Vol. 2 No.
Mr J J Gauntlett SC has been appointed to the Lesotho Court of Appeal by King Letsie III. He has also been elected to an honorary professorship in law by the University of Stellenbosch and as the Chairperson of the Cape Bar. Mr Gauntlett is congratulated on the well deserved recognition from diverse spheres of his professional excellence.
It is widely acknowledged that South Africa's maintenance system is in disarray. Complaints range from the treatment, attitudes and facilities encountered at maintenance courts to the seeming impunity with which persons manage to evade their legal duty to maintain their dependants.
The Commission published an issue paper on the review of the maintenance system during March 1997. The aim of the issue paper is to elicit comments on the issues pertaining to the maintenance system and to use these comments to assist the Commission in identifying the most suitable options for reform.
The issues discussed in the paper range from topics such as the shortage of human resources to the orders made by maintenance courts and their enforcement. The paper also deals with the question whether the judicial system, and especially the criminal law, is the correct vehicle for the implementation of the duty to support one's dependants. In respect of each of these issues the Commission explores certain options for reform. These include the introduction of administrative procedures to effect and enforce maintenance payments, the separation of the offices of public prosecutor and maintenance officer and the enhancement of judicial procedures to execute maintenance orders.
The breakdown of the maintenance system results in an increased reliance on welfare payments which are funded with taxpayers' money. This places a strain on the welfare resources of South Africa and affects South African society as a whole. The Commission is therefore of the view that all options for reform should be debated as thoroughly and as widely as possible.
The issue paper was published in February 1997 as part of the Commission's comprehensive review of the Criminal Procedure Act, 1977, and it follows the publication of an interim report which addressed the issue of delays in the finalisation of criminal cases.
The South African criminal justice system is experiencing a legitimacy crisis, the essence of which lies in the superimposition of a foreign legal system with its concomitant western legal postulations upon those of Africa. Over the years a legal order was created which primarily suited the needs of only a part of our population. The imposition of apartheid laws and their enforcement alienated a large section of our population from the formal legal system. The enforcement of these policies, the limited presence of formal legal structures in the townships, inadequate infrastructure to properly facilitate the investigation of crimes and their successful prosecution contributed to the lack of confidence in the police and the courts as sources of protection. Culturally alienating court procedures, exclusion from participation in the criminal justice system and inaccessibility to legal representation further contributed to the perceived illegitimacy of the criminal justice system. This investigation presents an opportunity to rethink the illegitimacy of the system and to address the prejudices of the past.
The issue paper explores possibilities to improve access to the criminal justice system. Several options to improve access to criminal courts and to restore legitimacy to the criminal justice system are offered. These include improvements to the structure, jurisdiction and availability of criminal courts; physical access to court buildings; equality of access; the promotion of community participation in the criminal justice process through the introduction of the jury system; the extension of the use of assessors in criminal cases, the establishment of community courts and the introduction of courts of petty sessions.
The paper also invites proposals for the improvement of the efficiency of the criminal justice system including proposals for the improvement of control over the administration of the criminal justice system; the introduction of charters for criminal courts; proposals for case management; professional development programmes; improved understanding of the role of the criminal courts and the creation of an accessible and intelligible criminal procedure.
The lack of legal representation in criminal cases has been an important factor inhibiting access to the criminal justice system. In order to address this problem the paper invites proposals on the restructuring of legal aid services including the need to assess the demand for legal services; the identification of resources available; the role of the legal profession in expanding legal services in criminal cases; equitable use of resources; the role of paralegals in the criminal justice system; the establishment of community legal centres; the role of university and legal aid institutions; the establishment of a telephonic legal aid service; the reduction of the costs of legal representation in criminal cases and proposals to improve access through community legal education.
The return date for comment on the two issue papers mentioned above is 30 May 1997.
The Commission is currently engaged in an investigation into all aspects of alternative dispute resolution and has compiled an issue paper on the subject to initiate, facilitate and encourage a focussed discussion by all interested parties. The issue paper was released during May 1997.
ADR is the generally accepted acronym for alternative dispute resolution. Simply put, ADR denotes all forms of dispute resolution other than litigation or adjudication through the courts. It therefore covers a broad range of mechanisms and processes designed to assist parties in resolving disputes creatively and effectively. These mechanisms and processes are not intended to supplant court adjudication, but rather to supplement it. The most common types of ADR include negotiation, conciliation, mediation and arbitration.
The question addressed in the issue paper is whether the administration of justice will be enhanced if a broader concept of dispute resolution could be accommodated within the formal legal system. Existing ADR initiatives will be evaluated and the further role of ADR with regard to access to justice, juvenile justice, family law, the simplification of the criminal and civil justice system as well as in the area of indigenous law will be investigated.
The goals of ADR are to relieve court congestion, to minimise costs and to prevent delays, to enhance community involvement in the dispute resolution process, to facilitate access to justice and to provide more effective dispute resolution.
There is a wide perception that the formal system of justice in the country, before the commencement of the present constitutional dispensation, suffered from the effective exclusion of most South Africans from the creation and execution of legislation. The law's inability to meet the needs of the ordinary citizens could, however, not only be ascribed to the content of the substantive law, but also to the structure and procedural requirements of the courts causing many people to be denied access to the courts. People resorted to self-help in the form of unofficial or folk institutions. In urban areas different forms of community courts were instituted.
The new Constitution of South Africa, with its Bill of Rights, is based on the principle that all people are equal before the law. The problem is that the equality thus achieved will be more of a facade than a reality if people are still de facto excluded because, owing to past injustices, they do not have the economic, social or cultural ability to make use of those rights or to participate in the administration of justice in a meaningful way. Community courts may therefore still have an important role to play in the new dispensation.
It is, however, also true that, quite apart from the problems experienced by those previously disenfranchised or otherwise disempowered, the justice system in South Africa is under constant scrutiny of and subjected to criticism from various interest groups (business, labour, religious groups, cultural groups or community groups) continually looking for more speedy, more effective, less cumbersome, less expensive and often less adversarial ways of resolving disputes and problems.
The most common complaint about the current justice system in South Africa is that the costs of litigation are prohibitive. This prevents meaningful access to courts and even those who have access are often victims of delay. The incomprehensibility and adversarial nature of the process with a resultant lack of control furthermore leads to a sense of frustration and disempowerment. Courts are only concerned with trials and are therefore limited in their response to legal disputes.
Effective government is largely dependent on a legal system that is respected by those it is intended to serve. The challenge facing the democratic state is therefore to ensure that the justice system is acceptable and accessible to the larger community.
The Justice Ministry has already begun to transform the justice system at various levels in line with democratic values. It may be that the introduction of ADR-techniques supplementing formal justice systems at certain levels may help to provide South Africans with an opportunity to establish an acceptable justice system that will be swift and effective.
The return date for comment on the issue paper is 15 July 1997.
The Commission published an issue paper on restorative justice for general information and comment during April 1997. The issue paper forms part of the Commission's comprehensive review of all aspects of sentencing. In the issue paper the Commission among other things considers restorative justice as a process which seeks to redefine crime, interpreting it not only as breaking the law, or offending against the State, but also as an injury or wrong done to another person. It encourages the victim and the offender to be directly involved in resolving conflict and thereby becoming central to the criminal justice process with the State and legal professionals playing the role of facilitators, thus supporting a criminal justice system which aims at offender accountability and full participation of the victim, the offender and the community in making good or putting right the wrong.
As part of this process, restorative justice demands consideration of approaches such as offering compensation, where appropriate, to the victims and empowering victims in their search for recognition through direct participation in the criminal justice system.
Present support services for victims of crime and violence in South Africa seem to be limited, fragmented, uncoordinated, reactive in nature, and therefore ineffective. The planning and establishment of these services is often not community-driven and occurs on an ad hoc basis resulting in difficulties. Services do not cater sufficiently for the diversity of the population and certain services such as those focussing on women and children are over-utilized, while others tend to be inaccessible in terms of their location and service fees or are poorly marketed and therefore not used. Many victims go unsupported, remain traumatised, become victims again or even turn to crime and violence themselves.
In order to address these issues the Commission invites comments and suggestions for reform on a number of issues.
The need for the establish- ment of a compensation scheme for victims of crime in South Africa.
The administration of such a scheme, including the rationale for the establish- ment of such a scheme, the meaning of "victim" for the purpose of the scheme, the nature and purview of the scheme, minimum and maximum awards in terms of the scheme, restitution for non-pecuniary loss, compensation for loss of personal property, persons qualifying for compensa- tion, persons excluded from participation in the scheme and general princi- ples which should be provi- ded for in the enabling legislation, if any.
The establishment of coordinated victim support services in South Africa.
Improved consultation between victims, the police and prosecutors.
The enactment of legisla- tion which recognises victim impact statements.
The introduction of com- munity participation in the sentencing process by formal recognition of procedures involving victim/offender mediation including family group conferences, community youth conferences, com- munity aid panels and circle sentencing.
The return date for comment on the issue paper is 30 June 1997.
The need, not only for a separate, cohesive juvenile justice system, but also for a coordinated attempt to address the shortcomings in that system, was reinforced by South Africa's ratification of the United Nations Convention on the Rights of the Child (1989) on 16 June 1995. This important Convention deals with a broad range of children's rights and provides a comprehensive framework within which the issue of juvenile justice must be understood. By ratifying the Convention, South Africa is now obliged, in terms of article 40(3), to establish laws, procedures, authorities and institutions specifically applicable to children in conflict with the law. Apart from the international requirements, the National Crime Prevention Strategy and the Interim Policy Recommendations of the Inter-Ministerial Committee on Young People at Risk which have been approved by Cabinet, also recognise the need for a separate juvenile justice system.
In order to coordinate reform in the field of juvenile justice, the Minister of Justice requested the South African Law Commission to include such an investigation in its law reform programme. The Commission thereupon established a project committee for the investigation to which the Minister made appointments on 5 December 1996. The names of the members of the project committee were announced in the previous Bulletin. The project committee completed an issue paper, released during May 1997, with the purpose of stimulating public debate and eliciting comment on a host of issues and proposals pertaining to the introduction of composite legislation which governs a comprehensive juvenile justice system for South Africa.
The incorporation of international principles on juvenile justice in the body of proposed legislation.
The possible adjustment of the age of criminal capacity and the present legal presumption governing juveniles' accountability.
The provision of specia- lised and quality legal representation.
Alternatives to arrest, the notification of parents, guardians and other role-players as well as diversion options that could be exercised by the police.
The detention of children in appropriate institutions and alternatives to the monetary payment of bail.
Diversion options, the determination of the role-players who will be respon- sible for making decisions concerning diversion and equality of access to diversion.
A revised juvenile court structure.
Sentencing options, the establishment of guidelines for sentencing, the desira- bility of reform schools, alternatives to payment of fines, alternative sentences, correctional supervision, pre-sentence reports and evidence relevant to sentence.
Monitoring of a new juvenile justice system.
The Commission is faced with the difficult task of developing a juvenile justice system which will give effect to the spirit underlying our Constitution and the international guidelines in regard to juvenile offenders within a framework that will not detract from the rights of victims of crime and society's right against protection from criminal activity as well as its need for retribution.
The closing date for comment on the issue paper is 31 August 1997.
The Commission approved the publication of an issue paper on sexual offences against children during May 1997. The aim of the investigation is to elicit comments on the issues pertaining to sexual offences against children and to use these comments to assist the Commission in identifying the most suitable options for reform. This investigation does not address sexual offences committed by children as this forms the subject matter of the Commission's investigation into juvenile justice (Project 106).
Throughout the world there is a general awareness that child abuse and neglect are a serious and growing problem and South Africa is no exception. The figures on prevalence of child abuse in South Africa are staggering: In 1996, the Child Protection Unit of the SAPS alone dealt with 35 838 cases of crime against children, which represents an average increase of 36% per year since 1993.
Many, if not most, reported cases of child sexual abuse are dealt with by structures other than the police, particularly the social services. Child Welfare Societies affiliated to the S A National Council for the Child and Family, which form only one of the relevant social services groupings, dealt with an average of 9 398 cases per month involving severe neglect (77%) or physical or sexual abuse (23%). Furthermore, it is a well-known fact that only a small percentage of crimes against children are actually reported.
Given that many forms of child abuse and neglect are crimes, the relevant aspects of criminal law as well as the associated processes, procedures, structures and resources are crucial components of any child protection system. With a view to review the law, the paper invites proposals on various common law offences such as rape, incest, indecent assault, unnatural sexual offences and crimen injuria; the statutory offences in terms of the Sexual Offences Act, 1957, the Child Care Act, 1983, the Films and Publications Act, 1996; and customary law. The investigation also presents an opportunity to rethink certain rules of evidence such as the cautionary rule, the need for corroboration, and evidence of the sexual history of the complainant.
Many cases of sexual abuse of children take place in the intra-familial context. These cases then often form the subject of a children's court inquiry in terms of the Child Care Act, 1983, as well as a criminal process. It is also possible that child sexual abuse might come to light as part of a different judicial process, such as a divorce matter. Children's court enquiries have their own problems and this paper invites proposals to improve the efficiency of the present system.
Multiple problems are experienced when child abuse cases are brought to court. The special difficulties involved in the present system in obtaining convictions for crimes against children and the resulting collapse of cases lead to ongoing and sometimes heightened risk to the victim and to other children. These relate mainly to the secondary abuse suffered by children who are required to give testimony in adversarial courts which are designed for adults; difficulties associated with the functioning of the courts, including lack of appropriately trained personnel at all phases of the investigative and judicial process; the endless delays and remands due to the congestion of the court system; problems experienced with the law of evidence; etc.
In the light of the difficulties experienced with the criminal justice processes, the paper also invites proposals for the improvement of the efficiency of the criminal justice system. This includes steps making it easier for children to disclose sexual abuse; making the court process more child friendly; and making it easier for children to give evidence in court. The paper also invites proposals on the need for mandatory or voluntary reporting of child abuse and a register for offenders or victims. Proposals are further invited on steps to streamline the police investigation in child sexual abuse cases; ways to ease the medical examination of the child victim; the treatment of offenders; the treatment of victims; and sentencing options.
The return date for comment on the paper is 31 August 1997.
Domestic violence is a pervasive and frequently lethal problem that challenges society at every level. Violence of this nature is often hidden from view and devastates its victims physically and emotionally. Directly or indirectly it affects the quality of life of the whole society. Appropriate legislation to reduce and prevent domestic violence is therefore of critical importance.
It is clear that the law does not hold an exclusive position in either the response to, or the prevention of, domestic violence. However, when victims of domestic violence do turn to the law for protection, the law should be effective and efficient in its response. The objective of the recommendations contained in the Commission's discussion paper, published in February 1997, is therefore to ensure that the substance and procedures of domestic violence legislation are well tailored to the needs of those suffering abuse in a domestic context.
The Commission's recommendations are progressive and constitute a substantial broadening of the limited scope of the existing Prevention of Family Violence Act 133 of 1993.
Provision should be made for the granting of interim interdicts upon application even though the respondent has not been given prior notice of the application. In granting the interim interdict the court should issue a suspended warrant for the arrest of the respondent.
Protection should be offered to any victim who is in a "domestic relationship" with the abuser. "Domestic relationship" should include persons (whether of the same or opposite gender) who live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other. It should also include engagement and dating relationships and persons who share or have shared the same household.
"Domestic violence" should be defined as including, but not limited to, physical abuse or threat of physical abuse; sexual abuse or threat of sexual abuse; intimidation; harassment; or destruction of property. Account should be taken of the fact that a number of acts that form part of a pattern of behaviour may amount to domestic violence, even when some or all of those acts, when viewed in isolation, may appear to be trivial.
The court should be empowered to prohibit the abuser to physically or sexually abuse the applicant; threaten to physically or sexually abuse the applicant; intimidate the applicant; harass the applicant; damage property in which the applicant may have an interest; threaten to damage property in which the applicant may have an interest; enter, watch, loiter near, prevent or hinder access to or from the applicant's place of residence, business, employment, educational institution, or any other place that the applicant visits often; follow the applicant or stop or approach the applicant in any place; make any contact with the applicant by telephone or any form of written communication; enlist the help of another person to act in any of the above ways; enter the shared residence; enter a specified part of the shared residence or a specified area in which the shared residence is situated; prevent the applicant or any relevant child who ordinarily lives or lived in the shared residence from entering or remaining in the shared residence or a specified part of the shared residence; commit any other act specified in the interdict.
The court should be empowered to order that all or any of the prohibitions or conditions contained in the interdict apply for the benefit of any child whose interests the court considers relevant.
In granting an interdict the court should be empowered to make a temporary maintenance, custody or access order.
The contravention of the conditions of an interdict granted in terms of domestic violence legislation should be an offence which is prosecuted in the criminal court.
The return date for comment on the discussion paper is 30 May 1997.
The Commission released a discussion paper dealing with euthanasia and the artificial preservation of life for general information and comment in April 1997.
The advances made in medical science and especially the application of medical technology have resulted in patients living longer. For many patients this signifies a welcome prolongation of meaningful life, but for others the result is a poor quality of life which inevitably raises the question whether treatment is a benefit or a burden.
According to the present position in our law it is unlawful to terminate a person's life in order to end his or her unbearable suffering even if it is clear that death is inevitable and that the person is about to die. The intentional termination of such a person's life remains punishable even if the suffering person expresses the wish to die or begs to be killed. Withholding or withdrawing of life-sustaining medical treatment from a patient who is terminally ill may however be permissible under specific circumstances and subject to certain conditions.
In most Western countries increased importance is being attached to patient autonomy. The need has therefore arisen to consider the question whether a mentally competent, but terminally ill patient's right to refuse life-sustaining medical treatment or to receive assistance in ending his or her life should be protected. The position of the incompetent patient as well as the patient who is clinically dead also needs clarification.
The circumstances in which it would be lawful for a medical practitioner to withhold all further life-sustaining treatment from a patient certified as being brain-dead and who is being kept alive artificially.
The right of a mentally competent person to refuse any life-sustaining medical treatment even though such refusal may cause or hasten his or her death.
The right of a medical practitioner responsible for the treatment of a termi- nally ill patient to alleviate pain and distress by increasing the dosage of medication to be given to the patient even if the secondary effect of the medication may be that the patient's life will be shortened.
Whether it would be lawful for a medical practitioner to actively assist a termi- nally ill, but mentally competent patient to die by administering or providing a lethal agent.
Clarification of the legal position with regard to the wishes of the patient as expressed in a so-called advance directive (living will) or power of attorney and the continued validity of a power of attorney after the principal has become mentally incompetent.
The instances in which the chief medical practitioner of a hospital or clinic may, in the absence of a directive of the patient or his agent, decide to discontinue the treatment of the terminally ill patient.
The powers of the court with regard to withholding or withdrawing medical treatment or the perfor- mance of any medical procedure which would have the effect of terminating a patient's life.
The Commission has stated the above-mentioned issues objectively and neutrally without making specific recommendations.
Written comments or suggestions should reach the Commission by 30 June 1997.
The Commission has released a discussion paper on pre-employment HIV testing for general information and comment. The Commission has been assisted in this task by a project committee representative of divergent interests under the leadership of Mr Justice Edwin Cameron.
HIV cannot be transmitted casually, and transmission in the workplace is highly unlikely. AIDS and HIV will nevertheless have a dramatic effect on the workplace and on the economy in general. Because many of those affected are economically active, AIDS and HIV will have a significant impact on investment in training, cost of labour, and productivity.
Despite a widely accepted point of view that pre-employment testing is ineffective at eliminating HIV from the workplace, there are increasing reports of pre-employment testing of applicants for employment in the public and private sectors.
There is at present no specific statutory prohibition on pre-employment testing for HIV in our law. There is also no clarity on the circumstances under which an employer could require an applicant for employment to take an HIV test. The present constitutional and legislative inhibitions on unfair discrimination in general may seem to be sufficient to prevent irrational pre-employment testing for HIV. However, neither the 1996 Constitution nor the Labour Relations Act of 1995 confers unqualified rights and may therefore countenance an employer testing an applicant for employment for HIV under certain specific circumstances. A review of comparable systems, together with a consideration of the current scientific knowledge and the ethical, social and economical issues have led the project committee to the conclusion that the present legal position needs to be changed, and that the most effective way of doing so is by legislation.
The project committee recognises that an array of competing interests and social values is at issue in the debate about statutory regulation of pre-employment testing for HIV. Any suggested statutory intervention should attempt to reconcile the main opposing approaches in a form which leaves sufficient flexibility for the accommodation both of private rights and social interests. Future developments in medical and scientific knowledge and in the economic environment should also be accommodated.
After careful consideration of the problem the project committee provisionally recommends the adoption of a specific statute in order to regulate those instances where an employer may ask an applicant for employment to take an HIV test, and to prevent an employer from refusing an applicant employment on the grounds of that person's HIV status or perceived HIV status, unless such refusal is deemed fair and justifiable. By giving specific jurisdiction to the Labour Court to determine under what circumstances HIV testing or taking HIV status into account in hiring may be permissible, the proposed legislation could give all involved parties a clear framework for resolving potential disputes. A draft Bill to this effect is attached to the discussion paper for comment.
The issues in question need to be debated thoroughly. All parties who feel that they have an interest in this matter or may be affected by the measures proposed are invited to comment on the preliminary recommendations made.
Written comments or suggestions should reach the Commission by 31 July 1997 at the address given below. The discussion paper is available on request and is free of charge.
These reports are available from the Government Printer.
The Chairperson is Chief Justice Ismail Mahomed, former Vice-President of the Constitutional Court. The Vice-Chairperson is Judge Pierre Olivier, a Judge of the Appeal Court. The full time member is Professor Thandabantu Nhlapo. The other members are Judge Yvonne Mokgoro, a judge of the Constitutional Court, Advocate Jeremy Gauntlett SC from the Cape Bar, Ms Zubeda Seedat, an attorney practising in Durban, and Mr Phineas Mojapelo, an attorney practising in Nelspruit.
One of the commissioners, Mr J J Gauntlett SC, will attend the Australasian Law Reform Agencies Conference, Melbourne, 15-16 September, with the theme "Combating Discrimination through Law Reform". Another commissioner, Ms Z Seedat, is scheduled to attend the 9th International Symposium on Victimology, Amsterdam, 25-29 August, with the theme "Caring for Victims". She will also visit the Law Commissions of England, Scotland and Ireland. The South African Law Commission is planning to convene a regional law reform conference with a view in particular to examining ways of improving Southern African co-operation in controlling crime on a regional basis.
Please note the new e-mail address reflected below. Arrangements have been made to transfer mail addressed to the old address to the new one for the time being.
Interested parties are invited to submit proposals for law reform and information in respect of projects to the Commission.
The Commission's offices are situated at 228 Visagie Street, Pretoria.
The postal address is Private Bag X668, Pretoria 0001.
Some of the Commission's documents are also available on the Internet.
The Commission's office hours are from 07:15 to 15:45 on Mondays to Fridays.