The offices of the South African Law Reform Commission are situated in the Middestad Centre (12th floor), corner of Andries and Schoeman Streets, Pretoria.
South African Law Reform Commission Fax: (012) 320 0936 Private Bag X668 E-mail: reform@justice.gov.za Pretoria Internet: http://salawreform.justice.gov.
The reform of the law of South Africa is the core business of the South African Law Reform Commission.
The South African Law Reform Commission Act 19 of 1973 states in section 4 that the objects of the South African Law Reform Commission (SALRC) are to do research with reference to all branches of the law of the Republic of South Africa in order to make recommendations for the development, improvement, modernisation or reform thereof.
However, before the SALRC can makerecommendations for legal reform by executing its objects, the SALRC must be made aware of matters that require investigation. In terms of section 5 of the South African Law Reform Commission Act (SALRC Act) the Commission, in order to achieve its objects, must draw up a programme of the matters that in its opinion require consideration.
Commission may include in its programme any suggestion relating to its objects received from any person or body.
The fact that the SALRC may include law reform proposals for investigation in its programme irrespective of the status or capacity of the source of the proposal may be illustrated by examining the origin of some of the current investigations.
Development. Another Project 25 subproject, review of the Interpretation Act, as well as Project 124 - Privacy and data protection, are the result of a request from a parliamentary committee, the ad hoc Joint Committee on the Open Democracy Bill, 1998 (the Bill resulted in the Promotion of Access to Information Act, 1998).
The Project 100 subproject on custody and access to minor children originated from a family adviser at the Bloemfontein office of the Family Advocate, who became aware of particular problems with access to children after divorce during research for her Master's degree in social work. The other current Project 100 subproject, review of aspects of matrimonial property law, was approved subsequent to among others a complaint lodged with the Commission for Gender Equality by a member of the public in respect of socalled 'joint' bank accounts.
Project 122, the investigation into assisted decision making with regard to adults with impaired decisionmaking capacity, was approved after a request for such an investigation was received from a member of the public. Project 124, the investigation into prescription periods, was referred to the SALRC on request of the Minister of Justice and Constitutional Development following a recommendation by the Portfolio Committee for Justice and Constitutional Development.
"It is significant that the SALRC Act states that the be included in the programme. All Commission may include in its programme any the criteria in the second phase are considered and such weight is suggestion relating to its objects received from any person or body."
126, the review of the law of evidence, emanates from a proposal by a SALRC committee that had been appointed to look into the simplification of criminal procedure.
Given the human and financial resources and the amount of time expended on an investigation, it is clear that the SALRC is unable to investigate each and every proposal received. Since many more proposals are received than what are possible for the SALRC to deal with at a given time, it is clear that the SALRC needs some method to determine when a proposal for an investigation will be entertained and when it will be rejected. Although proposals for investigation are subjected to preliminary investigation, even a preliminary investigation takes up valuable time and resources and may not always be necessary.
After the period of introspection that the SALRC had embarked upon as alluded to in Chapter 1 of the SALRC's 2007 / 2008 Annual Report, it became clear that the SALRC had to develop 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 selection criteria therefore provide for a two-phased process to determine the inclusion of an investigation in the SALRC's programme.
The first set of criteria is used to determine whether a proposal should be rejected even before a preliminary investigation is done. It creates a sifting mechanism to reduce the number of preliminary investigations. If the proposal does not meet the initial criteria set for inclusion, it is rejected and a recommendation on this basis is made to the Commission for consideration. However, where the initial criteria are met, a preliminary investigation is indicated and the second set of criteria is then used to evaluate the proposal and to determine the ultimate inclusion or rejection of the proposal.
Commission deems appropriate in the circumstances of each case.
Criteria used in the initial sifting process to determine whether a proposal should be subjected to a preliminary investigation or whether it should be dealt with summarily a.
Whether the issues concerned are predominantly legal b.
Whether the legal problem can be addressed in a way that does not require a change of the law, for example through a mere change in policy or improved implementation of existing legislation c.
Whether there is another institution or government department better placed to deal with the topic in question d.
Pending legal developments (for example court cases or other draft legislation) that could influence the relevance of the investigation e.
Second phase criteria used in conjunction with those set out in 1 above during a preliminary investigation a.
Scale of the problem in terms of the proportion of the community affected c.
Potential benefits likely to accrue from undertaking reform or repeal of the law d.
The extent to which the investigation contributes to the implementation of a broader government policy e.
Enhanced constitutionality f.
Development and enhancement of the constitutional democracy g.
Whether the issues span the interests of a number of government departments or professional groups h.
The procedure explained above to determine the ultimate inclusion or rejection of a proposal for investigation has already been implemented and has proved to be a success. In addition to affording the SALRC a valuable tool to assist with the execution of its objects, it also gives potential proposers of investigations an indication of the issues that are taken into consideration when a proposal is considered, thus facilitating the submission and motivation of investigations.
Whether extensive public or professional consultation would be necessary j.
the existence of vested interests; or significant difference of views or objectives in the different entities k.
Whether the investigation would promote informed public debate on future policy direction l.
This annual report covers the period from 1 April 2008 to 31 March 2009.
No issue papers were published during the course of the reporting period.
All issue papers published by the Commission are listed in Annexure A.
Two discussion papers were published for general information and comment as part of Project 25: The establishment of a permanently simplified, coherent and generally accessible statute book.
All discussion papers published by the Commission are listed in Annexure B.
The South African Law Reform Commission (SALRC) was established by the South African Law Reform Commission Act 19 of 1973 (the SALRC Act).
and persons who are not members of the Commission. The latter are appointed by the Minister. The object of the second category of committees is to utilise the expertise of persons outside the Commission and to ensure direct community involvement in the activities of the Commission.
Under the first category of law of South Africa on a continuous basis.
The powers and duties of the Commission are set out in section 5 of the SALRC Act. Section 5 directs the Commission to draw up programmes that include, in order of preference, the various matters which in the Commission's opinion require consideration. The programmes must be submitted to the Minister of Justice and Constitutional Development (the Minister) for approval. The Commission may include any suggestion for investigation relating to the Commission's objects received from any person or body.
Section 7A of the SALRC Act provides for the establishment of committees of the Commission. There are two categories: committees appointed by the Commission and consisting of members of the Commission only (such as the Working Committee), and committees consisting of members of the Commission 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).
Advisory committees fall under the second category of committees. The Commission follows the practice of instituting advisory committees consisting of experts to assist with investigations and to advise the Commission if a specific investigation on the Commission's programme so requires (Section 7A(1)(b) of the SALRC Act).
Although the SALRCAct does not specifically refer to the appointment of project leaders, it is the 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 main task of a project leader is to guide the designated researcher by providing advice and direction and evaluating the research. If the project leader is the designated chairperson of a committee as envisaged in section 7A(3) of the SALRC Act, he or she will also guide the proceedings of the advisory committee.
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. The Deputy Chief State Law Adviser (Chief Director) serves as the Secretary of the Commission.
Adviser with effect from 1 June 2008.
The post of Assistant Secretary to the Commission is vacant.
Ms Ronel van Zyl (Senior State Law Adviser) One post of Principal State Law Adviser and two posts of Senior State Law Adviser are vacant.
mittee was established in December 2007 to address planning a SALRC media conference that was held on 25 November 2008.
Mr Tienie Cronje the SALRC.
Ms Anna-Marie Havenga include: Law Reform Essay Competition.
Ms Ronel van Zyl The compilation and distribution of the SALRC from July to October 2008 to promote the competition.
Reform Essay Competition Liaison with DOJCD on the Justice Today Newsletter University of Pretoria); Thandabantu Nhlapo (Deputy Vice Chancellor, University of Cape Town); Managay Reddi (Dean: University of KwaZulu-Natal); and Pamela Schwikkard (Dean: University of Cape Town) and Ms Yasmin Sooka, (Executive Director: Foundation for Human Rights) evaluated the essays received for the Ismail Mahomed Law Reform Essay Competition on 26 February 2009.
Ms Maryna Oosthuizen agencies approved by the DG on 14 August 2008.
Ms Nerisha Singh (to assist with arrangements relating qualified interns and administrative staff and performance agreements of interns. Compiled an induction programme for two researchers that assumed duty on 1 May to and the induction of 2008 and ensured the researchers were interns) provided with necessities such as stationary and access cards. Attended meetings of the National Internship Committee, which Committee deals with issues relating to the DOJCD internship programme such as the recruitment, selection and appointment of interns and the performance management and training of mentors. Liaised with HR: Learning and Development on the attendance of new SALRC personnel of DOJCD's induction programme for new employees. Arranged for SALRC researchers to make presentations on the SALRC's vision, mission, objectives and working methods at DOJCD induction sessions. Participated in DOJCD's Disability Campaign by briefing candidates on the Commission's objects and working methodology.
SALRC's working methods, the funding of the SALRC's activities and possible cooperation between the SALRC and the Ghanaian Law Reform Commission. Assisted the Uganda Law Reform Commission (ULRC) with information to arrange with SARS for the ULRC to meet with experts on customs and excise duty. Provided the ULRC with information on suitable accommodation in South Africa. Met with an Indonesian delegation to share good practices on efforts to eliminate violence against women on request of the United Nations Development Fund for Women. Arranged with relevant researchers to brief the Indonesian delegation on projects relating to violence against women. Liaised with Maryland University to host two of their students as interns later in 2009 on request of Maryland University.
Mr Pierre van Wyk holdings of the SALRC library. The Committee March 2009 respectively.
Ms Carien Pienaar orders for publications librarian post.
Ms Maryna Oosthuizen and subscriptions to electronic data bases.
Ms Sindiswa Gule Committee also liaises with the principal librarian at the DOJCD.
Safety Act 85 of 1993.
The Committee also liaises with the landlord Facilitated an emergency evacuation drill on 21 of the building on OHS November 2008 issues and matters such Liaised with the landlord's operational manager as evacuation plans, on various health and safety matters in the power outages and workplace, particularly in respect of the lifts problems with the lifts.
Mr Willie van Vuuren February 2005.
Mr Jacob Kabini development of new policies and procedures on working methods and operational systems for the SALRC.
Committee is also responsible for corporate identity matters such as business cards and the appearance of Commission publications.
Ms Dellene Clark (chairperson) Ms Anna-Marie Havenga Ms Carien Pienaar Mr Linda Mngoma Ms Nerisha Singh Ms Maryna Oosthuizen 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.
Liaise with DOJCD Human Resources on training matters Represent the Branch: Legislative Development at the National Skills Development Forum The Committee has to arrange training within the allocated budget, which requires balancing training needs with available funds and departmental and SALRC priorities. Social Economic Rights Stephen Covey First Aid Level III Fire Fighting SHE representative training Jutastat Researchers on the level of Principal State Law Adviser have attended training as part of Project Khaedu, an initiative of the Department of Public Service and Administration to strengthen the management capabilities of senior managers in the public service with the ultimate goal of improving service delivery. Most of them have also been deployed at service delivery sites, such as the Johannesburg General Hospital. The Training Committee liaised with Human Resources at DOJCD and other relevant role players to facilitate the attendance and participation of SALRC staff.
The SALRC Act provides that the Commission must, from time to time, draw up programmes listing in order of preference the matters which in its opinion require consideration. The Commission's programme is subject to the Minister's approval.
The Commission's present programme appears in Annexure F. As Research is done to determine authoritatively the existing legal position and to identify shortcomings or deficiencies that need to be rectified. They are distributed as widely as possible for general information and comment and are in appropriate cases also supplemented workshops. Responses to an issue paper and further intensive research form the basis for the preparation of a discussion paper.
inception and indicates the final result or current state of investigations.
Commission's tentative proposals for reform. In particular, a discussion paper will include a statement of the existing legal position and its deficiencies, a comparative survey and a range of possible solutions.
Bill. Members of the public are informed of the availability of discussion papers by means of media releases and media conferences.
In making its recommendations, the Commission bears in mind that there is a need to provide access to justice for all; to protect the rights of all parties - especially those of women, children and the poor; to make legal processes affordable; to make the law less complicated; and to give effect to the values and principles underlying the Constitution.
The many valuable comments and proposals received on the Commission's recommendations as contained in its documents, confirm that its working methods are successful. These methods ensure that the Commission's final recommendations are well substantiated and are the product of thorough debate. The papers are numbered in sequence as they serve before the Commission each year.
The SALRC Act requires the Commission to prepare a full report on any matter investigated by it and to submit such reports together with draft legislation, if any, to the Minister for consideration. All reports of the Commission are official, but not all are published.
Annexure C lists all the investigations reported on by the Commission since its establishment.
In addition to the reports on particular investigations, the SALRCAct provides that the Commission must annually submit to the Minister a report on all its activities during the previous year.
Issue papers and discussion papers are supplied free of charge to interested institutions and persons who wish to comment on a particular matter. These papers are widely distributed and are also obtainable from the Commission's offices. All issue papers and discussion papers published since 1996 are available on the SALRC website.
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 31 May 2008, 25 October 2008 and 14 January 2009.
The advisory committee for Project 100 - Family law and the law of persons: Custody of and access to minor children and Review of aspects of matrimonial property law met on 29 August 2008. The advisory committee met again on the Subproject: Custody of and access to minor children on 9 March 2009. The advisory committee for Project 126: The Review of the law of evidence and Project 113: The use of electronic equipment in court proceedings met on 15 November 2008.
Project 25 - Statutory Law Review had been divided into various subprojects by state department for the review of legislation as administered by each state department.
It is axiomatic that the extent to which the South African Law Reform Commission 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.
The projects on the SALRC's programme wide phenomenon of trafficking in persons is usually perpetrated by crime syndicates, one of the reasons why specific trafficking offences have to be created by statute. The legislation proposed in the report on trafficking in persons (Project 131) will be vital in the fight against organised crime. Trafficking legislation is also aimed at the protection of especially women and children, which is in line with the important government objective of improving the conditions of these vulnerable groups. The Commission's investigations into sexual offences: adult prostitution (Project 107) and stalking (Project 130) are also aimed at crime prevention and the protection of vulnerable groups. The investigation into assisted decision-making - adults with impaired decision-making capacity (Project 122) will go a long way towards affording better protection to the elderly, another identified vulnerable group.
In the State of the Nation Address, the President highlighted the scourge of crime and the problem with siphoning off resources through corruption as particular matters of concern. Crimes against women and children were specifically alluded to. The President also referred to systemic weaknesses in the criminal justice system, which point to weaknesses in the efficiency of the court system. The President mentioned that these are the issues that the comprehensive revamp of the criminal justice system has started to address. He reiterated the country's commitment to pay attention to the most vulnerable in the society and to improve the conditions of children, women, people with disability and the elderly. The President lauded the opportunities afforded by events such as the FIFA World Cup in 2010.
(Project 123) will be an important tool in the fight against crime, particularly the fight against corruption. The efficiency of the criminal justice system will definitely be enhanced by the investigations into the use of electronic equipment in court proceedings (Project 113) and the review of the law of evidence (Project 126). The world results during a particular year. A number of the actions listed in the 2008 Government Programme ofAction ties in with SALRC investigations. The proposed Protection of Personal Information Bill contained in the report on privacy and data protection (Project 124) supports the goal of strengthening international cooperation as listed under the International Relations, Peace and Security Cluster. In an era of the free flow of information across international borders, greatly increased international travel and a global economy, a country's ability to protect the personal information of its own and another country's citizens is vital to sound international relations. The expected increase in international travellers to South Africa for the 2010 FIFA World Cup lends additional urgency to this important legislation.
Prevention and Combating of Trafficking in Persons Bill contained in the report on trafficking in persons creates specific offences that can also be used against crime syndicates, an important cog in the engine of organised crime. The GPA also lists the need to counter human trafficking and people smuggling as one of the actions to be executed under the topic of upholding national security. Improving the effectiveness of the criminal justice system is another area of concern mentioned in the GPA. Criminal justice is an important factor in projects such as the investigation into sexual offences concentrating on adult prostitution and the review of the law of evidence.
Project 25 -The establishment of a permanently simplified, coherent and generally accessible statute book, and particularly the subprojects on the review of the statute book for redundancy, obsoleteness and constitutionality and the Interpretation Act, tie in with DOJCD's strategic goal of transforming justice, state and society in line with the democratic values of the Constitution. Another government and justice priority is the accessibility of justice for all.
(Project 94) is therefore highly relevant.
Prescription periods, Project 127: Review of administration orders and Project 134: Administration of estates similarly enhance the goal of access to justice for all.
Acts. Many of theseActs are not being applied anymore, while others contain provisions that are in conflict with the Constitution. Redundant and obsolete provisions on the statute book are being identified and government departments are being consulted in order to verify these provisions.
Numerous meetings were held to develop a methodology for conducting the investigation into the constitutionality and redundancy of existing legislation. The Commission also envisages an instrumental role in assisting provinces with the alignment of provincial legislation to the Constitution by rendering such support as may be required. In March 2009 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 must still be considered by Cabinet.
Prof Cathi Albertyn developed a document for the SALRC setting out guidelines for the identification of legislative provisions that are obviously in conflict with section 9 of the Constitution.
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 government departments.
Treasury, Provincial and Local Government, and Trade and Industry.
Safety and Security, Science and Technology, Social Development, Sport and Recreation, Transport, and Water Affairs and Forestry.
The SALRC submitted a memorandum to DOJCD in September 2007 proposing the appointment of advisory committees by the Minister. DOJCD referred the memorandum to the Ministry in February 2008. The Minister appointed 112 advisory committee members on 31 July 2008. The first meetings of the advisory committees took place during October and November 2008.
Legislation administered by the Department of Agriculture (DOA) The first advisory committee meeting was held on 22 November 2008. The committee agreed on the division of work, methodology to be followed and time-frames for the review of the statutes administered by DOA. Due to the diversity of agricultural legislation and the lack of experts in this field, it was decided that the SALRC will develop the consultation paper in-house, using the research submitted by advisory committee members. The target date for submitting a consultation paper containing provisional proposals for repeal or amendment of legislation to DOA for comment is October 2009.
Legislation The first advisory committee meeting was held on 15 October 2008. The committee administered agreed on the division of work, methodology to be followed and time-frames for the by the development of a draft consultation paper analysing the statutes administered by DOC.
Communications held on 19 February 2009.
paper during February and March 2009. The target date for submitting a consultation paper containing provisional proposals for repeal or amendment of legislation to DOC for comment is September 2009.
Legislation administered by the Department of Defence (DOD) The first advisory committee meeting was held on 22 November 2008. The committee agreed on the division of work, methodology to be followed and time-frames for the development of a draft consultation paper analysing the statutes administered by DOD. The second advisory committee meeting has been provisionally scheduled for July 2009. Some advisory committee members have already submitted their input to the compilers for consideration. The target date for submitting a consultation paper containing provisional proposals for repeal or amendment of legislation to DOD for comment is October 2009.
Department The first advisory committee meeting was held on 25 October 2008.
development of a draft consultation paper analysing the statutes administered by DOE. The second meeting of the committee to consider the draft consultation paper is proposed to be held during October 2009. The target date for submitting a consultation paper containing provisional proposals for repeal or amendment of legislation to DOE for comment is September 2009.
Department of The first advisory committee meeting was held on 11 October 2008.
Tourism (DEAT) DEAT. The committee met on 7 February 2009 to discuss the research submitted by committee members. The committee effected amendments to the consultation paper during February and March 2009. The first draft of the consultation paper was submitted to the SALRC on 31 March 2009. The target date for submitting a consultation paper containing provisional proposals for repeal or amendment of legislation to DEAT for comment is October 2009.
Legislation The first advisory committee meeting was held on 18 October 2008. The committee administered by agreed on the division of work, methodology to be followed and time-frames for the the Department development of a draft consultation paper analysing the statutes administered by of Health (DOH) DOH. The second meeting of the committee to consider the draft consultation paper was held on 21 February 2009. The first draft of the consultation paper was submitted to the SALRC on 6 March 2009. The target date for submitting a consultation paper containing provisional proposals for repeal or amendment of legislation to DOH for comment is October 2009.
Legislation The first advisory committee meeting was held on 28 November 2008. The committee administered by agreed on the division of work, methodology to be followed and time-frames for the the Department development of a draft consultation paper analysing the statutes administered by DHA.
and researcher for consideration. The target date for submitting a consultation paper containing provisional proposals for repeal or amendment of legislation to DHA for comment is September 2009.
Legislation The Commission approved on 25 October 2008 publication of the discussion paper in administered by respect of legislation administered by DH. Discussion Paper 115 was published for public the Department information and comments on 25 November 2008 with a closing date of 28 February of Housing (DH) 2009. The target date for submitting a draft report containing repeal and amendment proposals to the Commission for consideration is December 2009.
Legislation The first advisory committee was held on 27 November 2008. The committee administered by agreed on the division of work, methodology to be followed and time-frames for the the Department development of a consultation paper analysing the statutes administered by DOJCD.
Constitutional paper was held on 16 March 2009.
Development their draft papers and submit them to the SALRC.
a consultation paper containing provisional proposals for repeal or amendment of legislation to DOJCD for comment is October 2009.
Legislation The first advisory committee meeting was held on 30 October 2008. The committee administered by agreed on the division of work, methodology to be followed and time-frames for the the Department review of the statutes administered by DOL. The second meeting of the committee of Labour (DOL) to consider the draft consultation paper was held on 11 March 2009. The committee decided on amendments that needed to be effected to the draft consultation paper. The target date for submitting a consultation paper containing provisional proposals for repeal or amendment of legislation to DOL for comment is September 2009.
Legislation The first advisory committee meeting was held on 20 November 2008. The committee administered by agreed on the division of work, methodology to be followed and time-frames for the the Department development of a draft consultation paper analysing the statutes administered by of Land Affairs DLA.
proposed to be held during August 2009. The target date for submitting a consultation paper containing provisional proposals for repeal or amendment of legislation to DLA for comment is September 2009.
Legislation The first advisory committee meeting was held on 22 November 2008. The committee administered by agreed on the division of work, methodology to be followed and time-frames for the the Department development of a draft consultation paper analysing the statutes administered by DME.
Energy (DME) on 21 February 2009. The committee effected amendments to the consultation paper during March 2009. The target date for submitting a consultation paper containing provisional proposals for repeal or amendment of legislation to DME for comment is September 2009.
Legislation The first advisory committee meeting was held on 22 October 2008. The committee administered by agreed on the division of work, methodology to be followed and time-frames for the the Department development of a draft consultation paper analysing the statutes administered by DPLG.
of Provincial The second meeting of the committee to consider the draft consultation paper was and Local held on 20 February 2009.
Government effected to the draft consultation paper.
paper containing provisional proposals for repeal or amendment of legislation to DPLG for comment is July 2009.
Legislation administered by the Department of Public Works (DPW) DPW requested the SALRC in May 2008 to be allowed sufficient time to consult with regional offices, the Deeds Office and the relevant archives prior to commenting on the consultation paper forwarded to them in October 2007. Comments on the Consultation Paper were received from DPW on 28 October 2008. A meeting attended by the project leader and officials from DPW was held on 13 November 2008 to discuss comments received with a view to preparing a draft discussion paper. It was agreed at the meeting that the draft discussion paper will be forwarded to the Minister of Public Works for approval prior to consideration thereof by the Commission. The target date for submitting the draft discussion paper containing proposals for repeal or amendment of legislation to the Minister of Public Works for approval is June 2009.
Legislation The first advisory committee meeting was held on 30 October 2008. The committee administered by agreed on the division of work, methodology to be followed and time-frames for the the Department development of a draft consultation paper analysing the statutes administered by DTI.
Industry (DTI) held on 11 March 2009. The committee effected amendments to the consultation paper during March 2009. The target date for submitting a consultation paper containing provisional proposals for repeal or amendment of legislation to DTI for comment is September 2009.
Legislation administered by the Department of Transport (DOT) The compilation of a consultation paper analysing the statutes administered by DOT commenced in November 2006. Discussion Paper 114 containing the Commission's preliminary findings and proposals with regard to the redundancy and unconstitutionality of legislation administered by DOT and an amendment Bill were published for general information and comment in May 2008. The closing date for comments was 31 August 2008. DOT concurred with the findings and proposals for reform made by the Commission. DOT subsequently included the draft legislation proposed in Discussion Paper 114 in their legislative programme for 2009. A notice of intention to repeal redundant statutes, which notice contained the draft legislation proposed by the Commission, was subsequently published in Government Gazette No. 31864 of 13 February 2009. The SALRC informed the Minister of JCD of this development on 19 March 2009. A letter was submitted to the Office of the Chief State Law Adviser on the same date, informing the Chief State Law Adviser that the Commission has no objection to DOT's decision to initiate parliamentary proceedings to have obsolete Acts repealed. Further interaction aimed at confirming some of the findings contained in Discussion Paper 114 took place between officials from DOT, Transnet Freight Rail Legal Services and the SALRC in March 2009. The compilation of a draft report also commenced during the period under review. The target date for submitting a draft report containing repeal and amendment proposals to the Commission for consideration is October 2009.
Treasury and comments. The paper is still under consideration by National Treasury. The Minister appointed advisory committee members on 31 July 2008 to assist with the review of the Income Tax Act, the Value Added Tax Act, the Abolition of Quitrents Act and the Savings Bank Societies Borrowing Powers Act administered by the National Treasury. The second consultation paper dealing specifically with income tax and value added tax legislation and containing preliminary findings and proposals was submitted to the project leader for consideration and comment in March 2009. The target date for submitting a consultation paper containing provisional proposals for repeal or amendment of tax legislation to National Treasury for comment is September 2009.
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 on Statute law: The establishment of a permanently simplified, coherent and generally accessible statute book. The Commission approved the publication of a discussion paper on the review of the Interpretation Act on 9 September 2006. Evaluation of the comments and the development of a draft report commenced during 2007 and continued during the period under review.
The Commission approved on 9 September 2006 the inclusion of an investigation into the recognition of Hindu Marriages in the SALRC'S programme. This investigation is conducted as part of Project 25 - Statute law: The establishment of a permanently simplified, coherent and generally accessible statute book. South African law does not recognise marriages by Hindu rites; therefore all the legal consequences of marriage do not apply to such marriages entered into in South Africa. Couples in a Hindu marriage for example need not use the court if they want to get divorced. Spouses can also not claim any of the legal consequences of divorce, such as maintenance, after the relationship has ended. The aim of this investigation is to look into the recognition of Hindu marriages in order to afford these marriages full legal recognition and the same status as marriages concluded in accordance with civil rites.
It was decided in November 2008 to convert an issue paper developed on the recognition of Hindu marriages into a discussion paper and to recommend the appointment of an advisory committee to the Minister in order to expedite progress on the investigation. An issue paper dealing with all aspects of ADR was published for general information and comment during 1997.
The finalisation of an amended draft report on community dispute resolution structures is receiving attention. Although an advisory committee meeting to discuss the draft Bill and re-assess the membership of the committee is still pending as most of the active members are not available, the researcher, the project leader and two advisory committee members have considered the draft Bill and a draft report is being finalised. In their consideration of the draft Bill the committee members concerned had encountered a number of problems which were brought to the attention of the project leader and the researcher.
The field of family and divorce mediation developed in a highly segmented fashion as services in the past were provided along lines of race, culture and income level. Family advocates and the divorce courts do utilise mediation, but family advocates have been criticised for not making proper use of mediation procedures, while mediation in the divorce courts is a limited, irregular and informal part of the settlement process. Social workers in provincial institutions are also involved in this area and court referrals often result in intervention requests.
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.
'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 subprojects.
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.
A family counsellor from the Family Advocate's Office in Bloemfontein requested the SALRC to conduct an investigation into access of fathers to children after divorce where the children were placed in the mother's custody.
128 - Review of aspects of the law of divorce.
Natal province, after which five different questionnaires were developed and distributed to family advocates, social workers, psychologists, legal practitioners and parents. The researcher held focus group forums with family advocate offices in the provinces and one national focus group forum with principal and senior family advocates and family counsellors.
The researcher consulted representatives from key organisations, including tertiary institutions, DOJCD, the South African Association of Mediators and the Family Association of Mediators of the Cape. The researcher met with professionals in the field and held a consultative workshop with Gauteng stakeholders in May 2008. The data received from the questionnaires, the focus group forums and the consultations were analysed and collated for the first draft of the discussion paper. The first meeting of the advisory committee took place on 29 August 2008. The advisory committee met again on 9 March 2009 to discuss the first draft of the discussion paper.
The Matrimonial Property Act 88 of 1984 was passed in order to deal with shortcomings in the matrimonial property law at the time. The Act has been in place for nearly 25 years.
(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. The purpose of the investigation is to review the current law for greater legislative fairness and justice in governing interpersonal relationships between spouses.
The Minister on 20 May 2008 approved a request by the Commission to include the review of matrimonial property law and its investigation into custody of and access to minor children as subprojects under its existing broad investigation into Family law and the law of persons (Project 100). This was done in view of possible mutual elements - such as a possible need to reform current divorce procedures - between these two subprojects. The Minister also appointed a single advisory committee to assist with the two investigations. The advisory committee met on 29 August 2008 to identify possible issues for reform for inclusion in the issue paper.
The question whether sharing of pension benefits on divorce should be included in the investigation in view of the envisaged pending implementation of draft legislation dealing with this issue was resolved through consultation with DOJCD in January 2009. It was agreed that in view of the fact that DOJCD will not promote the Sharing of Pension Benefits Bill / Divorce Amendment Bill (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.
This investigation forms part of the larger project on Sexual Offences. An issue paper on 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.
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 treatment of prostitution are generally strongly polarised. This is no different in South Africa. To ensure full public participation in the investigation and afford all interested parties an opportunity to express their views, the researchers responsible for this investigation are liaising with various organisations, institutions and individuals that would be interested in attending countrywide workshops on prostitution to be hosted by the SALRC during the course of 2009.
This investigation was included in the Commission's programme on 14 June 1997. The objective of the investigation is 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.
In view of several investigations with higher priority and lack of personnel due to vacancies, this investigation did not receive attention until 2003 when the Commission was requested by the office of the National Director of Public Prosecutions 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) was finalised in July 2003. In its final report the Commission 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 in the Criminal Procedure Amendment Act 65 of 2008, which was passed by Parliament on 22 October 2008.
After publication of the report in July 2003, the investigation was held in abeyance pending the availability of a researcher to deal with the investigation. With the appointment of senior state law advisers to fill vacant researcher posts, the project was assigned to a newly-appointed researcher on 13 May 2008. The continuation of the project is currently under review and a decision to this effect will be taken by the Commission at its next meeting. A recommendation will be made to the Commission that Project 113 be treated as finalised in view of the completion and publication of the report on the postponement of criminal cases via audiovisual link in July 2003.
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. As a result, it will also be 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.
In proceeding under Project 126 an important consideration would be whether many of the technologyrelated 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 over the challenges presented by technological developments with regard to legal proceedings.
An issue paper dealing with the admissibility of electronic evidence in criminal and civil proceedings will be published for comment during 2009.
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.
109 of 1990, which amended the Mental Health Act 18 of 1973. This amendment enabled an interested person to apply to the Master of the High Court (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 whose legal capacity has for some 150 clauses was developed after broad consultation.
During the year under review flow charts of processes reflected in the draft Bill were prepared at the request of the Chief Master to enable long-term planning for the envisaged implementation of the proposed legislation.
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). This led to the postponement of the target date for the finalisation of the draft report to November 2009.
Privacy is a valuable aspect of personality. While potential invasions of privacy may originate from many sources, a chief concern in recent years has been information privacy.
"Additional measures to protect the interests of furthermore become very important persons whose legal capacity has for some reason since instances of identity theft and been diminished had also been researched." fraud have increased dramatically.
reason been diminished had also been 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.
Consultation with the DOJCD policy unit and with the Chief Master of the High Court on policy issues took place during 2007.
The investigation deals with the protection of personal information of people whose information is being processed by another person or institution. The investigation was included in the Commission's programme at the request of the Minister of JCD who was, in turn, requested by the Ad hoc Parliamentary Committee on the Open Democracy Bill (later referred to as the Promotion of Access to Personal Information Act) to introduce privacy and data protection legislation in Parliament. The main focus of the project has been the investigation of all aspects regarding the protection of personal information in relation to the processing (collection, storage, use and communication) of information by the State or another person and to recommend legislation or other steps that should be taken in this regard.
The SALRC published an issue paper on privacy and data protection for general information and comment in August 2003. The issue paper is discussed in the 2003/2004 annual report.
2005/2006 annual report. The SALRC hosted a series of workshops throughout the country in 2006. The closing date for comments on the discussion paper was extended to 31 August 2006.
The advisory committee considered and approved the final report and draft Bill on 14 November 2008. The Commission approved the report and draft Bill in February 2009. The report on Project 124 -Privacy and data protection was finalised and submitted to the Minister on 26 February 2009.
March 2009. Approval for the publication of the report is still awaited.
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 for 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.
An issue paper 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. For the purpose of involving the public at an early stage of the investigation, the researcher presented a paper entitled 'Prescription on Sexual Abuse Cases' at a conference on Law, Gender and Social Transformation, which was held at the University of the North from 31 August to 3 September 2008. The researcher is in the process of compiling a draft discussion paper.
The Commission's advisory committee dealing with the simplification of criminal procedure proposed in 2001 that consideration should be given to an investigation to review the rules of evidence. The Commission endorsed the decision of the advisory committee and recommended the inclusion of the project in its programme with the understanding that the investigation was to run concurrently with other relevant SALRC investigations. The Minister in December 2001 approved the inclusion of an investigation to review the rules of evidence in the Commission's programme. An advisory committee for the investigation was approved on 26 November 2003. The Commission resolved that the advisory committee on the review of the rules of evidence should also direct the investigation into the use of electronic equipment in court proceedings.
The advisory committee dealing with the simplification of criminal procedure made the proposal for this investigation with a view to simplifying this area of the law and aligning it with technological developments. The last decade has seen a rapid development in technology and with it unforeseen forms of evidence and attendant difficulties in determining admissibility. In addition thereto, the new constitutional dispensation has impacted on the law of evidence in a number of ways. The right of access to information, the entrenchment of the right to a fair trial and the exclusion of evidence obtained in an unconstitutional manner have all had an impact on the law of evidence and gave rise to a large body of new case law. In addition, the right to equality requires a re-examination of evidence in so far as it departs from the requirements of formal equality. The right to equality also necessitates a reconsideration of the rules of evidence in so far as the rules relate to effective equal access to justice.
Legal certainty on the extent of constitutionally enforceable rights is in the public interest. It is equally important to be able to ascertain the rules of evidence for the sake of case preparation. This issue impacts on the accused, the prosecution and the police in criminal cases, and on the parties to litigation in civil cases. The law of evidence is integral to the enforcement of substantive law and consequently has attracted the interest of non-governmental organisations working in specific fields such as child justice and the abuse of women.
One of the advisory committee members was requested to prepare a draft discussion paper on the principle of relevance and the hearsay rule. The advisory committee considered a revised discussion paper on 10 August 2004, after which the committee requested the committee member to do further research with the assistance of the project leader and another advisory committee member. The project leader and the latter advisory committee member however, resigned during February 2005 and the Commission appointed a new project leader on 2 March 2007.
113 on hearsay evidence and relevancy was announced at a media conference on 7 March 2008. The closing date for comments in respect of both publications was 30 June 2008. The closing date for comments on both publications was extended at the request of a number of role players and because of limited response to the papers. The advisory committee met on 15 November 2008. In view of the limited responses received to the issue paper and the discussion paper, the committee decided that the documents should be submitted to all relevant role players again. The issue paper and the discussion paper were redistributed in January 2009 under cover of a letter summarising the contents of both and requesting comment by the end of March 2009.
The committee also considered 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 committee resolved to submit the proposal to all professional bodies for comment before deciding on the inclusion of the proposal in the scope of the investigation. Letters requesting comment together with copies of the proposal were submitted to all professional bodies. The committee will consider the next phase of the investigation at its meeting in May 2009.
Development requested the Commission 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 Commission decided on 30 September 2005 that a proposal should be made to the Department of Trade and Industry that the National Credit Bill, 2005 should provide for certain amendments which would pave the way for the abolishment of administration orders in terms of section 74 of the Magistrates' Courts Act 32 of 1944. However, the Bill was passed by Parliament without any of the proposed provisions. The Commission considered a document on 14 January 2009 detailing the researcher's response to comments on the questionnaire and approved the researcher's proposals on the way forward.
It would be to the detriment of debtors and others to abolish administration orders at this stage.
If administration orders are retained a comprehensive review should be undertaken, but amendments which could be dealt with urgently must be identified.
Administration orders should lapse after a specified number of years and all outstanding debts subject to the administration order should be discharged.
This is subject to a court order on good cause shown made on the basis of an application by a creditor before the lapsing of the order that the debtor should not obtain a discharge for some or all of the outstanding debts.
This is a matter where further consultation is advisable. The consultation can be started with stakeholder meetings and workshops with debtors under administration.
that the SouthAfrican Law Reform Commission be requested to investigate the possibility of a specific civil action in respect of consequential damages arising from hoaxes (including the possibility of punitive damages) separate from the expenses incurred by the security services, to deal with such hoaxes.
Constitutional Democracy against Terrorist and Related Activities Bill). Another researcher was allocated to the investigation in April 2008 when the original researcher left the Commission. A draft discussion paper has been submitted to the project leader for his consideration and comments.
Adiscussion 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.
It would take a considerable time for the Commission to approve a report on the comprehensive review of administration of estates and for the enactment of proposed legislation. Two matters however require urgent resolution, namely administration of 'small' estates and streamlined procedures for other estates. An interim report dealing with these issues was submitted to the Minister on 19 August 2008 and was released at a media conference on 25 November 2008.
Estates Act 66 of 1965 should be amended to provide that an executor must be appointed in each estate with assets and that the Master may in accordance with guidelines issued by the Chief Master dispense with compliance by an executor with any of the requirements of the Act.
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. A decision on the matter was postponed pending empirical research by a social scientist on the prevalence of such killings.
The Ombudsman for Long-term Insurance requested the Commission to consider an investigation into mis- and non-disclosure in insurance law. During the course of the preliminary investigation, the matter was discussed with the Financial Services Board (FSB). The FSB responded on 9 June 2008 that the changes proposed by the Ombudsman will receive attention when amendments to the Long-term Insurance Act are next considered.
SALRC would be welcomed and should be forwarded to the FSB for incorporation into a draft amendment Bill for consideration by National Treasury.
The Commission at its meeting on 25 October 2008 approved the recommendation not to include an investigation into insurance non-disclosure in the Commission's programme. The Ombudsman for Long-term Insurance was subsequently informed of the Commission's decision by letter.
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 has since been prepared for consideration by the Commission at its next meeting. It provides background information on the concept of witches and witchcraft in South Africa; sets out the current legal framework; describes existing attempts at and suggestions for law reform in this area and measures the relevant facts against the Commission's criteria for the inclusion of an investigation.
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 multidisciplinary practices be recognised.
Practice Bill currently being developed by DOJCD.
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 an investigation into multi-disciplinary legal practices in the programme of the SALRC on 25 October 2008. However, the Commission decided to put the request to the Minister to approve the inclusion of the investigation on the SALRC programme on hold until the Commission has had the opportunity to discuss whether this investigation fits in with the SALRC's strategic plan.
The request for the inclusion of the investigation was received from Mr Morgan Phaahla in March 2007.
The crux of the request is that legislative measures regulating rental property business operators should be enacted. The researcher completed a project plan for the pre-investigation.
Aformer lecturer at the University of Fort Hare requested this investigation. He had learned about the statutory law revision project on SABC radio news and enquired from the SALRC whether the scope of Project 25 could be extended to cover subordinate legislation. His request relates to conditions of service and rules governing student activities in public higher education institutions that impact on the right to academic freedom.
The purpose of the request is to test the constitutionality of these measures as there are growing indications that there are problems with a number of these subsidiary rules.
Policy are being eroded by, amongst others, government policy and institutional management.
SALRC into consolidated legislation pertaining to international cooperation in civil matters. The SALRC completed this investigation in December 2006. The Minister on 19 June 2008 approved the publication of the report. A media release announcing the publication of the report was issued on 15 August 2008.
The terms of this inquiry include recognition and enforcement of foreign judgments, the service of judicial process abroad and the taking of evidence for use in civil proceedings. This investigation was prompted by the need to end South Africa's legal isolation and to allow South Africa to participate more actively in global attempts to improve judicial cooperation. In order to achieve this goal, South Africa needs to clarify and improve its law and remedy gaps and ambiguities in the common law. Reform of this area also provides an excellent opportunity to consider the state of our statute law. The repeal of the Protection of Businesses Act 99 of 1978 is essential if the South African legal system is to be opened to international cooperation. These reforms will obviously benefit litigants seeking to serve process, take evidence or enforce judgments locally. Urgent attention, however, also has to be paid to the plight of South African litigants who wish to perform the same acts abroad.
This investigation reviewed the South African law on the recognition and enforcement of foreign civil judgments, maintenance orders, service of documents abroad and the obtaining of evidence from abroad. The inquiry was concerned only with civil and commercial matters. Fiscal and criminal matters, as well as questions about personal status (such as adoption, custody and guardianship) and marriage (including divorce) were excluded. Matters that were excluded on the grounds that these matters are self-contained topics already adequately provided for in existing legislation are foreign orders of insolvency, admiralty jurisdiction and the administration of foreign deceased estates. The enforcement of foreign arbitral awards, although an important method for settling commercial disputes, was excluded because it had already been the subject of an intensive investigation by the Commission.
Process Act 12 of 1990 should be extended to make the Act's procedures for serving process available to litigants in countries with which South Africans have frequent dealings. When deciding which countries to designate under the Act, the Minister should take the promise of reciprocal treatment and the judicial standards prevailing in selected countries to ensure compatibility with the South African Constitution into consideration. South Africa should also accede to the 1965 Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil and Commercial Matters.
The Protection of Businesses Act 99 of 1978 is a major obstacle to international judicial cooperation and must be repealed. A straightforward repeal of the Act would leave the courts free to construct new rules to achieve this aim under the rubric of public policy.
"Executive rather than judicial action is appropriate, may be refused. New legislation since the executive is better placed to discern the with regard to requests for service, long-term domestic and international implications evidence and the enforcement of for national security or the economy."
Africa need to be consolidated.
Evidence Act 80 of 1962, since the Act is designed to control requests to and from foreign countries. South Africa should incorporate the 1970 Hague Convention on Taking of Evidence in Civil or Commercial Matters into our domestic law, subject to certain qualifications.
The Enforcement of Foreign Civil Judgments Act 32 of 1988, even if amended, would only apply to judgments emanating from countries designated by the Minister of Justice under the Act. The enforcement of judgments in and from all other countries remains subject to the common law.
foreign judgments should be based on the assumption that cooperation by the South African judicial system will be forthcoming. Only if it can be proved that giving effect to a request will entail the award of penal or multiple damages may the courts refuse to cooperate. The Minister should be entitled to intervene by prohibiting action in the courts if a particular request for international judicial cooperation poses a threat to national security or the economy. Executive rather than judicial action is appropriate, since the executive is better placed to discern the long-term domestic and international implications for national security or the economy.
The Enforcement of Foreign Civil Judgments Act 32 of 1988 provides for an accelerated procedure for enforcing foreign judgments in South Africa and for assisting local litigants to enforce the judgments of South African courts. The scope of the Act must be extended to more countries. The Act however should not be made the exclusive method for enforcement and common law action should be retained as a residual option.
Maintenance awards are generally not enforceable under the common law.
Africa Act 6 of 1989 provide procedures for enforcing awards emanating in South Africa and in countries abroad, but only apply to countries designated by the Minister of Justice. Of the two Acts, the 1989 Countries in Africa Act is considered the more effective Act as it applies to a wider range of orders and provides for a simpler and more streamlined procedure.
Act, none have been designated under the 1989 Act. The two Acts should be consolidated along the lines of the 1989 Act and more countries designated. To facilitate the enforcement of maintenance awards in a greater range of countries and to obviate the need to negotiate bilateral agreements, it is advisable that South Africa accede to the 1957 UN Convention on Recovery Abroad of Maintenance and the 1973 Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations.
There is no pressing need to consolidate all Acts governing international judicial cooperation into a single instrument. In particular, Acts governing enforcement of maintenance orders and other civil judgments should be kept separate.
59 of 1959 and the Magistrates' Courts Act 32 of 1944 should be amended to ensure a uniform procedure for foreigners wishing to obtain evidence in South Africa.
Orders (Countries in Africa) Act 6 of 1989 and the Reciprocal Service of Civil Process Act 12 of 1990. It is recommended that the South African law should be amended to make statutory procedures more widely available. Reciprocal treatment from foreign states must be ensured. The most practical solution for achieving this aim in the short term is the negotiation of bilateral treaties with South Africa's immediate neighbours and major trading partners, an initiative that will require action by the Department of Justice and Constitutional Development together with the Department of Foreign Affairs.
Afurther stage of reform entails SouthAfrica's accession to certain multilateral conventions. Two immediate targets are the 1957 UN Convention on the Recovery Abroad of Maintenance and the 1973 Hague Convention on the Recognition and Enforcement of Maintenance Obligations. Moreover, in order to keep abreast of global developments, South Africa should participate actively in the Hague Conferences on international law. In the longer term South Africa should take the lead to encourage closer regional cooperation in the Southern African Development Community. For this purpose, regional conventions in Africa, Europe and South America would provide useful models.
The Minister approved on 20 July 2000 the inclusion of the investigation into protected disclosures in the SALRC's programme.
Bill and the subsequent promulgation of the Protected Disclosures Act 26 of 2000 (the PDA). The Commission approved the report on 25 April 2008. The Minister on 23 September 2008 approved the report for publication and the report was released at a media conference held on 25 November 2008.
The main focus of the investigation into protected disclosures was to explore the possibility of extending the ambit of the PDA beyond the purview of the traditionally understood employer / employee relationship.
Determine whether provision should be made for the exclusion of criminal and civil liability upon making a protected disclosure in terms of the PDA.
Consider the creation of a new cause of action for an employee who has been victimised by an employer in contravention of the PDA and the possible inclusion of the concept of punitive damages.
Consider the appropriateness of creating offences in the PDA in terms of which an employer would be committing an offence by unlawfully subjecting an employee to an occupational detriment, and an employee would be committing an offence by making a false disclosure or by making a disclosure without knowing or believing it to be true.
Recommend any legislative or other steps that should be taken in this regard.
In the report the Commission has made a number of findings and has recommended that certain amendments be made to the PDA and the draft Practical Guidelines for Employees.
The remedies presently provided for in the PDA are confined to the relationship between an employer and employee in the public and private sectors.
expressly excludes independent contractors from its ambit and would seem to also exclude agency workers (employees of a temporary employment service) and other such workers. The Commission recommends that the protection of the PDA should be extended to all persons 'working' in the work environment who are not defined as employees. It recommends the insertion of the definition of 'workers' to cover volunteers, independent contractors, agents, consultants and similar persons.
The inclusion of the definition of 'worker' means that the definition of 'employer' encompasses the hirers of services and is not confined to employers as defined in the Labour Relations Act 66 of 1995. For the purposes of the PDA this will mean that an employee or worker who is rendering services to a client, for example a security officer, will have two employers.
The Commission recommends that where one of the employers on the express or implied instructions of the other employer subjects the employee or worker to an occupational detriment as a result of blowing the whistle, both employers should be held jointly and severally liable for the detriment suffered.
The definition of 'occupational detriment' is amended to make express reference to a detriment typically experienced by contract workers, namely the loss of a contract or the inexplicable failure to be given a contract.
In terms of section 8 of the PDA a disclosure may only be made to the Public Protector or the Auditor-General and then only in relation to their particular functions.
PDA, the Commission recommends that an extended list of persons or bodies should be provided for in regulations to the PDA.
The need to protect certain information either in the national interest of the country or in the interest of the livelihood of an employer by way of confidentiality or secrecy agreements militates against granting blanket immunity from liability for disclosures. Immunity from civil and criminal liability is recommended in instances where the content of the disclosure is sufficiently serious, that is, where the disclosure relates to the commission of a criminal offence. However, immunity may only be granted subject to the discretion of the court in which the action is brought and the immunity does not extend to whistleblowers who have participated in the wrongdoing.
As whistle blowing is essentially a public duty that may attract detrimental financial and private consequences, the Commission found it apt to propose an amendment to the PDA which expressly provides that the actual damage suffered may be claimed.
PDA. Where an employee or a worker knowingly makes a false disclosure such disclosure will not be a protected disclosure.
or herself to various criminal charges such as criminal defamation, crimen injuria or fraud at common law.
The guidelines to be issued in terms of the PDA should, in addition to an explanation of the procedures available, include the pre-conditions which need to be complied with in order to obtain the protection of the PDA.
The Ministerin January 2003 approvedthe inclusion of an investigation into stalking in the programme of the Commission.
Paper on Sexual Offences: The Substantive Law.
Commission had recommended that in keeping with numerous foreign jurisdictions, a separate investigation should be conducted to ascertain the need to enact comprehensive legislation prohibiting stalking. The Minister on 27 October 2008 approved the report for publication and the report was released at a media conference held on 25 November 2008.
It is the Commission's view that stalking behaviour should be regulated by way of legislation under the broader term 'harassment'. Internationally the legal understanding of stalking has evolved to the point where it now resorts under what is broadly termed 'harassment'. The term 'harassment' is used in order to provide greater protection. The proposed Protection from Harassment Bill provides a specific civil remedy for stalking aimed at interrupting the stalker's pattern of behaviour before physical harm to the victim occurs. With the exception of domestic violence specific provisions, the Bill mirrors the civil remedy provided for in the Domestic Violence Act, namely a protection order against harassment (as defined) coupled with a suspended warrant of arrest.
The report also recommends that practical mechanisms be developed by relevant government departments to effectively utilise existing common law crimes such as assault, crimen injuria, trespassing or malicious damage to property in cases of stalking behaviour.
implementation of practical measures such as training and the development of guidelines and protocols by DOJCD and SAPS to ensure effective intervention.
United Nations Protocol on Trafficking in Persons, which recognise trafficking in persons as a world-wide problem. This places an obligation on the RSA to align its domestic laws and policies with the standards set by the international instruments. The Minister on 21 January 2003 approved the inclusion of an investigation into trafficking in persons in the SALRC's research programme. The Report on trafficking in persons was submitted to the Minister in August 2008. The Minister on 23 September 2008 approved the report for publication and the report was released at a media conference held on 25 November 2008.
With its root causes in poverty and lack of economic opportunities, trafficking in persons has become one of the most lucrative businesses today with linkages around the world. Trafficking in persons involves the trading of persons as commodities by various means and is often connected to organised crime, the sex trade and modern-day slavery. South Africa is increasingly becoming a transit country and a country of destination for the trafficking of persons, especially women and children. There have been sporadic reports of the trafficking of South Africans to other parts of the world.
It is the Commission's view that the trafficking of persons should be regulated by way of legislation.
Prevention and Combating of Trafficking in Persons Bill contained in the Report on trafficking in persons addresses three main aspects, namely the prevention of trafficking in persons, the prosecution of traffickers and other role-players, and the protection of victims of trafficking. The legislation provides for the establishment of public awareness programmes or other measures for the prevention of trafficking in persons. It criminalises trafficking in persons and related acts such as subjecting a victim of trafficking to debt bondage and destroying or confiscating the documents of victims of trafficking.
With regard to protective measures, the legislation provides for the reporting and referral of child and adult victims of trafficking. The protective measures in terms of the Children's Act 38 of 2005 apply to all child victims of trafficking. A foreign adult person certified as a victim of trafficking has the right to apply for a recovery and reflection period which will allow him or her to stay in the country for up to 90 days. Furthermore, no criminal prosecution may be instituted against an adult or child victim of trafficking for crimes committed as a direct result of his or her situation as a victim of trafficking. Victims of trafficking who agree to cooperate with law enforcement and prosecuting authorities may be issued with a temporary residence permit. A permanent residence permit can be provided to a victim under certain circumstances if he or she may be harmed, killed or trafficked again if returned to his or her country of origin.
The legislation provides for the accreditation of organisations to provide certain services to adult victims of trafficking.
Act, the legislation provides for compensation to victims of trafficking for physical or psychological injury or for being infected with a life-threatening disease. In conclusion, the legislation provides that victims of trafficking should be repatriated in terms of a process that takes cognisance of their safety not only during the repatriation process, but also in the countries to which they are to be returned or when returned to South Africa.
Harmonisation of the common law and indigenous law, which was included in the Commission's programme in 1993.
In 1999 the project was changed to 'Customary law', but was later changed to 'Administration of estates'. Discussion Paper 110 dealing with measures to improve the administration process and reduce the work of executors and the supervising authority and which also called for comment on the future role of customary law in the administration of estates was published in October 2005.
It would take the SALRC considerable time to approve a report on the comprehensive review of the administration of estates and for the legislature to enact legislation recommended in a report. The interim report deals with two matters that require urgent resolution, namely administration of 'small' estates and streamlined procedures for other estates. The interim report was submitted to the Minister during August 2008. The Minister on 23 September 2008 approved the report for publication and the report was released at a media conference held on 25 November 2008.
18(3) of the Administration of Estates Act 66 of 1965 is problematic and urgent measures are required to protect beneficiaries in these estates. A 'small' estate is an estate with a value of less than the amount fixed by the Minister from time to time - at present R125 000-00.
Measures to protect beneficiaries in small estates are necessary because these beneficiaries are often less able to protect their own interests than beneficiaries in large estates. There is a laudable practice in the Master's office and at service points at magistrates' offices to assist beneficiaries to report and finalise small estates without delay or costs.
This practice should be continued or expanded and protective measures in large estates should rather be relaxed to ease the Master's burden.
Small estates in which minors, incapacitated or other vulnerable persons have an interest deserve special consideration. Resources should be devoted to the protection of such persons and the Master should play a role from case to case to safeguard their interests without causing delays or costs for the beneficiaries.
TheAdministration of EstatesAct endows the Master of the High Court with wide powers to act against executors who fail to comply with their duties, but contains no express powers to act against persons given directions in terms of section 18(3).
The Administration of Estates Act should be amended to provide that an executor must be appointed in each estate with assets and that the Master may in accordance with guidelines issued by the Chief Master dispense with compliance by an executor with any of the requirements of the Act.
The size of the estate remains a factor when deciding on the requirements to be complied with during the administration of an estate, but other factors should also be taken into account, for instance, whether an account of assets, liabilities and intended distribution signed by or on behalf of beneficiaries has been lodged; the nature of the relationship between the beneficiaries and the executor; and the sophistication of the beneficiaries.
Following the decision in Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) SA 580 (CC), all customary law estates must be administered under the supervision of the Master. This and other factors have significantly increased the Master's workload and have placed the Master's Office under severe pressure.
Some procedures can be streamlined without the need for statutory amendment. The procedures to be followed in cases where protective measures are relaxed must contain safeguards to ensure a balance between the streamlining of procedures and the protection of beneficiaries.
Master's Office and leads to considerable delays. The advantages derived from examining all accounts must be weighed against the disadvantages of the delays and costs caused by the examination of all accounts.
Master to examine the account; and accounts where it appears that there is a possibility that estate duty will be payable.
A liquidation and distribution account should be deemed to have been examined by the Master without preconditions before the account is advertised for inspection if the Master does not issue a list of requirements within a specified number of working days after receipt of the account.
The follow-up of requirements is standard procedure and often serves no purpose in protecting beneficiaries.
The interim report recommends that the Chief Master consider issuing a directive on the follow-up of requirements after an account has been advertised free of objections. Requirements should not be followed up unless circumstances are present that give rise to a belief that an estate is insolvent, that there are beneficiaries lacking full capacity or that vulnerable beneficiaries are involved.
66 of 1965 provides that an executor may be removed from office if the executor fails to perform satisfactorily any duty imposed upon the executor by or under the Act or to comply with any lawful request of the Master.
Before removing an executor from office the Master must, in terms of section 54(2), forward to the executor by registered post a notice setting out the reasons for the removal and informing the executor that he may apply to the Court within 30 days from the date of the notice for an order restraining the Master from removing the executor from office.
There is no legal requirement that a 'final reminder' must be issued before the Master may remove an executor from office. There is also no requirement that the Master should notify an executor of the Master's intention to remove the executor from office. All that is required is that the Master must forward a notice setting out the reasons for the removal and informing the executor of the possibility of applying to court within 30 days for an order restraining the Master from removing the executor from office.
Chief Master considers issuing a directive streamlining the removal of executors.
In order to ensure the best possible involvement of interested parties, it is the SALRC's policy to inform the public as far as possible of new investigations undertaken and of issue papers and discussion papers published for general information and comment. The SALRC's issue papers and discussion papers are released by way of media statements so as to ensure good coverage. However, the SALRC also submits issue papers and discussion papers of its own accord to institutions that have an interest in the investigations concerned. The reaction to these documents is an indispensable link in the process of law reform and it plays an important role in the eventual recommendations made by the Commission in its reports.
The good relations maintained by the SALRC with law reform bodies and institutions in other countries make the exchange of consultation papers, reports and other information possible. In the year under review the SALRC was privileged to host a number of foreign visitors and work attachments.
Ms Anita Ababio, the Executive Secretary of the Ghanaian Law Reform Commission and Ms Cherith Sanger of the Women's Legal Centre in South Africa visited the SALRC on 27 May 2008 to gain insight into the legal process, research methodology, funding of the SALRC, training provided to SALRC officials, the different phases of investigations, consultative processes and cooperation between the Ghanaian Law Reform Commission and the SALRC.
The SALRC hosted an Indonesian delegation on 5 March 2009 on request of the United Nations Development Fund for Women (UNIFEM).
Policy Network; and Mr Akhiruddin, a board member of Gerak, a human rights NGO. The purpose of the visit was to share good practices on efforts to eliminate violence against women. SALRC researchers briefed the delegation on human trafficking, adult prostitution, stalking, protected disclosures, domestic violence, sexual offences and Hindu marriages.
Study visits by delegations from the Democratic Republic of Congo and the Namibian Law Reform Commission were cancelled at short notice and will hopefully take place in the near future.
SALRC researchers frequently liaise with international organisations, as well as experts and officials from other countries.
25 August 2008. Dr Blankman is an expert on assisted decision-making and he is chairing a European Union working party developing guidelines on enduring powers of attorney.
Assisted Decision-making were discussed.
March 2009. The meeting was arranged at the request of FPB.
Harmful Traditional Practices on 30 March 2009 for a Joint Research Undertaking on the Convention on the Elimination of Discrimination against Women.
The seminar flowed from a bilateral meeting between the Minister for Women and Public Administration of Austria and the Minister in the Presidency. The outcome of this meeting was that the Governments of South Africa and Austria agreed to collaborate closely on joint programmes to promote the rights of women. The seminar was preceded by a meeting at the SALRC which was attended by the Full-time Commissioner of the SALRC; the Secretary of the SALRC; Judge Hofmeister, an Austrian judge; and Ms Wörgetter, deputy at the Austrian Embassy, to discuss assistance that the SALRC could offer.
Commission, contacted the Secretary of the SALRC on 12 June 2008 to enquire about the distinction between an advocate, an attorney and a conveyancer.
Wyk provided him with the necessary information.
Ms Sandra Petersson, the Research Manager and acting Director of the Alberta Law Reform Institute, approached the SALRC on 3 February 2009 with an enquiry on whether the SALRC had conducted research on specific performance under a contract for the sale and purchase of land. Mr Pierre van Wyk provided Ms Petersson with the relevant information.
The Uganda Law Reform Commission (ULRC) requested the SALRC during February 2009 to assist with arrangements for the ULRC to meet with South African experts on customs and excise duty and to provide them with information on suitable accommodation. The Induction Committee referred ULRC's request to meet with experts to the South African Revenue Services (SARS). The Induction Committee provided ULRC with information as received from SARS and a list of hotels and bread and breakfast establishments with contact details and costs.
The SALRC received a request from Maryland University in the United States of America to host two of their students as interns for six weeks during the course of 2009. The Induction Committee liaised with Maryland University in this regard.
10 to 12 September 2008.
Commission in the light of the Project 25 subproject on statutory law revision. ALRAC also afforded the SALRC delegates the opportunity to engage with representatives from other law reform agencies on their processes of consultation, review and reporting.
South African delegation.
Commission on International Law.
The SALRC, in partnership with Juta Publishers, launched the Ismail Mahomed Law Reform Essay Competition for 2008 in April 2008.
Officials of the SALRC and Juta visited the law faculties of the Universities of Johannesburg, Pretoria, Limpopo, Venda, the North West (Potchefstroom and Mafikeng campuses), the Walter Sisulu University and the University of South Africa between August and September 2008 to promote the competition. The SALRC received essays from students registered at the Rhodes University, University of the Witwatersrand, Nelson Mandela Metropolitan University, University of Cape Town, University of South Africa; University of Pretoria, University of Limpopo and the University of Johannesburg.
(Executive Director: Foundation for Human Rights); and Ms Thuli Madonsela (Full-time Commissioner: SALRC) was appointed to evaluate the essays and decide on the winner.
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, a 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 maintains good relations with the electronic and the printed media. Information that, in the SALRC's opinion, is newsworthy is supplied to the media and enquiries are replied to fully and promptly. The SALRC wishes to express its gratitude for the interest displayed by the media in investigations conducted by the SALRC. This was especially apparent at the highly successful media conference held by the SALRC on 25 November 2008.
The Secretary and Assistant Secretary deal with enquiries on the work of the SALRC virtually on a daily basis.
The SALRC holds extensive workshops and briefings in respect of relevant investigations, which is in line with the Commission's policy of broadening its consultation base. An effort is made to host the workshops and present briefings in as many different locations (urban and rural) as possible and the target audiences are state departments, parliamentary committees, relevant NGOs, the legal fraternity, relevant experts and the community in general.
Researchers and advisory committee members often participate in activities not initiated by the SALRC nationally and abroad. They are invited by government departments, non-governmental organisations 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.
Simplification of in July 2003 to review the South African criminal period Mr Van Vuuren criminal procedure justice system.
Mr Willie van Vuuren DOJCD's review of the criminal justice system.
Assisting Adv Vass Soni SC with research material and information on Parliamentary deliberations around the age of consent for the Phaswane matter serving before the Constitutional Court Drafting a letter in response to requests for law reform with respect to the offences of rape, sexual assault, compelling a child to witness sexual offences, sexual acts and sexual grooming Telephonic enquiry relating to age of consent and homosexual youths.
Brief an Indonesian delegation linked to UNIFEM.
The South African Law Reform Commission's comprehensive website can be accessed at http://salawreform.justice.gov.za.
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 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.
Interpretation Act 33 of 1957 during the reporting period. The Commission wishes to record its sincere appreciation to the GTZ.
The Commission would also like to thank the researchers of the Secretariat for their dedication and the consistently high levels of excellence and professionalism maintained by them. The Department of Justice and Constitutional Development as a whole is thanked for its cooperation and goodwill.
12th Floor, Middestad Centre Email: reform@justice.gov.
C/o Andries and Schoeman Streets Internet: http://salawreform.justice.gov.