Vol. 4 No.
The Commission would like to thank Dr Omar and Dr Tshabalala-Msimang for their keen involvement in and support of the activities of the Commission. A number of important investigations received attention during their term of office and their efforts to promote the Commission's reports and proposals for draft legislation in Parliament are highly appreciated.
The Commission's best wishes accompany Dr Omar in his new portfolio as Minister of Transport. Dr Tshabalala-Msimang is congratulated on her appointment as Minister of Health.
The Commission welcomes Dr Maduna and Ms Gillwald and assures them of its support. The Commission acknowledges the fact that it has a vital role to play in the development and transformation of our legal system. To this end the Commission endeavours to provide a quality service in a spirit of cooperation.
The Report comes after the publication of Discussion Paper 75 last year in which the Commission proposed certain amendments to sections 170 and 172 of the Constitution Act 108 of 1996, section 110 of the Magistrates' Courts Act 32 of 1944, and the Magistrates' Courts Rules.
The two main aims of the amendments were to confer constitutional jurisdiction on magistrate's courts and to ensure symmetry between their constitutional jurisdiction and their ultra vires jurisdiction. A number of responses to the Commission's proposals were received. Generally speaking most respondents supported the aims of the amendments.
that confirmation by a Full Bench of a High Court be required before any order of constitutional invalidity made by a magistrate has any force.
In the Commission's view the jurisdictional and procedural scheme established by the Constitution points to magistrates' courts being precluded from ruling on the constitutionality of Acts of Parliament and conduct of the President. The Commission also considers it appropriate that magistrates be precluded from ruling on the constitutional validity of legislation passed after 27 April 1997 by the provincial legislatures, which are representative legislatures with significant constitutional status and a range of exclusive legislative powers. For these reasons, the Commission remains convinced that magistrates should be precluded from ruling on the validity of Acts of Parliament, legislation passed by the provincial legislatures after 27 April 1994 and any conduct of the President.
The Commission accepts the argument that in view of the inapplicability of stare decisis in the lower courts the compulsory referral to a Full Bench of a High Court of all rulings of constitutional invalidity by magistrates will result in unnecessary inconvenience, costs and delays. It accordingly proposes that the suggested compulsory referral mechanism be replaced with a requirement that magistrates' courts making orders of constitutional invalidity forthwith notify the relevant organs of state of such order. The organs of state would then be in a position to seek a declarator from the High Court in appropriate cases - e.g. where there is no appeal and where the organs of state have a sufficient interest in the matter and the other requirement for declaratory relief are met. It is considered desirable that the High Courts develop a set of rules and requirements for the granting of declaratory relief in such circumstances.
To give effect to the proposals set out above, the Report contains draft amendments to section 170 of the Constitution; section 110 of the Magistrates' Courts Act 32 of 1944; and the Magistrates' Courts Rules.
The sharing of retirement fund benefits between spouses on divorce must be governed by substantive legislation separate from the Divorce Act,1979.
Provision should be made for the division of retirement benefits as such and not merely for the exchange of compensatory assets in place of such benefits.
The exchange of compensatory assets in place of a share of retirement fund benefits should nevertheless remain as an option available to the spouses.
Spouses may exclude pension sharing in terms of their antenuptial contract.
A spouse may waive any right to retirement fund benefits.
Spouses may agree in writing to share retirement fund benefits in different proportions than those prescribed.
Subject to the principles contained in the proposed legislation, a retirement fund may make use of approximate calculations where exact data is not obtainable.
The costs that are recoverable from spouses in respect of the division of benefits may be prescribed by regulation.
The non-member spouse has a right to a share of the retirement fund benefits which accumulated in respect of the member during the marriage. The extent of the right is prescribed in the formulae set out in the proposed legislation in respect of the various types of retirement schemes.
Any share of retirement fund benefits to which a non-member spouse is entitled is made available on a locked-in basis - in other words, by way of deferred pension and not as a cash benefit.
Benefits to which a non-member spouse is entitled must be paid to him or her direct from the retirement fund by which the benefits are held on behalf of the non-member spouse.
If the non-member spouse dies before the date on which the benefits become payable to the member, the withdrawal value of the benefits on the date of the death of the non-member spouse is payable to his or her estate.
The sharing of retirement fund benefits is at this stage limited to spouses whose marriages are recognized as such in terms of existing law.
The proposed legislation should make it clear that retirement fund benefits are not divided as part of the matrimonial property of spouses.
The proposed legislation should be applicable in respect of marriages dissolved after the commencement of the new provisions.
The new provisions should not apply in respect of spouses who have in terms of their antenuptial contract chosen complete separation of their property, but such spouses should be allowed to make the said provisions applicable to them by way of written contract.
On 13 May 1999 the Law Commission unveiled Discussion Paper 82 on Traditional Courts and the Judicial Powers of Traditional Leaders at a briefing in the National Council of Traditional Leaders in Pretoria. The purpose of the briefing was to explain the Commission's proposals to the Council, and to seek the Council's assistance in mobilising the provincial Houses of Traditional Leaders to arrange meetings in their areas to enable the Commission to discuss the proposals with traditional leaders.
The consultative workshops took place between 9 June and 13 July 1999 at 15 venues across all the provinces with Houses of Traditional Leaders. To answer a concern expressed in the past, that the Commission consults only in urban areas, an effort was made to hold the meetings wherever traditional leaders could be assembled.
Summaries of the Commission's proposals were prepared in all official languages and the consultations were conducted by the Chairperson of the project committee on the Harmonisation of Indigenous Law and Common Law, Professor Thandabantu Nhlapo, and Ms Sindiswa Dube, the researcher on the project. Both pronounced themselves well satisfied with the progress of the consultations, especially the massive attendances at all the venues and the meticulous preparations by the respective Houses and their administrative departments. The Commission also extends its gratitude to the Regional Offices of the Department of Justice in the provinces in question, who ensured the attendance of Justice personnel, especially magistrates, at each meeting.
Further meetings with other role-players are planned, some of which will be coordinated by the Commission on Gender Equality.
The Commission is housed in the Sanlam Centre (12th Floor), c/o Andries and Schoeman Streets, Pretoria.
Most of the Commission's documents are also available on the Internet.