This is the first issue paper published in the course of the investigation into computer related crime.
The criminalisation of unauthorised access to computers as well as the unauthorised modification of computer data and software applications.
The possibility of providing for the procedural aspects associated with the investigation and prosecution of the above-mentioned offences.
The use of computers to commit offences such as theft and fraud.
Matters relating to encryption in order to protect information.
The continuing education of the investigating and prosecuting authorities as well as the judiciary to understand and correctly apply the legislation which may be forthcoming from the this investigation.
Because of the wide scope of the investigation an incremental approach will be followed.
the desirability of introducing procedural provisions aimed at enhancing the investigation and prosecution of these activities.
The perceived scope of the investigation and the objectives set for the project.
The need for legislative intervention to create offences relating to unauthorised access to computers and the unauthorised modification of computer data and software applications.
Procedural provisions specifically to be applied in relation to computer related offences.
The closing date for comments on Issue Paper 14 was 26 October 1998.
Discussion Paper 78 explores the first subject in the Commission's extensive review of security legislation, namely the amendment of the Interception and Monitoring Prohibition Act 127 of1992.
An obligation on telecommunication service providers to ensure interceptability/ monitoring of all communications.
The designation of a judge in each division to consider applications for interception and monitoring in cases relating to serious offences and the designation of one judge to consider applications in regard to security and national interest matters.
A judge may issue a directive if he or she is convinced that a serious offence is concerned that cannot be properly investigated in another less intrusive manner.
Generally no communication between a legal representative and his or her client may be intercepted or monitored.
No person, body or organization rendering a telecommunication service, may provide any such service which is not capable of being monitored.
The use of any information obtained through the application of the Act, or any similar Act in another country, as evidence in any prosecution, is subject to guide-lines issued by the Director of Public Prosecutions or Investigating Director concerned.
The information regarding the commission of any criminal offence, obtained by means of any interception or monitoring in terms of the Act, may be admissible as evidence in criminal proceedings.
A person who intentionally and without the knowledge or permission of the dispatcher intercepts a communication which has been or is being or is intended to be transmitted by telephone or in any other manner over a telecommunications line, or intentionally monitors a conversation by means of a monitoring device so as to gather confidential information concerning any person, body or organization, is guilty of an offence and liable on conviction to a fine not exceeding R20 000 or to imprisonment not exceeding two years.
If any person who is or was concerned in the performance of any function in terms of the Act, discloses any information which he or she obtained in the performance of such a function, such person is guilty of an offence and liable on conviction to a fine not exceeding R40 000 or to imprisonment not exceeding five years.
A matter which is alarming in South Africa, is the large number of advertisements by private investigators, sometimes even in law journals, offering to deliver services which include "bugging". The Commission therefore requests comment particularly on the question of whether the manufacture, distribution, possession and advertising of wire or oral communication intercepting devices should be regulated, and if so, the measures which should be adopted.
The closing date for comments on Discussion Paper 78 is 25 January 1998.
The Discussion Paper contains proposals relating to a new structure to govern children under the age of 18 years who are accused of having committed offences.
In essence, the proposed system aims to ensure that children accused of less serious offences will be afforded the opportunity to pay their debts to society without obtaining a criminal record through a process known as diversion. Diversion is the referral of cases away from the criminal justice system to an approved programme or plan. The Commission therefore envisages a cohesive child justice system which strives to prevent children from entering deeper into the criminal justice process while holding them accountable for their actions by means of various diversion options and programmes. These options and programmes embody restorative justice principles, which focus on reconciliation and restitution rather than on retribution and punishment, and lay emphasis on compensation to the victim by the offender with the object of successfully reintegrating both victim and offender as productive members of safe communities. The proposed system does, however, provide for the criminal prosecution of children who are accused of serious or violent offences as well as those who repeatedly commit offences. The system also allows for the secure containment of children who are assessed to be a danger to others.
The proposals are based on international human rights standards and constitutional principles. The proposed draft Bill contains a body of principles to guide those who will be tasked with the implementation of this legislation in the future.
The proposed system further aims to encourage a degree of specialisation in child justice practice. In so doing, the Commission is giving effect to a long standing call from service providers and non-governmental organisations for a distinct and unique system of criminal justice that treats children differently, in a manner appropriate to their age and maturity, and which develops mechanisms and processes designed to achieve that goal. For instance, a specialised child justice court at the district court level, with increased sentencing jurisdiction so as to draw a wider range of cases within its ambit is proposed. Further, specialisation in relation to the role of the probation officer builds on practical developments in the field of child justice since 1994. It has become increasingly clear that probation officers will be pivotal to the future child justice system, and this notion accords with views expressed by policy-makers as well as with the views of probation workers concerning their own conceptualisation of their duties in a future child justice system.
Some degree of specialisation is also proposed in the area of legal representation (through a system of registration), as advocacy for children entails a heightened responsibility and commitment to serve the best interests of children, as well as an ability to communicate in a manner that a child can understand.
The proposed child justice system hinges on a new process which aims to address effectively the problems that have been experienced in the administration of child justice, particularly in relation to diversion and pre-trial release of children from custody. This is the insertion of the proposed preliminary inquiry as a compulsory pre-trial procedure presided over by a magistrate at district court level. The preliminary inquiry provides a formal step, prior to charge and plea, to maximise the use of diversion and to provide safeguards regarding the use of pre-trial detention.
The draft Bill finally aims to extend the range of sentencing options available to the proposed specialised child justice court and to other courts in which child offenders are tried, and to create mechanisms to ensure the effective monitoring of the legislation, both at district and national level.
The Commission's proposals strive to encompass a vision for, and define the characteristics of a coherent and self contained child justice system, as distinct from a series of procedural provisions which spell out powers and duties for various role-players who can nevertheless operate in isolation from one another.
The closing date for comments on Discussion Paper 79 is 31 March 1999.
The Issue Paper and Discussion Papers are obtainable free of charge from the Commission on request.
Class actions and public interest actions are part of the worldwide movement to make access to justice a reality by broadening locus standi (standing in court). Traditionally the South African law of standing has been relatively restrictive: the courts have required a direct, personal and sufficient interest in the action before a person could institute or defend an action. If the traditional notion of standing is strictly adhered to, public spirited individuals or representative organisations and associations are prevented from claiming relief in the public interest or in the interests of persons who for various reasons are unable to enforce their rights. Furthermore, the Constitution of the Republic of South Africa Act, Act 108 of 1996, specifically provides for class actions and public interest actions (sections 38(c) and (d)) and it is logical that the same principles should apply in non-Bill of Rights issues.
Class actions and public interest actions are the ideal procedural mechanism to use in situations where a large number of persons have the same or similar claims or defences. One example should suffice. Should a plane, bus, or taxi crash, the claims of the injured passengers are usually pursued and tried as separate and individual cases, even though the individual cases are based on the same cause of action. A class action will make it possible to bring a single action for damages based on the negligence of the pilot, the bus or taxi driver on behalf of all the injured passengers. The finding of the court will bind all injured passengers (the members of the class). This is seen as a means of fostering both judicial economy and social utility as the courts will no longer be inundated with numerous claims relating to a common subject matter, and individual plaintiffs with claims too small for individual pursuit are provided access to the courts.
The Commission concludes in the report that statutory intervention is necessary to recognise and regulate class actions and public interest actions and proposes a draft Bill to give effect thereto.
The draft Bill defines class actions and public interest actions and provides for the institution, conduct and prosecution of class actions and public interest actions. A class action is defined as an action instituted by a representative on behalf of a class of persons in respect of whom the relief claimed and the issues involved are substantially similar in respect of all members of the class, and which action is certified as a class action in terms of the proposed bill. A public interest action is defined as an action instituted by a representative in the interest of the public generally, or in the interest of a section of the public, but not necessarily in that representative's own interest. The essential difference between a class action and a public interest action is that the judgment given in a class actions binds all the members of the class and may, therefore, be pleaded as res judicata (a suit adjudged is binding upon the parties) against the members of the class. The judgment in a public interest action does not bind the people in whose interest it is brought and it is the doctrine of stare decisis (adherence to decided cases) that makes a public interest action effective.
The report contains important new legislation aimed at bringing the country's arbitration law in line with international norms. It proposes the alignment of South Africa's international arbitration law with that of several of its important trading partners in Africa and elsewhere.
Parties to international business transactions favour arbitration as a method for dispute resolution. It is however widely argued that South African laws regarding international arbitration are outdated and inadequate. The Arbitration Act 42 of 1965 was designed with domestic arbitration in mind and has no provisions expressly dealing with international arbitration. The Recognition and Enforcement of Foreign Arbitral Awards Act 40 of 1977 does little more than seek the enforcement of foreign awards. Foreigners and South Africans alike, entering into arbitrations in South Africa with an international component, run the risk that the process may be derailed or delayed by an inappropriate resort to domestic courts during the arbitral process.
The Commission has resolved to tackle international arbitration legislation in a single statute.
The introduction in South Africa of the UNCITRAL Model Law for international arbitrations.
The implementation of changes to the legislation on the New York Convention (currently set out in Act 40 of 1977).
The proposed accession by South Africa to the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States(ICSID).
The proposals in the Draft Bill represent a major step forward in the drive to modernise South African law in the field of international trade law and to ensure that it complies with international standards. As the implementation of the government's macro-economic strategy begins to yield dividends, major infrastructural development projects may well be financed by international agencies or consortiums. Disputes are bound to arise and international investors will seek acceptable, rapid dispute resolution mechanisms. The new International Arbitration Act will be there to assist them. It will furthermore enhance the prospect of South Africa becoming an important regional centre for international arbitrations.
The main object of the Report is to extend full legal recognition to marriages entered into in accordance with customary law or traditional rites.
Customary marriages, both existing and future unions, must now be fully recognized.
Conversion from a customary marriage to a civil marriage, but not vice versa, should be allowed.
In order to define customary marriage it is recommended that legislative provision be made for a minimum set of essential requirements, chief amongst which should be the consent of the prospective spouses.
Registering officers should be required to explain to prospective spouses the difference between customary and civil marriage and then endorse the fact that the couple heard and understood the explanation on the marriage certificate.
The giving of lobolo should not be prohibited nor should any restrictions be imposed on the amount payable.
Customary marriages should be registered to ensure that marital status is made more certain and easier to prove.
Where a marriage has not been registered, the parties should be permitted to allege other forms of proof of its existence.
A minimum age of 18 for marrying should be fixed for all persons in the country.
A parent's power to consent to marriage must be exercised only in the child's best interests.
Parental consent should be deemed to include the consent of both the father and mother of an underage child.
The spouses' relative capacity to marry one another should continue to be governed by customary law.
Customary marriages should continue to be potentially polygynous.
Women should have contractual capacity, locus standi and proprietary capacity (and in consequence delictual capacity) on a par with men.
Clear provision should be made that the Age of Majority Act applies to persons subject to customary law.
Legislation should be passed to provide that spouses have equal capacities and powers of decision-making.
Spouses should have the power to enter into an antenuptial contract to vary the automatic property consequences of marriage.
The spouses of customary marriages should be deemed to be married in community of property, subject to their freedom to alter this regime by antenuptial contract and subject to the current statutory rules permitting courts to order an equitable distribution of their estates on divorce.
Provision should be made for the spouses to alter their property system after new legislation on customary marriages comes into force.
It is recommended that all marriages may be terminated only by decree of a competent court.
All divorce actions and actions about other family-law issues should be processed by the family courts.
Before a divorce action is instituted in the family courts, traditional authorities should be entitled to attempt a reconciliation of the spouses.
Only one ground of divorce should be available: irretrievable breakdown of the marriage.
Either spouse should be competent to apply for divorce.
Maintenance should in principle be available to the spouses and children of customary marriage, both stante matrimonio and on divorce.
The child's best interests should govern all aspects of custody, guardianship and access to children.
Mothers should have fully recognized rights to their children.
On 3 October 1985 the Commission reported to the previous Minister of Justice on its investigation into time limits for the institution of actions against the State. The report recommended the repeal or amendment of twenty-one provisions that limited the institution of actions against government institutions or persons for whose actions government institutions were liable in law. The report recommended uniform provisions for such actions and gave the court having jurisdiction power to condone failure to comply with the notice requirement if sound reasons existed for the failure or if the defendant was not unreasonably prejudiced by the failure. It was further recommended that the usual requirements for prescription should apply to the debts of government institutions. The legislation was never introduced in Parliament, presumably because of objections by certain government institutions.
Parliament has demonstrated its willingness to relax the strict requirements insisted on previously. Section 57(1) of the South African Police Service Act 68 of 1995 has changed the period within which legal action must be commenced from 6 months after the time when the cause of action arose in section 32(1) of the Police Act 7 of 1958 to 12 months after the date upon which the claimant became aware of the alleged act or omission or after the date upon which the claimant might be reasonably expected to have become aware of the alleged act or omission, whichever is the earlier date. Section 57(5) of the new Act gives a court the right to dispense with the requirements or prohibitions contained in the section where the interests of justice so require.
In the case of Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) the Constitutional Court declared the provisions of section 113(1) of the Defence Act 44 of 1957 inconsistent with section 22 of the interim Constitution and to be invalid for that reason. Such declaration of invalidity apply to and govern all actions instituted either before or since the interim Constitution came into force which were not already barred by section 113(1) on that date and which, on 26 September 1996 (the time of the order), have not yet been finally determined by judgments delivered at first instance or on appeal or by settlements duly concluded. All cases to which the declaration of invalidity apply will be regulated by chapter III of the Prescription Act 68 of 1996 until Parliament produces a suitable replacement for section 113(1).
Parliament should produce a suitable replacement, not only for section 113(1) of the Defence Act, but also for other similar provisions. The decision of the Constitutional Court has created serious doubt about the validity of many provisions, especially those that agree closely with section 113(1) of the Defence Act. Similar questions will arise under sections 34 and 36 of the 1996 Constitution of the Republic of South Africa Act 108 of 1996.
It is highly desirable that a uniform provision should be enacted for actions against all government institutions. The numerous provisions which lay down different requirements in different Acts create uncertainty. This uncertainty is aggravated by the uncertainty about the constitutionality of each different provision.
Although it is said that the special provisions serve to facilitate settlements and thus save costs, the interpretation of the limiting provisions leads to many court cases with attendant costs. The justification for special provisions is suspect: The State is not the only defendant who has extensive activities and a fluctuating work force; the time-consuming procedures of government bodies can be streamlined through modern means of communication and management techniques; although it is in the public interest that public funds should not be wasted, it is also in the public interest that well-founded claims should not fail as a result of strict procedural requirements.
The Bill provides that no legal proceedings for the recovery of a debt arising from delict shall be instituted against the State, a government body, a member of the Cabinet or of an Executive Council or other functionary of the State or of a government body in his or her official capacity or a person for whose actions the State or a government body is in law liable, unless the defendant has been given notice in writing of the intention to institute the legal proceedings. The notice must be sent within six months from the date upon which the dept became due. A debt is not regarded to be due until the creditor (or his or her tutor or curator if he or she is a minor or under curatorship) has knowledge of the identity of the debtor and the facts from which the debt arises or could have acquired such knowledge by exercising reasonable care. The court may condone failure to give notice if good cause exists for the failure by the creditor, tutor or curator or the defendant was not unreasonably prejudiced by the failure. The Bill makes provision for the repeal or amendment of 18 provisions that limit actions against the State or government institutions and provides that if any conflict arises between the Bill and the provisions of any other law save the Constitution or any Act expressly amending the Bill, the provisions of the Bill will prevail.
Media reports have suggested that consideration be given to the adoption of legislation relating to the recognition in South Africa of same sex partnerships. The matter has been rendered particularly acute by a recent judgment reported in the media in which Roux J held ultra vires certain provisions of Polmed (the medical aid scheme of the South African Police Service), evidently on grounds related to perceived discrimination in its provisions on the basis of sexual orientation.
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
Bearing in mind that it cannot be said with certainty when the equality clause would have application between persons generally, the essential enquiry is whether the exclusion of domestic partners - whether of the same sex, or of a different sex - from the benefits of schemes such as medical aid schemes, or from other forms of legal recognition, is unconstitutional.
The South African Agricultural Union requested the Commission to investigate the possibility of enacting uniform national legislation on the fencing of public roads.
Fences alongside public roads are sometimes wilfully removed or damaged. Where the damage is unintentionally caused by a motor vehicle accident, the farmer is often not informed of the damage. Because of damaged or stolen fencing, farm animals stray onto the roads and cause accidents. It appears that these days farmers are more often than not held liable for not maintaining the fence. This places a heavy burden on farmers who not only have to incur the expenses to maintain fences and pay insurance premiums, but who also loose life stock.
The problem is compounded by the fact that the Fencing Act 31 of 1963 is obsolete and that the various Provincial Ordonnances lack uniformity as regards the fencing of national roads. In some provinces the farmer is held responsible for the fences, while in other provinces this task is assigned to the provincial authority. Arrangements concerning the responsibility for the cost of erection and maintenance of fences also differ from province to province.
Three of the judges (Schutz, Nienaber and Marais JJA) in the recently decided Supreme Court of Appeal case of Clifford v Commercial Union (Case No: 302/96, 22 May 1998) were of the view that it was desirable that consideration be given to the amendment of the law to reverse the effect of the decision in Qilingele v South African Mutual Life Assurance Society 1993 (1) SA 69 (A). The other two judges refrained from expressing a view on the matter. The matter was referred to the Law Commission for consideration.
"Notwithstanding anything to the contrary contained in any domestic policy or any document relating to such policy, any such policy issued before or after the commencement of this Act, shall not be invalidated and the obligation of an insurer thereunder shall not be excluded or limited and the obligations of the owner thereof shall not be increased, on account of any representation made to the insurer which is not true, whether or not such representation has been warranted to be true, unless the incorrectness of such representation is of such a nature as to be likely to have materially affected the assessment of the risk under the said policy at the time of issue or any reinstatement or renewal thereof."
In Qilingele section 63(3) was interpreted as imposing a subjective test - the materiality of a misstatement in a proposal form therefore depends upon the subjective opinion of the insurer. Concepts of reasonableness were held not to enter the picture. One looks at the particular insurer and seeks to determine as a fact how he would probably have reacted had he known the truth.
The subjective test laid down in Qilingele stands in stark contrast to the objective test of the reasonable man. It is suggested that the purpose of section 63(3) was not to disturb the common law's objective test of materiality, but merely to put an end to the abuse of elevating trivialities to the status of materialities by the use of warranties.
Section 63(3) is no model of clarity. If Qilingele is to stand, the legislature should consider putting right not merely a discordancy, but even a serious inequity, which was initiated by imprecise legislation.
"Postulate an underwriter who, on finding that a car which was warranted as green is actually blue, claims, honestly and sincerely, hard though that may be to believe, that he would not have insured it had he known the truth, because blue cars are unlucky. Unless some way can be found . . . to avoid the remedial s 63(3) leading to such a result, it seems . . . that his repudiation would have to stand."
In the development of Justice Vision 2000 (a departmental strategy document for transforming the administration of justice) the review of administrative law to bring about a process of law reform, in particular with regard to administrative law processes and procedures, was identified as one of the premier projects.
The Minister of Justice appointed a project committee of experts to review the administrative law.
The scope of an Administrative Justice Act.
Rule making procedures.
Administration and judicial review.
Continuing review and training.
During 1998 a substantial number of persons and institutions responded to specific or general invitations by the Commission to comment on particular matters or to assist with its activities in some respect or other. The Commission wishes to express its sincere thanks to all concerned and to wish them a happy and prosperous year ahead - without their goodwill and assistance the Commission would not be able to perform its duty satisfactorily.