The Commission's term of office expired on 31 December 2001.
In terms of section 3(2) of the South African Law Commission Act 19 of 1973 the President may appoint one or more additional members if he deems it necessary for the investigation of any particular matter by the Commission. Professor C Hoexter, School of Law, University of the Witwatersrand, was appointed as an additional member of the Commission.
Since publication of the previous Bulletin, one Issue Paper has been published for general information and comment.
The Sexual Offences Act 1957 regulates various aspects of prostitution. The keeping of brothels, the procurement of women as prostitutes, soliciting by prostitutes, and living off the earnings of prostitution inter alia is criminalised.
The Commission sets forth the implications should a particular option be adopted and poses questions as to all the options presented. The Commission's preliminary view is that the conduct of persons who engage in child prostitution should be criminalised whilst the child prostitute should be regarded as a victim in need of care and protection.
The closing date for comment on Issue Paper 19 is 31 October 2002.
No discussion papers have been published since publication of the previous Bulletin.
The Commission concludes that there is merit in the proposal with regard to the disclosure of specific defences and the intention to call expert evidence and recommends an amendment to the Criminal Procedure Act to this effect. The sanction that is sought to be imposed for failure to make such disclosure is that the accused will not be permitted to raise the particular defence, or call the expert witness, as the case may be, without the leave of the court. The proposal provides specifically, however, that the court may not refuse such leave if the accused was not informed of his or her obligations.
The report considers whether there is a need in South Africa to develop procedures that provide for the settling of criminal cases without having to go to court, and if so, the best way in which this can be achieved within the South African context.
protect victims from publicity, and from having to be subjected to cross-examination, while giving them the benefit from compensation or restitution by the accused.
The prosecutor may, before evidence has been adduced against the accused and considering all the facts at his or her disposal, enter into an out of court settlement with the accused if he or she is satisfied that it is in the public interest to do so and that the court would upon conviction impose a sentence other than imprisonment or imprisonment for a period not exceeding one year.
An out of court settlement can only be entered into once a charge sheet, setting out the offence or offences for which the accused is being charged, has been served on the accused (through the accused's legal representative, if the accused is legally represented); and if the prosecution is satisfied that there is sufficient evidence to warrant the prosecution of the accused.
In exercising its discretion the prosecution must, if circumstances permit, obtain the views of the victim of the offence, and must consider such views, before entering into a settlement with the accused.
o Referral to community dispute resolution structures that have been put into place in terms of an Act of Parliament.
The terms of the out of court settlement must be in writing and must be signed by the prosecutor and the accused. In order to address the risks of fraud and abuse it is proposed that the settlement has to be approved by the Director of Public Prosecutions having jurisdiction. It is also proposed that a settlement should be subject to review and that the settlement may be amended on good cause shown.
If the accused fails to comply with any of the conditions of the out of court settlement and the prosecutor is satisfied that such failure was beyond the accused's control, the prosecutor may, having due regard to the extent to which the conditions of the prior settlement has been complied with, enter into a further out of court settlement.
If the accused fails to comply with any of the conditions of the out of court settlement the criminal proceedings against the accused on that charge can be resumed from the point when the out of court settlement was entered into.
Once the accused has complied with the conditions of the out of court settlement, the charge is considered finalised and no prosecution resulting from the same offence may be instituted.
The report, containing draft legislation aimed at amending section 12 of the Divorce Act, 1979, has been submitted to the Minister for Justice and Constitutional Development on 29 August 2002.
However, since the provision does not have extra-territorial operation, the foreign media who are allowed to attend proceedings in courts are unrestricted in their reportage of South African divorce proceedings. Since South African citizens have access to the foreign media and the press, the whole purpose of the prohibition is defeated.
close the court at any stage of the proceedings where there is a likelihood that harm may result to a child as a result of the hearing of any evidence.
The Reports are available on the Internet at the address mentioned below.