I have the honour to submit to you in terms of section 7(2) of the South African Law Commission Act 19 of 1973, the Commission's report on all its activities during 1998.
The year under review2 2.
Project 120 - Section 63(3) of the Insurance Act 27 of 194329 4.
Project 100 - Domestic violence53 5.
Project 120 - Section 63(3) of the Insurance Act 27 of 194392 6.
The Commission's three-year term of office expired on 31 December 1998.
When the Commission assumed office on 1 January 1996 it committed itself to law reform that would be open, just, relevant, responsive, effective and accessible. This was a challenging task given the major discrepancies between the ideal of justice and the content of law in existence at the advent of our new constitutional democracy entrenching a justiciable Bill of Rights.
The Commission shared the ideal of the diverse South African population in expecting the legal system to embody justice and to promote respect for the democratic values of their Constitution.
The different socio-economic circumstances of South Africans, the differing patterns of rural and urban life and the multicultural social fabric of our country emphasised the need for new approaches to law reform.
To achieve this ideal the Commission shifted the emphasis in its law reform programme to an approach that was responsive to the emerging needs of the new South African society. The execution of the Commission's mandate depends on establishing a creative and comprehensive process of consultation with South Africans to ensure that its work is responsive and accessible. The Commission has consequently broadened its consultative base. While maintaining close cooperation with academic institutions and the private sector, non-governmental organisations, in particular, have been closely involved in the work of the Commission. The Commission also extended its consultative process by conducting workshops countrywide in urban and rural areas. Inadequacies in the legal system have been approached from a multi-disciplinary perspective in appropriate cases.
To extend the basis for consultation and to involve interested parties and the community at an earlier stage in the process of law reform, the Commission embarked upon a working method in terms of which, in appropriate cases, shorter documents in the form of issue papers - which precede the publication of discussion papers - are compiled for general information and comment. The object is to stimulate debate and to give direction to the reform which is to follow.
During its three-year term of office the Commission submitted 15 reports and published 17 discussion papers and 14 issue papers. In releasing these documents the Commission has endeavoured to make a positive contribution to the transformation of the legal system.
Six discussion papers, previously referred to as working papers, were finalised and published for consultation purposes.
The discussion papers are also listed in Annexure F.
A summary of the recommendations contained in these reports appears in Chapter 4.
The investigation into domestic violence was also completed during the year under review, although a report has not been published. The research undertaken and draft legislation proposed are to a great extent embodied in the Domestic Violence Act 116 of 1998. Further information appears in Chapter 4.
Criminal Matters Amendment Act 68 of 1998. (The Act deals with the declaration and detention of persons as state patients and the release of such persons, including the onus of proof regarding the mental condition of an accused or convicted person.
Maintenance Act 99 of 1998.
Debt Collectors Act 114 of 1998.
Domestic Violence Act 116 of 1998.
Recognition of Customary Marriages Act 120 of 1998.
Judicial Matters Second Amendment Act 122 of 1998. (The Act, inter alia, amends the Supreme Court Act, 1959, so as to further regulate persons over whom and matters in relation to which High Courts have jurisdiction.
Project 65 Surrogate motherhood. (The Commission's report is receiving the attention of an ad hoc committee of Parliament.
Project 50 Investigation into the payments system in South African law. (The Commission's report has been under consideration by the Department of Finance since 1995.
Project 52 Investigation into the legal consequences of sexual realignment and related matters. (The Commission's report has been under consideration by the Department of Justice since 1996.
Project 85 Legal aspects relating to AIDS. (Regulations emanating from the Commission's first interim report on AIDS are under consideration by the Department of Health.
Project 100 Access to minor children by interested persons. (The Bill is on the 1999 legislative programme of the Department of Justice.
Project 104 Money laundering. (The Commission's report has been under consideration by the Department of Finance since 1997.
A number of new investigations commenced during the year under review. A progress report in this regard appears in Chapter 3.
The South African Law Commission was established by the South African Law Commission Act 19 of 1973.
° steps aimed at making the common law more readily available.
In short, the Commission is an advisory body whose aim is the renewal and improvement of the law of South Africa on a continuous basis.
The members of the Commission are appointed by the President.
° six 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.
The Commission's term of office expired on 31 December 1998.
In terms of section 3(c) of the Act not more than three members may be designated as full-time members of the Commission. During the year under review only one member of the Commission, Professor R T Nhlapo, served in a full-time capacity.
Annexure A contains a list of members of the Commission and the periods for which they served or for which they were appointed.
Section 7A of the Act provides for the establishment of committees of the Commission. There are two categories of committees: those appointed by the Commission and consisting of members of the Commission only, and those consisting of members of the Commission 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.
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.
(Ms Z Seedat was coopted for several meetings of the working committee.
The working committee may be considered the executive committee of the Commission. In accordance with the Commission's directives this committee attends on a continuous basis to routine matters and other matters that require urgent attention. The committee also considers the inclusion of new investigations in the Commission's programme. Furthermore, the committee plans and manages the activities of the Commission's Secretariat.
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.
The names of the members of these committees appear in Annexure B. In recommending persons to the Minister for appointment, the Commission strove to ensure representativeness of population make-up and promoted the employment of external experts and knowledgeable persons to act as project leaders for investigations on the Commission's programme. The Commission would like to express its appreciation to individuals and members of non-governmental 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. The Secretariat consists of an administrative component and a professional component. The Chief Director, Mr W Henegan, serves as the Secretary to the Commission.
The research component of the Secretariat consists of 17 state law advisers from diverse background. Their task is to do the necessary research under the guidance of project leaders (who are designated by the Commission), to consult with interested parties, to compile discussion papers and draft reports and to carry out other assignments of the Commission.
Mr M F Palumbo also serves as assistant to the Commission's Secretary. Mr T Gwebu (state law adviser) resigned with effect from 1 November 1998. Currently there are five vacancies of state law adviser. The posts will be filled with effect from 1 January1999.
The Commission wishes to express its appreciation to the members of the Secretariat for their outstanding auxiliary services to the Commission. The Commission wishes to make special mention of the generally high standard of working documents and reports submitted to the working committee and the Commission by the research staff. The Secretariat, both on the professional and administrative levels, carried a considerable workload during the year under review. This was the result of the large number of vacant positions that existed during the greater part of the year as well as the additional work generated by the community-oriented and consultation-based approach adopted by the Commission. This approach necessitated the publication of issue papers and the arrangement of numerous workshops which were conducted countrywide.
The Commission also wishes to express its appreciation to the full-time member, Professor Nhlapo, and the various project leaders (from within and outside the Commission) for guiding the researchers, for the research done by them and for the documents and reports compiled under their guidance.
Funds for the expenditure connected with the Commission's activities are provided in the Vote of the Department of Justice under the Law Reform Subprogramme. The Secretary is consulted on the compilation of the draft Vote. The funds made available have up to now been sufficient for the Commission's requirements, taking into account the Commission's continuous efforts to limit expenditure. It should be noted, however, that the Commission will find it extremely difficult to fulfill its obligations adequately in the forthcoming financial year unless its budget is increased significantly. Factors necessitating such an increase are the increase both in personnel and in the work done by the Commission. In addition, the implementation of the strategic plan as contemplated by the Justice Vision 2000 document, in which the Commission is actively involved, will have a bearing on the Commission's resources.
The Commission's resources are supplemented by funding from foreign donors for specific projects. During the year under review the Commission has received financial support from the United Nations Children's Fund (UNICEF), USAID, Swedish Embassy (Rapid Response Fund), Department for International Development (UK), the Carl & Emily Fuchs Foundation, Save the Children Fund (UK), the German Development Co-operation (GTZ) and Rädda Barnen (Save the Children) (SA). The Commission records its deep appreciation to these agencies.
The Act provides that the Commission must from time to time draw up programmes where the matters which in its opinion require consideration are included in order of priority. The Commission's programme is subject to the Minister's approval.
The Commission's present programme appears in Annexure C. Investigations included in or removed from the Commission's programme during the year under review are dealt with in Chapter 3. Annexure D 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.
Any person or body is free to submit proposals for law reform to the Commission. In each case the Commission considers the merits of a proposal. In some instances a preliminary inquiry is instituted in order to determine whether the inclusion of a matter in the Commission's programme is justified. The Commission also includes matters in its programme of its own accord.
Every effort is made to dispose of urgent matters with the least possible delay. However, the Commission has to follow certain procedures and that these sometimes take up considerable time. The availability of funds and skilled research capacity, the nature and extent of the inquiry and the need for consultation all determine the time spent on each project. Consultation in particular is time-consuming, but the Commission regards it as an indispensable part of the law reform process.
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 and project committee, if the latter has been appointed, and interested parties or persons with particular knowledge concerning the matter under investigation. Comparative studies are carried out in order to enable the Commission to benefit from experience elsewhere in the world. The primary aim of the Commission is to effect law reform by consulting with as many interested persons and bodies as possible. This process is facilitated by the Commission's policy (since 1996) of compiling issue papers as a first step. Issue papers outline the problems encountered with particular areas of the law and invite submissions on possible solutions. They are distributed as widely as possible for general information and comment and are in appropriate cases also supplemented by workshops. Responses to the issue paper and further intensive research form the basis for the preparation of a discussion paper.
Discussion papers contain essential information on the investigation and the 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; importantly, the discussion paper will also include a draft Bill. Its recommendations are embodied in comprehensive reports which are submitted to the Minister of Justice.
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 and children, 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 and are well regarded. There appears to be an increasing tendency in faculties of law to use and prescribe the Commission's discussion papers and reports as reading for their students at undergraduate as well as postgraduate level.
In view of the many valuable comments and proposals received on the Commission's recommendations as contained in its documents, there is no doubt that its working methods have proved successful. These methods ensure that the Commission's final recommendations are well substantiated and are the product of thorough debate. They also facilitate the passage of the Commission's proposed legislation in which its final recommendations are embodied.
In the course of its activities the Commission publishes a variety of documents.
Commission papers and committee papers are internal documents that are normally not available outside the ranks of the Commission. In these papers suggestions for the inclusion of matters in the Commission's programme, research results for the information of or consideration by the Commission, draft issue papers, discussion papers and reports and a variety of other matters are dealt with. The papers are numbered in sequence as they come before the Commission.
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 suggest the options available for solving existing problems.
Discussion papers, previously referred to as working papers, are documents in which the Commission's preliminary research results are contained. In most cases discussion papers also contain draft legislation. The main purpose of these documents is to test public opinion on solutions identified by the Commission.
The Act requires the Commission to prepare a full report on any matter investigated by it and to submit such report together with draft legislation, if any, to the Minister for consideration. All reports of the Commission are official, but not all are published. Annexure D lists the investigations reported on by the Commission since its establishment.
In addition to the reports on particular investigations the Act 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 also obtainable from the Commission's offices. The annual report, papers in the research series and reports on investigations that are published are obtainable from the Government Printer in Pretoria.
The Commission met four times during 1998, namely on 17 and 18 April, 10 and 11 July, 28 August and 27 November.
Project committees held 46 meetings during the year under review.
The desirability of the limitation of the delictual liability of professional persons and the possible regulation thereof by legislation was the focus of this project.
A working paper was published in December 1993 for general information and comment. After the comments received had been processed, a draft report was prepared. However, before the draft report could be submitted to the Commission, the South African Institute of Chartered Accountants (SAICA) held discussions with the Minister concerning the reform of auditors' liability. Following these discussions, SAICA made oral representations to the working committee at its meeting on 4 August 1995.
During the course of 1996 the Commission recommended the removal of the investigation from its programme. In November 1996 the Minister, however, requested the Commission to continue with the investigation.
On 4 March 1997 the Head: Ministerial Services addressed letters to SAICA and the Association of Law Societies requesting them to substantiate their request to have their civil liability limited. SAICA furnished a comprehensive response. After several requests the Law Society of South Africa advised on 20 October 1998 that the Attorneys Fidelity Fund had briefed an attorney to prepare a submission for presentation to the Commission at the earliest opportunity. No response has been received from the Law Society to date.
The Commission was informed of the position at its meeting of 27 November 1998. The Commission expressed the view that limitation of liability could not be justified and that it might be unconstitutional. It was resolved that the Minister should again be requested to remove the matter from the Commission's programme.
On 17 December 1998 the Minister approved the request that the investigation into limitation of civil liability of professional persons be removed from the Commission's programme.
South African media are wholly prohibited from disclosing any facet of divorce proceedings.
The Constitution, 1996, entrenches inter alia free speech, freedom of information and the right to privacy. The question which arises is whether, in regulating the publication of particulars of divorce proceedings in terms which appear peremptory, inflexible and sweeping, the provision is unconstitutional. There are clear indications that at present section 12 of the Divorce Act is simply being defied.
On 23 January 1998 the Commission resolved to include an investigation into the "publication of divorce proceedings" in its programme. The Minister approved the inclusion on 30 January 1998.
In terms of section 33 of the Constitution, 1996, everyone has the right to just administrative action and national legislation must be enacted to give effect to this right before February 2000. In the development of Justice Vision 2000 the review of administrative law was identified as one of the premier projects. The German Development Cooperation (GTZ) indicated its interest to make funds available for it.
It appeared that research under the auspices of the Centre for Applied Legal Studies (CALS) of the University of the Witwatersrand in collaboration with the University of Fort Hare had already commenced at the request of the Planning Unit of the Department of Justice. Meetings took place between CALS, the Law Commission and the Planning Unit. In August 1997 it was agreed that the review of administrative law should be placed on the Commission's programme, and a proposal (including a project committee) was put to the Minister.
On 23 January 1998 the Commission approved that an investigation into the "review of administrative law" be included in its programme. The Minister approved the inclusion in October 1998, and appointed a project committee in November 1998. Given the need to adopt legislation before February 2000, this project is being conducted on a fast-track basis.
The South African Agricultural Union requested the Commission to investigate certain issues pertaining to the carrying of firearms at gatherings and in public places in terms of the Dangerous Weapons Act 71 of 1968.
It is argued that the terms "place", "area" or "gathering" are given a generous interpretation in our law and that their use in the Dangerous Weapons Act leads to confusion amongst members of the public and especially the farming community. The gist of the problem therefore relates to the uncertainty as to when a person is allowed to carry a firearm in public or at a gathering.
The term "dangerous weapon" is fundamentally tautologous. The essential difficulty is that dangerous weapons may include objects designed to be weapons (e.g. firearms, spears, etc) or objects not designed to be weapons but which may be used as such and are easily capable of causing bodily injury (e.g. scissors, chains, etc and even natural objects such as stones, matches, etc). In short, in terms of the Dangerous Weapons Act, an object qualifies as a weapon not so much by its physical nature but according to the intent with which it is employed.
Section 2(1) of the Dangerous Weapons Act penalises the possession of two distinct types of objects: a dangerous weapon as defined; and an object resembling a firearm (which object need not necessarily be a dangerous weapon). It appears that there are two distinct forms of the offence which would have to be separately alleged and proved.
Section 2(2) of the Dangerous Weapons Act empowers the Minister of Law and order to effect certain prohibitions by way of notice in the Gazette. It does not appear necessary to show that the prohibited object was one likely to cause serious bodily injury if used to commit an assault (as is required in terms of section 2(1) of the Act), and the defence that the possessor had no intention of using such object for an unlawful purpose is not available.
Section 4 prescribes certain penalties when dangerous weapons or firearms are used in the commission of offences involving violence. Although it was held that the definition of a dangerous weapon was the same for section 2(1) and 4(1) (hence something was either a dangerous weapon for all purposes of the Act or not a dangerous weapon for any of them), this appears to have been overlooked in many decisions concerning the application of section 4(1) of the Act.
The Arms and Ammunition Act 75 of 1969. (Any person who has in his or her possession any arm, unless licenced to possess such arm, commits an offence. "Arm" is defined as any firearm other than a cannon or machine gun.
The Control of Access to Public Premises and Vehicles Act 53 of 1985. (The definition of "dangerous object" in this Act includes any firearm, weapon, etc.
he Regulation of Gatherings Act 205 of 1993. (In addition to the conditions that may apply to the holding of a gathering, this Act provides that participants at a gathering or demonstration shall abide by any law in respect of the carrying of dangerous weapons.
People (including the farming community) are increasingly resorting to the carrying of firearms for a variety of reasons. The problem is compounded by the different legislative enactments, some of which are obscured in legislation.
On 30 March 1998 the Commission approved that an investigation into "the carrying of firearms and other dangerous weapons in public or at gatherings" be included in its programme. The Minister endorsed the inclusion on 21 April 1998.
The South African Agricultural Union requested the Commission to investigate urgently the position of voluntary associations with a view to the possible amendment of sections 30 and 31 of the Companies Act 61 of 1973, or advancing legislation that will take account of the peculiar requirements of voluntary associations.
In Mitchell's Plain Town Centre Merchants Association v McLeod 1996 (4) SA 159 (A) the Supreme Court of Appeal denied legal personality to a voluntary association with more than twenty members formed for "the purpose of carrying on any business that has for its objects the acquisition of gain by the association or by the individual members thereof". As a result of this decision, numerous voluntary associations such as the South African Agricultural Union, sport clubs, jockey clubs, etc. are uncertain as to their legal personality and consequently their future existence.
whatever its membership, if the association is formed for the critical purpose it must be registered as a company in order to enjoy corporate personality; if it is not formed for the critical purpose it may yet enjoy corporate personality if it possesses the characteristics of a universitas, ie if it is to operate as an unincorporated voluntary association.
In the instant case the plaintiff's membership exceeded 20 and it is not alleged that it was registered as a company. If it was formed for the critical purpose it would therefore be illegal in terms of s 30(1) and not have legal personality in terms of s 31. In either event it would lack locus standi: consequently the first exception would be good.
The critical issue is therefore whether the plaintiff was formed for the critical purpose [of carrying on business that had for its object the acquisition of gain by the appellant and or its individual members].
Voluntary associations such as the South African Agricultural Union and the Natal Agricultural Union fall within the ambit of sections 30(1) and 31 of the Companies Act, 1973. The South African Agricultural Union is therefore an illegal organisation in terms of the Companies Act with no locus standi or legal personality.
A voluntary association ceases to exist when its membership exceeds twenty or where it adopts objectives which fall within the ambit of the prohibitions contained in section 30(1) of the Companies Act. Any property it owns at such time will become bona vacantia and will vest in the State. Any contracts which may have been purportedly concluded on its behalf would be unenforceable both by and against it.
Whatever solution is found to the difficulty, provision must be made for carrying assets, liabilities, rights and obligations over into whatever regularised result is decided upon. This cannot be by transfer because that is not an appropriate means to create a new vesting. For example, rights and obligations under the Income tax Act 58 of 1962 cannot be transferred. This is a weighty consideration - it was pointed out that an attorney's client affected by the Mitchell's Plain decision had in aggregate an assessed loss of R74 million. An attempt to "transfer" that right would be unsuccessful and disastrous.
On 30 March 1998 the Commission approved that an investigation into "the legal position of voluntary associations" be included in its programme. The Minister approved the inclusion on 21 April 1998.
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 judgment reported in the media (Langemaat v Minister of Safety and Security 1998 (3) SA 312 (T)) 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. In the circumstances the working committee at its own initiative examined the need for an investigation.
On 17 April 1998 the Commission approved that an investigation into "domestic partnerships" (heterosexual and homosexual) be included in its programme and the inclusion was affirmed by the Minister on 16 July 1998.
The problem is compounded by the fact that the Fencing Act 31 of 1963 is obsolete and that the various Provincial Ordinances 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.
On 11 July 1998 the Commission approved that an investigation into "uniform national legislation on the fencing of national roads" be included in its programme. The Minister approved the inclusion on 6 October 1998.
Three of the judges (Nienaber, Schutz and Marais JJA) in the Supreme Court of Appeal case of Clifford v Commercial Union 1998 (4) SA 150 (SCA) 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.
On 8 September 1998 the Commission approved that an investigation into section 63(3) of the Insurance Act 27 of 1943 be included in its programme. The Minister approved the inclusion on 6 October 1998.
On 3 October 1985 the Commission reported to the then 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 agencies or persons for whose actions government agencies were liable in law.
A supplementary report was submitted to the Minister on 13 October 1998. 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 commence. Section 57(5) 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. 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 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 doubts surrounding the constitutionality of some of the provisions.
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 debt 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 if the defendant was not unreasonably prejudiced by the failure.
Provision is made for the repeal or amendment of 18 provisions that limit actions against the State or government institutions.
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.
The report was submitted to the Minister on 6 May 1998.
Contractual unreasonableness, unconscionability or oppressiveness in all contractual phases need to be addressed, namely at the stages when a contract comes into being, when it is executed and when its terms are enforced, is the most viable and expedient method to effect such legal reform.
There is a need to confer wide powers on the courts to effect justice for contracting parties. These powers should be balanced by confining the proposed criteria to unreasonableness, unconscionability and oppressiveness.
There is a practical need to give some definition to the concept of unreasonableness, unconscionability or oppressiveness by setting out guidelines in the proposed legislation, so as to enhance legal certainty.
· Contracts which fall within the scope of the Labour Relations Act, 1995, or which arise out of the application of that Act.
· Contracts falling within the scope of the Bills of Exchange Act, 1964.
· Contracts to which the Companies Act, 1973, or the Close Corporations Act, 1984, apply or which arise out of the application of those Acts.
· Contractual terms in respect of which measures are provided under international treaties to which the Republic of South Africa is a signatory and which depart from the provisions of the proposed Control of Unreasonableness, Unconscionability or Oppressiveness in Contracts or Terms Bill.
· To negotiate with a person using or recommending the use of pre-formulated standard contracts in order to obtain an undertaking from him or her that he or she will act in accordance with the proposed Act, and if such a party fails to fulfil such an undertaking, the Ombudsperson may issue such orders as may be deemed necessary for ensuring the fulfilment of such an undertaking.
· If having considered a complaint about any contract term that the Ombudsperson considers to be unreasonable, unconscionable or oppressive, s/he may bring proceedings in the High Court for an interdict against any person who appears to use or recommend use of such a term; provided that if s/he decides not to apply for an interdict, the reasons must be furnished to the complainant.
· To prepare draft codes of conduct applying to particular persons or associated persons in a field of trade or commerce, in consultation with such persons, organisations, consumer organisations and other interested parties for the consideration and approval of the Minister.
· If it appears to the Ombudsperson that a person has acted in contravention of a prescribed code of practice applicable to that person, to request the person to execute within a specified time a deed in terms approved by it under which the person gives undertakings as to discontinuance of the conduct; future compliance with the code of practice; and the action the person will take to rectify the consequences of the contravention, or any of them.
· To retain all deeds and to register the deeds in a Register of Undertakings kept by it and containing the prescribed particulars.
· If a person fails to comply with the request by the Ombudsperson for the giving of an undertaking it may on application to the High Court, request that the person be ordered to act in a manner that would have been required; or to refrain from acting in a manner that would have been prohibited.
The question whether the parol evidence rule should be retained or abolished leads to divergent answers not only in South Africa but also in other jurisdictions. The Commission takes the view that evidence of what passed between the parties, or the background or surrounding circumstances, is the best evidence of what the parties had in mind, and if the words the parties used are capable of some other meaning, as is almost invariably the case, justice requires that such evidence should be admissible to prove the contract.
At the request of the Department of Health, the Commission is conducting an investigation into aspects of the law relating to HIV/AIDS. Previous work done in the course of the investigation and work in progress are furnished in Chapter 5.
During the year under review the Commission completed two further interim reports: second interim report on pre-employment HIV testing and third interim report on HIV/AIDS and discrimination in schools. The interim reports were tabled in Parliament on 13 August 1998.
The second interim report deals with the question whether statutory intervention to prohibit pre-employment testing for HIV is warranted.
A prohibition on HIV testing in the workplace should not be absolute but should allow for exceptions where testing is allowed under legislation and in certain circumstances where it is fair and justifiable. Justification for testing should be based on medical facts, employment conditions, social policy, the fair distribution of employee benefits and the inherent requirements of the particular job. All of these factors should be considered jointly and individually in ascertaining whether testing is fair and justifiable.
Since publication of the second interim report the Department of Labour has finalised the Employment Equity Act, 1998. The Act contains an express prohibition against HIV testing similar to that suggested by the Commission in its discussion paper 72 which preceded the interim report.
The third interim report deals with HIV/AIDS and discrimination in schools and recommends that the Minister of Education, under the National Education Policy Act, 1996, determine national policy on HIV/AIDS in schools.
A national policy for HIV/AIDS in schools is urgently required in order to protect learners with HIV from unfair discrimination in the school environment. However, such intervention will have to take into account the rights of all learners and should aim for a fair balance between the rights of learners with HIV and those without HIV.
The policy should apply nationally, it should prevail over any other policy instrument on HIV/AIDS in public schools, and have children of school going age (including children in the pre-primary phase) as its chief focus. In view of the fact that compliance with the proposed policy cannot otherwise be ensured in the case of independent schools, the Commission recommends that Members of Executive Councils responsible for education should in terms of the South African Schools Act, 1996 make compliance with the policy a condition on which registration of independent schools may be granted.
The national policy should set out broad guidelines in accordance with constitutional principles.
· Compulsory testing of learners as a prerequisite for admission to any school, or any unfair discriminatory treatment (for instance the refusal of continued school attendance on the basis of the HIV status of the learner), is not justified.
· However, it is recognised that special measures in respect of learners with HIV may be necessary. These must be fair and justifiable in the light of medical facts, school conditions and the best interests of learners with and without HIV.
· Learners' rights to privacy are confirmed. Where HIV-related information is disclosed to a member of staff, the policy provides that, except where statutory or other legal authorisation exists, such information may be divulged only with the informed consent of the learner (above the age of 14 years) or in other cases with the consent of his or her parent or guardian.
· The needs of learners with HIV should, as far as is reasonably practicable, be accommodated within the school environment.
· "Universal precautions" (standard precautionary measures aimed at the prevention of HIV transmission including instructions concerning basic hygiene and the wearing of protective clothing such as rubber gloves when dealing with blood and body fluids) should be implemented by all schools to exclude effectively the risk of transmission of HIV in the school environment. The policy contains specific provisions on participation in contact sport and contact play.
· All learners have a right to be educated on HIV/AIDS, sexuality and healthy lifestyles, in order to protect themselves against HIV infection. The policy recognises the need for the involvement - although limited - of parent communities in order to ensure that sexuality education will take into account the community ethos and values. The policy requires that information on HIV/AIDS be given in an accurate and scientific manner.
· All learners should respect the rights of other learners.
· A school's governing body should be able to adopt an HIV/AIDS policy at school level to give operational effect to the national policy. This would however have to take place within the framework set by the national policy.
The second and third interim reports deal only with the matters set out above. Subsequent interim reports will deal with other matters identified for reform.
The advances made in medical science and especially the application of medical technology have resulted in patients living longer. For some patients this signifies a welcome prolongation of meaningful life, but for others the result is a poor quality of life which inevitably raises the question whether treatment is a benefit or a burden.
Worldwide increased importance is furthermore being attached to patient autonomy. The need has therefore arisen to consider the protection of a mentally competent patient's right to refuse medical treatment or to receive assistance, should he or she so require, in ending his or her unbearable suffering by the administering or supplying of a lethal substance to the patient. The position of the mentally incapacitated patient, as well as the patient who is clinically dead, has to be clarified as well.
There is some degree of uncertainty in the minds of the general public and medical personnel about the legal position in this regard. Doctors and families want to act in the best interests of the patient, but are unsure about the scope and content of their obligation to provide care. Doctors are furthermore afraid of being exposed to civil claims, criminal prosecution and professional censure should they withhold life-support systems or prescribe drugs which may shorten the patient's life, even if they are merely complying with the wishes of the patient.
A report was approved by the Commission on 27 November 1998 and will be submitted to the Minister early in 1999.
A medical practitioner may, under specified circumstances, cease or authorise the cessation of all further medical treatment of a patient whose life functions are being maintained artificially while the person has no spontaneous respiratory and circulatory functions or where his or her brainstem does not register any impulse.
A person who is not mentally incapacitated may refuse any life-sustaining medical treatment with regard to any specific illness from which he or she may be suffering, even though such refusal may cause the death or hasten the death of such a person.
A medical practitioner or, under specified circumstances, a nurse may relieve the suffering of a terminally ill patient by prescribing sufficient drugs to control the pain of the patient adequately even though the secondary effect of this conduct may be the shortening of the patient's life.
A medical practitioner may, under specified circumstances, give effect to an advance directive or continuing power of attorney of a patient regarding the refusal or cessation of medical treatment or the administering of palliative care, provided that these instructions have been issued by the patient with mental capacity.
A medical practitioner may, under specified circumstances, cease or authorise the cessation of all further medical treatment with regard to terminally ill patients who are unable to make or communicate decisions concerning their medical treatment, provided that his or her conduct is in accordance with the wishes of the family of the patient or authorised by a court order.
As regards active voluntary euthanasia, the Commission does not make a specific recommendation. The Commission sets out different options to deal with this issue.
Option 1: Confirmation of the present legal position The arguments in favour of legalising euthanasia are not sufficient reason to weaken society's prohibition of intentional killing since it is considered to be the cornerstone of the law and of all social relationships. Whilst acknowledging that there may be individual cases in which euthanasia may seem to be appropriate, these cannot establish the foundation of a general pro-euthanasia policy. It would furthermore be impossible to establish sufficient safeguards to prevent abuse.
Option 2: Decision-making by the medical practitioner The practice of active euthanasia is regulated through legislation in terms of which a medical practitioner may give effect to the request of a terminally ill patient with mental capacity to make an end to the patient's unbearable suffering by administering or providing a lethal agent to the patient. The medical practitioner has to adhere to strict safeguards in order to prevent abuse.
Option 3: Decision-making by a panel or committee: The practice of active euthanasia is regulated through legislation in terms of which a multi-disciplinary panel or committee is instituted to consider requests for euthanasia according to set criteria.
As a result of various representations by consumer organisations and a request by the former Minister of Justice in this regard, the Commission included the investigation in its programme. Furthermore, the Constitution of the Republic of South Africa 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 ideal procedural mechanisms to use in situations where a large number of persons have the same or similar claims or defences.
A report was submitted to the Minister on 12 October 1998. 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 report forms part of the extended investigation into the harmonisation of the common law and the indigenous law. Background is furnished in Chapter 5. The report sets out the background to the question of marriages entered into by African customary rituals and the refusal by the common law of South Africa to recognize these marriages. It also recommends certain changes to the customary law of marriage in order to bring the relationship between spouses in line with constitutional requirements.
The report was submitted to the Minister on 30 September 1998.
Since the passage of the Recognition of Customary Marriages Act 120 of 1998 through Parliament in November 1998, the report should be seen as providing an important record of the Commission's views, arguments and processes during the preparation of the legislation.
The report forms part of an extended investigation into arbitration. Background is furnished in Chapter 5. 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. The report was submitted to the Minister on 12 October 1998.
Parties to international business transactions favour arbitration as a method for dispute resolution. It is however widely argued that South African law does not currently promote international commercial arbitration. The Arbitration Act 42 of 1965 contains no provisions which expressly deal with international arbitration, while the Recognition and Enforcement of Foreign Arbitral Awards Act 40 of 1977 is limited to the enforcement of foreign awards only. It is also generally considered that the court's statutory powers of supervision during the arbitral process are inappropriate, given in particular the inherently expeditious nature of that process.
The Commission proposes that international arbitration legislation be regulated in a single statute. In this process consideration has been given firstly to South Africa's response to the UNCITRAL Model Law; secondly to possible changes to the legislation on the New York Convention (currently set out in Act 40 of 1977); and thirdly to 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 Model Law was adopted by the United Nations Commission on International Trade Law (UNCITRAL) on 21 June 1985. It provides a framework within which international commercial arbitrations can be conducted with a minimum degree of judicial intervention and a significant degree of party autonomy. Its aim is to promote the harmonisation and uniformity of national laws pertaining to international arbitration procedures. It is intended for adoption by individual countries with a minimum of adaptation. Delegates from developing countries played a prominent role in the drafting process of the Model Law; it has been adopted by many Commonwealth and other countries, including important trading partners of South Africa, both within SADEC and beyond it.
The Recognition and Enforcement of Foreign Arbitral Awards, Act 40 of 1977 attempted to give effect to the New York Convention of 1958. It has however been subject to criticism.
The Washington Convention is focussed on the resolution of investment disputes between a contracting state or government entity of the state and a national of another contracting state. The Convention established the International Centre for Settlement of Investment Disputes (ICSID) which has its seat at the principal office of the World Bank in Washington. Its paramount aim is to promote a climate of mutual confidence between states and investors, thereby increasing the flow of resources to developing countries under reasonable conditions.
In its report the Commission recommends the adoption of a draft International Arbitration Bill embodying all South African legislation on international arbitration in a single statute.
The compulsory application of the Model Law to international commercial arbitration.
The repeal of Act 40 of 1977 and its replacement by legislation which deals expressly with both the recognition and enforcement of foreign arbitral awards and rectifies certain other defects in the wording of the existing legislation.
The ratification of the Washington Convention, following the example of most of the other African countries, as this would create the necessary legal framework to encourage foreign investment and further economic development in the region.
The report forms part of an extended investigation into family law and the law of persons. Background is furnished in Chapter 5.
The Commission published an issue paper on the review of the maintenance system in 1997. The comments received in respect of the issue paper indicated that while there is a need for further investigation into the long term measures, the problems currently experienced in relation to maintenance are so pressing that the implementation of solutions should not be delayed until these long term measures have been fully investigated.
An interim report was submitted to the Minister on 6 May 1998.
That a statutory basis be provided for the appointment of maintenance investigators.
The extension of the court's power to make a maintenance order in the absence of a person who is under an obligation to pay maintenance.
The introduction of a procedure for the automatic recovery of maintenance payments from the income of a person who is under an obligation to pay maintenance.
The introduction of a procedure for the execution of maintenance orders which will function independently from a prosecution for the failure to comply with a maintenance order.
The extension of the definition of "maintenance order" to include payment of non-periodical expenses, made towards a person's maintenance.
Most of the Commission's recommendations are embodied in the Maintenance Act 99 of 1998.
In 1998 the Commission published a discussion paper in which it proposed certain amendments to sections 170 and 172 of the Constitution, 1996, section 110 of the Magistrates' Courts Act, 1944 and the Magistrates' Courts Rules. The main objectives of the amendments were to confer constitutional jurisdiction on magistrates' courts and to effect harmony between their constitutional jurisdiction and their ultra vires jurisdiction. A number of responses to the Commission's proposals were received.
That magistrates 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.
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.
A report was approved by the Commission on 27 November 1998 and it will be submitted to the Minister during February 1999.
As regards the suggestion that magistrates be permitted to rule on the validity of Acts of Parliament, legislation passed by the provincial legislatures after 27 April 1994 and any conduct of the President, the report notes that the Constitution affords a measure of procedural protection to Acts of Parliament and conduct of the President. Section 172 provides that a High Court may rule on their constitutional validity, but a ruling of invalidity must be confirmed by the Constitutional Court. The view is held that the jurisdictional and procedural scheme established by the Constitution suggests that magistrates' courts are 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, since they are representative legislatures with significant constitutional status and a range of exclusive legislative powers.
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 state institutions. The state institutions would then be in a position to seek a declarator from a High Court in appropriate cases, for example where there is no appeal, the state institutions have a sufficient interest in the matter, and the other requirements for declaratory relief are met. Amendments are proposed to the High Court Rules for the granting of declaratory relief in such circumstances.
The investigation into domestic violence was also completed during the year under review, although a report has not been published.
A comprehensive discussion paper on domestic violence was published for general information and comment during February 1997. The return date for comment on the discussion paper was 30 May 1997. A project committee was appointed during September 1997. The names of the project committee members are reflected in Annexure B.
Due to Parliamentary time constraints, a draft Domestic Violence Bill emanating from the project committee was introduced in Parliament by the Minister prior to finalisation of the Commission's report.
Protection is offered to any victim who is in a "domestic relationship" with the abuser.
"Domestic violence" is broadly defined.
A duty is placed on a member of the South African Police Service to inform a victim of his or her rights at the scene of an incident of domestic violence.
A peace officer may without warrant arrest any person at the scene of an incident of domestic violence whom he reasonably suspects of having committed an offence containing an element of violence.
An application for a protection order may be brought on behalf of the applicant by any other person who has a material interest in the well-being of the applicant.
Provision is made for the ex parte granting of an interim protection order.
The terms which may be contained in a protection order are clearly spelled out.
The Bill contains provisions regarding seizure of arms and dangerous weapons in domestic violence situations.
In granting an interim protection order, the court must issue a suspended warrant for the arrest of the respondent which remains in force unless the interim protection order is set aside. The respondent is criminally charged for breaching the protection order.
Proceedings must be held in camera, but any party to the proceedings may request the presence of specified persons.
The period of imprisonment for a person found guilty of breaching the protection order is increased to a period not exceeding five years.
The recently approved Domestic Violence Act 116 of 1998 largely corresponds to the Bill drafted by the project committee, but it also contains provisions advanced by the Commission and developed by the Justice Portfolio Committee with the assistance of the researcher and the Department of Justice.
In this chapter the position regarding uncompleted investigations on the Commission's programme is discussed. At present there are 29 uncompleted investigations on the Commission's programme. Investigations completed as well as interim reports submitted to the Minister are discussed in Chapter 4.
One of the objects of the Commission as set out in section 4(e) of the Act is to take steps to make the common law more readily available. Works that were published in this regard are listed in the Commission's research series contained in Annexure G.
The Commission resolved that there is no real need for its involvement in the project and that it should consequently have a very low priority.
The fact that under the new constitutional dispensation, apart from the central legislature, there are nine provincial legislatures, each having extensive legislative powers, makes it essential to look very closely at ways of preventing our statute book from becoming increasingly inaccessible. This is obviously an enormous task which will be very expensive. Up to the present it has in fact been the aspect of costs that has obstructed any real progress with the investigation. In addition, the Commission does not have sufficient professional personnel to undertake a task of this magnitude without adversely affecting the other investigations on the Commission's programme.
A further important dimension of this investigation is the need to purge the statute book in order to identify and rectify unconstitutional provisions.
In order to give due consideration to all facets of this wide-ranging investigation the outcome of a workshop on the rationalisation of laws hosted by the Department of Constitutional Development (with the assistance of the Venice Commission) was awaited. The workshop took place on 13 and 14 October 1998.
During the year under review donor funding from USAID for the establishment of a Unit for Statutory Law Revision has been obtained. However, in view of curtailments to funds made available for the project and the deliberations of the workshop on rationalisation of laws, an adjusted implementation plan needs to be developed and approved by the Commission. This will receive a high priority early in the new year.
The project committee established for the purpose of the investigation met in 1990 and considered a working paper dealing with the nature of Islamic law and the conflict between the common law and Islamic law as well as the observance of Islamic law in South Africa. A comparative legal study received further attention during the year. Further work in the investigation was delayed by, amongst others, the finalisation of the 1996 Constitution.
During March 1997 two workshops were held in order to involve the public in the planning of the investigation and to elicit nominations for appointment to the project committee. As a result of advertisements in the press and the open invitation extended at the workshops 78 nominations were received. On 17 December 1998 the Minister indicated that a project committee should be appointed under the chairmanship of Judge M S Navsa. The appointment of a project committee is awaited.
A project committee was appointed to assist with the investigation. The names of the project committee members are contained in Annexure B.
The project committee considered the comments received on all the working papers and assumed points of view on appropriate legislation.
During May 1998 a proposed adaptation of UNCITRAL's Model Law on Cross-Border Insolvency for enactment in South Africa was distributed for comment. The project committee considered the comments and is of the view that the adaptation, with minor amendments, should be enacted as a separate chapter in new insolvency legislation.
Section 1 of Act 6 of 1991 substituting section 34 of the Insolvency Act, 1936, to regulate the voidable sale of a business.
Section 1(3) to (5) of Act 57 of 1993 dealing with the preference conferred by a special bond over movable property.
Act 122 of 1993 dealing with insolvency interdicts.
Section 1 of Act 129 of 1993 dealing with appeals against sequestration orders.
A comprehensive discussion paper (discussion paper 66) which contained a draft Insolvency Bill and Explanatory Memorandum was published for comment. Detailed and well-considered comments on the Draft Insolvency Bill and Explanatory Memorandum were received. The insolvency project committee considered detailed discussions of general comments and comments on the first 79 clauses of the Bill, and gave its views on matters raised by the commentators and the researcher. The project committee is scheduled to consider a discussion of the remaining comments and a draft report on insolvency legislation for individuals early in 1999.
Disqualification and personal liability of directors.
Compromises and arrangements.
The position of related companies.
Dissolution and deregistration of companies.
Provisions in respect of close corporations.
Provisions in respect of other legal persons.
In April 1998 the Standing Advisory Committee on Company Law agreed that the Centre for Advanced Corporate and Insolvency Law at the University of Pretoria should undertake a project aimed at merging the liquidation provisions of the Companies Act 61 of 1973 and the Close Corporations Act 69 of 1984 into the draft Insolvency Bill drawn up by the Commission. The Centre produced a working document that was discussed at a symposium presented by the Centre and the Transvaal Law Society on 23 October 1998. The Centre held workshops during December 1998 to refine the proposals in the working document and plans to submit a report to the Standing Advisory Committee on Company Law during the first half of 1999.
According to current planning the investigation will be concluded in the course of 1999.
As part of the first phase of the investigation the Commission completed a report on appeal procedures and related matters during 1994 and the recommendations contained therein are at present under consideration. In the second phase of the investigation the Commission published a discussion paper which addressed the reasons for delays in the completion of criminal trials, abuses of the process, specific provisions of the Criminal Procedure Act that cause delays and problems relating to the administration of the process. During 1995 the Commission completed an interim report which dealt with these matters and legislation emanating from the report was approved by Parliament with the enactment of the Criminal Law Amendment Act 86 of 1996.
During 1996 the Minister appointed a project committee chaired by Judge L van den Heever. Since its appointment the project committee has met on several occasions to plan the completion of the investigation. In the third phase of the investigation an issue paper on access to the criminal justice system was published during April 1997. The return date for comments was extended until 30 August 1997.
The terms of office of the project committee members expired during March 1998. The Minister appointed a new project committee with effect from 24 July 1998. The names of the project committee members are contained in Annexure B. A project committee meeting was held on 26 November 1998 at which the planning of the investigation was considered.
The previous project committee approved the publication of an issue paper on access to the criminal justice system. Subsequent to the publication of the issue paper the Minister appointed a task team to report to him on the transformation of the legal aid system. This subject covered a large part of the Commission's issue paper and in view thereof the new project committee reconsidered the need to proceed with the investigation. In view of a decision to proceed with an investigation into the establishment of a dual system for defended and undefended accused persons (which forms part of the problem of access to justice) it was resolved not to proceed with the publication of a discussion paper on access to justice but to keep it in abeyance pending the finalisation of the first-mentioned investigation.
An investigation into the question whether or not to allow the Attorney-General to appeal on a question of fact relating to the merit of the case. The drafting of a discussion paper is receiving attention.
An investigation into the viability of the establishment of a dual system of criminal procedure for defended and undefended accused persons and the incorporation of inquisitorial elements in the procedure. The committee requested Professor NC Steytler, a member of the project committee, to conduct research in this regard and to prepare a discussion paper and a report for consideration by the committee. The German Technical Cooperation (GTZ) will provide financial assistance in respect of the farming out of the research and the development of a discussion paper and final report.
A discussion paper on the application of the Bill of Rights to criminal procedure, criminal law, the law of evidence and sentencing is being prepared by a researcher for consideration by the project committee.
The object of the investigation is to investigate all aspects related to sentencing on a continuous basis. During 1996 the Minister appointed a project committee chaired by Judge L van den Heever. The project committee has met on several occasions since its appointment to plan the investigation.
Community participation and individual interests in the sentencing process including compensation for victims of crime and victim empowerment.
An evaluation of existing forms of punishment and compulsory sentences. The Minister of Justice had also requested the committee to consider the issue of mandatory minimum sentences and such an investigation was subsequently included in the committee's planning of the investigation.
An issue paper dealing with compensation for victims of crime and victim empowerment as part of restorative justice was published during April 1997. The closing date for comments was extended until the end of September 1997.
The need for the establishment of a compensation scheme for victims of crime in South Africa.
The administration of such a scheme, including the rationale for the establishment of such a scheme, the meaning of "victim" for the purpose of the scheme, the nature and purview of the scheme, minimum and maximum awards in terms of the scheme, restitution for non-pecuniary loss, compensation for loss of personal property, persons qualifying for compensation, persons excluded from participation in the scheme and general principles which should be provided for in the enabling legislation, if any.
The enactment of legislation which recognises victim impact statements.
The introduction of community participation in the sentencing process by formal recognition of procedures involving victim/offender mediation including family group conferences, community youth conferences, community aid panels and circle sentencing.
An issue paper on mandatory minimum sentences was published for general information and comment during July 1997. The closing date for comments was 30 September 1997. The issue paper dealt with sentencing practises in South Africa, criticism of the penal system and possible options for reform.
Enactment of sentencing guidelines; presumptive sentencing guidelines.
Voluntary sentencing guidelines.
Legislative guidelines which assist in determining the choice and length of the punishment.
Enactment of principles of sentencing including guidelines which determine the imposition of imprisonment.
The terms of office of the project committee members expired during March 1998. A new project committee was appointed during September 1998. The names of the project committee members are reflected in Annexure B. A meeting to define terms of reference was held on 26 October 1998. The objective of the committee is to develop a comprehensive Sentencing Act that would provide a permanent framework for sentencing in South Africa. In doing so the committee plans to adopt a holistic approach to all issues related to sentencing, which would include placing victims at the centre of the criminal justice system. The process of developing a structured sentencing policy should be as inclusive as possible of all the relevant stake holders.
The committee also considered the Criminal Law Amendment Act 105 of 1997 and noted that it was a temporary measure and that its sentencing provisions would cease to have effect at the end of April 2000. On 30 November 1998 the committee met to formulate principles of a broad sentencing policy and to consider a broad framework for empirical research to assess the impact of the Criminal Law Amendment Act 105 of 1997.
A discussion paper on a comprehensive Sentencing Act will be developed during 1999.
The Commission has been investigating aspects of the law relating to AIDS since 1993. Since then extensive research has been done, evidence has been heard from interest groups, and a discussion document (working paper 58) was published for general information and comment during 1995. Comments on the working paper reflected differences of opinion between interest groups which have to be resolved. A project committee representative of divergent interests under the chairmanship of Judge E Cameron has been assisting the Commission in this task and developing final recommendations on several issues regarding HIV/AIDS since August 1996. The names of the other members of the project committee are reflected in Annexure B.
The project committee adopted an incremental approach in dealing with its mandate. During the past two and a half years the Commission published three discussion papers and three interim reports. These dealt with health care related issues (discussion paper 68 and first interim report); pre-employment HIV testing (discussion paper 72 and second interim report); and HIV/AIDS in schools (discussion paper 73 and third interim report). The Commission's 1997 annual report contains full details on the first interim report. More information on the other two interim reports is contained in Chapter 4.
During the year under review the Commission also completed a fourth discussion paper dealing with the need for a statutory offence aimed at harmful HIV-related behaviour. The discussion paper will be published for general information and comment in January 1999. The closing date for comments is 28 February 1999. In this discussion paper the premise that the criminal law is not pre-eminently the means by which to combat the spread of HIV is confirmed: the AIDS epidemic is first and foremost a public health issue and it is internationally accepted that non-coercive measures are the most successful means through which public health authorities can reduce the spread of the disease. However, it is also accepted that where HIV-related behaviour results in harm to others (ie exposure to or transmission of HIV), public health measures in themselves are insufficient and the criminal law undoubtedly has a role to play in protecting the community and punishing those who transgress. The Commission is of the preliminary opinion that this limited role is not necessarily incompatible with any public health strategy against the disease.
Since the Commission is not in a position at this stage to come to any firm conclusion on the need for the creation of a statutory offence, draft legislation has not been included in the discussion paper.
The possible prosecutorial difficulties in applying the common law crimes.
The counter-productive effect the creation of a new offence may have on public health efforts in curbing the spread of HIV.
The viability of utilising public health measures as an alternative to taking recourse to the criminal law.
Specific questions relating to the formulation of a statutory offence should it prove to be pertinent.
An interim report on the need for a statutory offence aimed at harmful HIV-related behaviour will be finalised during the first half of 1999. A fifth discussion paper dealing with the question of HIV testing of sexual offenders and persons accused of having committed sexual offences will also receive attention during 1999.
The recognition of customary marriages.
Conflict of laws.
Law of succession.
Information regarding the report on customary marriages appears in Chapter 4.
A discussion paper on conflict of laws was published for general information and comment during April 1998 and the closing date for comments was 30 June 1998.
Application of customary law should remain a matter of judicial discretion, but more exact guides to choice of law are needed to bring certainty to an issue that is currently vague and confused. These guides should be precise, flexible, simple and in keeping with the way courts have been used to solving problems.
The repugnancy proviso no longer has a useful role to play and it should be repealed.
Race should be irrelevant as a criterion for applying customary law and for determining the jurisdiction of traditional courts. Hence, section 12(1) of the Black Administration Act should be amended to delete any reference to "Blacks".
Section 23(1) of the Black Administration Act should be amended to provide that only the testator's personal interests in property may be disposed of by will. The current regulations on land held under quitrent tenure should be amended to remove elements of gender discrimination.
Choice of law rules contained in regulations issued under the Black Administration Act and in the Act itself should be considered and amended. The special rule for foreigners in regulation 2(a) should be deleted. If the proposal to abolish exemption from customary law is accepted, then regulation 2(b) should also be deleted. The position of people who die partially testate and partially intestate should be clarified. If persons subject to customary law are to benefit from various reforms in common law, customary marriages must be given full recognition on a par with civil marriages.
Section 1(3) of the Law of Evidence Amendment Act should be replaced by a new section. Recognition should be given to the litigants' freedom to choose the applicable law, and in the absence of an agreement the courts should apply the law with which the case has its closest connection.
Section 1(3) of the Law of Evidence Amendment Act must be amended to exclude conflicts involving foreign systems of law.
A draft report on conflict of laws was considered by the Commission on 27 November 1998. An amended draft report will be considered by the Commission at its next meeting.
An issue paper on succession was published for general information and comment on 28 April 1998. The closing date for comments was 30 June 1998. Now that the Constitution recognises customary law as a component of the legal system on a par with common law, it is necessary to clarify the rules of succession in customary law. In addition, ways must be found to harmonise those rules (and those of the common law) with the provisions of the Constitution.
The purpose and nature of rules of succession.
Succession to the head of a family.
Succession to women.
Burial and funeral ceremonies.
Administration of estates.
The development of a discussion paper on succession will receive attention during 1999.
Research on traditional courts has been completed and a Bill is being drafted for inclusion in a discussion paper during 1999.
The investigation initially dealt with international and domestic commercial arbitration only, but at the request of the Minister it was broadened to include an investigation into alternative dispute resolution (ADR) at all levels. The project committee was broadened for this purpose. The names of the project committee members are reflected in Annexure B.
The contents of a report on international commercial arbitration is summarised in Chapter 4.
A discussion paper on domestic commercial arbitration is at present being developed for consideration during the first quarter of 1999. It will consist of a revised version of the existing Arbitration Act 42 of 1965, having regard to certain problems which have been experienced with the existing Act in practice and recent changes to arbitration legislation in other jurisdictions.
An issue paper dealing with all aspects of ADR was published for general information and comment during 1997.
The further implementation of community courts in the new dispensation and the proper role of the state in this regard.
The role of ADR in the criminal sphere was also addressed. The proposed juvenile justice and victim-offender mediation programmes were noted as examples of the increasing importance afforded to ADR in criminal matters. These issues were, however, not dealt with in detail as they are already being addressed in other investigations of the Commission.
A legal forum held on 11 March 1998 launched a national consultative process of ten workshops on "Access to Justice: Community Structures"which were held in the nine provinces from17 March 1998 to12 May 1998. Invitations were extended to a range of stakeholders so as to ensure that a diverse pool of knowledge and experience would be represented.
The process was concluded with a national legal forum on 2 - 3 July 1998 to develop an action plan for promoting community justice structures in South Africa. Issues on which consensus was reached, and those which remained contentious, were noted. In most of the provinces there are community-based justice structures, under different names, that are functional. There is broad consensus that communities need these structures to resolve disputes through mediation.
The consultation process was made possible by financial assistance from USAID. The details of the process appear in Chapter 6.
The information gleaned from the workshops and legal forums forms the basis for a discussion paper which will be finalised during the first quarter of 1999.
The business world relies with confidence on computers for the keeping and processing of information. However, when it comes to the presentation of evidence in civil and criminal proceedings, the law is reluctant to admit as evidence information produced by computer. The Computer Evidence Act 57 of 1983 sets strict requirements with which computer print-outs must comply in order to be admitted as evidence.
The Commission decided that the investigation should be kept in abeyance pending the finalisation of its investigation into computer-related crimes (project 108 below) in view of the overlap between the two investigations.
With the introduction of the Act in 1956 the common law relating to contributory negligence and joint wrongdoers was amended and the "last opportunity" - rule of avoiding an accident as the test of liability repealed. The Act empowers the courts to determine the degree of fault of each party in an action for damages based on negligence and to apportion the damages accordingly. The Act also makes it possible to sue joint wrongdoers in the same action. The investigation entails the review of the Act in question with special reference to the meaning of "fault" which is defined in the Act and the joinder of parties.
A discussion paper was published in October 1996 for general information and comment. The preparation of a report is receiving attention and will be finalised early in 1999.
Since the establishment of the Commission, aspects of family law and the law of persons have been investigated on a continuous basis. On the recommendation of the Commission, far-reaching amendments to divorce law, matrimonial property law and domicile were effected.
There is considerable overlapping between family law and the law of persons and it is submitted that the inclusion of a single comprehensive investigation in the Commission's programme is justified. The investigation will enable the Commission to monitor, on a continuous basis, the reform measures that have been implemented in these branches of the law and, if necessary, to make additional recommendations in good time.
The Commission published an issue paper on the review of the maintenance system for general information and comment during March 1997. A project committee was appointed after the publication of the issue paper. The names of the project committee members are reflected in Annexure B.
The project committee resolved not to publish a discussion paper, but to proceed with the publication of an interim report. A summary of the recommendations contained in the interim report appears in Chapter 4.
A number of the Commission's recommendations are embodied in the Maintenance Act 99 of 1998.
Research is continuing. Matters relating to criminal procedure and sentencing are at present dealt with as part of other investigations on the Commission's programme (see project 73 and project 82).
The previous Commission considered a request received from the Minister of Safety and Security addressed to the Minister of Justice and referred to the Commission. The Minister of Safety and Security proposed that a review and rationalisation of South Africa's security legislation should be undertaken by the Commission so as to ensure that the legislation is in accordance with international norms, the Constitution and present requirements of the country.
The present Commission supported the inclusion of the investigation in the Commission's programme and it was approved by the Minister on 22 March 1996. Due to capacity problems and financial restraints the investigation had to be kept in abeyance for a considerable period of time.
A project committee was appointed by the Minister on 2 September 1998. The names of the members of the project committee appear in Annexure B.
During November 1998 a discussion paper on the Interception and Monitoring Prohibition Act 127 of 1992 was published for general information and comment.
The closing date for comments on the discussion paper is 25 January 1998. The project committee will consider other areas of the law relating to security during 1999.
South Africa does not have a cohesive juvenile justice system. Limited provisions providing specifically for the management of young people caught up in the criminal justice system are spread throughout a number of separate statutes such as the Criminal Procedure Act, 1977, the Probation Services Act, 1991, the Child Care Act, 1983, and the Correctional Services Act, 1959.
The drafting of composite juvenile justice legislation was identified as a priority in the National Plan of Action for Children. The Minister accordingly requested the Commission to include an investigation on juvenile justice in its law reform programme. The project committee on juvenile justice was appointed on 5 December 1996. The names of the members appointed to the project committee appears in Annexure B.
An issue paper was published in June 1997 for general information and comment. The issue paper dealt with principles to underpin juvenile justice legislation, age and criminal capacity, legal representation, police powers, release policy, diversion, juvenile courts, sentencing, and monitoring mechanisms. To further community outreach, the issues canvassed in the issue paper were summarised in a more reader-friendly questionnaire. The closing date for comments on the issue paper was 30 September 1997 and that for submission of the questionnaire 31 December 1997.
A discussion paper containing proposals relating to a new structure to govern children under the age of 18 years who are accused of having committed offences was published for general information and comment during November 1998.
The proposed system further aims to encourage a degree of specialization 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, specialization 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 specialization 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 maximize 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 specialized 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 closing date for comments on the discussion paper is 31 March 1999. A draft report will be developed during the course of 1999.
The drafting of legislation to combat the sexual exploitation and abuse of children was another priority identified in the National Plan of Action for Children. The Minister of Justice accordingly requested the Commission to include an investigation into sexual offences by and against children in its law reform programme. A project committee was appointed on 4 December 1996. The names of the members appointed to the project committee appear in Annexure B.
An issue paper was published in May 1997 for general information and comment. The closing date for comment was 30 September 1997. The issue paper provided a comprehensive overview of the common law relating to sexual offences against children; legislation relating to the sexual abuse of children, including child pornography and child prostitution; the customary law; and aspects of the process and procedural law affecting children as victims of sexual abuse. The latter includes disclosure, reporting and registration of child sexual abuse, investigation procedures, the court process, children giving evidence, making it easier for children to give evidence in court, the treatment of victims and offenders, and sentencing options for the sexual offender. The issue paper did not deal with sexual offences by children so as to avoid overlap with the investigation into juvenile justice (Project 106).
With the financial assistance of Rädda Barnen (SA), several workshops on the issue paper were held throughout the country by members of the project committee during 1997.
From the investigation and comments received on the issue paper it is clear that a variety of problems such as the cautionary rule and the definition of rape cannot be satisfactorily addressed within the ambit of "sexual offences against children" since these problems are not confined to cases where children are the victims of sexual offences. The Justice Portfolio Committee also expressed the view that the Department of Justice should consider research to regulate all aspects of sexual offences. The Deputy Minister of Justice presented broad terms of reference for consideration. On 18 May 1998 the Minister approved that the terms of reference of the investigation be extended to "sexual offences".
A discussion paper with draft legislation will be published during 1999.
This investigation is aimed at addressing problems experienced in the field of criminal law and criminal procedure with respect to the investigation and prosecution of computer related crime. These problems stem mainly from the intangible nature of information stored on or used by computers. Current statutory and common law offences are not wide enough to include many of the offensive activities carried out in respect of computers. Furthermore, procedures for the gathering and presentation of evidence were not designed to function in a computerised society.
A project committee for this investigation was appointed during September 1997. The names of the project committee members are reflected in Annexure B.
Offences committed by means of the Internet.
Because of the wide scope of the investigation an incremental approach will be followed. The first issue paper on options for reform in respect of unauthorised access to computers, unauthorised modification of computer data and software applications and related procedural aspects was published during August 1998. The closing date for comments was 26 October 1998.
A discussion paper will be published during the first half of 1999.
The Department of Home Affairs approached the Commission during 1996 with a request to investigate and recommend legislation relating to a new marriage dispensation for South Africa. The Minister approved the inclusion of the investigation in the Commission's programme on 27 January 1997. The investigation focuses mainly on whether the provisions contained in the Marriage Act are adequate or whether they should be amended. The Marriage Act presently governs certain aspects of contracting marriages in South Africa.
sets out the formalities that must be followed in order to contract a valid marriage, including the requirements that the parties appear in person with witnesses, that the marriage be solemnised by a marriage officer according to a certain formula in a public building within certain times of the day, and that the parties sign a marriage register.
The Commission invited comments from all parties who have an interest in the topic concerned or may be affected by the type of measures set out in the Marriage Act. The closing date for comments was 20 February 1998. Based on the outcome of these comments a discussion paper setting out the issues and containing preliminary recommendations and draft legislation is being prepared and will be published for general information and comment during the first half of 1999.
One of the recommendations of the conference entitled "Towards redrafting the Child Care Act" hosted by the Community Law Centre (University of the Western Cape) and the Portfolio Committee on Welfare and Population Development held in Gordon's Bay from 26 to 28 September 1996 was that the Commission be requested to include the review of child care legislation in its programme in order to develop comprehensive draft legislation as a matter of urgency.
Following the conference and on representations from the Minister of Welfare and Population Development, the Minister requested the Commission to include an investigation into the review of the Child Care Act, 1983 in the Commission's programme. The Commission decided at its meeting held on 4 April 1997 to include the investigation in the Commission's programme and to appoint a project committee. The names of the members of the project committee are reflected in Annexure B.
In scope, the investigation goes beyond the review of the present Child Care Act, 1983 and includes a comprehensive review and redraft of all child care legislation.
An issue paper was published in May 1998 for general information and comment. The closing date for comment was 31 July 1998. The scope of the issue paper was extremely wide, including a review of the common law rules and a variety of statutes affecting children, as well as a discussion of the position of children under customary law and various religious laws. The issue paper also focussed attention on the law as it relates to the many marginalised children in South Africa society: street children, children infected and affected by HIV/AIDS, children with disabilities, children in residential care, to mention but a few examples.
With the financial assistance of the Department for International Development in Southern Africa, Rädda Barnen (SA), the Carl & Emily Fuchs Foundation, and UNICEF, 19 workshops and several dedicated briefings on the issue paper were held throughout the country by members of the project committee. Active steps were taken to involve people with disabilities in the consultation process and sign language interpreters were used at several of the workshops. Details are contained in Chapter 6.
To enable the project committee to proceed to a discussion paper with draft legislation, the members of the project committee and contract researchers are preparing consultation papers on ten selected issues as background documents to stimulate debate with specific focus groups. This consultative research process will take place early in 1999 and will be followed by the preparation of a discussion paper and draft legislation later in the year. At the same time, it is envisaged that a children's participation process planned in conjunction with Save the Children (UK) and South African partner organisations will feed into the drafting process.
The Divorce Amendment Act 7 of 1989 was the result of an investigation by the Commission into the possibility of a divorced woman sharing in the pension benefits of her former husband. After the commencement of the Amendment Act, several representations were, however, made to the Department of Justice regarding alleged obscurities and anomalies in the Act. Despite the fact that a supplementary report by the Commission on the division of pension benefits dealing with the difficulties experienced in the application of the existing provisions was Tabled in Parliament on 12 October 1995, a former member of the Commission, Mr G G Smit, submitted a memorandum to the Minister on 7 November 1996 in which he pointed out that the whole system of the sharing of pension interests of spouses on divorce remained unsatisfactory. Several deficiencies were listed by Mr Smit which, in his view, were not adequately addressed by the Commission in the supplementary report.
The main cause of dissatisfaction is the manner in which the pension interest of a member of a pension fund is determined. The Commission's recommendation in this regard did not deal with marriages entered into between 1 November 1984 and the date of commencement of the proposed provision, where part of the pension interest may have accumulated before the date of the marriage. In addition to other deficiencies, Mr Smit also pointed out that an aspect which did not receive attention in the supplementary report was the division of pension interests on the dissolution of a marriage by death or, in the case of a marriage in community of property, where the court makes an order for "boedelscheiding" or, in the case of a marriage subject to the accrual system, where the court makes an order in terms of section 8 of the Matrimonial Property Act 88 of 1984.
The Minister endorsed the inclusion of the investigation in the Commission's programme on 17 June 1997. Mr Smit was contracted to assist the Commission in the investigation.
A discussion paper containing draft legislation was published for general information and comment on 6 May 1998. The closing date for comment was 31 July 1998.
Separate legislation should be enacted to regulate the sharing of retirement fund benefits between spouses on their divorce.
The spouse of a member of a retirement fund should on the divorce of the member and the said spouse acquire a right to share in the member's retirement fund benefits when they become payable.
A partner in a marriage relationship entered into in accordance with customary law or a recognised religion should for purposes of the proposed legislation be regarded as a spouse.
A non-member spouse's share of the retirement fund benefits should be paid direct from the member's fund by way of deferred retirement benefits. The rules operating in respect of the member's retirement fund benefits must, in so far as they can be applied, also be applicable to the non-member's share of the said benefits.
The formulae for determining the non-member spouse's share of the member's retirement fund benefits in respect of the various types of retirement schemes and the various categories of benefits should be clearly set out.
The division of retirement fund benefits on divorce should not be dependant upon the matrimonial property system which applies to the marriage of the spouse.
The proposed legislation should not have retrospective effect but spouses falling outside the ambit of the proposed legislation should be able to make the proposed legislation applicable to their marriage by agreement between them.
Comments received are being evaluated and a draft Bill was debated at a workshop. A draft report will be finalised early in 1999.
During November 1996 the Minister requested the Commission to consider a proposal by Judge H C J Flemming regarding the adoption of legislation authorising video conferences in court.
In brief, video conferences enable the "live" participation in court proceedings of a person in his or her physical absence. In Judge Flemming's view legislation is urgently required in the interests of access to the law and improvement of the operation of the courts since video conferences have the potential to reduce costs in, for example, cases involving witnesses having to travel from distant places or even residing in foreign countries. In certain instances inspections in loco could also be eliminated.
A letter by Mr D Dalling MP, directed to the Minister and dealing with electronic trials, was also referred to the Commission. Mr Dalling highlights the benefits that could be reaped in terms of savings and otherwise from adopting legislation authorising trials by telecommunication in respect of less serious offenses. Procedures abroad involve telecommunication between a presiding officer in a court room in the usual court buildings or in his or her office and the accused person in a court room in the place of detention. Telecommunication systems also provide for communication between public prosecutors and the legal representatives in the proceedings concerned. Mr Dalling argues that the major benefit of utilising this particular form of trial is that transportation costs are saved, procedures are speeded up and prisoners do not have to be transported from one venue to another in circumstances which are often a danger to security.
The Minister endorsed the inclusion of the investigation in the Commission's programme on 14 June 1997.
In view of several investigations with a higher priority and a lack of personnel due to vacancies, it was not possible to commence with research during the year under review. The investigation will commence early in 1999.
The background to this investigation is outlined in Chapter 3.
During October 1998 the Minister appointed a project committee on administrative law. The names of the members of the project committee are reflected in Annexure B.
It is envisaged that a discussion paper will be published for general information and comment during the first half of 1999.
It was decided that the research in respect of the investigation should be given out on contract due to a lack of available researchers. On 17 December 1998 the Minister approved the employment of a senior lecturer in law at the University of Natal to assist the Commission in the relevant research.
The investigation will commence early in 1999.
Research has commenced and a discussion paper will be published for general information and comment during the first half of 1999.
Research has commenced and it is envisaged that an issue paper will be published during the first half of 1999.
It was decided that the research in respect of the investigation should be given out on contract due to a lack of available researchers. On 14 December 1998 the Minister approved the employment of a member of the Cape Bar to assist the Commission in the relevant research. However, the Commission also submits issue papers and discussion papers of its own accord to institutions that have an interest in the investigation 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 Commission publishes a quarterly Bulletin. The aim of the Bulletin is to inform people about the work of the Commission. The Bulletin contains information on the activities of the Commission, an update on current projects and items on new and completed investigations.
To promote the image of the Commission as a community-orientated organisation, a brochure introducing the Commission was published and distributed in all official languages.
The good relations that the Commission maintains with foreign law reform bodies makes the exchange of working papers, reports and other information possible. In this way valuable information is exchanged that facilitates and expedites comparative law research. It is significant how various legal systems are often faced with similar problems. The exchange of documents enables the Commission to evaluate ways of thinking elsewhere in the world. The Commission was privileged to receive a delegation from the Law Reform and Development Commission of Namibia on 27 October 1998. Closer links were forged between the Commissions. There was an extremely useful exchange of ideas and the delegation was particularly interested in the working methods of the Commission and the structure of its Secretariat.
The chairperson of the project committee on sexual offences against children, Ms J Van Niekerk, also had the opportunity to visit the New Zealand Law Commission and the Malaysian Commissioner of Law Revision. The discussions she had on the various approaches and changes to child abuse legislation have been of great value to the project committee.
The Commission maintains good relations with the electronic and the printed media. Information that, in the Commission's opinion, is newsworthy is supplied to the media and enquiries are replied to fully and promptly. The Commission wishes to express its gratitude for the interest displayed by the media in investigations conducted by the Commission.
During the year under review the Commission hosted two media conferences in Cape Town and one in Pretoria. The assistant secretary was interviewed on radio after the media conference hosted in Pretoria.
The full-time member also participated in a number of the legal fora and workshops on community courts (see below).
The full-time member and the Secretary deal with enquiries on the work of the Commission virtually on a daily basis. These include enquiries from the media, the professions, the universities, NGOs and members of the public.
The Commission's doors are open to visitors who wish to obtain information concerning its activities or who wish to discuss matters that are of interest to the Commission. During the year, the Commission played host to numerous visitors from different countries. The majority of visitors were interested in the changes taking place in South Africa and the role of the Commission in this process.
In some instances researchers of the Commission and project committee members 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 Commission's programme. This inter-sectoral approach facilitates co-operation between the Commission and other role players, serves to publicise the Commission's activities and ensures that duplication of initiatives is avoided.
Researcher and project committee members participated in the Child Labour Intersectoral Group child labour enforcement policy workshop, Roodepoort, 12-13 October 1998.
Researcher and project committee members participated in the international conference on "Children's Rights in a Transitional Society", Centre for Child Law, Pretoria, 30 October 1998.
Project committee members briefed Portfolio Committees on Welfare and Population Development and on Justice, 25 May 1998.
Researcher attended SADC conference on the prevention of violence against women, 5-8 March 1998.
Researcher participated in Natal Women's Resource Centre workshop on gender policy considerations, 30 April 1998.
Researcher participated in Justice Portfolio Committee public hearings 17-18 August 1998.
Researcher assisted Justice Portfolio Committee in finalisation of Domestic Violence Bill, 10-18 September 1998.
Researcher briefed Justice Portfolio Committee on 22 July 1998 and NCOP Select Committee on Justice on 9 September 1998.
Researcher was one of the speakers at the Provincial Crime Summit on Alternative Justice, 28 July 1998.
Researcher attended launch of Technikon SA's Institute of Human Rights & Criminal Justice Studies, 11 August 1998.
Researcher attended the International Conference on Crime Prevention Partnerships to Build Community Safety, Johannesburg, 29 October 1998.
Researcher participated in a workshop on community courts, Mamelodi Vista Campus, 30 October 1998.
An internet site has been administered for the Commission free of charge by the Wits Law School since March 1997. A copy of the Commission's home page and the index page for issue papers are attached in order to illustrate the appearance of pages on the site.
Any person with access to the internet can subscribe to a free notification service. Subscribers are informed of the publication of new documents on the site. At the end of November 1997 there were approximately 100 subscribers with new subscriptions being received all the time.
During the year 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 or other. The contributions and comments received by the Commission in respect of its issue and discussion papers are indispensable links in the process of law reform. 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 it would not be able to perform its duty satisfactorily.
During the year under review the Commission hosted a number of workshops in respect of its investigations into the review of the Child Care Act, community courts and the recognition of customary marriages. The particulars of the workshops appear in Chapter 6. The Commission extends its appreciation to all who participated and favoured the Commission with their inputs.
The Commission would also like to thank the Government Printer and staff who are responsible for the printing of the Commission's reports for their professional supporting service.
In conclusion, the Commission wishes to thank the Minister and Deputy Minister of Justice for their personal interest in and support of the Commission's work. The Department of Justice is thanked for its co-operation and goodwill.
(Chairpersons of committees are marked with an asterisk.
(Current investigations marked with an asterisk, see Chapter 5.
(In order to actively involve the community at an earlier stage, the Commission decided to publish issue pa-pers in appropriate investigations as the first step in the consultation process. The purpose of an issue paper is to announce an investigation, to elucidate the aim and extent of the investigation, to point to possible op-tions available for solving existing problems and to initiate and stimulate debate on identified issues.