The South African Law Commission has celebrated its 25th anniversary during the year under review. Compared to the age of law reform agencies in other jurisdictions, this milestone would make the Commission one of the older agencies internationally. A review of the Commission=s development and achievements during the past 25 years is reflected in Chapter 2.
With a view to extending the basis for consultation and involving interested parties and the community at an earlier stage in the process of law reform, the Commission has 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 and activate the debate in respect of relevant matters and to give direction to the reform which is to follow. Documents of this nature can also serve as background material for seminars or workshops on the topics in question.
The issue papers are also listed in Annexure E.
Five discussion papers, previously referred to as working papers, were finalised during the year under review and published for consultation purposes.
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 Minister of Justice proposes to discuss the matter with the Minister of Welfare.
Project 104 - Money laundering: The Commission's report is under consideration by the Department of Finance.
A number of new investigations commenced during the year under review. A progress report in this regard appears in Chapter 5.
The transformation of our legal system offers great challenges in the area of law reform. The Law Commission and its secretariat view their involvement in the process of law reform as a valuable opportunity to contribute to the inception and preservation of a legal system that satisfies the needs of the South African community.
An important and significant development that took place during the last two years was the restructuring of the Commission=s membership. For the first time in its history the Commission has two female members, elected with effect from 1 January 1996. The restructuring was aimed at making the Commission more representative of the profile of the population, whilst retaining the balance as far as representing various branches of the legal profession is concerned. Thus the new members represent the Constitutional Court, the Supreme Court of Appeal, the bar and side-bar as well as the academic branch.
The Commission started off with part-time members only. From time to time additional members with expertise in a particular field of law relevant to an investigation were appointed in terms of the Act. Owing to the increase in investigations undertaken by the Commission and the fact that all the members of the Commission served on a part-time basis, the need arose for the appointment of full-time members. The first full-time members were Mr Justice P J J Olivier (Vice-Chairperson) and Mr G G Smit who served in this capacity for ten years. At present the Commission has only one full-time member, namely Professor Thandabantu Nhlapo. In addition to assisting with the planning of the various investigations on the Commission=s programme and giving guidance to the researchers concerned, he serves as a liaison between the members of the Commission and the secretariat. He also monitors the progress made with investigations and serves on the working committee. Since the appointment of full-time members in the middle of the eighties, the Commission has reaped considerable dividends in increased productivity and greater efficiency.
In addition to the above-mentioned committees, the Commission established committees for the reform of different branches of the law. The following fields of study, to which committees were appointed, were identified: law of succession, criminal law, law of partnerships, law of things, law of evidence, law of trusts, administrative law, unjustified enrichment, law of delict, common law authorities, law of civil procedure, law of contract, law of criminal procedure, harmonisation of the common law and indigenous law, law of persons, family law and sentencing. The appointment of members of these project committees expired on 31 August 1994. The aspects or branches of the law that should be reformed were identified by the committees, and work is now proceeding on an ad hoc basis with the available personnel.
During the past 25 years some project committees completed their assignments while others were newly established. The present project committees are listed in Annexure B.
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 or project committee, if one 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 of compiling issue papers as a first step - an addition to the Commission=s publication series which has been added in 1996. 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. Discussion papers are then prepared by the Commission's research staff to serve as a basis for its deliberations. They contain essential information on the investigation concerned and the Commission=s tentative proposals for reform. Members of the public are informed of the availability of discussion papers by notices in the Government Gazette, press releases and press conferences. In addition, copies are distributed to organisations and, sometimes, individuals whose views on the subject under discussion the Commission particularly wishes to canvass. The responses to the provisional proposals are carefully studied before final decisions are made. The Commission also hears oral evidence in appropriate cases. The Commission's recommendations are embodied in comprehensive reports that also contain, where applicable, the draft legislation to give effect to the proposals. Reports 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 involved - 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 well regarded. There appears to be an increasing tendency in faculties of law to use and prescribe the Commission's discussion papers and reports 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 as contained in its reports are well substantiated and are the product of a thorough airing of views and debate. They also facilitate the legislative passage of the Commission=s proposed legislation in which its final recommendations are embodied.
The Commission has made several recommendations concerning the reform of family law. These recommendations relate mainly to the law of divorce and to matrimonial property law.
Concerning the law of divorce, the Commission=s recommendation resulted in the passing of the Divorce Act 70 of 1979, the Divorce Amendment Act 7 of 1989 and the Divorce Amendment Act 44 of 1992. The Divorce Act 70 of 1979 introduced a new ground for divorce, namely irretrievable break-down of the marriage. This brought the South African divorce law into line with developments elsewhere in the world. The Commission=s recommendations providing for a divorced woman to share in the pension benefits of her former husband are contained in the Divorce Amendment Act 7 of 1989. The Act greatly improves the position of a party to a divorce by including the pension interest of the other party in his or her assets for determining the patrimonial benefits to which the parties are entitled. Owing to problems experienced with the Act, the Commission subsequently further recommended that provision should be made for the determination of the pension interest in a retirement annuity according to the reserve value at the date of death or divorce of the member of the fund, as assessed by an actuary. The Divorce Amendment Act 44 of 1992 was also passed as a result of a recommendation by the Commission. Section 1 of the Amendment Act confers certain powers upon a court in the case where the court grants a decree of divorce in respect of a marriage, the patrimonial consequences of which are governed by the law of a foreign state.
The Commission found it necessary to investigate the effects of a presumption of death on the marriage of a person presumed to be dead. The Commission recommended that legislation be introduced to provide that the High Court may, at the request of the surviving spouse, grant an order dissolving the marriage. The Commission also recommended that a finding of a presumption of death in pursuance of section 18(2) of the Inquests Act 58 of 1959 should automatically result in the dissolution of a marriage. The Commission=s recommendations resulted in the Dissolution of Marriages on Presumption of Death Act 23 of 1979.
The Commission reviewed the entire field of matrimonial property law and recommended drastic changes that were put into effect in terms of the Matrimonial Property Act 88 of 1984. This brought matrimonial property law into line with modern-day needs. In particular the weak position in which women often found themselves has been greatly improved. The Act provides, inter alia, for the abolition of the marital power of the husband and for a system of joint management of the joint estate of spouses married in community of property. It also introduced a matrimonial property system that enables the spouses to share in the accruals of each other=s estates. Furthermore it introduced the principle of the redistribution of assets in marriages contracted out of community of property before the commencement of the Act. In 1988 these changes were extended to marriages of Black persons, which had until then been regulated on a different basis.
The Commission also investigated the question of access rights to children born out of wedlock and came to the conclusion that the present common law position in terms of which the mother of such a child has exclusive rights in regard to access, custody and guardianship, should be reformed. The Commission recommended that the natural father of a child born out of wedlock may apply to the division of the High Court in which the child is domiciled or usually resident for an order granting him a right of access to such child. After the completion of this investigation, the Commission - upon public demand - further recommended the granting of visitation rights with regard to minor children to persons having any particular family tie or other relationship making it desirable, in the interests of the child, that those persons should have access to the minor child. The Commission=s recommendations led to the adoption of the Natural Fathers of Children Born out of Wedlock Act 86 of 1997.
The Commission also addressed problems encountered with divorce in religious marriages. The rules relating to divorce under Jewish law, for instance, treat a marriage as a private arrangement between the parties thereto and requires mutual consent in the event of dissolution. The Commission recommended an amendment to the Divorce Act 70 of 1970 so as to empower a court to refuse the granting of a decree of divorce or to make any order it deems just when one of the spouses refuses to co-operate in releasing the other spouse from any marriage bonds existing in terms of the rules of religion where it is in the power of the first-mentioned spouse to remove such bonds. The Divorce Amendment Act 95 of 1996 was passed as a result of the Commission=s recommendations.
The Commission reviewed the entire field of the law of succession. Its recommendations resulted in two enactments, namely the Intestate Succession Act 81 of 1987 and the Law of Succession Amendment Act 43 of 1992. The Intestate Succession Act 81 of 1987 is a codification and simplification of the rules of intestate succession. The position of the surviving spouse has been improved. If the deceased is survived by a spouse, but no descendants, the spouse inherits the intestate estate. Previously the spouse had to compete with parents, brothers and sisters. The spouse=s minimum share has been increased from R50 000 to R125 000.
The Law of Succession Amendment Act 43 of 1992 deals with testate succession. Its aim is to simplify formalities and to remove uncertainties. It empowers a court to declare a will valid in certain circumstances, despite non-compliance with certain formalities. It also improves the position of illegitimate children and clarifies the position of adopted children.
The Commission reviewed the law relating to children born out of wedlock with a view to removing certain legal disabilities from which they suffered and improving their legal status. This resulted in the Children=s Status Act 82 of 1987. The Act regulates, inter alia, the status of a child born of a voidable marriage which is annulled; the legitimation of a child through the marriage of his parents; the guardianship of an illegitimate child whose mother is a minor; and the legal status of a child who is procreated through artificial insemination with donor gametes. Provision is further made to facilitate proof of paternity in certain instances.
The Commission investigated the introduction of a system of enduring powers of attorney to enable appointed agents to deal with the affairs of persons who become mentally incapacitated. This resulted in the adoption of the Mentally Ill Persons= Legal Interests Amendment Act 108 of 1990. The Act provides for a simpler procedure for the appointment of a curator for a mentally ill person.
A person=s domicile is important in law for various reasons. In most cases it determines the legal system that applies to certain juristic acts and the court that has jurisdiction in this regard. The Commission=s recommendations concerning the reform of the law of domicile resulted in the Domicile Act 3 of 1992.
Game farming in South Africa has expanded greatly in recent years. From a legal point of view game farmers have experienced problems resulting from the common law rules relating to the acquisition and loss of ownership of game. They were faced with the predicament that under the common law one loses ownership of game as soon as the game escapes from one=s control. The Commission=s recommendations resulted in the Game Theft Act 105 of 1991, which provides better protection for game farmers. The Act provides that the owner of game who keeps the game on land that is sufficiently enclosed does not lose ownership merely by reason of the game escaping from such enclosed land. The Act further provides that the ownership of game does not vest in a person who without consent hunts or catches game on the land of another. The entering upon land with the intent to steal game has been made an offence. The Act further contains provisions to facilitate proof of the theft of game.
The Commission reviewed the law of trusts and recommended better control over trusts. Its recommendations resulted in the Trust Property Control Act 57 of 1988.
During 1991 the Commission produced two of its most important reports, namely the Interim Report on Group and Human Rights and the Report on Constitutional Models. These reports were preceded by a tremendous amount of research and by wide and extensive consultation, both in South Africa and abroad. They were received with great interest and enthusiasm by members of the public and private sectors and by the general public.
After the enactment of the 1993 Constitution, it became evident that a substantial part of the Commission=s recommendations in its interim report found substance in the Bill of Rights embodied in the Constitution. A final report on group and human rights was completed in 1994. Although the Commission did not recommend changes to the wording of the Bill of Rights in the 1993 Constitution, it did record reservations in respect of some issues dealt with in the Constitution, and also made recommendations on certain issues that were not expressly dealt with in the 1993 Constitution=s section on the Bill of Rights.
An analysis of the different ways of protecting the individual rights of all citizens, as well as the rights of collective units, associations, minorities and peoples in each such type or model.
A discussion of the possible methods by which a future constitution can be safeguarded and guaranteed in a legitimate way.
The investigation did not aim to draft a model constitution for South Africa. The Commission merely endeavoured to evaluate the different possibilities in respect of each important aspect of the constitution as objectively as possible. The report comprises some 1 500 pages and covers a vast field of research, comparison and thought.
The irrefutable presumption that a boy under 14 is incapable of having sexual intercourse was abolished.
Any person whose presence is not necessary at criminal proceedings involving the prosecution of an accused for allegedly committing or attempting to commit, inter alia, any indecent act may not be admitted at such proceedings while the complainant is giving evidence, unless the complainant requests otherwise.
The identity of such a complainant is protected under certain circumstances.
Evidence as to sexual intercourse by, or any sexual experience of, any person against or in connection with whom any offence of a sexual nature is alleged to have been committed, may not be adduced or such person may not be questioned thereon unless the court is satisfied that such evidence or such questioning is relevant or that it relates to the offence that is being tried.
In the case where a husband has been convicted of assault on his lawful wife and could, but for the existence of the marriage relationship between them at the time the assault occurred, have been convicted of rape, the fact that he could have been convicted of rape had he not been married to his wife may be regarded by the court as an aggravating circumstance in the passing of sentence.
In its investigation into the protection of child witnesses the Commission recommended that additional protection should be afforded witnesses under the age of 18 years who give evidence in criminal proceedings. The Commission=s recommendation is contained in section 3 of the Criminal Law Amendment Act 135 of 1991. The protection relates to the appointment by the court of an intermediary if it appears to the court that such a witness would be exposed to undue mental stress or suffering if he or she testified in criminal proceedings. No examination, cross-examination or re-examination of the witness, except examination by the court, may take place except through the intermediary. The intermediary may, unless the court directs otherwise, convey the general meaning of any question to the witness. If the court appoints an intermediary it may direct that the witness may give evidence in a place which will set the witness at ease, which is so situated that any person whose presence may upset the witness is outside the sight and hearing of the witness, and which enables any person whose presence is necessary at the proceedings to see and hear, either directly or through the medium of any electronic or other device, the intermediary as well as the witness during his or her testimony. The implementation of the Commission's recommendation is a vast improvement in the protection of such witness.
The recommendations of the Commission concerning offences committed under the influence of liquor or drugs resulted in the Criminal Law Amendment Act 1 of 1988. The main aim of the recommendations is to create an offence in circumstances where a person commits an unlawful act but is not criminally liable therefor owing to the impairment of his or her faculties caused by the use of any substance that has that effect.
As a general rule an award of damages is made according to the value of money at the date when the damage occurred. Usually there is a lapse of time, sometimes a long period, before claimants receive such damages. Claimants therefore receive compensation that is worth less at the later date of receipt than at the occurrence of the damages. The Commission therefore investigated the need for awards of interest in South African law and ways in which it could be introduced. The recommendations mainly contemplate provision for the payment of interest on unliquidated debts resulting from damages.
In the course of the Commission=s comprehensive investigation into the review of the law of insolvency, a number of interim reports were published, leading to the enactment of the following legislation: section 1 of Act 6 of 1991 substituting section 34 of the Insolvency Act of 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 immovable property; Act 122 of 1993 dealing with insolvency interdicts; section 1 of Act 129 of 1993 dealing with appeals against sequestration orders; and Act 32 of 1995 dealing with the protection of financial markets in the event of insolvency.
The advent of the computer posed new and exciting challenges for law reform, especially with regard to the law of evidence. The problem in this regard was that the rules of evidence did not provide adequately for the admissibility of computerised records. In its investigation into the admissibility in civil proceedings of evidence generated by computers, in which the Commission was ably assisted by Mr Justice J M Didcott, the Commission recommended that this matter should be regulated specifically by legislation. The Commission=s recommendations resulted in the Computer Evidence Act 57 of 1983. The Act makes provision for, inter alia, the authentication of computer print-outs, the admissibility in civil proceedings of authenticated computer print-outs and the evidential weight which a court in all the circumstances of the case can attach to such print-outs.
Other important reforms relating to the law of evidence resulted in the Law of Evidence Amendment Act 45 of 1988. These include the admissibility of hearsay evidence as evidence under certain circumstances at criminal proceedings, the introduction of the rule that the wife or husband of an accused is competent, but not compellable, to give evidence for the prosecution in criminal proceedings, and that the wife or husband of an accused cannot be a compellable witness where a co-accused calls that wife or husband as a witness for the defence.
Shortly after its establishment the Commission initiated an investigation to identify obsolete and unnecessary pre-Union statutory provisions. As a result the Commission could as early as 1977 report that it had succeeded in having all but 78 pre-Union statutes removed from the statute book. The last Act in a series of Acts recommended by the Commission is a declaratory Act scheduling the only pre-Union statutes still in force. This investigation resulted in the repeal of more than 1 000 pre-Union proclamations, laws and Acts.
After completion of the Commission=s 1992 report on the courts= powers of review of administrative acts, the Commission reconsidered its recommendations in the light of the adoption of the 1993 Constitution - which contained certain provisions relating to administrative acts. Legislation was recommended bringing the Commission=s original recommendations into line with section 24 and other provisions of that Constitution.
Using external expertise the Commission supervised an investigation into the payments system in South African law. The objective was to bring local law relating to all forms of instruments of payment into line with modern needs and with developments elsewhere in the world. The voluminous report, completed in 1994, is still under consideration by the Minister of Finance.
In the field of shares and securities the Commission investigated the improvement of the position of a bona fide purchaser of listed shares and securities, focussing upon the protection of such a purchaser against vindication by the true owner in the case of theft or unauthorised negotiation of the shares or securities. The Commission=s recommendations were based upon the policy that an equitable balance has to be maintained between the interests of the dispossessed owner, on the one hand, and the interests of the bona fide purchaser of securities, on the other. In a later development the Commission further recommended an improvement of section 138 of the Companies Act of 1973, which section severely burdens the person who lodges documents for the transfer of listed securities of a company with that company. That person has to guarantee that such documents are genuine and has to indemnify the company against any loss or damage suffered by it arising out of a transfer registered by the company of the security referred to in such documents.
In a comprehensive investigation into the debt collecting procedure in Magistrates=s Courts, the Commission made recommendations relating to the simplification of that procedure with a view to curtailing costs and eliminating delays, the issue of imprisonment of debtors (which had been ruled to be unconstitutional as provided for in the Magistrates= Courts Act of 1944 by the Constitutional Court), and the lack of control over extrajudicial debt collectors who are not attorneys. Some of the recommendations have been enacted in the Magistrates= Court Amendment Act, 81 of 1997, while others are still under consideration.
Addressing the issue of access to justice, the Commission recommended in a report on speculative and contingency fees that legal practitioners and their clients should be able to agree to the practitioner charging an uplift fee in the event of the successful outcome of a civil action conducted by the client, and waiving his or her fees should the action be unsuccessful. The Commission=s recommendations led to the adoption of the Contingency Fees Act, 66 of 1997, which has not yet come into operation.
The Commission also made recommendations regarding the elimination of a jurisdictional lacuna in the Supreme Court Act of 1959, improving the previous position in terms of which a division of the High Court could not order the attachment of property or the arrest of a person outside its area of jurisdiction but within the area of jurisdiction of another division in order to found or confirm jurisdiction.
To the Commission the acceptance and implementation of virtually all its recommendations is a cause for satisfaction. The Commission appreciates, with equal satisfaction, the objective consideration of its recommendations by the Department of Justice and the positive approach to law reform by the Minister and Deputy Minister, who have, during their term of office, displayed a keen interest in the activities of the Commission and the promotion of its recommendations. The Justice Portfolio Committee fulfils an equally important role in the promotion of legislation. Researchers of the Commission are involved in the deliberations of the Justice Portfolio Committee when legislation emanating from the Commission is under consideration.
Constitution of the Commission 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 expires on 31 December 1998.
Project committees fall under the second category of committees. The Commission follows the practice of instituting a project committee consisting of experts to assist with an investigation and advise the Commission if a specific investigation in the Commission's programme so requires. During the course of the year under review the following project committees were established: review of the Child Care Act, maintenance, domestic violence, computer related crime. The names of the members of these committees appear in Annexure B. In recommending persons to the Minister for appointment, the Commission ensured representativity 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 the membership of non-governmental organisations for their willingness to serve on project committees of the Commission.
The Commission's working methods are discussed in Chapter 2. In the course of its activities the Commission publishes a variety of documents.
In order to involve the community actively at an earlier stage, the Commission has decided to publish 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 elucidate the aim and extent of the investigation, to point to possible options available for solving existing problems and to initiate and stimulate debate on identified issues.
Discussion papers are numbered serially as they are published. The number of the discussion paper bears no relation to the number of the investigation concerned. Discussion papers published since the introduction of the document series are listed in Annexure F.
This series is used mainly for publications intended to make the common law more readily available and contains translated common law sources and noter-ups. Papers published in this way are listed in Annexure G.
The Commission met only once during the year, namely on 4 and 5 April. The meeting was held in Pretoria.
The working committee of the Commission met four times, namely on 7 February, 4 April, 31 May and 1 August. The first three meetings were held in Pretoria, and the last in Durban.
Project committees held 44 meetings during the year under review.
Legal aspects relating to AIDS 31.01.1997 11.03.1997 08.04.1997 30.08.1997 23.06.1997 19.10.1997 18.07.1997 21.10.
Juvenile justice 29.01.1997 11.09.1997 11.10.
Sexual offences against children 17.02.1997 29.04.
The Department of Transport approached the Commission with a request to include the investigation in its programme, which the Commission subsequently did. The inclusion of the investigation in the Commission's programme was confirmed by the Minister on 4 September 1995.
The need for the investigation emanated from the unsatisfactory financial position of the Multilateral Motor Vehicle Accidents Fund (the 'MMF'). The Auditor-General annually reports on the financial statements of the MMF and has found that the fund is technically insolvent, that there is uncertainty regarding the long-term position of the fund due especially to the actuarial liability for outstanding claims and that it is impossible to give an opinion on the continued existence of the fund as a going concern.
Research was suspended pending the possible introduction by the Department of Transport of a White Paper, a Green Paper and draft Bills dealing with the subject. The Department of Transport has since published a White Paper and has indicated to the Commission that it supports the removal of the investigation from the Commission's programme.
The Minister approved the removal of this investigation from the programme on 24 January 1997.
The Minister approved the inclusion of the investigation in the Commission's programme on 27 January 1997.
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 on 26 to 28 September 1996, was that the Commission should 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.
magistrates= courts and all other courts may decide any matter determined by an Act of Parliament, but a court of a status lower than a High Court may not inquire into or rule on the constitutionality of any legislation or any conduct of the President.
Is it desirable that Magistrates= Courts have jurisdiction in respect of constitutional matters, and if so, to what extent?
If it is considered that Magistrates= Courts lack jurisdiction in respect of constitutional matters, how is the situation to be remedied?
The Commission decided to include the investigation in its programme at its meeting on 31 May 1997, whereupon the Minister formally endorsed the inclusion on 14 June 1997.
The Minister requested the Commission, in a letter dated 13 November 1996, to consider a proposal by Mr Justice 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 in that 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 and to eliminate inspections in loco in certain instances. In addition, a letter by Mr D Dalling, MP, to the Minister dealing with electronic trials was referred to the Commission. Mr Dalling pointed to 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 is 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 object of this investigation is the ultimate establishment of a simple, coherent and generally accessible statute book. This comprises the repeal of obsolete and unnecessary provisions, the consolidation of provisions that belong together, the codification, where appropriate, of particular branches or aspects of the law, and the bringing about of uniformity in the law in all parts of the Republic. This is a task of immense proportions. In fact, it is a never-ending task because new legislation that should be regulated in accordance with the accepted rules is continually being passed.
Up to the present the investigation has remained an ideal in respect of which very little has been achieved. Over the years the Commission has got rid of a considerable amount of dead wood in the statute book through a number of repeal Acts - see projects 7 and 25 (Annexure D). Furthermore, the Commission is striving to give effect to the above-mentioned objectives in the separate investigations that it is undertaking.
The present position is unsatisfactory, especially as regards subordinate legislation. There are no reliable registers of subordinate legislation. The prevailing legal position can in most cases be established only by enquiring at the government department or institution responsible for the making of the measures concerned. The position is further worsened by the fact that such legislation, as a rule, is not available in annotated form, with the result that a search of various Government Gazettes or official gazettes has to be conducted in order to establish the latest position. Briefly, there is a need for the consolidation and indexing of all prevailing, subordinate legislation and the updating thereof in an accessible form. The same problem is encountered with regard to the legislation adopted by the former independent states and self-governing territories within the present Republic.
The question was further considered whether the courts will need guidelines to limit their powers of intervention and to indicate the ambit of the intended doctrine. The provisional conclusion was that the laying down of guidelines by legislation may result in the courts considering themselves bound exclusively by those guidelines. Another question was whether the review power of the courts should extend to all types of contracts, to non-consumer transactions, to international agreements or to standard term contracts only. It was believed that no exceptions should be made to the provisions relating to good faith and that the proposed provisions of the Bill should apply to all contracts concluded after the commencement of the Bill and, furthermore, that the Bill should be binding upon the State. Finally, there is the question of waiver of the benefits of the Bill. It was believed that to allow the waiver of the provisions of the Bill would neutralise the efficacy of the Bill. It was therefore proposed that any agreement or contractual term purporting to exclude the provisions of the Bill or to limit its application should be void. The closing date for comment on the discussion paper was 30 September 1996, which was extended to 15 November 1996.
A draft report will be considered by the Commission during the first quarter of 1998.
The object of this investigation is to determine the extent to which provision can be made in South African law for the recognition of Islamic law relating to marriage, matrimonial property, succession, guardianship and related aspects of family law and the law of persons.
Section 15(1) of the Constitution guarantees everyone the right to freedom of conscience, religion, thought, belief and opinion. Section 15(1) of the Constitution read with section 15(3) does not prevent legislation recognising marriages concluded under any tradition or a system of religious, personal or family law or systems of personal and family law under any tradition, or adhered to by persons professing a particular religion, provided recognition is consistent with section 15 and the other provisions of the Constitution. These provisions now provide the constitutional framework for the future recognition of Islamic marriages and related matters.
The Commission reconsidered the status of the project in 1996 and decided to accord the investigation the highest possible priority rating and to recommend the appointment of a project committee.
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. The appointment of the project committee is under consideration by the Minister.
A project committee has been appointed to assist with the investigation.
The project committee has considered the comments received on all the working papers except working paper 61 and has assumed points of view on appropriate legislation. The names of the project committee members are contained in Annexure B.
During 1992 the project committee reconsidered its working method with a view to expediting the completion of the investigation as far as possible. It was decided, for the time being, not to distribute further working papers for comment but to prepare draft legislation on the insolvency of individuals as soon as possible. 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 have been received. At a meeting of the insolvency project committee held on 21 October 1997 the committee considered a detailed discussion of general comments and comments on the first 32 clauses of the Bill, and gave its views on matters raised by the commentators and the researcher. The consideration of the other comments are receiving attention. According to current planning the investigation will be concluded in the course of 1998.
An interim report on trans-national insolvency has been completed but a further report is still to be completed before the project committee considers the matter. Trusts, deceased estates and the consolidation of statutory provisions on insolvency into one Act are still to be considered.
Act 32 of 1995 dealing with the protection of financial markets in the event of insolvency.
The desirability of the limitation of the delictual liability of professional persons and the possible regulation thereof by legislation are investigated in this project.
Auditors and chartered accountants are in a special position. The audit function required by law places auditors in a category that differs from those of other professions. It exposes them more to unlimited liability than for example attorneys and stockbrokers.
It is very difficult to obtain professional indemnity insurance to cover liability that auditors might incur as a result of negligence or dishonesty in the exercise of their profession.
The Commission is awaiting the response of the professions concerned to enable it to plan the further course of the investigation.
The investigation entails a comprehensive review of the Criminal Procedure Act, 51 of 1977. Owing to the extent thereof, the Commission adopted an incremental approach to the investigation. The objects are to investigate the possibility of shortening and simplifying certain cumbrous procedures that give rise to the unnecessary protraction of trials as well as investigating the influence of the Bill of Rights on the Criminal Procedure Act.
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 is 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 Criminal Law Amendment Act, 86 of 1996.
During 1996 the Minister appointed a project committee chaired by Judge L van den Heever. The names of the other project committee members are reflected in Annexure B. Since its appointment the project committee met on several occasions to plan the completion of the investigation. In the third phase of the investigation the project committee approved the publication of an issue paper dealing with access to the criminal justice system and after approval thereof by the working committee during February 1997, the issue paper was published during April 1997. The return date for comment was 30 June 1996 but was extended until 30 August 1997.
an evaluation of existing forms of punishment and compulsory sentences. The Minister of Justice also requested the committee to consider the issue of mandatory minimum sentences and such an investigation has subsequently been included in the committee's planning of the investigation.
At its meeting on 10 January 1997 the committee approved the publication of an issue paper dealing with the issues of compensation for victims of crime and victim empowerment as part of restorative justice. The publication of the issue paper was approved by the Commission's working committee during April 1997 and the issue paper was subsequently published during April 1997. The closing date for comment was 30 June 1997 but was extended until the end of September 1997.
The administration of such a scheme, including the rationale for the establishment of such a scheme, the meaning of Avictim@ 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 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.
Sentencing practices in South Africa have recently been the focus of much attention in the media. As a result of the unprecedented crime wave that is sweeping our country, there has been an outcry from the community, both for more stringent punishment and that offenders should serve a more realistic portion of the sentences imposed by courts of law. The public also renewed claims for sentences which will give expression to the desire for retribution and which will demonstrate that concern for offenders must give way to concern for the protection of the public. There appears to be general dissatisfaction with the leniency of sentences imposed by courts of law for serious crimes.
At its meeting on 11 October 1997 the project committee resolved that the Commission should host an international conference on the development of a structured sentencing policy during 1998 before a discussion paper is developed on the issue. The committee also resolved that an issue paper on the expungement of the criminal record of juveniles should be developed and considered at the committee's first meeting in 1998.
The Commission has been investigating aspects of the law relating to HIV/AIDS since 1993. Since then extensive research has been done. Evidence was heard from interest groups, and a discussion document (Working Paper 58) was published for general information and comment during 1995. The comments on the Working Paper reflected differences of opinion between interest groups, inter alia regarding the Commission=s basic preliminary conclusion that an AIDS-specific statute (containing a general prohibition against unfair discrimination on the ground of HIV infection) was warranted.
After the appointment of members of the Commission=s project committee on HIV/AIDS expired, and the appointment of a new representative Law Commission at the beginning of 1996, new appointments were made to the project committee to reflect various skills and different experiences to assist the Commission with the development of a final report for consideration by the Minister of Justice. In view of the project committee's work on HIV/AIDS and the workplace, additional members were appointed to the project committee during the year under review in order to provide for representation of the interests of labour and business. Mr Justice Edwin Cameron acts as project leader. The names of the other members of the project committee are reflected in Annexure B.
The project committee is pursuing a consultative process in an attempt to resolve the differences of opinion reflected in the comments on Working Paper 58. It also follows an adapted approach of dealing with issues incrementally in an attempt to finalise them more swiftly.
The Commission's first interim report on Aspects of the Law Relating to AIDS (which was approved by the Commission during 1996) was tabled in Parliament by the Minister of Justice on 28 August 1997. The National Assembly resolved on 18 September 1997 that the recommendations in the report should be implemented urgently by the Government. The issues covered by the report were agreed by commentators to be relatively non-controversial. The recommendations deal with a limitation on the use of non-disposable syringes, needles, and other hazardous material in health care settings; the implementation, in relevant occupational legislation, of universal precautions in the work place; the statutory implementation of a national compulsory standard for condoms in accordance with international standards; the promulgation of a national policy on testing for HIV infection, and the amendment, finalisation and promulgation of the Draft Regulations Relating to Communicable Diseases and the Notification of Notifiable Medical Conditions, 1993 (which deschedule AIDS as a communicable disease in respect of which certain coercive measures apply mandatorily). It is to be noted that the latter recommendation does not concern the notification of HIV/AIDS. Draft legislation for the implementation of these recommendations is included in the report.
The advances made in medical science and especially the application of medical technology have resulted in patients living longer. This signifies a welcome prolongation of meaningful life for many patients, but the prolongation of a poor quality of life for others, which inevitably raises the question whether treatment is a benefit or a burden.
Worldwide, increased importance is being attached to a patient's autonomy and the need has therefore arisen to consider the protection of a patient's right to refuse medical treatment, particularly where the patient is no longer capable of communicating his or her wishes to the doctor. In this regard the so-called living will is relevant.
A working paper was published on 4 February 1994 for general information and comment. The aim of this investigation was to determine whether and in what circumstances actions that could indirectly end a person's life may be justified; the role that the wishes of the patient should play in this regard and the nature of the conduct that would be acceptable in cases where no instructions or requests were received from such persons.
A workshop on this topic was held on 22 June 1994. It was attended by 80 persons, including experts in the fields of medicine, law, religion and ethics.
On 18 October 1996 a second workshop was held where draft legislation was discussed. It was attended by 20 persons, all of whom were experts in the fields of medicine and law.
The right of a medical practitioner responsible for the treatment of a terminally ill patient to alleviate pain and distress by increasing the dosage of medication to be given to the patient even if the secondary effect of the medication may be that the patient=s life will be shortened.
Whether it would be lawful for a medical practitioner to actively assist a terminally ill, but mentally competent patient to die by administering or providing a lethal agent.
A draft report will be considered by the Commission during 1998.
During August 1997 the Commission published a discussion paper on customary marriages for general information and comment. The discussion paper was preceded by an issue paper on customary marriages which set out the nature of the problem in respect of customary marriages, and a range of proposals for addressing the problem: chief among these was that the law should grant full recognition to customary marriages, with the opportunity being seized at the same time to improve the position of women and children within these marriages.
Marriage and marriage laws are matters of high and immediate significance, morally, socially and economically. The Commission is under an obligation to balance the need for the speedy despatch of its business with the claims of South African society to be widely consulted and to have the issues fully debated. The discussion paper thus 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 amenable to several solutions.
In order to remove the anomalies created by many years of discrimination, customary marriage must now be fully recognized. To do so will comply with sections 9, 15, 30 and 31 of the Constitution, provisions which suggest that the same effect be given to African cultural institutions as to those of the Western tradition.
Legislative provision must be made for a minimum set of essential requirements for marriage.
The main requirement for a valid customary marriage should be the consent of the spouses.
All customary marriages should be registered and more people should be encouraged to register their customary marriages. To this end the traditional authorities should be constituted registering officers.
what the minimum age for marriage under customary law should be.
The return date for comment on the discussion paper is 19 January 1998.
Alternative dispute resolution (ADR) covers all forms of dispute resolution other than litigation or adjudication through the courts. It therefore includes a broad range of mechanisms and processes designed to assist parties in resolving disputes creatively and effectively. These mechanisms and processes are not intended to supplant court adjudication, but rather to supplement it. The most common types of ADR include negotiation, conciliation, mediation and arbitration.
In this investigation the Commission is addressing the question whether the administration of justice would be enhanced if a broader concept of dispute resolution could be accommodated within the formal legal system.
An issue paper dealing with all aspects of ADR was published for information and comment during the year under review.
The question whether non-adjudicative dispute resolution may be a less expensive and less conflicting way of resolving disputes and problems.
An investigation of the existing court structures and services in order to find a specific model of family mediation suitable to South African circumstances.
A series of workshops on community courts and mediation centres are being planned to be held throughout South Africa during the first quarter of 1998. Three separate discussion papers will then be developed for comments and information. The discussion papers will deal with ADR and the civil law, family mediation and community courts respectively.
The Commission has 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.
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 during 1998.
It is clear that the law does not hold an exclusive position in either the response to, or the prevention of, domestic violence. However, when victims of domestic violence do turn to the law for protection, the law should be effective and efficient in its response. The objective of the recommendations contained in the Commission=s discussion paper, published in February 1997, is to ensure that the substance and procedures of domestic violence legislation are well tailored to the needs of those suffering abuse in a domestic context.
The return date for comment on the discussion paper was 30 May 1997. A draft report will be finalised during the first half of 1998.
Legislation providing for the procedural aspects associated with the investigation and prosecution of the above-mentioned offenses.
Investigate offenses committed by means of the Internet such as the publication of pornography.
Orientation of the judiciary and investigating and prosecuting authorities in respect of the application of the above-mentioned legislation.
The project committee has decided to take an incremental approach to the investigation. The first stage of the investigation comprises the criminalisation of unlawful access to computers and the planting of computer codes, as well as procedural provisions aimed at enhancing the investigation and prosecution of these offenses. An issue paper dealing with these aspects will be published during the first half of 1998.
The background to this investigation is outlined in Chapter 4.
The investigation will focus mainly on whether the provisions contained in the Marriage Act 25 of 1961 are adequate or whether they should be amended and, in that event, the way in which such amendments should be effected.
The Commission wishes to draw attention to two of its investigations which have a direct bearing on this project, namely Customary Marriages and Islamic Marriages. The investigation into Customary Marriages has already resulted in an issue paper and a discussion paper containing preliminary recommendations, whereas the investigation into Islamic Marriages is still in its planning stage.
The Commission has invited comments of all parties who feel that they 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 is 20 February 1998. Based on the outcome of these comments a discussion paper setting out the issues and containing preliminary recommendations and draft legislation will be prepared and distributed for general information and comment during the course of 1998.
A project committee in respect of this investigation was appointed by the Minister on 17 June 1997. The names of the project committee members are reflected in Annexure B.
Research has commenced and the first issue paper on the scope of the investigation and its underlying principles will be considered by the working committee early in 1998. Two further issue papers are planned for 1998.
A discussion paper and draft legislation will be published for general information and comment during the first half of 1998.
A discussion paper and draft legislation will be published during the first quarter of 1998.
In view of several investigations with a higher priority it was not possible to commence with research during the year under review. The investigation will commence early in 1998.
For the efficient performance of its functions, the Commission depends on the co-operation of institutions and persons that have an interest in its investigations. In order to ensure the best possible involvement of interested parties, therefore, it is the Commission=s policy to inform the public as far as possible of new investigations undertaken and of discussion papers published for general information and comment. Issue papers and discussion papers of the Commission are released by way of press statements so as to ensure good coverage. However, the Commission also of its own accord submits issue papers and discussion papers to institutions, of which it is aware, 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 hosted three media conferences in Cape Town and two in Pretoria at which issue papers and discussions papers issued during the course of the year were released. The media conferences in Cape Town were attended by both the Minister and the Deputy Minister while the one in Pretoria was attended by the Deputy Minister. Invitations were extended to role players working in the areas concerned. There was good attendance and a live interest in the work of the Commission was shown. The conferences received television coverage. The full-time member and the secretary were interviewed on radio.
Interview with SABC-TV news on the customary marriages Discussion Paper.
Interview on Bop-TV on the functioning of the Commission.
SAFM interview on customary law and the role of the Commission.
SABC-Radio news on customary marriages.
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.
Researchers participated in numerous radio interviews and phone-in programmes: Punt Radio; Radio Mmabatho; Kaya; Bisho; Soweto Radio.
Researcher had discussions with an international delegation of the US Citizen Ambassador Programme.
Researcher had a discussion with Natasha Cica, an Australian legislative drafter concerned with the Northern Territories Act on Euthanasia.
Researcher had a telephone conference with representatives of the Catholic Church.
Researcher had a discussion with Anthony Smits of the American firm of Hebb & Gitlin.
Researcher was interviewed on K FM, SA FM and Radio Sonder Grense.
Researcher was interviewed on Radio 702 and Radio Highveld.
Researcher attended all the meetings of the National Programme Team on Victim Empowerment established in terms of the NCPS.
Researcher attended the launch of a pilot project on victim empowerment hosted by NICRO.
Researcher and Project Committee members participated in numerous radio and newspaper interviews.
Researcher and project committee members had several discussions with various international experts on juvenile justice.
Project leaders briefed international community and the media.
Researcher was interviewed on Radio Punt.
The briefing covered the history and objectives of the Commission, its composition and its vision.
â Measures implemented to develop public participation in the Commission's activities.
â Project committees.
â Overall success achieved.
The workshops will continue early in 1998.
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, numerous foreign visitors from different countries visited the offices of the Commission. The majority of visitors were interested in the changes taking place in South Africa and the role of the Commission in this process.
Researcher briefed ad hoc Parliamentary Committee.
Researcher delivered address on "Euthanasia v Palliative Care". (University of the North.
Researcher attended a workshop held by the Department of Justice's Task Team on Maintenance.
Researcher attended a workshop on the establishment of Family Courts.
Researcher gave a lecture at the Assistant Master of the High Court Seminar, Justice College.
The project committee hosted a workshop on "Medical Certificates in respect of HIV/AIDS related Deaths".
Researcher participated in a workshop hosted by the Centre for Legal Services, University of Zululand, in association with the National Human Rights Trust.
Researcher attended a workshop on the Issue Paper on Restorative Justice. (Department of Safety and Security.
Researcher attended a conference on "Criminal Justice and the Constitution" hosted by the Verloren van Themaat Centre, UNISA.
Researcher presented on the issue paper at the Tlhaole High School, Lehurutse, North-West Province.
During the year under review the Commission hosted a number of workshops in respect of its investigations into juvenile justice, sexual offences against children and the recognition of customary marriages. The particulars of the workshops appear in Chapter 6. The Commission would like to extend its appreciation to all those who participated and who favoured the Commission with their inputs and active participation in the discussions and deliberations.
Mention has already been made elsewhere in the report of the assistance of the donor community without whose support the workshops would not have been possible. The Commission would like to express its sincere appreciation for the generous assistance given by the German Government through the German Development Co-operation in respect of the customary law, the United Nations Crime Prevention and Criminal Justice Division through the United Nations Development Programme for the hosting of an international drafting workshop on juvenile justice and Rädda Barnen (SA) for its assistance with the investigation into sexual offences against children. The Commission would also like to express its appreciation to UNICEF for sponsoring the production of a video on juvenile justice which was utilised at the workshops as well as the publication of a questionnaire to supplement the issue paper.
(Present members marked with an asterisk, see Chapter 3.
(Since March 1983 a serial number has been assigned to all discussion papers - previously referred to as working papers - and only these are listed below. Discussion papers are numbered consecutively.