date for submitting the draft consultation paper to the project leader for consideration and comment is 30 April 2010.
Higher Education and Training (DHET) Mr Linda Mngoma The committee member initially assigned to compile the draft consultation paper in respect of legislation administered by DHET was unable to do so due to lack of time. At the second advisory committee meeting held on 29 September 2009 the committee agreed to nominate another advisory committee member to compile the draft consultation paper. The committee also took note of the resignation of two committee members. The target date for the finalisation of the draft consultation paper for consideration by the project leader is 30 April 2010.
Ms Maureen Moloi receiving attention. The target date for submitting the consultation paper to DHA for comment is 30 June 2010. It is envisaged that a draft discussion paper will be submitted to the Commission by 30 September 2010 for approval of publication for general information and comment.
Mr Linda Mngoma of the draft report. The target date for submitting a draft report containing repeal and amendment proposals to the Commission for consideration and approval is June 2010.
Cooperation (DIRCO) obsolete or unconstitutional in order to develop a consultation paper with repeal and amendment proposals.
Ms Nerisha Singh transferred in April 2008, started working on the draft consultation paper. The draft consultation paper will therefore have to be augmented with additional research. The review was assigned to Ms Nerisha Singh on 28 January 2010. It is envisaged that a draft discussion paper will be submitted to the Commission by 31 March 2011 for approval of publication for general information and comment.
Development (DOJCD) obsolete or unconstitutional. The Minister appointed eight additional advisory committee members on 28 July 2009 to further assist with the review of DOJCD legislation.
Mr Willie van Vuuren to familiarise the new members with the project. It was decided to develop separate discussion papers dealing with DOJCD legislation. Discussion Paper One will deal with legislation pertaining to legal professions, courts and institutions, civil procedure and evidence, substantive criminal law, substantive civil law, wills, estates and insolvency and constitutional and political legislation. It is envisaged that Discussion Paper Two will deal with family law and marriage, Discussion Paper Three with legislation pertaining to criminal procedure, and Discussion Paper Four with the Transkei Penal Code. The project leaders and researchers met on 5 February 2010 to discuss the way forward with the review of the Transkei Penal Code. It is envisaged that draft discussion papers will be submitted to the Commission by 31 March 2011 for approval of publication for general information and comment.
Labour (DOL) The consultation paper in respect of legislation administered by DOL was approved by the project leader and forwarded to DOL for comment on 3 August 2009.
Mr Linda Mngoma 6 October 2009. On 15 March 2010 a draft discussion paper incorporating comments received from DOL was forwarded to advisory committee members for comment. The target date for submitting a draft discussion paper to the Commission for consideration and approval is June 2010.
Mr Pierre van Wyk was finalised during the period under review. The consultation paper was submitted to DMR for consideration and comment on 12 January 2010. The return date for comment from DMR was initially 19 March 2010. On 26 March 2010 the researcher participated in a roundtable discussion with DMR functionaries to discuss and clarify the preliminary findings and proposals contained in the consultation paper. During the discussions DMR requested extension of the return date for comment until 31 May 2010. Comment on ancillary mineral resources legislation administered by other national government departments was received on 18 February 2010 from the Deeds Office and on 10 March 2010 from the Department of Agriculture, Forestry and Fisheries. It is envisaged that a draft discussion paper will be submitted to the Commission by 31 August 2010 for approval of publication for general information and comment.
Mr Fanyana Mdumbe legislation other than tax legislation on 31 July 2009, 6 October 2009 and 15 January 2010. The target date for finalising the draft discussion paper is 30 June 2010. Tax legislation: The consultation paper was considered by the advisory committee on 6 November 2009. It is envisaged that the draft discussion paper will be submitted to the Commission by 31 March 2011 for approval of publication for general information and comment.
Public Works (DPW) A draft discussion paper was submitted to DPW for comment in June 2009.
Mr Linda Mngoma further research on certain identified statutes and will submit a revised draft discussion paper to DPW for comment by 28 February 2010. The target date for submitting the draft discussion paper to the Commission for consideration and comment is 30 June 2010.
Reform (DRDLR) consultation paper in respect of legislation administered by DRDLR for approval.
Mr Linda Mngoma comment. The target date for comments from DRDLR is 31 March 2010.
Mr Tshepang Monare receiving attention. The target date for submitting a draft consultation paper to the project leader in respect of legislation administered by DT is 30 April 2010.
Trade and Industry (DTI) Drafting of a consultation paper analysing the 225 statutes administered by DTI to determine which provisions are redundant, obsolete or unconstitutional is receiving attention.
Mr Tshepang Monare of the draft consultation paper submitted the paper to the researcher in February 2010. The target date for submitting the draft consultation paper to DTI for comment is 31 May 2010. It is envisaged that the draft discussion paper will be submitted to the Commission by 31 March 2011 for approval of publication for general information and comment.
Transport (DOT) Mr Fanyana Mdumbe On 9 April 2009 Transnet Freight Rail Services submitted comments on Discussion Paper 114. On 11 June 2009 DOT submitted comments received from the Office of the Chief State Law Adviser (OCSLA) on the proposed Bill to the SALRC. On 4 August 2009 the researcher submitted a detailed response to the remarks of the OCSLA on the proposed Bill to DOT. On 18 August 2009 a draft report was submitted to the project leader for approval. The draft report was considered and approved by the Commission on 10 October 2009 for submission to the Minister of JCD. The report was submitted to the Minister of JCD on 16 February 2010 for consideration, referral to DOT and to obtain the Minister's approval to publish the report.
Water and Environmental Affairs (DWEA) Mr Tshepang Monare The analysis of the statutes administered by DWEA to determine which are redundant, obsolete or unconstitutional in order to develop a consultation paper with repeal and amendment proposals is receiving attention. The target date for submitting a draft consultation paper in respect of legislation administered by the former Department of Environmental Affairs (DEAT) to the project leader for consideration is 30 April 2010.
The ad hoc Joint Committee on the Open Democracy Bill, 1998 (which resulted in the Promotion of Access to Information Act, 1998) in its resolutions on the Bill adopted on 24 January 2000, amongst others, requested the Minister to consider the amendment of the Interpretation Act 33 of 1957 to bring it in line with the principles of constitutional democracy and practices of interpretation used by Parliament and the courts since 1994. The Commission decided on 17 November 2000 that the review of the Interpretation Act should form part of its existing Project 25 - Statute law: The establishment of a permanently simplified, coherent and generally accessible statute book.
Paper 112 was determined as 30 April 2007. Comment on the discussion paper was received as late as September 2007. Evaluation of the comments and the development of a draft report commenced during 2007 and continued during the period under review. It is envisaged that a report will be finalised by March 2011. Due to the researcher's involvement in other aspects of Project 25, he was unable to finalise the draft report during the period under review.
Information regarding Issue Paper 8 - Arbitration: Alternative dispute resolution published in May 1997 appears in the 1998 Annual Report. Discussion Paper 83 - Arbitration: Domestic arbitration and Discussion Paper 87 - Arbitration: Community dispute resolution structures was submitted to the Minister of JCD at a media conference on 8 September 1999. The closing date for comment was extended to 30 November 1999. Information regarding Discussion Papers 83 and 87 appears in the 1999 Annual Report. The Commission has considered the draft report on several occasions and referred it for amendment. It is envisaged that the amended draft report will be considered by the Commission by the end of June 2010.
The advisory committee decided that a discussion paper on family mediation would be completed subject to the finalisation of the investigation into community dispute resolution structures. At the moment the researcher is giving priority to the investigation into Hindu marriages and Project 25 investigations.
The Commission approved on 23 June 2007 that the name of Project 128 - Review of aspects of the law of divorce, be changed to 'Custody of and access to minor children' in accordance with its focus and that, because of possible mutual elements in Project 128 and Project 129 - Review of matrimonial property law, both investigations should be dealt with as subprojects under the Commission's existing broad investigation into family law and the law of persons (Project 100). The Commission also approved that the Minister be approached to appoint a joint advisory committee for the two sub-projects.
The Minister on 20 May 2008 approved the inclusion of the former Project 128 - Review of aspects of the law of divorce and the former Project 129 - Review of aspects of matrimonial property law as subprojects under Project 100 - Family law and the law of persons. The Minister also appointed a single advisory committee for the two investigations.
The Commission approved on 9 September 2006 the inclusion of an investigation into the recognition of Hindu Marriages in the programme. This investigation is conducted as part of Project 100 - Family law and the law of persons.
Family Advocate in Bloemfontein. Data received from focus group forums, questionnaires and consultations held during 2008 were analysed and collated by the researcher for discussion by the advisory committee meeting. The committee considered a draft discussion paper on 9 March 2009.
The researcher allocated to this project left the SALRC at the end of April 2009 and the project was assigned to another researcher from 1 May 2009. The newly assigned researcher met with the advisory committee on 22 June 2009 to discuss the way forward. It was decided that the existing draft discussion paper would be published as an issue paper after it has been remodelled according to a framework approved at the meeting.
In addition to the investigation into those aspects of family mediation that were covered in the original document, the issue paper will also focus on the broader developments in family law in South Africa impacting on care and contact matters. The investigation will include family mediation in the informal sector and the viability of family courts. The object of the investigation is to develop a new integrated structure for the implementation of family law in South Africa with specific reference to care and contact issues.
The Matrimonial Property Act was passed in 1984 in order to deal with shortcomings in the matrimonial property law at the time. The Act has been in place for more than 25 years. Apart from problems which have in particular been brought to the SALRC's attention, a number of social and legal changes since 1984 (including the adoption of the 1996 Constitution and the recognition of customary marriages and civil unions) suggest that a review of the law is necessary to ensure that it meets current needs.
(which emanated from a 1999 report of the Commission) in the near future, problems pertaining to the sharing of pension benefits on divorce would also be addressed in the review of matrimonial property law.
Preliminary research to develop an issue paper proceeds while the researcher allocated to the investigation is still involved in Project 122.
The Commission approved on 9 September 2006 the inclusion of an investigation into the recognition of Hindu marriages in the programme. This investigation is conducted as part of Project 100 - Family law and the law of persons.
On 7 September 2009 the Minister of JCD approved the appointment of four advisory committee members to assist the researcher to fast-track the investigation. The advisory committee met on 23 November 2009 to decide on the way forward on this investigation. At this meeting the advisory committee identified a need for an additional committee member to enhance the capacity of the committee. The Minister appointed Advocate Devina Nadarajan Perumal as an advisory committee member on 12 January 2010. It is envisaged that a draft discussion paper will be presented to the Commission in August 2010.
This investigation forms part of the larger project on sexual offences. Issue Paper 19 - Sexual offences: Adult prostitution was published for general information and comment in August 2002. This leg of the investigation was left in abeyance for a while as priority was given to the completion of the investigations into protected disclosures (Project 123), stalking (Project 130) and trafficking in persons (Project 131). Research on law reform in respect of adult prostitution commenced in earnest again in 2008 and the Commission approved a discussion paper on this investigation on 28 March 2009. Discussion Paper 1/2009 - Sexual Offences: Adult Prostitution was published on 6 May 2009 for comment. Several workshops facilitated by the SALRC were held throughout the country during May, June and July 2009. A number of focus group meetings were also held at the invitation of various sector specific organisations.
The legal response to prostitution differs from society to society and over the course of time. Internationally, the topic of prostitution remains an emotive one and opinions on the legal response to prostitution are generally strongly polarised. Within the current totally criminalised setting, this is no different in South Africa. The researchers assigned to this project received in excess of 2600 email submissions in addition to many handwritten and faxed submissions and are currently processing these submissions for inclusion in the final report.
is planning stakeholder-specific meetings on a consultation paper, which will precede the report.
Director of Public Prosecutions to expedite the investigation and to conduct a separate investigation into the possibility of postponement of cases via video conferencing.
Advancements in technology with the concomitant rapid growth of electronic / computer crimes have brought about a plethora of new forms of evidence. In the broader context it has been recognised that any further investigation of the impact of technological developments on the law should extend beyond 'equipment' and focus holistically on procedures for collecting, storing and presenting electronic evidence in court.
The advisory committee recommended to the Commission that the remainder of the issues relating to evidence in Project 113 be included as a subproject under Project 126, the comprehensive review of the law of evidence. At its meeting held on 1 August 2009, the Commission approved that the outstanding issues under Project 113 be included as a subproject under Project 126, the comprehensive project on the review of the law of evidence, and that Project 113 be deemed finalised and closed.
In proceeding under Project 126 an important consideration would be whether many of the technology-related evidentiary questions can be resolved under the existing rules of evidence. This would require an overarching investigation into aspects of criminal and civil law with subprojects focusing on rules of evidence and procedure to address concerns about the challenges presented by technological developments with regard to legal proceedings.
The SALRC, as far back as 1988, undertook an investigation with a view to improving the plight of mentally incapacitated persons who cannot afford the costs involved in securing a High Court appointed curator. The Commission's recommendations led to the adoption of the Mentally Ill Persons' Legal Interests Amendment Act 109 of 1990, which amended the Mental Health Act 18 of 1973.
(which entails insignificant costs) for the appointment of a curator to a person who is not declared to be mentally ill, but whom the applicant believes to be suffering from mental illness to such an extent that the person is incapable of managing his or her own affairs.
Although the present investigation revives the Commission's previous investigation, it covers a broader spectrum. Additional measures to protect the interests of persons who need support in exercising their legal capacity were also researched. An issue paper on this project was published at the end of 2001. A discussion paper was published for general information and comment in January 2004 and is discussed in the 2003/2004 Annual Report.
An extensive draft Bill comprising about 150 clauses was developed after broad consultation. Consultation with the DOJCD policy unit and with the Chief Master of the High Court on policy issues took place during 2007. Flow charts of processes reflected in the draft Bill were prepared at the request of the Chief Master during 2008 to enable long-term planning for the envisaged implementation of the proposed legislation. Policy input on the draft Bill was received from DOJCD on 27 January 2009.
The compilation of a draft report for submission to the Commission was partly suspended between June and December 2007, and September 2008 and March 2009, due to the researcher's involvement in work pertaining to the improvement of the SALRC's processes (see Chapter 1 of the 2007/2008 Annual Report).
into account. The CRPD was ratified unreservedly by the South African Government.
Subsequent consultation with representatives of the Human Rights Commission and government stakeholders (including the Departments of Health; Social Development; International Relations and Cooperation; and the Ministry of Women, Children and Persons with Disabilities) between October and December 2009 confirmed national and international uncertainty about the interpretation of the provisions of the CRPD dealing with legal capacity that impact on the SALRC's draft proposals.
There is also reluctance on the part of government stakeholders to comment on the final draft text of the proposed Bill unless it complies with the CRPD.
The matter is complicated by the fact that the South African government has not yet taken concrete steps to implement the CRPD in South Africa by way of general legislation. A South African interpretation of the relevant provisions of the CRPD is therefore not available. On the advice of the Department of International Relations and Cooperation, and to take the matter forward, the SALRC in January 2009 embarked on further research to establish a draft interpretation of those articles of the CRPD which are relevant to the SALRC's draft proposals. The interpretation will serve as a basis for amendments to the text of the proposed draft Bill with a view to ensure its compliance with the CRPD. The interpretation and the amended text of the draft Bill will be submitted for consultation to government and other stakeholders before work on the draft report is resumed. A status report on progress with the investigation was submitted to the SALRC at its meeting on 13 March 2010. The first draft of an interpretation of the relevant provisions of the CRPD was submitted to the project leader on 31 March 2010.
No comprehensive review of the provisions providing for different prescription periods - whether of a contractual or delictual nature - has ever been undertaken by the Commission. When reporting on the Bill which subsequently became the Legal Proceedings against certain Organs of State Act 40 of 2002, the Portfolio Committee on Justice and Constitutional Development recommended that the Minister be approached to request the Commission to conduct an investigation into the harmonisation of the provisions of existing laws providing for different prescription periods. An investigation into the review of prescription periods was subsequently included in the SALRC's programme.
Issue Paper 23 - Prescription periods was published for general information and comment in August 2003 and is discussed in the 2003/2004 Annual Report. The researcher involved in the preparation of the draft discussion paper was transferred to another department, and the project was assigned to a newly appointed researcher in June 2008. The researcher submitted the first draft of the discussion paper to the project leader in July 2009. After incorporating comments from the project leader and doing additional research to address concerns raised by the project leader, the researcher submitted additional drafts of the discussion paper to the project leader in October 2009 and February 2010.
For the purpose of involving the public at an early stage of the investigation, the researcher presented a paper titled 'Prior notice to sue - a test on equality' at a Southern African Law Teachers Conference, which was held at the University of Kwazulu-Natal from 12 to 15 July 2009.
In 2001 the Commission's advisory committee dealing with the simplification of criminal procedure made a proposal for a review of the law of evidence with a view to simplifying this area of the law and aligning it with technological developments. The Commission endorsed the decision of the advisory committee and recommended the inclusion of the project in its programme. The Minister approved the inclusion of an investigation to review the law of evidence in the SALRC's programme in December 2001. An advisory committee for the investigation was approved on 26 November 2003. The Commission resolved that the advisory committee on the review of the law of evidence should also direct the investigation into the use of electronic equipment in court proceedings.
The publication of Issue Paper 26 - Review of the law of evidence was announced at a media conference on 7 March 2008. The closing date for comments was 30 June 2008, but was extended at the request of a number of role players and because of limited response to the paper. The issue paper was redistributed in January 2009 under cover of a letter summarising the contents and requesting comment by the end of March 2009.
The SALRC also received a request to include a proposal from the South African Professional Society on the Abuse of Children (SAPSAC) dealing with a code of ethics and an appropriate oath for expert witnesses. The proposal was submitted to all professional bodies for comment. The advisory committee considered the proposal on 16 May 2009 and recommended that it should not be included in the scope of the investigation into the review of the law of evidence, but be referred for consideration by the Rules Board for Courts of Law. The Commission endorsed this decision at its meeting in August 2009.
The project leader reconsidered the advisory committee's decision to proceed with discussion papers dealing with different aspects of evidence separate from its sub-investigation into the admissibility of electronic evidence in civil and criminal matters. She recommended that further papers on the review of the law of evidence be put on hold until Issue Paper 27 on electronic evidence has been finalised and the consultation phase in respect of both the issue paper and the proposed discussion paper has been concluded.
Discussion Paper 113 - Review of the law of evidence: Hearsay evidence and relevance was released at a media conference on 7 March 2008. The closing date for comments was 30 June 2008, but was extended at the request of a number of role players and because of limited response to the paper. The discussion paper was redistributed in January 2009 under cover of a letter summarising the contents and requesting comment by the end of March 2009. The advisory committee resolved not to embark on a public consultation phase and to finalise its report on hearsay and relevance based on the comments received from role players.
After research in this investigation had been completed, it transpired that the admissibility of electronic evidence, the provisions of the Electronic Communications and Transactions Act of 2002 (ECT Act) and the provisions of the Law of Evidence Amendment Act of 1988 dealing with hearsay evidence cannot be considered in isolation. A report on hearsay evidence cannot be finalised without considering the provisions of the ECT Act and the admissibility of electronic evidence in general.
In view of the challenges posed by technological developments, an overarching investigation reviewing aspects of criminal and civil law is a long-term goal. In adopting an incremental approach to the subproject on electronic evidence and related matters, the SALRC has in the first instance decided to publish an issue paper exploring issues relating to the admissibility of electronic evidence in criminal and civil proceedings. Issue Paper 27 - Electronic evidence in civil and criminal proceedings: Admissibility and related issues was released for general information and public comment by way of a media statement issued on 16 March 2010. The closing date for comment and input is 30 June 2010.
In the case of criminal proceedings, Issue Paper 27 is particularly concerned with the relationship between chapter three of the Electronic Communications and Transactions Act 25 of 2002 (ECT Act) and the rule against hearsay. The purpose of the Issue Paper is twofold: Firstly, to facilitate a focused debate on issues concerning the admissibility of electronic evidence in criminal and civil proceedings; and secondly, to allow stakeholders and practitioners in two sectors (criminal and civil) affected by the applicability and scope of the evidential provisions of the ECT Act to consider the issues raised and be provided with an opportunity to bring other relevant matters to the Commission's attention.
Comment and submissions received on Issue Paper 27, together with further in-depth research, will form the basis of a discussion paper where the issues identified for review and reform will be discussed in detail and preliminary recommendations for reform considered. It is envisaged that a draft discussion paper will be submitted to the Commission by 31 March 2011 to consider its publication for general information and comment.
The Minister of JCD requested the SALRC to investigate administration orders by following an incremental approach to distinguish between reforms that could be effected in the short to medium term and reforms that could be effected in the medium to long term. The consultation can commence with stakeholder meetings and workshops with debtors under administration.
Amendments to the Magistrates' Courts Act 32 of 1944 are being drafted to address some of the problems identified.
A discussion paper dealing with measures to improve the administration process and to reduce the work of the supervising authority and executors was approved for publication by the Commission in September 2005 and is discussed in the 2005/2006 Annual Report.
Draft legislation recommended in an interim report dealing with the administration of small estates and streamlined procedures for other estates was submitted to the Minister on 19 August 2008. The draft legislation has not been promoted yet.
The Integrated Case Management System (Masters) has been enhanced to move closer to the use of electronic documents in the offices of the Master of the High Court. It is envisaged that a discussion paper dealing with e-filing, internet access to documents, electronic reports, and electronic management of processes will be submitted to the Commission early in 2011.
The Commission received two submissions from the South Africa Pagan Council and the Traditional Healers' Organisation respectively, requesting that the Witchcraft Suppression Act 3 of 1957 and the proposed Mpumalanga Witchcraft Suppression Bill 2007 be investigated to determine their constitutionality.
A meeting was held with stakeholders on 4 September 2008 to explain the process to be followed in determining whether this investigation should be included in the SALRC's programme, as well as to clarify the substantive issues raised in the submissions. A document was prepared for consideration by the Commission. It provided background information on the concept of witches and witchcraft in South Africa; set out the current legal framework; described existing attempts at and suggestions for law reform in this area and measured the relevant facts against the Commission's criteria for the inclusion of an investigation.
On 1 August 2009 the Commission approved the inclusion of the investigation in the SALRC's programme. On 23 March 2010 the Minister approved a review of witchcraft legislation for inclusion in the SALRC's programme.
The request for the inclusion of this investigation emanates from the SALRC's media conference of 7 March 2008. The Cape Law Society submitted a proposal to the SALRC on the possible recognition of multi-disciplinary practices for attorneys and the parameters that would need to be set should multi-disciplinary practices be recognised.
The SALRC sent a memorandum to DOJCD on 6 June 2008 seeking guidance from the Director-General on the inclusion of the investigation in the SALRC's programme, as it seems to fall within the purview of the Legal Practice Bill currently being developed by DOJCD. The DG agreed with the DOJCD recommendation that the SALRC should investigate the issue of multi-disciplinary practices for attorneys.
The Commission approved the inclusion of the investigation in the programme of the SALRC on 25 October 2008. On 23 March 2010 the Minister approved an investigation into multi-disciplinary legal practices for inclusion in the SALRC's programme.
The Deputy Director of Public Prosecutions in Grahamstown requested the inclusion of an investigation with regard to the culpable and unlawful killing of an unborn baby by a third party in the SALRC's programme. A proposal paper dealing with the South African legal position (referring to the Constitution, the 'born alive' rule in the common law, delict and succession, procedural law, murder, attempted murder, abortion and sentencing), the international legal position, relevant international instruments, regional treaties, foreign jurisdictions, the phenomenon of violence against pregnant women and local cases to recommend the inclusion of the investigation served before the Commission on 25 October 2008.
After consideration of a supplementary proposal paper on 10 October 2009, the Commission approved the inclusion of the project, but under an amended title, namely 'Violence against pregnant women'. A memorandum to request the Minister of JCD to approve the inclusion of the project in the Commission's programme was submitted on 15 January 2010.
A former lecturer at the University of Fort Hare requested this investigation. The question is asked whether academic freedom and institutional autonomy, the core values underpinning the higher education system and enshrined in the South African Constitution and the National Higher Education Policy are being eroded by, amongst others, government policy and institutional management.
The Commission considered the request that the SALRC include the investigation in its research programme on 10 October 2010.
The Council for Higher Education (CHE) is currently dealing with the subject matter of the issues covered by the request. The CHE also is the most appropriate institution with the resources and capacity to conduct a comprehensive investigation into the subject matter.
The authority to test the constitutionality of any law or conduct vests with the courts and not with another government institution.
In June and again in August 2009 the Centre for Constitutional Rights of the FW de Klerk Foundation (the Foundation) submitted a law reform proposal to the SALRC requesting the SALRC to consider including in its law reform programme the constitutionality of provincial legislation that was passed in some provinces to regulate the funding of political parties. The provinces of KwaZulu-Natal, Gauteng, Limpopo and the Free State enacted legislation on the issue.
Provincial Legislature that allows for the provincial allocation of constituency and public education allowances and caucus funds to political parties. The Northern Cape passed the Political Party Fund Act 7 of 2009, and the Mpumalanga Political Parties Support Fund Bill of 2008 was tabled in the legislature in 2008. In the Foundation's view, these Acts are ultra vires and are constitutionally unlawful and invalid.
As indicated in the SALRC's 2008/2009 Annual Report, the SALRC developed and adopted selection criteria to determine which proposals should be taken on as investigations, starting with a decision on which proposals should be subjected to preliminary investigation. The application of the first set of criteria indicated that the proposal made by the Foundation should not be entertained by the SALRC; and that a preliminary investigation into the issue should not proceed.
The Commission considered the Foundation's request that the SALRC include the investigation in its research programme on 13 March 2010.
The matter is already receiving the attention of national government and, in particular, that of National Treasury.
The Foundation indicated in its submission that it had formally requested the Public Protector and the Auditor General to take remedial action against the unlawful and unconstitutional enactment of the provincial legislation concerned.
The Commission initiated a preliminary investigation into cyber crime in response to growing concern about the adequacy of current legislation to address the rising threat of cyber crime. The researcher was allocated to the pre-investigation in August 2009. It is envisaged that a report with recommendations on whether such an investigation should be included in the SALRC's research programme will be submitted to the Commission by June 2010.
On 15 March 2009 the SABC and e-TV television news covered the practice of forced marriages and the sale of young girls (between 12 and 15 years) into marriages with adult men that are prevalent in some parts of the country. On 24 August 2009 the SALRC received a request from the Gender Directorate of DOJCD to investigate the practice of ukuthwala; its impact on the girl-child; the appropriateness and adequacy of the current law of ukuthwala and compliance with the human rights of the girl-child, also taking the principle of the best interest of the child into consideration.
The Commission hosted a roundtable discussion on ukuthwala on 30 November 2009. The purpose of the discussion was to gather information on the subject to enable the Commission to decide whether or not to include an investigation into this issue in the SALRC's law reform programme. About 50 people representing various stakeholders attended the discussion.
The researcher is preparing a report containing the inputs and independent findings on the practice of ukuthwala for consideration by the Commission during the third quarter of 2010.
This preliminary investigation is an initiative of the SALRC in terms of its statutory powers to initiate investigations. The investigation was allocated to the researcher in September 2009. The purpose of the preliminary investigation is to investigate obstacles to access to justice for the poor, use of indigenous languages in courts and access to justice for women and people with disabilities with a view to proposing legal reforms if necessary.
The researcher is preparing a report on the pre-investigation for consideration by the Commission during the third quarter of 2010.
The Freedom of Expression Institute (FXI) requested the SALRC to investigate the amendment of section 205 of the Criminal Procedure Act to introduce a 'shield law' to protect confidential journalistic sources and information. The issuing of subpoenas in 2009 and 2010 calling for two e-TV journalists to divulge their sources and confidential information highlighted the controversy around conflicting rights and the manner in which section 205 is abused. The question at the core of this conflict appears to be whether the public interest in compelling a journalist to reveal confidential information or his or her sources outweighs the public interest in the free flow of information.
Apreliminary investigation is currently receiving attention and it is envisaged that the pre-investigation report will be submitted to the Commission for consideration during the third quarter of 2010.
The Deputy Minister of Home Affairs sent a letter to the SALRC on 15 September 2009 requesting advice on the possibility of an absolute ban on the dissemination and circulation of pornography through the electronic and printed media, as well as mobile technology. The request was discussed at the Commission meeting of 13 March 2010. A letter was sent to the Deputy Minister of Home Affairs subsequent to the meeting advising him that the SALRC will conduct a preliminary investigation to determine whether the matter should be included in the SALRC's research programme.
The Commission approved the final report on Project 124 - Privacy and data protection and the draft Bill in January 2009. The report was submitted to the Minister of Justice and Constitutional Development on 26 February 2009. The Minister acknowledged receipt of the report and Bill on 13 March 2009. The SALRC re-submitted the report to the newly appointed Minister on 14 May 2009. The Minister approved publication of the Report on privacy and data protection on 25 August 2009. The report was released by way of a media statement on 27 August 2009. The Protection of Personal Information Bill [Bill 9 - 2009] was introduced into Parliament on 25 August 2009 and has been the subject of deliberations of the Portfolio Committee for Justice and Constitutional Development for the rest of the period under review.
Privacy is a valuable aspect of personality. While potential invasions of privacy can come from many sources, a chief concern in recent years has been information privacy. Information about people and their activities can range from medical, insurance and financial records, purchasing habits and property ownership to borrowing habits at the video store, conversations via cellular telephone and surfing practices on the Internet - all mostly recorded in digital form. Information privacy has been defined as the claim of individuals, groups or institutions to determine how, when and to what extent information about them is collected, stored or communicated to others. It is clear that personal information has acquired a market value.
The main focus of the investigation has been to investigate all aspects regarding the protection of personal information in relation to the processing (collection, storage, use and communication) of the information by the State or another person and to recommend legislation or other steps that should be taken in this regard.
The expansion of telecommunications technology in recent years has led to a considerable information explosion and has increased opportunities for private data collection.
Some of the information collected may unduly harm the subject of the collection by undermining his or her dignity, integrity and independence as it may be inaccurate, incomplete, irrelevant, accessed and distributed unlawfully, used for purposes that are incompatible with and /or contrary to the purpose for which it was collected or unlawfully destroyed.
Unprotected personal information may lead to identity theft and other criminal offences, the proliferation of unsolicited pornography, spam and direct marketing excesses.
Children and other vulnerable parties are currently unprotected especially in so far as the Internet (Facebook etc) and other electronic devices are concerned.
From a business perspective, adequate privacy protection will result in the free flow of information, both nationally and internationally, which will stimulate the economy and provide employment opportunities, for instance in the call-centre industry. In terms of South Africa's international trade obligations the country needs a credible personal information environment to deal with the challenges of the surge of personal information collection and protection. Proper protection will also ensure consumer confidence and trust in electronic on-line business activities.
Finally, privacy legislation will provide a safe environment within which the e-government initiative can be developed.
It is the Commission's view that privacy and data protection should be regulated by legislation. The protection provided in the proposed Bill seeks to uphold the right to privacy as protected by the common law, section 14 of the Constitution and other International Human Rights instruments.
It is recommended that privacy and information protection should be regulated by a general information protection statute, with or without sector specific statutes, which will be supplemented by codes of conduct for the various sectors. The legislation is pro-active in nature, focusing on ensuring that proper systems are put in place instead of only policing encroachments.
The public and private sectors.
Automatic and manual processing.
Identifiable natural and juristic persons.
relating to the judicial functions of a court; and that has been exempted from the application of specific principles in terms of the Bill.
The Bill provides conditional exclusion for the processing of personal information for exclusively journalistic purposes; and by or on behalf of the state where it involves national security, defence or public safety, or the purpose which is the prevention, investigation or proof of criminal offences.
transferred to countries that ensure an adequate level of information protection only; and accounted for by the responsible party at all times.
Provision is made for exceptions to the information protection principles. Exemptions are furthermore possible for specific sectors in applicable circumstances. Special provision has also been made for the protection of special (sensitive) personal information. Special personal information includes information regarding children, religion, health and sex life, race, political persuasion and criminal behaviour.
Specific provision has been made for the protection of the subjects of data rights in so far as unsolicited electronic communications (spam) and automated decision-making are concerned. The interim arrangements in the National Credit Act, 2005, regarding the protection of credit information, have also been addressed.
The establishment of an independent statutory regulatory agency referred to as the Office of the Information Protection Regulator.
The appointment of one full-time Chairperson who will direct the work of the Office as well as four part-time members and a secretariat, consisting of government officials, to assist the Regulator.
That the Regulator will be responsible for the implementation of both the proposed Bill and the Promotion of Access to Information Act, 2000.
An alternative, more modest option makes provision for the placement of the Regulator as a ringfenced entity within an existing institution with two full-time regulators, and without any part-time members.
Responsible parties will be under an obligation to notify the Regulator of any processing of personal information before they undertake the processing. Provision has also been made for prior investigations to be conducted where the information being collected warrants a stricter regime.
The Commission recommends a flexible approach where industries will develop their own codes of conduct (in accordance with the principles set out in the legislation), which will be overseen by the regulatory agency. Codes of conduct for individual sectors may be drawn up for specific sectors on the initiative of the sector itself or of the Regulator. This will include the possibility of making provision for an adjudicator to be responsible for the supervision of information protection activities in the sector. The Regulator will, however, retain oversight authority. Although the codes will accurately reflect the information protection principles as set out in the Act, it should furthermore assist in the practical application of the rules in a specific sector.
Enforcement of the Bill will be through the Regulator, using as a first step, a system of notices where conciliation or mediation has not been successful. Failure to comply with the notices will be a criminal offence. The Regulator may furthermore assist a data subject in claiming compensation from a responsible party for any damage suffered. Obstruction of the Regulator's work is regarded in a serious light and also constitutes a criminal offence.
The Council of Europe's 1981 Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data (CoE Convention).
The 1981 Organization for Economic Cooperation and Development's (OECD) Guidelines Governing the Protection of Privacy and Transborder Data Flows of Personal Data.
The recommendations also seek to meet European Union (EU) adequacy requirements in terms of the Data Protection Directive 95/46/EC. The Directive provides that personal data should only be allowed to flow outside the boundaries of the (EU) to countries that can guarantee an 'adequate level of protection' of the data.
The recommendations and draft legislation are the result of a profoundly thorough consultation process. Should these recommendations be adopted by Parliament, the protection of information privacy in South Africa will be in line with our international obligations in terms of requirements and developments. In the last 30 years more than fifty countries have enacted data privacy legislation in order to ensure that they are compliant.
The SALRC relies extensively on the cooperation of institutions and persons who have an interest in its investigations for the efficient performance of the SALRC's functions.
On 23 and 24 April 2009 the SALRC hosted Ms Sharon Williams, a researcher at the Zambian Law Development Commission (ZLDC), and Ms Sharon Newa, a magistrate in Zambia. The ZLDC is reviewing all its child-related laws, and as part of that project has decided to send two delegates to the SALRC to conduct a comparative study.
Domestic Violence. Ms Lowesa Stuurman briefed them on the Report on Trafficking in Persons and related issues.
The Somaliland Law Reform Commission visited the SALRC from 13 to 17 July 2009. The delegation of Commissioners from the Somaliland Law Reform Commission comprised of Prof Abdi Sheikosman, Chairperson; Mr Mahdo Muhamed Gulaid, Vice-Chairperson; Mr Ibrahim Eidle Suleiman, former Regional Court Judge; Mr Justice Mohamed Omer Ghelle, former Justice of the Somaliland Supreme Court; Mr Mohamoud Hussein Farah, Dean of the Law Faculty of Hargeisa University; and Ms Ifrah Adam Omer, Chairperson of the Somaliland Women Lawyers Association.
The SALRC arranged meetings for the Somaliland Law Reform Commission with the management of Justice College and the Centre for Human Rights at the University of Pretoria, as well as a visit to the Constitutional Court.
Andries Nel, the Deputy Minister of Justice and Constitutional Development. In addition to briefings on the working methods of the SALRC, the delegation was briefed by representatives of DOJCD on the relationship between the Legislative Development component and the SALRC, preparation of Bills for introduction into Parliament and the role of the SALRC and Legislative Development in the parliamentary process.
On 8 September 2009 the SALRC hosted a Vietnamese delegation led by Mr Nguyen Van Thuan, Chairperson of the Law Committee of the National Assembly of Vietnam. The delegation requested to be briefed on the historical background of the SALRC, the mission and activities of the SALRC and the day to day operations of the SALRC. The delegation found the information shared informative and useful. They indicated that they would send one of their researchers on a work attachment to the SALRC to learn from its processes and to obtain more detailed information on how to improve their own working methods.
The SALRC received a visit from Mrs Abimbola Coker, the Secretary to the Nigerian Law Reform Commission; and Mr Tunji Ezekiel Ogbebila, the librarian, on 30 November 2009. They were briefed on the activities and working methodology of the SALRC and in particular the functioning of the library. Mrs Coker also exchanged information about the working methodology applied by the Nigerian Law Reform Commission. Mrs Coker and Mr Ogbebila attended the roundtable discussion hosted by the SALRC on the practice of ukuthwala on 30 November 2009.
Legal Clerk, from the Namibian Law Reform and Development Commission for a study visit from 8 to 12 March 2010.
On 10 March 2010 the SALRC hosted a delegation from the Ugandan Human Rights Commission comprising of Mr Med SK Kaggwa; Ms Grace Dinah Akello; Ms Marriam Fauzat Wangadya; Dr Katebalirwe Ammoti Wa Irumba; Mr Constantine K Karusoke; Mr Joseph AA Etima; Mr Agaba Maguru; and Ms Roselyn Karugonjo-Segawa. The delegation was on a study visit to South Africa, facilitated by the South African Human Rights Commission, to learn about best practices on handling issues relating to sexual minorities. The delegation was briefed on the SALRC's investigations into domestic partnerships and the legal consequences of sexual re-alignment and related matters.
South Africa hosted by the Human Rights League: Mozambique during May 2009.
On 30 June 2009 Ms Ananda Louw had a meeting with Ms Suzette Heath, a psychologist with vast family law experience in New Zealand's family courts.
Trust of Southern Africa to discuss the link between trafficking and corruption and the need for training in this regard.
On 4 August 2009 Ms Dellene Clark and Ms Carien Pienaar, the research team on adult prostitution, held a meeting with Mr Tim Barnett, a former member of the New Zealand Parliament and promoter of the decriminalisation of prostitution in New Zealand, to discuss the legislative model followed in New Zealand. He is currently the Global Programmes Manager for the World AIDS Campaign.
The SALRC hosted a combined Unites States of America, New Zealand and Canadian delegation on family law issues on 8 October 2009. The SALRC liaised with Spirit of Africa working with People to People International, which organisation was responsible for organising the delegation's visit to the SALRC. The SALRC also liaised with researchers and institutions outside the Commission to brief the delegation on identified issues. Ms Dellene Clark addressed the delegation on family law issues in respect of sexual offences and children. Ms Anna-Marie Havenga presented information on the investigation into matrimonial property law and Ms Ronel van Zyl addressed the delegation on the Children's Act 38 of 2005. Ms Lowesa Stuurman addressed the delegation on issues relating to trafficking in persons.
On 10 November 2009 Ms Lowesa Stuurman provided the International Organisation for Migration with an input on the topics that should be covered in their training workshops on human trafficking for the judiciary.
Mr Fanayana Mdumbe corresponded with the Malawi Law Reform Commission on 13 November 2009 to provide them with information on the processes employed by the South African Law Reform Commission when conducting an investigation, the documents published by the Commission during the course of an investigation and the purpose served by each of these documents.
Ms Ananda Louw accompanied members of the Portfolio Committee on Justice and Constitutional Development on a study tour to the United Kingdom, to visit, amongst others, the UK Information Commission and Privacy International from 28 November to 3 December 2009.
A multi-sectoral delegation from the Democratic Republic of Congo (DRC) visited the SALRC on 3 December 2009 as part of a study visit to the Department of Justice and Constitutional Development and other agencies in the Department. This high level delegation of senior officials in the DRC Ministry of Justice required first-hand information on how their counterparts in South Africa carry out their responsibilities and functions, and the possibility of integrating these into their own system.
Who and what the SALRC is and where it fits into the Justice framework.
The SALRC's responsibilities and functions.
Specific areas which might be of interest to the delegation.
Possible commonalities between the DRC and South Africa and the value thereof to the DRC.
Possible areas of reciprocal capacity building.
Bank in Washington on the Threshold Strategic Options for a Regulatory Environment for Insolvency Practitioners in South Africa, a draft report for discussion with the Government of South Africa.
On 13 February 2010 Ms Lowesa Stuurman provided Ms Sarah Yun, a researcher at Harvard University writing her thesis on state compliance with human rights issues in South Africa, with an input on the relationship between government and NGOs providing services to victims of trafficking and the role of the SALRC in so far as it relates to the issue of trafficking in persons.
On 19 February 2010 Ms Lowesa Stuurman provided the Embassy of Colombia through the Department of International Relations and Co-operation with a list of role-players in South Africa that could be invited to a conference titled 'First Hemispheric Conference on the fight against abduction and kidnapping' to be held in Colombia from 12 to 13 May 2010.
On 22 February 2010 Ms Dellene Clark and Ms Carien Pienaar attended a strategic theoretical discussion around the viability of the 'Swedish Model' for the reform of the legislation on prostitution in South Africa.
Farley from the United States of America and Mr Max Waltmann from Stockholm University.
The DOJCD hosted law students from the Chicago Bar Foundation on 17 March 2010.
SALRC's working methodology and current research programme. The briefing was followed by an interactive discussion.
Ms Dellene Clark gave a television interview to Swedish journalists for TV4 News Stockholm, Sweden on the legislative reforms proposed for adult prostitution on 19 March 2010. On the same day the SALRC received a request from Maryland University to host some of its students as interns for six weeks later in 2010.
Mr Tshepang Monare attended a conference organised by the Commonwealth Association of Law Reform Agencies held from 4 to 5 April 2009 on 'Law Reform in Challenging Times' and the 16th Commonwealth Law Conference held from 5 to 9 April 2009 on the 'Dynamic of Law in a rapidly Changing World'. Both conferences were held at the Hong Kong Convention & Exhibition Centre.
Nations Commission on International Trade Law, the International Association of Restructuring, Insolvency and Bankruptcy Professionals (INSOL), the World Bank Multinational Judicial Colloquium on Insolvency, the INSOL 2009 Congress and the International Association of Insolvency Regulators Workshop, which all took place in Vancouver, Canada from 20 to 24 June 2009.
Mr Tienie Cronje attended the International Association of Insolvency Regulators Conference on the Impact of the Global Financial Crisis on Insolvency Systems, which was held in Sandton, Johannesburg from 12 to 14 October 2009. He also chaired one of the panel discussions.
On 3 July 2009 the SALRC, in partnership with Juta Publishers, hosted the 2008 Ismail Mahomed Law Reform Essay Award Ceremony at the Constitutional Court. The 2008 prize was awarded jointly to Mr Chris McConnachie, a penultimate LLB student at Rhodes University, for his essay entitled 'With such changes as may be required by context: Section 13 of the Civil Union Act, absurdity and gender discrimination in the legal consequences of marriage', and Ms Suzanna Harvey, an LLM student at the University of Cape Town, for her essay entitled 'Closing a loophole in the Labour Relations Act: The Constitutionality of s198'.
The SALRC launched the Ismail Mahomed Law Reform Essay Competition for 2009 in September 2009. Mr Fanyane Mdumbe and Mr Tshepang Monare attended the Limpopo Law Week Conference on 29 September 2009 to promote the competition. The closing date for the submission of essays was 30 November 2009. The SALRC received essays from students registered at Rhodes University; the University of the Witwatersrand; University of KwaZulu-Natal; University of the Free State; University of Stellenbosch; Walter Sisulu University; University of Cape Town; University of South Africa; University of Pretoria; University of Limpopo and the University of Johannesburg.
A panel consisting of Judge Willie Seriti, Vice-Chairperson of the SALRC and Chairperson of the panel; Professors Thandabantu Nhlapo, Vice-Chancellor, University of Cape Town; PJ Schwikkard, Dean, Faculty of Law, University of Cape Town; Managay Reddi, Dean: Faculty of Law, University of KwaZulu-Natal; Cathi Albertyn, Professor at Wits and part-time Commissioner: SALRC; Ms Yasmin Sooka, Executive Director: Foundation for Human Rights; and Adv Thulisile Madonsela, Public Protector of the Republic of South Africa, was appointed to evaluate the essays and decide on the winner.
The panel unanimously decided that the prize for the best essay of the 2009 competition should be jointly awarded to Mr Theo Steyn, an LLM graduate from UNISA, for his essay entitled 'Vat and e-Commerce: Still looking for answers', and Jonathan Parsonage, an LLB graduate from the University of Cape Town, for his essay entitled 'The shape of things to come Ubuntu as a framework for the imposition of punishment in South Africa'. Both winners received gift vouchers worth R10 000 each, sponsored by Juta and Co?
The Secretary deals with enquiries on the work of the SALRC virtually on a daily basis.
Researchers and advisory committee members often participate in activities not initiated by the SALRC nationally and abroad. They are invited by government departments, NGOs and other institutions to attend seminars or conferences and to participate in workshops relating to investigations on the SALRC's programme. In addition, they are frequently requested to present papers or lectures on the research projects that they are involved in or have been involved in. This approach facilitates cooperation between the SALRC and other role players, serves to publicise the SALRC's activities and ensures that duplication of initiatives is avoided.
Project 25 Statutory law revision Mr Pierre van Wyk Participated in a roundtable discussion with functionaries from the Department of Mineral Resources to discuss and clarify the preliminary findings and proposals contained in the consultation paper submitted to the Department for comment on 12 January 2010.
Mr Fanyana Mdumbe Liaised with Transnet Freight Legal Services and legal advisers from the Department of Transport with regard to the legislative proposals contained in the Transport Laws Repeal Bill made by the SALRC in Discussion Paper 114 recommending the repeal of certain statutes administered by the Department of Transport.
Convened a roundtable discussion and addressed delegates at the discussion on the cultural practice of ukuthwala.
Project 100 Family law and the law of persons Meeting with the Fathers 4 Justice organisation at their request.
Custody of and access to minor children Meeting with Ms Zelda Moletsane at the Southern Divorce Court.
Ms Ananda Louw Completed a 40 hour training course in Family and Divorce Mediation accredited by the SA Association of Mediators.
Presentation at the Family Life Centre in Johannesburg.
Meeting with the Director: Child Justice and Family Law in order to ensure the cooperation of the DOJCD in the investigation.
Attended a family mediation workshop with representatives of the Office of the Family Advocate and the DOJCD.
Attended a workshop hosted by the SA Association of Mediators (SAAM) in Johannesburg.
Attended the Miller Du Toit Cloete Inc Family Law Conference in Cape Town, which concentrated on care and contact issues.
Attended the launch of an initiative of the Africa Centre for Dispute Settlement at the University of Stellenbosch Business School to set up a National Accreditation Board for Family Mediators. Invited to attend all future meetings of the Board as an observer.
Matrimonial property law Ms Anna-Marie Havenga Field enquiries from the public regarding problems with regard to pension benefits on divorce and the relevance of the SALRC investigation.
Project 107 Sexual offences Provided research material on statutory rape and the age of consent for boys under 12 at the request of the National Prosecuting Authority for a court case in Gauteng.
Ms Dellene Clark Assisted the NDPP with interpretation of provisions on the Sex Offender Register for two court cases in Kimberley.
Attended the National Forum and Launch of the 'Champion for Children Campaign' at the invitation of the Nelson Mandela's Children's Fund.
Compiled notes on the Sexual Offences Amendment Act for the Chairperson's paper on the protection of children with reference to child prostitution, trafficking and protective measures that are and will be in place during the 2010 Soccer World Cup.
Provided information to a social worker on whether the Sexual Offences Amendment Act has regulations, if the Act is currently operative; whether the previous Sexual Offences Act has been repealed; and whether the SALRC is currently debating any sexual offences legislation.
Provided information to the Sexual Offences and Community Affairs Unit DDPP, NPA on the presumption against retrospective application of statutory crimes.
Commented on a draft information document compiled by the CMR Mpumalanga to explain section 54 of the Sexual Offences Act to priests and others regarding the obligation to report sexual offences against children.
Provided information to a sexual health educator of SASHAPTA regarding the boundaries of what a professional therapist can and cannot do to help adults to overcome sexual difficulties.
Provided information to a student from NWU (Potchefstroom campus) on the obligation to report in the Sexual Offences Act for her PhD studies.
Provided a telephonic media interview to Andrew Donaldson for the Sunday Times on drugged/drunk rape cases.
Project 107 Sexual offences: adult prostitution Mail and Guardian Newspaper interview on Discussion Paper 1/2009 on Sexual Offences: Adult Prostitution.
Ms Dellene Clark Ms Carien Pienaar Eastern Cape Newspaper interview on Discussion Paper 1/2009.
SALRC-facilitated workshops on Discussion Paper 1/2009.
Radio interview on Discussion Paper 1/2009 on SAFM.
Radio interview on Discussion Paper 1/2009 on RSG (Praat Saam).
Radio interview on Discussion Paper 1/2009 on Radio Kansel.
Printed media interview on Discussion Paper 1/2009.
Radio interview on Discussion Paper 1/2009 on RSG (Kruis en Dwars).
Presentation of Discussion Paper 1/2009 at the Southern African Law Teachers Conference in Pietermaritzburg.
Attended a meeting arranged by Tshwaranang Legal Advocacy Centre to discuss violence against sex workers with a view to determine how one should respond to the abuse of power by members of the police.
Facilitated discussions and presented the findings of Discussion Paper 1/2009 to a focus group meeting for people selling sex hosted by SWEAT in Cape Town.
Radio studio interview on Discussion Paper 1/2009 on Impact Radio.
Presentation on Discussion Paper 1/2009 to the Gauteng focus group meeting of the South African Women Lawyers Association (SAWLA).
Provided a telephone link interview on Discussion Paper 1/2009 and its objectives to presenters on a live TBN TV show.
Conducted a briefing of the DA Caucus in Gauteng on Discussion Paper 1/2009.
Provided an interview for a CBN documentary broadcast on adult prostitution in South Africa.
Held a meeting with Professor Lemmer, the principal of the Academy of Sexology at the Pretoria East Hospital, to discuss the role of the client and the issue of demand.
Participated in the SA Women in Dialogue (SAWID) roundtable discussion on 'Women in economic crises'.
Presented Discussion Paper 1/2009 at a joint sitting of the Eastern Cape House of Traditional Leaders and the Godly Governance Network.
Interview to two WITS Students in preparation for their paper on the regulation option of adult prostitution.
Presented Discussion Paper 1/2009 to LLB students at the Varsity College in Sandton.
Attended an interactive debate at UNISA on the legalisation of adult prostitution.
Conducted grassroots fact finding on adult prostitution by way of a night time police guided tour in the Pretoria area.
Conducted an interview of and listened to a presentation on prostitution and drugs by a woman who used to sell sex for money and other reward.
Presented Discussion Paper 1/2009 to the Konvent van Reformatoriese Kerke van Suid Afrika (the General Synod of Dutch Reformed Churches) in Pretoria.
Telephonic interview on Discussion Paper 1/2009 by a journalist from AFP.
Electronic response to journalist Donald Peaton to an email enquiry on Discussion Paper 1/2009.
Presented Discussion Paper 1/2009 to a meeting arranged by the Catholic Church Parliamentary Liaison Office in Cape Town.
Provided an interview to a UCT student on group interaction in adult prostitution.
Provided a telephonic interview to Mark Tutton of CNN on adult prostitution and the SALRC processes.
Provided pre-recorded voice interview to Workers World Media Productions in English, Afrikaans, Tswana and Sepedi.
Project 110 Review of the Child Care Act Presented training on the Children's Act 38 of 2005 to social workers in Middelburg on request of the Suid-Afrikaanse Vrouefederasie.
Ms Ronel van Zyl Presented training on parental responsibilities and rights to social workers in private practice and related professions.
Presented on 'Application and Implementation of the Children's Act' at the Children's Act preparation workshop for the family advocates.
Presentation on medical issues in the Children's Act to members of the Sexual Health Workers Association.
Meeting with Ms Cathie van der Riet, a PhD student, on issues relating to the policy reform process pertaining to the Children's Act.
Presented training on parental responsibilities and rights as part of family mediation training offered by Family Life South Africa, Johannesburg.
Compiled notes on the protection of children as provided for in the Children's Act 38 of 2005 for the Chairperson's paper on the protection of children with reference to child prostitution, trafficking and protective measures that are and will be in place during the 2010 Soccer World Cup.
Assisted a legal officer from the Department of Social Development with compiling the government notice for the commencement of the Children's Act.
Attended meeting with officials from the legal division of the Department of Social Development on the commencement of the Children's Act.
Provided input to the Children's Institute in Cape Town on the compulsory reporting provisions in the Children's Act and the Sexual Offences Amendment Act.
Presented training on the Children's Act 38 of 2005 and the implementation thereof to officials from the North West Province in Mafikeng on request of the North West Department of Health and Social Development.
Presented training on the Children's Act 38 of 2005 to final year social work and post graduate psychology students at the University of the North West (Potchefstroom campus).
Field enquiries from officials from other state departments, social workers, psychologists, lawyers and members of the public regarding the Children's Act and the implementation thereof.
Project 122 Assisted decision-making: Adults with impaired decisionmaking capacity Meeting with representative of Department of Justice and Constitutional Development's Policy Unit on comment submitted by that Unit on the SALRC's proposed draft Bill on Assisted Decision-making.
Ms Anna-Marie Havenga Meeting with representative of South African Human Rights Commission on the SAHRC's request for compatibility of the SALRC's proposed draft Bill on Assisted Decision-making with the United Nations Convention on the Rights of Persons with Disabilities (CRPD).
Meeting with representatives of the national Department of Health to present the proposed draft Bill on Assisted Decisionmaking, obtain input on the text of the draft Bill and to discuss the need for compatibility with the CRPD.
Meeting with representatives of the Department of Social Development to present the proposed draft Bill on Assisted Decision-making, obtain input on the text of the draft Bill and to discuss the need for compatibility with the CRPD.
Meeting with representatives of the Directorate: Persons with Disabilities of the Ministry for Women, Children and People with Disabilities to present the proposed draft Bill on Assisted Decision-making, obtain input on the text of the draft Bill and to discuss the need for compatibility with the CRPD.
Meeting with representatives of the Chief State Law Adviser (International Law) of the Department of International Relations and Cooperation on international law questions regarding compatibility of the proposed draft Bill with the CRPD.
Field enquiries by the public on the current legal position regarding assisted decision-making for persons with Alzheimer's Disease and other mental disabilities and the SALRC's envisaged proposals for law reform.
Ms Margaret Meyer (Advisory Committee Member) Present training on the current legal position regarding assisted decision-making and information on the SALRC's investigation to Alzheimer Support Group Leaders, Johannesburg.
Present information on the current legal position regarding assisted decision-making and the SALRC's envisaged proposals at an Alzheimer's Disease Information Seminar, Princess Christian Homes, Pretoria.
Field enquiries by the public on the current legal position regarding assisted decision-making for persons with Alzheimer's Disease and other mental disabilities and the SALR's proposals for law reform.
Project 123 Protected disclosures Ms Dellene Clark Presented the Report on Protected Disclosures at a litigation seminar hosted by the Open Democracy Advice Centre at Constitutional Hill to corporate officers, union staff and labour lawyers.
Project 124 Privacy and data protection Ms Ananda Louw Presentation on the Protection of Personal Information Bill at the SABS in researcher's capacity as a member of the Privacy Working Group of the SABS providing feedback on an International Standard for Privacy being developed by the International Organization for Standardization (ISO) and the International Electro-technical Commission (IEC). The International Standard of Privacy forms the specialised system for world-wide standardisation.
Presentation on the possible effect of privacy legislation on business at a meeting hosted for this purpose by TransUnion.
Brief the Department of Trade and Industry on the Protection of Personal Information Bill at their request.
Meetings with NEDLAC on a NEDLAC report submitted to DTI on the impact of the Protection of Personal Information Bill on business, labour and government.
Meeting with SARS to discuss the impact of the Protection of Personal Information Bill on the revenue service.
Television interview on the Protection of Personal Information Bill on the SABC News and Current Affairs programme 'View from the House'.
Presentation on privacy protection in international jurisdictions at the Protection of Personal Information Bill Workshop on issues affecting the banking groups hosted by Mostert Opperman Incorporated.
Presentation on the Protection of Personal Information Bill at the National Information Officers Forum hosted jointly by the SAHRC and ODAC.
Participate in the Nelson Mandela Foundation workshop on the Protection of Personal Information Bill and its implications for archival and other memory institutions.
Meetings with the National Intelligence Centre on the impact of the Protection of Personal Information Bill on the Financial Intelligence Centre Act.
Attend clarification and information meeting on the Protection of Personal Information Bill with members of the Banking Association of South Africa.
Assist DOJCD with the passing of the Protection of Personal Information Bill through the parliamentary process. This included numerous meetings with officials from DOJCD, attending the meetings of the Portfolio Committee on Justice and Constitutional Development to brief members, attending public hearings and providing the Committee with a response to the submissions and attending and taking part in the deliberation meetings of the Committee.
Meeting with representatives of The Unlimited World, a telephone marketing company, to discuss the ambit of the Protection of Personal Information Bill and its effect on telephone marketing.
Various meetings and discussions with officials from the Department of Home Affairs on the Protection of Personal Information Bill and its impact on Advance Passenger Processing.
Presentation on the Protection of Personal Information Bill to the State Law Advisers of the Gauteng Premier's Office.
Participated in a discussion forum and Internet Safety Seminar, both hosted by the Film and Publication Board and Microsoft.
Took part in an Experian workshop on the importance of protecting personal information in the course and scope of business activities.
Participated in various radio programmes and gave numerous interviews to the media on the Protection of Personal Information Bill.
Project 125 Prescription periods Mr Tshepang Monare Attended and presented a paper on 'Prior notification to sue: a test on equality' at a conference organised by the Southern African Law Teachers Association at the University of Kwazulu-Natal.
Project 126 Review of the law of evidence Liaison and discussion with Mr Jabulani Radebe [Chief Director: ICT Security] from the Department of Communications on cyber security policy and related matters.
Electronic evidence Attended the Deloitte Technology Law Seminar.
Cyber Crime pre-investigation Attended South Africa's 4th Annual Cyber Law Conference.
Ms Nerisha Singh Attended a cyber security policy workshop held at the Department of Communications with representatives from NIA; SARS; SAPS: Cyber intelligence and Defence Force: Cyber Intelligence.
Presented on the SALRC's work on technology law at the Cyber and Related Priority Crimes Workshop hosted by the South African Police Service.
Project 130 Stalking Compiled a media response directed to the DOJCD on the Protection from Harassment Bill.
Ms Dellene Clark Attended and participated in meetings on the Bill convened by the DDG: Legislative Development in the DOJCD.
Interview on Radio 2000 on the Report on Stalking and the Protection from Harassment Bill in respect of the perceived limitation of journalists' rights and the death of a 3rd Degree employee at the hands of a stalker.
Interview on Radio 702 on the Report on Stalking and the Protection from Harassment Bill.
Telephonic interviews on the Protection from Harassment Bill on SABC and Radio 702.
Interview to an SABC journalist on the Report on Stalking.
Provided a printed media interview on stalking and existing legislation.
Provided a review of a DOJCD Justice Today article on Stalking.
Panel guest on the TV show 3rd Degree Plus aired in honour of Shadi Rapitso, a 3rd Degree journalist who was murdered by a stalker in 2009. The show aimed to explore stalking, its prevalence and effects on South African Women.
Project 131 Trafficking in persons Ms Lowesa Stuurman Assisted with the following information on issues relating to trafficking in persons: Provided the Department of International Relations and Co-operation: Directorate International Crime with the contact details of role players to participate in a video conference with the European Union on issues relating to trafficking in persons. Provided the Department of International Relations and Cooperation: Directorate International Crime with comment on a report titled Trafficking in Body Parts in Mozambique and South Africa compiled by the Human Rights League, Mozambique.
Participated in a seminar on human trafficking hosted by the University of Pretoria: Department of Social Work and Criminology.
Participated in the Trafficking in Persons Consultative Forum hosted by Trafficking in Persons Task Team: Sexual Offences and Community Affairs Unit, National Prosecuting Authority.
Interview on the proposed Prevention and Combating of Trafficking in Persons Bill on Radio RSG.
Briefed researchers from the Crime and Money Laundering Unit: Institute for Security Studies on the proposed Bill and provided guidance on what to consider for inclusion in their report on organised crime as far as the report relates to trafficking in persons.
Participated in the 'Consultative Workshop on Human Trafficking Interim Research Report' hosted in Pretoria by the Tsireledzani Programme: Sexual Offences and Community Affairs Unit, National Prosecuting Authority.
Provided training in Johannesburg and Cape Town respectively to the judiciary on the Prevention and Combating of Trafficking in Persons Bill at the Human Trafficking Workshop for Judicial Officers held by the International Association of Women Judges (South African Chapter) in partnership with the International Organisation for Migration.
Participated in an inter-departmental meeting on human trafficking in anticipation of the SA/US Annual Bilateral Forum.
Attended a media briefing held in Cape Town by the Minister of JCD on the Prevention and Combating of Trafficking in Persons Bill [B7 -2010].
Project 134 Administration of estates Attended the Gauteng meeting of the Fiduciary Institute of South Africa.
Mr Tienie Cronje Integrated Case Management System - Masters Phase 1 Enhancements User Acceptance Test.
Inter-ministerial Task Team on the combating of child pornography Attended and participated in a meeting of the Inter-Ministerial Task Team on the combating of child pornography.
Ms Dellene Clark Attended a Film and Publication seminar on research at the Innovation Hub in Pretoria.
Attended a stakeholder meeting at the Film and Publication Board on the draft Protocol on the handling of child pornography cases.
Attended a meeting with the Nigerian delegation at the Union Buildings, hosted by the Department of Women and Children.
Commented on the draft Protocol on the handling of child pornography cases to the Film and Publication Board.
Internal memorandum and annexure on the comments to the Film and Publication Board on the draft Protocol on the handling of child pornography cases to the Minister of JCD.
Provided information to Ms Misser, the legal advisor to the Premier of Gauteng, on the role of legislation in achieving Government priorities.
Attended the Internet Safety and Security Programme in South Africa - proposal by Microsoft for an Internet portal for discussion.
Internet Safety Seminar to launch an Internet portal, devise a 5 year plan for child protection and internet safety and to identify an annual internet safety and security day.
Ms Dellene Clark Meeting on Women empowerment and gender equality policy at the Presidency.
Mr Fanyana Mdumbe Presented a course on Statutory Interpretation as part of Advanced Legislative Drafting Course for municipal officers organised by Justice College in Pretoria and Bela-Bela.
Attended a policy dialogue on Traditional Practices and the Constitution, arranged by the Commission for Gender Equality in KwaZulu-Natal.
Interviewed by Ms Asanda Magaqa on SAFM on the cultural practice of ukuthwala.
Task Team on Gender Equality Legislation Ms Carien Pienaar Upon request by the Minister for Women, Children and Persons with Disabilities to the Minister of JCD, Ms Pienaar became a member of a task team to prepare draft gender equality legislation. Ms Pienaar did research on topics such as South Africa's international obligations on gender equality and development, 50/50 representation of women, national machinery for women development, gender focal points, gender mainstreaming and funding of gender equality programmes. Ms Pienaar remains an ad hoc member of the Task Team and the Task Team is to render advice based on her research.
12th Annual Family Law Conference: Family Law Frontiers Mr Michael Palumbo Made a presentation on 'Family law related investigations by the SALRC, the role of the SALRC and its public participation processes'.
During the period under review a substantial number of persons and institutions responded to specific or general invitations by the Commission to comment on particular issues or to assist it with its activities in some respect. It is impossible, within the scope of this report, to mention all contributors. However, the Commission expresses its sincere gratitude to all concerned: without their goodwill and assistance the Commission would not be able to execute its mandate properly.
The Commission also wishes to express its appreciation to the various project leaders (from within and outside the Commission) for providing advice and direction to researchers, evaluating the research and for the documents and reports compiled under their guidance. The willingness of individuals and organisations to serve on advisory committees of the Commission is valued.