I have the honour to submit to you, in terms of section 7(2) of the South African Law Reform Commission Act 19 of 1973, the Commission's report on all its activities from 1 April 2006 to 31 March 2007.
"Law must be stable, and yet it cannot stand still."
Indeed, the law is a dynamic concept - not only does it change along with society, but it often directs society on its path of change.
Across the world, law reform agencies are tasked with investigating the reform of laws in a way that adequately meets the demands and challenges posed by changing societies. This task is complicated by the conflict of values between, among others, different sectors of society, religious and cultural beliefs and the inclusive goal of justice for all.
This is true for any country in the world, but even more so for post-Apartheid South Africa, where many of the laws on the statute book are incompatible with the democratic, non-discriminatory and equality-based values espoused by the Constitution.
However, neither these values nor the fundamental human rights enshrined in the Bill of Rights can stand in isolation. The rights of citizens and the obligations flowing from these rights inevitably require the creation of new laws or the reform of existing ones, all of which must ultimately pass constitutional scrutiny.
During the period under review the South African Law Reform Commission (the Commission) continued its efforts to facilitate law reform that contributes to the realisation of a society based on democratic values, social justice and fundamental rights for all.
31 December 2006 marked the end of the term of the Commission which was appointed for a period of five years with effect from 1 January 2002.
The transformation of our legal system presented the Commission with great challenges in the area of law reform, having regard to the relationship between reform and the wider social and political context in which it takes place, and focusing on various rights in the Bill of Rights in the absence of a fully developed constitutional jurisprudence. The research programme of the Commission during its tenure demonstrated that a very wide ambit of topics received the attention of the Commission.
Criminal justice reform was driven largely by progressive critiques of criminal justice practices and the rise of victim concerns. In this regard projects related to simplification of criminal procedure; the use of electronic equipment in court proceedings; a compensation fund for victims of crime; sexual offences; terrorism; stalking; and trafficking in persons.
A number of projects related to what could be termed "social law reform", indicated by criteria such as that the problem is described in social terms rather than by reference to an area of legal doctrine; the project requires moral or social value judgments to be made on politically controversial issues; the project explicitly addresses social justice issues; or the project proposes an entirely new approach to a social problem, rather than simply proposing minor changes to legal rules. Social law reform projects investigated by the Commission related to adult prostitution; protected disclosures; privacy and data protection; review of the Child Care Act, 1983; Islamic marriages; customary law; domestic partnerships; assisted decision-making: adults with impaired decision-making capacity; and publication of divorce proceedings.
As part of the Commission's extensive statutory law revision project, the Interpretation Act 33 of 1957 was reviewed.
The publications (excluding annual reports) which were completed by the Commission during its tenure of five years are reflected in Annexure A.
The new Commissioners are welcomed heartily and assured of the support of the Secretariat to face the challenges of law reform in South Africa.
This annual report covers the period from 1 April 2006 to 31 March 2007.
Issue papers published by the Commission are listed in Annexure B.
Discussion papers published by the Commission are listed in Annexure C.
A progress report on investigations not yet completed appears in Chapter 3.
The recommendations contained in the reports on surrogate motherhood (Project 65) and access to minor children by interested persons (Project 100) are incorporated in Chapter 20 and section 23 respectively of the Children's Act 38 of 2005 (Project 110: Review of the Child Care Act, 1983).
The recommendations contained in the report on compulsory HIV testing of persons arrested in sexual offence cases (Project 85) were initially reflected in the Compulsory HIV Testing of Alleged Sexual Offenders Bill. The Commission's recommendations regarding victims' need for information of their alleged offenders' HIV status have eventually been included in Chapter 5 of the Criminal Law (Sexual Offences) Amendment Bill.
In the Commission's report on the need for a statutory offence aimed at harmful HIV-related behaviour (Project 85) the Commission concluded that a statutory offence was not necessary or desirable and that the current legal position should be maintained. During the course of the Portfolio Committee deliberations on the Criminal Law (Sexual Offences) Amendment Bill, 2003 and prior to the 2004 elections, the Committee suggested including in the Bill the criminalisation of the intentional non-disclosure of a person's HIV-positive status when engaging in intimate contact with another person. When the Bill was submitted to the newly constituted Cabinet for approval after the 2004 elections, Cabinet however expressed reservations about the inclusion of the suggested offence, and the final version of the Bill which was approved by the Portfolio Committee on 10 November 2006 did not include such an offence. The Committee however requested the Department of Justice and Constitutional Development to do further research in this regard, including comparative research, with a view to addressing Cabinet's reservations.
The South African Law Reform Commission was established by the South African Law Reform Commission Act 19 of 1973 (the Act).
Not more than eight persons who appear to the President to be fit for appointment on account of the tenure of a judicial office or on account of experience as an advocate or as an attorney or as a professor of law at any university, or on account of any other qualification relating to the objects of the Commission.
As indicated in Chapter 1, the President appointed a new Commission for a period of five years with effect from 1 January 2007.
Annexure D contains a list of members of the Commission and the periods for which they served or for which they were appointed.
Although the Act 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 a project 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 a project committee (section 8(2)).
The main task of a project leader is to guide the designated researcher's research by evaluating the research and giving advice to the researcher.
Committees of the Commission perform the activities assigned to them by the Commission and are subject to the Commission's directives. Activities performed by committees are deemed to be performed by the Commission and for the purposes of remuneration, members of committees are deemed to be members of the Commission.
Under the first category of committees, the Commission has established a working committee which consists of members of the Commission co-opted for meetings according to their availability (section 7A(1)(a) of the Act).
Project committees fall under the second category of committees. The Commission follows the practice of instituting project committees consisting of experts to assist with investigations and to advise the Commission if a specific investigation in the Commission's programme so requires (Section 7A(1)(b) of the Act).
The names of the members of the project committees appear in Annexure E. The Commission would like to express its appreciation to individuals and organisations for their willingness to serve on project committees of the Commission.
The Commission is assisted in its task by a full-time Secretariat consisting of officials on the establishment of the Department of Justice and Constitutional Development. The Secretariat consists of an administrative component and a professional component. The Deputy Chief State Law Adviser (Chief Director) serves as the Secretary of the Commission. This post has been vacant since 1 April 2006.
The research component of the Secretariat consists of 19 State Law Advisers from diverse backgrounds. Their task is to conduct the necessary research under the guidance of project leaders (who are appointed by the Commission), to consult with interested parties, to compile issue papers, discussion papers and draft reports and to carry out other assignments of the Commission.
Law reform cannot be delivered without high quality research. The in-house researchers at the Commission are professionally qualified lawyers, the majority of whom have vast experience in the law reform environment. The result has been the development of scholarly research publications and the involvement of the researchers in various activities as highlighted in Chapter 5.
Three posts of Senior State Law Adviser are vacant.
The 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. Annexure G contains a list of all the investigations included in the Commission's programme since its inception and indicates the final result or current state of investigations.
Research is done to determine authoritatively the existing legal position and to identify shortcomings or deficiencies that need to be rectified. Consultation takes place between the researcher, project leader, project committee (where one exists), the general public, stakeholders and persons with particular knowledge concerning the matter under investigation. 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. Its recommendations are embodied in comprehensive reports, which are submitted to the Minister for Justice and Constitutional Development.
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.
Judging from comments received, the Commission's discussion papers and reports are of a high standard. The faculties of law of various universities often prescribe the Commission's research publications as literature for their students at undergraduate as well as postgraduate level.
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. They also facilitate the enactment of the Commission's proposed legislation, which embodies the recommendations.
In order to involve the community actively at an earlier stage, the Commission publishes issue papers for appropriate investigations as the first step in the consultation process. The purpose of an issue paper is to announce an investigation, to clarify the aim and extent of the investigation, and to suggest the options available for solving existing problems.
Issue papers published since the introduction of the document series are listed in Annexure B.
Discussion papers published since the introduction of the document series are listed in Annexure C.
The 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 G lists the investigations reported on by the Commission since its establishment.
This series has been used mainly for publications intended to make the common law more readily available and contains translated common law sources and noters-up. Papers published in this way are listed in Annexure H.
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. The annual report, papers in the research series and reports on investigations that are published can be purchased from the Government Printer in Pretoria.
The Commission met on 9 September 2006 and 24 March 2007. There were no working committee or project committee meetings during the year under review.
It is axiomatic that the extent to which the South African Law Reform Commission can add value will be heavily influenced by the nature of the work it undertakes and its particular experience and suitability to do so. In selecting topics for law reform there is a need for independence from, but good liaison with, government. It is therefore important for the Commission to understand how its work will contribute to the government's overall strategic outcomes and priorities. There should also be explicit recognition by government of the particular contribution the Commission can make to the overall law reform environment.
A number of the above-mentioned projects are in line with the government's priorities as identified in the Government's Programme of Action, 2007. The priorities and programmes arise from the January 2007 Cabinet Lekgotla and the President's State of the Nation Address on 9 February 2007.
Crime prevention and public safety is identified as a main action by the Justice, Crime Prevention and Security Cluster. A sub-action is the implantation of initiatives directed at preventing crimes against women and children. The Commission's investigations into sexual offences: adult prostitution (project 107); stalking (project 130); and trafficking in persons (project 131) are aimed at crime prevention and the protection of vulnerable groups. Another sub-action is the implementation of restorative justice and alternative dispute resolution, which relates to the Commission's project on community dispute resolution structures (project 94).
The Commission's statutory law revision project (project 25) is aimed at revising the complete statute book with a view to removing or adapting legislative provisions considered to be unconstitutional, redundant or obsolete. The investigation is endorsed by Cabinet - in 2001 Cabinet requested the identification of all discriminatory and unconstitutional legislation enacted prior to 1994, as well as the review of provisions in the legislative framework that would result in unfair discrimination as defined in section 9 of the Constitution. In terms of a Cabinet decision the Commission is required to submit bi-annual reports on progress with the investigation to Cabinet.
Two of the strategic goals of the Department of Justice and Constitutional Development are "access to justice for all" and "transforming justice, state and society".
It is further significant to note that law reform agencies in the world often review similar areas of law. The research programme of the South African Law Reform Commission is no exception and this fact could be seen as an indicator to gauge the relevancy of projects undertaken by the South African Law Reform Commission.
In 2004, the Commission embarked upon a major investigation aimed at revising the complete statute book with a view to removing or adapting legislative provisions considered to be unconstitutional, redundant or obsolete. An audit of all national legislation (excluding provincial and secondary legislation) by the Commission revealed that there are close to 3 000 statutes on our statute book, comprising Principal Acts, Amendment Acts, Supplementary or Additional Acts and Private Acts. Many of these Acts 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 vis-à-vis the Constitution by rendering such support as may be required.
In March 2007 a progress report on the investigation was forwarded to the Department of Justice and Constitutional Development for submission to the Minister with a view to informing Cabinet about the progress made in the investigation.
Professor Cathi Albertyn developed a document for the Commission setting out guidelines for the identification of legislative provisions that are obviously in conflict with section 9 of the Constitution. The guidelines are based on an analysis of Constitutional Court judgements. The tables of Constitutional cases as per Professor Albertyn's report have been updated and made available to the researchers involved with project 25. Future judgements of the Constitutional Court relating to the "equality" clause in the Constitution will be added as and when they become available.
The 112 statutes administered by the Department of Agriculture are being analysed to determine which are redundant, obsolete or unconstitutional. Once this has been done, a consultation paper with repeal and amendment proposals will be submitted to the Department for further discussion.
The 218 statutes administered by the Department of Transport were scrutinised and a draft repeal Bill and consultation paper were drafted. Discussions were held with the legal adviser of the Department of Transport in November 2006 to consult on the statutes which have been identified for repeal or amendment. The Department indicated that it agreed with the proposals made by the Commission. The consultation paper and draft repeal Bill will be reworked and converted into a discussion paper that will be published for public consultation.
The 624 statutes administered by National Treasury are being analysed to determine which are redundant, obsolete or unconstitutional. Once this has been done, a consultation paper containing repeal and amendment proposals will be submitted to the Department for further discussion.
The 67 statutes administered by the Department of Public Works have been analysed to determine which are redundant, obsolete or unconstitutional. A draft repeal Bill and draft consultation paper have been prepared. Once this has been reviewed the consultation paper containing repeal and amendment proposals will be submitted to the Department for further discussion.
The approximately 220 statutes administered by the Department of Trade and Industry are being analysed with a view to determining which are redundant, obsolete or unconstitutional. Once this has been done, a consultation paper containing repeal and amendment proposals will be submitted to the Department for further discussion.
The 385 statutes administered by the Department of Justice and Constitutional Development will be analysed to determine which are redundant, obsolete or unconstitutional. Once this has been done, a consultation paper containing repeal and amendment proposals will be submitted to the Department for further discussion.
The application of the Bill of Rights to the criminal law, the law of criminal procedure and sentencing.
Repeal of the Transkei Penal Code and the Dangerous Weapons Act, No.
A consultation paper on the repeal of the Transkei Penal Code and the Dangerous Weapons Act 71 of 1968, as far as it is still in force in the territory of the former Transkei, is being drafted following a request from the Judge President of the Transkei High Court.
On 9 September 2006 the Commission approved the inclusion of an investigation into the recognition of Hindu Marriages into the programme. This investigation is conducted as part of project 25. Preliminary research with a view to developing an issue paper has commenced. The researcher is also studying the January 2007 judgement of the High Court in the Durban and Coast Local Division in Suchitra Singh v Jailall Ramparsad and Others.
The Commission approved the publication of a discussion paper on the review of the Interpretation Act 33 of 1957 on 9 September 2006. A media statement announcing the availability of discussion paper 112 was released on 6 October 2006. The closing date for comment on discussion paper 112 was initially 31 December 2006. In January 2007 the closing date was extended to 28 February 2007 to afford respondents more time to comment. In February 2007 the closing date was further extended to 30 March 2007 in view of the limited responses received.
The Interpretation Act was drafted during an era of parliamentary sovereignty. It is not in line with the current constitutional dispensation or with the principles and practices of drafting and interpretation adopted by the legislature and the courts since 1994.
&#7; The meaning of the word legislation [original and assigned legislation; primary legislation (parliamentary and provincial legislation and municipal by-laws) and legislation issued by the executive (subordinate or secondary legislation); new legislation and old order legislation].
&#7; The definitions to be included in the definition clause in the proposed Interpretation of Legislation Bill.
The purpose of the Interpretation of Legislation Bill.
The application of the Bill.
Some principles of interpretation including the supremacy of the Constitution.
Legislation to be interpreted in the light of changing circumstances.
Inconsistencies between provisions in the same legislation.
Elements of legislation to be considered during interpretation (intrinsic information) such as preambles, long titles, marginal notes, headings to chapters or sections, paragraphing and punctuation, footnotes, endnotes, diagrams and examples, and schedules.
Extrinsic information as aids to interpretation such as preceding discussions and speeches in Parliament and explanatory material.
Commencement of legislation.
Exercise of powers before commencement of legislation.
Publication of legislation.
Parliamentary scrutiny of subordinate legislation.
The expiration or demise of legislation including express repeal of legislation; effect of repeal; and implied repeal.
Proposals for the implementation of measures for sun-setting of subordinate legislation whereby all subordinate legislation will have a limited life, for example five years or ten years, after which the legislation has to be scrutinised and re-enacted otherwise it ceases to be of force.
The extent to which legislation binds the State.
The application of the functus officio doctrine and revocation of administrative decisions generally and proposals for reform of section 10(1) of the Interpretation Act.
Notification in the Gazette of official acts performed in terms of legislation.
Directory and peremptory words in legislation.
Amendment and repeal of subordinate legislation.
The exercise of powers and performance of duties.
The power to appoint persons.
The power to differentiate when issuing subordinate legislation.
Delegation of power.
Transfer of legislation, powers and functions.
A list of general definitions for words and expressions often used in legislation.
Definitions in old order legislation.
Derivatives and other grammatical forms of defined words and expressions.
Reckoning of time and measurement of distance.
Standard provisions in legislation such as prescribed forms; methods of serving, delivering, sending or submitting documents; consultation procedures; and decisions of bodies consisting of members, quorums of bodies and distant participants.
The finalisation of an amended draft report on community dispute resolution structures is receiving attention. Although a project committee meeting to discuss the draft Bill and re-assess the membership of the project committee is still pending as most of the active members are not available, the researcher, the project leader, Professor Schärf and Professor Cartwright have considered the draft Bill and a draft report is being finalised. In their consideration of the draft Bill, Professors Schärf and Cartwright had encountered a few problems which they brought to the attention of the project leader and the researcher. These are being attended to.
Although the project committee decided that a discussion paper on family mediation would be completed subject to the finalisation of the investigation into community dispute resolution structures, preliminary research is being carried out whenever time allows as the researcher has been appointed to serve on the task team on Judicial Functions of Traditional Leaders: Policy Formulation.
The finalisation of a draft discussion paper on adult prostitution has been receiving attention subject to the finalisation of the investigations into protected disclosures (project 123), stalking (project 130) and trafficking in persons (project 131). A draft discussion paper will be finalised during the second quarter of 2007.
The project will receive further attention after the completion of Project 126: Review of the law of evidence and is also subject to the researcher's involvement in the implementation of the Service Charter for Victim's of Crime and the review of the criminal justice system.
The present investigation means a revival of its previous investigation, but on a wider basis. Additional measures to protect the interests of those whose legal capacity has for some reason been diminished, are researched.
An issue paper on incapable adults was published in December 2001. A discussion paper was published for general information and comment in January 2004 and is discussed in the 03/04 annual report. The project leader approved final amendments to a proposed draft Bill containing about 150 clauses in July 2006. The draft Bill was submitted to the project committee in September 2006. A draft report will be submitted to the project leader during the third quarter of 2007.
An issue paper dealing with the need for the extension of the ambit of the PDA was published in the form of a questionnaire in January 2003. A discussion paper was published for general information and comment in June 2004 and is discussed in the 04/05 annual report. A draft report was submitted to the Department of Justice and Constitutional Development in October 2005. The completion of the report is subject to departmental discussions. The draft report has been submitted to the project leader.
An issue paper was published for general information and comment in August 2003 and is discussed in the 03/04 annual report. A discussion paper was published for general information and comment in October 2005 which is discussed in the 05/06 annual report.
A series of workshops hosted by the Commission were held in February and March 2006. The closing date for comments on the discussion paper was extended to 31 May 2006. The researcher presented the draft Bill at a series of workshops hosted countrywide during July 2006 by the E-law Committee of the Law Society of South Africa. Written submissions received on the discussion paper have been collated. The draft Bill has been amended in accordance with the comments received and submitted to the project committee for comment in March 2007. A draft report is being finalised. The project is not currently receiving attention and it will be assigned to a new researcher when the three vacant posts of Senior State Law Adviser are filled.
Professor Schwikkard was requested to prepare a draft discussion paper on the principle of relevance and the hearsay rule. The project committee considered a revised discussion paper on 10 August 2004, after which the committee requested Professor Schwikkard to do further research with the assistance of Justice Nugent. Justice Harms (project leader) and Justice Nugent (project committee member) resigned during February 2005.
The Commission directed on 9 September 2006 that the project should proceed and that new project committee members should be appointed to replace Justice Harms and Nugent. The appointment of new project committee members was pursued, but abandoned because of limited response and in view of the allocation of the researcher to Project 25: Statutory law revision, the Commission's highest priority at present.
The previous Minister requested the Commission to investigate administration orders and to follow an incremental approach to distinguish between reforms that could be effected in the short and medium term and reforms that could be effected in the medium to long terms.
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 envisaged provisions. The Department of Justice and Constitutional Development has indicated that it will consider the repeal of section 74 amendments along the lines suggested. The Commission will be requested to approve the removal of this investigation from the Commission's programme.
The researcher's involvement in the Children's Bill process has contributed to the delay in finalising a draft discussion paper. A newly appointed researcher has also been allocated to the project. Questionnaires received from members of the public on problems experienced with access to children after divorce and divorce procedures are being collated. Questionnaires for the family advocates and for legal practitioners and social workers dealing with divorce are being developed. Preliminary research with a view to developing a draft discussion paper has commenced.
Preliminary research with a view to developing an issue paper is conducted when time allows while the researcher is still involved in Project 122.
An issue paper was published for general information and comment in January 2004 and is discussed in the 03/04 annual report.
The Commission approved a discussion paper on trafficking in persons for publication in March 2006. The discussion paper is expounded in the 05/06 annual report. The closing date for comments on the discussion paper had been 30 June 2006, but was extended to 31 July 2006. As part of the consultative process, meetings were held to provide interested parties with an opportunity to discuss the Commission's preliminary recommendations as set out in the discussion paper and draft Bill. Consultative meetings were held in Pretoria on 6 June 2006, in Nelspruit on 13 June 2006, in Cape Town on 20 June 2006, in the Eastern Cape on 22 June 2006, in Durban on 27 June 2006, and in Bloemfontein on 29 June 2006.
Comments on the discussion paper have been collated. Comment by the Department of Justice and Constitutional Development is awaited.
"that the South African 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.
The project was assigned to the researcher in June 2005. A draft discussion paper is being finalised.
A discussion paper dealing with measures to improve the administration process and reduce the work of the supervising authority and executors was approved for publication by the Commission in September 2005 and is discussed in the 05/06 annual report. Comments are being evaluated. The researcher is exploring interim solutions in consultation with the Office of the Chief Master of the High Court.
A report on domestic partnerships was approved in the 2005/2006 reporting year. In the 2005/2006 annual report it was mentioned that the report had still been under Ministerial consideration. Subsequently the report was published on 28 September 2006 and the Civil Union Act 17 of 2006 commenced on 30 November 2006.
The term "domestic partnership" is used in the report to describe all established permanent life partnerships, whether between people of the same or the opposite sex, which currently exist outside the ambit of the institution of marriage.
The report deals with the lack of legal recognition and regulation of permanent life partnerships against the background of section 9 of the Constitution which, amongst others, prohibits discrimination on the grounds of sexual orientation and marital status. It seeks to establish a new family law framework that will provide for marriage (irrespective of the system under which it is celebrated) as well as various other permanent life partnerships.
In the recent past, the courts have carried much of the responsibility for drafting family law and policy with regard to permanent life partnerships by creatively applying non-family laws, including the law of unjust enrichment, estoppel and contract. The Constitutional Court has furthermore, on more than one occasion, upheld constitutional challenges under the equality clause on the ground of sexual orientation. Furthermore, with the ad hoc extension of statutorily defined benefits (sometimes including same-sex and opposite-sex partners into the definition of "spouse" for various purposes) there has been an increasing recognition of these relationships outside marriage. These developments have, however, led to a patchwork of laws that do not express a coherent set of family law rules.
In its comparative study the Commission has furthermore researched various models for recognition of permanent life partnerships in other jurisdictions. Owing to the diverse nature and the wide variety of relationships under discussion, it has not been possible to select only a single model to regulate all partnerships. Also, none of the researched models emanated from a constitutional dispensation with an equality clause exactly like section 9(3) of the Constitution. These facts meant that a uniquely South African solution had to be found.
The aim was to combine different models in such a way as to afford the desired protection to the parties in established permanent life partnerships as well as third parties with an interest in the regulation of these relationships, without imposing on individuals' autonomy or over-regulating the position. The constitutionality of the recommended models was the determinative factor.
Two judgments of the Constitutional Court, namely Volks v Robinson and Minister of Home Affairs v Fourie in particular served as a guide to the Commission in making its final recommendations. In both the Volks and Fourie cases the majority judgments left it to the legislature to correct the defects currently existing in the law.
In Minister of Home Affairs v Fourie the question of the exclusion of same-sex couples from the institution of marriage was raised. The State and amici in their appeal to the Constitutional Court acknowledged that partners to same-sex relationships suffer discrimination and that this violation of their rights had to be corrected. However, they objected against any remedial measures being assimilated into the traditional institution of marriage or permitting unions of same-sex couples to be referred to as marriages. The answer, they said, was to provide appropriate alternative forms of recognition to same-sex family relationships.
The Constitutional Court stated that the need to accord an appropriate degree of respect to the traditional concept of marriage did not as a matter of law constitute a bar to vindicating the constitutional rights of same-sex couples to take part in the institution of marriage. The Court furthermore considered and rejected the possibility that there might be a justification, in terms of section 36 of the Constitution, for the violation of the equality and dignity of same-sex couples wanting to get married. It found that the failure of the common law definition of marriage and section 30(1) of the Marriage Act of 1961 (the marriage formula) to provide for same-sex couples to celebrate their unions in the same way that it enable opposite-sex couples, is discriminative.
However, since this matter touches deep public and private sensibilities and has great public significance, the Court thought it best to leave it to Parliament to correct the defect in the law. Parliament was provided with one year to effect this change, failing which the marriage formula in the Marriage Act of 1961 would forthwith be read to refer to "husband", "wife" and "spouse". The effect of such an amendment would be to include same-sex couples in the institution of marriage.
The Court acknowledged that there are different ways in which the legislature could correct the defects and pointed to certain principles of special constitutional relevance to guide Parliament. It stated clearly that any option would have to be considered within the framework of the judgment. The Court furthermore warned against a remedy that would, on the face of it, provide equal protection but, in effect, produce new forms of marginalisation. The Court further said that the chosen remedy had to be as generous and accepting towards same-sex couples as towards opposite-sex couples.
The Court's views set out above, served to confirm the Commission's decision to abandon two of the options previously canvassed in the Discussion Paper as possible solutions to the problem, namely that of civil unions and secondly, the separation of the civil and religious aspects of marriage.
The Commission recommends, as its first choice for legal reform, the amendment of the Marriage Act of 1961. A definition of marriage should be inserted in the Marriage Act of 1961 that makes the Act applicable to all couples wanting to get married, irrespective of their religion, race, culture or sexual orientation. The Commission is of the opinion that this amendment will give effect to the equality provision set out in section 9 of the Constitution and complies with the Constitutional Court's decision in Minister of Home Affairs v Fourie.
The Commission supports the view of the Canadian government in this regard where it stated that a government cannot pick and choose whose rights they want to defend and whose rights they will ignore. If the fundamental rights of one minority can be denied, so potentially can those of others.
However, from a policy viewpoint, the Commission considers it advisable not to disregard the strong objections that were raised against the recognition of same-sex marriages by many respondents to the Commission's Discussion paper. Concern for these objections is an important consideration in the strive to accommodate religious sentiments to the extent that it is constitutionally possible.
As stated above, it is not possible to attain this goal through a separate institution such as a civil union as has been done in some countries. In terms of the Constitution, the State has to accord equal protection to all people. However, the Constitution does allow for specific protection of religious practices under section 15 (3).
The Commission therefore recommends, as its second choice, the enactment of an Orthodox Marriage Act in addition to the recommended amendment of the Marriage Act of 1961. In this context "orthodox" refers to the "confirmation of closely followed traditional beliefs and practices of a religion". This Orthodox Marriage Act will be applicable to opposite-sex couples only. In terms of this proposal, the amended Marriage Act will be referred to as the Reformed Marriage Act.
A separate Act, the Orthodox Marriage Act, will therefore provide State sanction for the solemnisation of a marriage according to the specific dogma of a religious group in its own sphere of operation. The Commission does not believe that such a sanction will impact on the dignity of same-sex couples who do not subscribe to such a church's dogma.
If Parliament accepts these recommendations, religious marriage officers will have the choice to decide in terms of which Act they wish to be designated as marriage officers. This will be a matter best left for individual faiths to decide. The State will designate its civil marriage officers in terms of the Reformed Marriage Act.
The Constitutional Court referred to this combination of the two pieces of legislation as a firm proposal. It stated that one of the features of this option would be to provide for equal status for all marriages, irrespective of the system under which they are celebrated. It is foreseen that the Orthodox Marriage Act will ultimately resort with the Islamic Marriage Act, the Recognition of Customary Act and perhaps a Hindu Marriage Act in a religious or cultural marriages category of legislation. The Reformed Marriage Act will be the generic Act which will be open to everybody and any religions that choose not to make use of their own unique Acts.
The Commission also considered the lack of legal protection for same- and opposite-sex couples who do not wish to or are unable to get married. It was noted that not every family today is founded on a marriage recognised as such in law.
In the Constitutional Court case of Volks v Robinson the court dealt with the question of maintenance of a surviving opposite-sex partner after the death of her life-partner. The Court found that in the context of the provision for maintenance of the survivor of a marriage by the estate of the deceased, it is appropriate not to impose an obligation posthumously that did not exist before death. Nevertheless, the Court expressed concern for the plight of vulnerable parties (mostly women and children) in cohabitation relationships where the structural dependence of women in marriage results in real suffering and misery. It stated that the plight of these women is the result of the absence of any law that places rights and obligations on people who are partners within relationships during their lifetimes. The Court indicated that the answer lies in the legal regulation of partnerships through legislation in order to ensure that vulnerable partners in such relationships are not taken advantage of.
The Commission therefore recommends the enactment of a Domestic Partnerships Act to provide for the legal recognition and regulation of registered and unregistered partnerships.
The Commission recommends that partners who do not wish to get married, but nevertheless want to commit themselves formally to support and assist each other, can do so by complying with a simple prescribed registration procedure before a registration officer who will be a public servant appointed by the Minister of Home Affairs for that purpose. A registered partnership is ended when one or both partners die or can be terminated through a simple procedure before a registration officer. However, in order to protect the interests of children, registered partners who have minor children from the registered partnership have to apply to the court for a termination order. The court will then ensure that the best interests of the child are attended to.
The Commission recommends that partners who want to register their relationship comply with requirements that are comparable to that of marriage, such as affinity. The Commission further recommends that there be no automatic community of property between registered partners. It would, however, be open to the parties who register their partnership to conclude a written agreement which regulates the consequences of their relationship, including the division of property when the relationship ends. In the event of a dispute regarding the division of property that both have contributed to, the court will have the final say about a fair and equitable division.
A significant recommendation is that registered partners be obliged to support each other. This obligation forms the legal basis for claims by registered partners that are usually only available to married couples, such as pension and medical aid fund benefits. Ad hoc legislative provision is currently already made for some of these benefits.
As is the case between married partners, where a child is born into a registered partnership between persons of the opposite sex, the male partner in the registered partnership is deemed to be the biological father of that child. This presumption is refutable.
Finally, the Commission considered the legal position of same- and opposite-sex couples who are not married and who have not registered their relationship for whatever reason. Many women are economically dependent on men and are left destitute and suffer hardship on the termination of the relationship. In the case of the very poor and illiterate the effects of vulnerability are more pronounced. It would be a fallacy to proclaim that these women have a real choice as to whether they want to get married or have their relationships registered, or not.
The Commission therefore recommends that the Domestic Partnerships Act provides for the regulation of the consequences of terminated unregistered partnerships.
Where partners have not registered their relationship, one or both partners can approach a court for assistance after the relationship has been terminated by separation of the partners or due to the death of one of the partners. This would be the case where there is a dispute regarding the financial consequences of the former relationship. In terms of this recommendation, the court then has the discretion to make a maintenance order in favour of a former partner and an intestate succession order where there is no valid will. The court may also make an order for the division of property to which both partners have contributed. No arbitrary definition is given for unregistered partnerships and a court deciding such an application must have regard to all the circumstances of the relationship with the view to reaching an equitable outcome. Contributions by women to a joint household through labour and emotional support have to be acknowledged.
The Commission further recommends that some legal consequences of the termination of certain multiple (polygamous-like) unregistered partnerships also be regulated. These consequences are maintenance after separation, maintenance of a surviving partner, intestate succession and property division. For these purposes, a court has a discretion to consider the circumstances of both relationships to ensure an equitable outcome when making an order.
The report was submitted to the Minister for Justice and Constitutional Development in January 2007 and it is still under Ministerial consideration.
The report was submitted to the Minister for Justice and Constitutional Development in November 2006 and it is still under Ministerial consideration.
The Commission depends for the efficient performance of its functions on the co-operation of institutions and persons who have an interest in its investigations. It is significant how various legal systems are often faced with similar problems. The exchange of documents and information enables the Commission to evaluate thinking elsewhere in the world.
In the year under review the Commission was privileged to host the following visits and work attachments.
In line with the Commission's policy to broaden its consultation base, extensive workshops and briefings in respect of relevant investigations are held. 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, among others, the legal fraternity, relevant NGOs, state departments, Portfolio Committees, relevant experts, and the community in general.
During the period under review a substantial number of persons and institutions responded to specific or general invitations by the Commission to comment on particular issues or to assist it with its activities in some respect. It is impossible, within the scope of this report, to mention all contributors. However, the Commission expresses its sincere thanks to all concerned - without their goodwill and assistance the Commission would not be able to perform its duty satisfactorily.
The Commission has received technical and financial support from the German Technical Cooperation (GTZ) in respect of Project 25: Statutory law revision: Review of the Interpretation Act 33 of 1957. The Commission wishes to record its sincere appreciation to the GTZ.
The Department of Justice and Constitutional Development as a whole is thanked for its co-operation and goodwill.
The Secretariat of the Commission wishes to thank the Commission members for their guidance, dedicated service and commitment to law reform.
The administrative staff members are thanked for their invaluable contribution which is indispensable for the success of the law reform process.
(Present members are marked with an asterisk.
Under consideration by the Department of Justice and Constitutional Development.
Under consideration by the Department of Justice and Constitutional Development. Submitted to the Minister in December 2000.
Act 38 of 2005 passed.