The Discussion Paper contains proposals for a new domestic arbitration statute intended to replace the Arbitration Act 42 of 1965.
The Commission's investigation has revealed that there are three basic options for a new domestic arbitration statute. The first is to improve the existing statute while retaining its basic provisions. In view of the dramatic improvements to arbitration legislation in other jurisdictions during recent years, notably England, this option does not appear to be practical.
The Commission proposes that the powers of the court should be reviewed and generally brought into line with the powers of the court under the Model Law, while retaining certain powers of the court in the 1965 Act not found in the Model Law, but in modified form. Particular attention has been given to the need to prevent applications to court being abused by unscrupulous parties intent on delaying the arbitration process. The Draft Bill annexed to the Discussion Paper also contains certain provisions designed to facilitate the use of conciliation by the parties to an arbitration agreement. In the interests of consumer protection, certain restrictions are imposed on arbitration clauses in standard-form contracts entered into by consumers.
the existing Arbitration Act 42 of 1965 should be repealed and replaced with a comprehensive new arbitration statute for domestic arbitration, based on the principles set out above.
The Commission in its efforts to consult all interested parties is organising four regional workshops at which members of the Project Committee will be present to explain and discuss the Draft Bill and to note comments. The workshops are scheduled to be held as follows: 20 September 1999 (Pretoria), 21 September 1999 (Durban), 22 September 1999 (Cape Town) and 23 September 1999 (East London). Persons interested in attending should contact Ms A Louw (012) 322 6440.
The closing date for comment on Discussion Paper 83 is 29 October 1999.
Recently there has been mounting public concern and pressure on the authorities to take appropriate action with regard to the deliberate transmission of HIV infection. This has come about largely in response to a number of widely publicised incidents of deliberate transmission of HIV, together with the very real concern that for the most part women and young girls are exposed to HIV infection in this manner.
In general, our law at present provides for HIV testing only with the informed consent of the person concerned; every person is entitled to privacy regarding medical information; and no general legislation exists which allows for disclosures. Furthermore, neither currently available public health law nor criminal procedure makes provision for compulsory HIV testing of persons arrested for having committed sexual offences with a view to disclosing their HIV status to victims. The Discussion Paper consequently debates the need for legislative intervention concentrating on the following critical issues: the high national prevalence of HIV coupled with the high occurrence of rape and other sexual offences; the utility and limitations of HIV testing; women's international and constitutional rights, including victims' rights; and the arrested person's constitutional rights, especially the right to privacy.
Compulsory testing of an arrested person should in principle be victim-initiated. This will ensure that only a person with a material interest in the arrested person's HIV status may apply for a compulsory testing order.
In order to protect the victim from a further potentially traumatising confrontation, the arrested person should not be allowed to take part or give evidence in an application by the victim for compulsory testing, except to be able to challenge whether information on oath has in fact been placed before the magistrate in compliance with the provisions.
A specified standard of proof should be required on which to base an order for compulsory HIV testing. The Commission is of the opinion that this should consist of the prosecution showing prima facie that the arrested person committed the sexual offence in question, and that the act was of a type that could indeed transmit HIV.
Compulsory HIV testing of an arrested person should take place only on authorisation by a court. Furthermore, this should be a discretionary power resting with the presiding officer hearing the application.
In order to guard against abuse of the procedure certain procedural and substantive safeguards must be provided for. These should include scrutiny by a magistrate of an application for the compulsory testing of the arrested person; a deposition on oath, whether oral or by affidavit; and prima facie evidence of a sexual offence in which exposure to the body fluids of the arrested person may have occurred.
A deliberately false complaint would amount to perjury and a malicious activation of the procedure would be actionable.
The procedure should ensure confidentiality of the test results so that the information is provided only to the victim and the arrested person.
The use of information relating to the HIV status of an arrested person obtained under the proposed amendment should be clearly limited: test results obtained through compulsory testing should not be admissible as evidence in a criminal trial.
The procedure need not necessarily be HIV specific.
On the basis of the above, the Commission provisionally recommends the adoption of a specific amendment to section 37 of the Criminal Procedure Act 55 of 1977. A draft Bill is attached to the Discussion Paper for public comment.
The closing date for comment on Discussion Paper 84 is 15 October 1999.
The Discussion Paper is the first of a three-part series as the Commission also plans to release further discussion papers on the process and procedural law relating to the management of sexual offences and on adult commercial sex work and adult pornography later this year.
The criminal law is the appropriate mechanism to address sexual exploitation, abuse and violence against women and children in particular.
The Commission does not recommend the repeal of all the common law sexual offences. However, the adoption of one comprehensive new Sexual Offences Act is recommended.
The Commission proposes the repeal of the common law offence of rape and its replacement with a new gender-neutral statutory offence.
Sexual penetration of any child below the age of 12 years should constitute rape.
Absence of consent to sexual intercourse should no longer be an element of the offence of rape. (The accused should obviously still be able to raise consent to sexual intercourse as justification for his or her unlawful conduct, but should carry the burden of proof in this regard.
A husband can be convicted of raping his wife.
A statutory provision called "child molestation" is aimed at prohibiting sexual acts with children below 16 years of age. Consent by a child under 16 years of age to any sexual act should not be a defence to a charge under this provision.
As most cases of intra-familial sexual abuse take place repeatedly and over long periods of time, child victims often have difficulty recalling precise details of the time and place when and where the alleged offences are said to have occurred. It is thus recommended that the "persistent sexual abuse of a child" should constitute a separate offence.
The commercial sexual exploitation of children should be prohibited. Commercial sexual exploitation includes child prostitution, child pornography and trafficking in children.
Although the Commission supports a total prohibition of child pornography, it nevertheless does not propose the inclusion of provisions on child pornography in the new Sexual Offences Act. The Commission does not recommend any legislative amendments pending the review of the Films and Publications Act.
Specific provisions should deal with sexual offences against mentally impaired persons.
The Commission recognises that a clear need exists for specific legislation criminalising stalking (or harassment) and recommends that a specific investigation be conducted in this regard.
A statutory offence in respect of coercion to perform sexual acts covers the actions of a person who compels another person to engage in sexual acts with that person, a third person, an animal or the compelled person himself or herself.
Comment is invited on the prohibition of female genital mutilation.
The closing date for comment on Discussion Paper 85 is 29 October 1999.
During 1996 the Commission published a Draft Insolvency Bill and Explanatory Memorandum as Discussion Paper 66. The Draft Bill in Volume 2 of Discussion Paper 86 indicates the changes to the previous Bill which take account of comments on the Bill, further research and subsequent developments. Discussion Paper 86 has been prepared to elicit responses from key parties on these changes.
Many of the changes are technical.
Only a person who is a member of a professional body recognised by the Minister of Justice may be appointed as liquidator.
The discretion of the Master of the High Court to appoint a liquidator of his or her choice has been removed in cases where creditors nominate or vote for a liquidator.
Liquidators may preside at meetings unless questioning is to take place at the meeting or an interested party requests that the Master or a magistrate should preside.
Resolutions can be adopted at the first meeting which is now convened by the initial liquidator as soon as possible after his or her appointment and not by the Master.
A creditor under a financial lease agreement is treated as a secured creditor and must prove a claim.
Many of the preferent claims (for instance for taxes) are abolished.
In respect of dispositions before liquidation that may be set aside, wider provisions apply to associates of the insolvent than to other persons and it is presumed for all dispositions, until the contrary has been proved, that a debtor's liabilities exceeded his or her assets at any time within three years before the liquidation of the estate.
A cap of R200 000 has been placed on the exclusion of pension benefits from the insolvent estate and certain extraordinary contributions to pension funds may be recovered for the benefit of creditors.
Provision is made for a binding composition between a debtor and a majority of creditors without an application to declare a debtor's estate insolvent.
Copies of the Discussion Paper will be made available to participants in a conference on a unified Insolvency Act (dealing not only with individuals, but also with companies, close corporations, etc). The conference will be held on 6 October 1999 and enquiries regarding registration can be directed to Hester Bezuidenhout at (012) 323 0400.
The closing date for comment on Discussion Paper 86 is 29 October 1999.
The Discussion Paper opts for a format in which a comprehensive set of recommendations is set out, supplemented with requests for comment on those issues which remain unresolved or appear to be responsive to several solutions.
Because community-based dispute-resolution structures ("community forums") serve a useful purpose in meeting the needs of the majority of the South African population for accessible justice, these structures must now be recognised and supported by law.
Reference to these structures as "community courts" is misleading and a new name should be found.
Recognition of community structures should be based on an Act of Parliament setting out their status, role, functioning, jurisdiction, procedure and other related matters, such as the qualifications of personnel.
Any such legislation should be drafted only after careful investigation and consultation and should take the form of creating a broad framework, to accommodate different models of local dispute resolution.
Attendance at any community forum should be entirely voluntary and decisions of a community forum should be binding on the parties only if they have agreed beforehand to be bound by such decisions.
Community forums should remain informal and flexible in their procedures, inexpensive in their operations as well as accessible, non-alienating and responsive to the needs of the communities in which they operate.
There should be no appeal from community forums to the formal courts. If a matter remains unresolved, the dispute may be pursued in any other forum.
An office of Ombudsman for Community Structures should be established to oversee the work of community forums and to enforce uniform standards.
Where there is a functioning customary court in a rural area, a community forum should not be introduced.
Persons operating in community forums should be empowered through training.
The Commission requests comment on whether community forums should have criminal jurisdiction and if such jurisdiction is supported, on the restrictions that should be placed on such jurisdiction.
The closing date for comment on Discussion Paper 87 is 31 October 1999.
The question arises whether there is a need to accord recognition to foreign embassy or consular marriages in South Africa in view of the absence of such statutory recognition.
Section 2(1) of the Act should provide that certain persons in the diplomatic and consular service of the Republic, namely Ambassadors, High Commissioners and Consuls should by virtue of their office and as long as they hold such office be ex officio marriage officers for the area in which they hold office.
The Act permits the designation as a marriage officer of any minister of, or person holding a responsible position in, "any religious denomination or organization".
The decision made by the Minister to designate someone as a marriage officer or to revoke the designation of the marriage officer should be reviewable by any provincial or local division of the High Court of South Africa.
The Marriage Act provides for the solemnisation of marriages. It is clear that a marriage is not necessarily solemnised, but the alternative "celebrate" is not without its problems. The terms "conduct a marriage" or "join in marriage" are better substitutes and words to that effect should be used in place of the terms "solemnize" or "solemnization" where appropriate in the Act.
A proposal was made that the joining of parties in marriage should be privatised, ie persons other than those presently appointed should also be able to conduct marriages. In view of the limited requests calling for such a step, the Commission is not convinced that the appointment of marriage officers should be extended to include persons other than the present categories of marriage officers.
The minimum age for marriage (set out in section 26) should be 18 years of age for males and females.
Section 28 should make provision for the provincial or local division of the High Court to have jurisdiction to consent to a marriage between a man or a woman and the direct descendant of his or her deceased spouse if both parties have reached the age of 18 years and they are not related to each other by blood. This provision should correspond to the provision setting out the minimum age for marriage for males and females to be 18 years of age.* Section 29(2) presently sets out the following places for the conducting of marriage ceremonies: churches, other buildings used for religious services, public places and private dwelling-houses with open doors.
The Act should further provide for a marriage conducted under or recognised in terms of the provisions of the Act to be recorded in the prescribed register, for the transmitting of the marriage register and records concerned to a regional or district representative of the department in whose district or region the marriage was conducted, and for causing the particulars of the marriage concerned to be included in the population register in accordance with the provisions of the Identification Act of 1997.
The marriage formula set out in section 30(1) should be amended by the deletion of the words "and thereupon the parties shall give each other the right hand". The proviso dealing with the validity of marriages where the requirement that the parties shall give each other the right hand has not strictly been complied with, should also be deleted.
Section 37 makes provision for South African courts having jurisdiction to try persons who contravene the provisions of the Marriage Act in any country outside the Republic of South Africa.
The closing date for comment on Discussion Paper 88 is 30 November 1999.
The Discussion Papers are available on request and are free of charge (contact Mr J Kabini).
The Discussion Papers are also available on the Internet at www.law.wits.ac.za/salc/salc.html.
[A limited number of hard copies of Discussion Paper 86 (Review of the Law of Insolvency) will be made available to persons without access to the Internet.
Application of customary law should remain a matter of judicial discretion, but more exact guides to choice of law are necessary 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 in which courts have been used to solving choice of law problems.
The new choice of law rules should indicate that parties are free to agree on the law that best suits their needs.
The procedure contained in the Black Administration Act for exempting individuals from customary law is so closely identified with colonialism and apartheid that it must now be repealed.
The repugnancy proviso no longer has useful role to play and it should therefore be repealed.
Race should be irrelevant both as a criterion for applying customary law and for determining the jurisdiction of traditional courts.
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 and elements of gender discrimination should be removed from the regulations governing succession to land held under quitrent tenure.
Existing choice of law rules contained in regulations issued under the Black Administration Act and in the Act itself should be deleted or amended, since they are poorly worded, conflict with proposed reforms in the customary law of marriage or no longer serve any useful purpose.
Section 1(3) of the Law of Evidence Amendment Act should be repealed and a new provision should be drafted to give clearer rules on choice of law. Recognition should be given to the litigants' freedom to agree on the applicable law and, in the absence of an agreement, courts should apply the law with which the case has its closest connection.
Following section 33 of the Constitution, at the core of the draft Bill is the concept of "administrative action", which is widely defined.
Other important features of Chapter 1 are the wide definition of "standing" (in the definition of "qualified litigant"), and provision for a review jurisdiction which includes designated magistrates' courts.
Chapter 2 of the Bill imposes a duty on all administrators to give effect to the rights in section 33(1) and (2) of the Constitution (clause 2 of the draft Bill, following section 33(3)(b) of the Constitution) and provides for the review of administrative action by the courts and independent and impartial tribunals (section 33(3)(a) of the Constitution).
In accordance with the requirement in section 33(3) of the Constitution that national legislation "be enacted to give effect to" the rights in section 33(1) and (2) of the Constitution, the draft Bill requires administrative action to be procedurally fair.
Another important part of the Bill relates to the provision of reasons for administrative action.
Chapter 4 focuses on the grounds of review, and the procedure for obtaining it.
The Bill specifies remedies available in proceedings for judicial review. These encompass both mandatory and prohibitory interdicts, declaratory orders, orders to give reasons, and review orders in the classic sense, setting aside the administrative action in question and either remitting it or, in exceptional cases, substituting or varying the administrative action and directing the payment of compensation.
Provision is also made for the extension of time periods specified in the statute. The solution proposed is to require the institution of proceedings in all cases without unreasonable delay, but with an outer limit of 180 days of the day on which the person was informed of the administrative action, or otherwise became aware of it, or might reasonably have been expected to have become aware of the action (the language of most prescription statutes, which have survived judicial scrutiny in the past). That outer limit, in turn, must be amenable to judicial dispensation in special cases where the interests of justice so require.
Chapter 5 deals with rules and standards.
Chapter 6 focuses on the contemplated Administrative Review Council.
The last chapter of the Bill deals with general matters. It allows the President, in providing for the proposed Administrative Justice Act to come into operation, to set different dates for the commencement of certain clauses.
If the Minister of Justice and Constitutional Development approves publication of the Reports, they will be made available on the Internet at http://www.law.wits.ac.za/salc/salc.html and obtainable from the Government Printer when printed.