Vol. 5 No.
It is with a great feeling of sadness that the Commission has learned about the illness of the Chairperson of the SA Law Commission, Chief Justice I Mahomed. The Commissioners and members of the Secretariat wish him a speedy and full recovery and assure him and his family of their continued support.
The Commission congratulates Mr Jeremy Gauntlett SC, member of the Cape Bar and part-time Commissioner of the Law Commission, who was elected Chairperson of the General Council of the Bar of South Africa at its annual general meeting on 23 July 1999.
At a cocktail ceremony held in Cape Town on 31 March 2000, the South African Law Commission awarded a prize for the best law reform essay of 1999. The prize, in the form of computer equipment and software, was sponsored by Juta & Co and the competition was open to final-year LLB students at South African universities.
The winner, Mr Richard Moultrie of the University of Cape Town, with an essay entitled The Instrumental and Moral Rationality of a Good Faith Doctrine in the South African Law of Contract, was the unanimous choice of the panel.
The Law Commission wishes to thank all those who participated and, in particular, Juta & Co for providing a very lucrative prize. The competition is expected to become an annual event.
Professor Thandabantu Nhlapo, the full-time member of the Commission, has accepted an appointment as Visiting Professor of Law at the Harvard Law School for the winter term (January) 2001. He will offer an examinable elective course in Constitutionalism, Human Rights and the Problem of Multiculturalism within the Law School's Human Rights Program. The Commission congratulates Professor Nhlapo for the honour.
Discussion Paper 89 deals with the right of the Director of Public Prosecutions to appeal on questions of fact and contains recommendations on the amendment of the Criminal Procedure Act.
In 1997 the Minister of Justice was approached by Advocate Kahn SC (the Attorney-General of the Cape) to have the law changed to allow the Attorney-General (now Director of Public Prosecutions) to appeal on a question of fact , i e, relating to the merits of the case. The Minister requested the Law Commission to include an investigation into the matter in its programme as part of its investigation into the simplification of criminal procedure. This aspect was subsequently included in the Commission's broader investigation in project 73 (Simplification of criminal procedure).
As the law stands at present, an accused can appeal, subject to certain procedural qualifications, against any aspect of bail, a conviction or sentence in a criminal case. The accused may also have proceedings in lower courts reviewed and, in the case of the High Court, have irregularities dealt with by way of appeal or special entry.
The State, on the other hand, may appeal (also subject to similar procedural qualifications) against the grant of bail, an acquittal on a legal ground and also against an inadequate sentence. Experience has shown that these rights are used sparingly by the State. What the State does not have is any right to appeal against a finding of not guilty in relation to the facts of the case - the so-called appeal on the merits. The difference between questions of law and fact is often one of extreme difficulty to judge or apply and there are many reported cases dealing with the distinction. The same problem arose in the context of tax appeals, for instance, and because of the ever present difficulty the distinction in tax cases has been abolished without any deleterious effect.
In the present context there are conflicting policy considerations. The one is that an accused person has benefits and protections - some of which are guaranteed by the Constitution - which the prosecution, representing the community and the victims of crime, does not always enjoy. The administration of justice in South Africa (especially with regard to criminal procedure) has followed the English tradition and has always been characterised by liberality and respect for the individual.
On the other hand, there are the interests of society, whose members (not only the victims) also enjoy the rights contained in the Bill of Rights and are entitled to a just and fair decision in criminal cases. They have an interest in the conviction and sentencing of a person who is clearly guilty and who, because of incompetence or obvious errors in the court proceedings, goes free. It cannot be doubted that a significant number of criminals go unpunished due to numerous flaws in the administration of the criminal justice system.
In considering the question whether a procedure such as the right to appeal should be changed, it is also imperative to consider whether the system, which denies the State a full right of appeal, satisfies present demands and whether changes may contribute towards achieving justice in the administration of the criminal law. Some regard must be given to cost and time factors and one must balance all the relevant considerations. In the end the question essentially boils down to this: since the State has a right of appeal in connection with bail, sentence and questions of law, why should it not have a similar right in relation to factual matters In other words, why should the right of appeal not be general Having carefully considered the numerous countervailing factors, the Commission concluded that on balance there is merit in extending the right of the State to appeal on questions of fact. The Commission therefore recommended that the Criminal Procedure Act be amended to make provision for the right of the State (Director of Prosecutions or Prosecutor) to appeal on questions of fact from both lower and superior courts?
The Commission invites the comments of all parties who feel that they have an interest in the topic or may be affected by the amendment. Individuals, organisations and institutions affected by the amendment or who are likely to be affected by possible amendments to the existing legislation should participate in this debate and are invited to indicate how the present law affects them, what their concerns are, what solutions they are able to propose and whether there are other issues and/or options affecting the law relating to appeals by the State in criminal cases that must be explored.
Based on the outcome of these comments and discussions, a report containing the Commission's final recommendations will be prepared and presented to the Minister of Justice.
The closing date for comment on Discussion Paper 89 was 31 March 2000.
Discussion Paper 90 deals with the application of the Bill of Rights to criminal procedure, criminal law, law of evidence and sentencing and contains recommendations on the amendment of the Criminal Procedure Act.
In 1994 the Minister requested the Commission to give urgent attention to the problems arising from the application of the Bill of Rights to criminal procedure, criminal law, law of evidence and sentencing. A new investigation was consequently included in the Commission's programme (Project 101 - The application of the Bill of Rights to criminal procedure, criminal law, the law of evidence and sentencing). The Discussion Paper focuses only on those sections which are clearly unconstitutional and which need urgent consideration. The Commission concluded that neither the Commission nor the Project Committee dealing with the investigation should usurp the function of the Constitutional Court and decide on the constitutionality of those sections of the Criminal Procedure Act which are only arguably unconstitutional. In those instances the Constitutional Court should rather develop the case law step by step. While the Discussion Paper primarily focuses on provisions which are considered to be clearly unconstitutional, the constitutionality of some other provisions and whether or not they should be amended in the scope of the investigation, is also dealt with. In these instances the provisions and suggestions for amendment are included in the discussion paper for purposes of inviting comment.
the right to a fair trial, for example, section 213 (proof of written statement by consent); sections 105, 119, 126 and 213 (the unrepresented accused).
The closing date for comment on Discussion Paper 90 was 31 March 2000.
Discussion Paper 91 deals with a new sentencing framework for South Africa and contains recommendations on the enactment of a new Sentencing Framework Act.
The South African sentencing system faces various problems. There is a perception that like cases are not being treated alike; that sentencers do not give enough weight to certain serious offences; that imaginative South African restorative alternatives are not being provided for offenders that are being sent to prison for less serious offences; that sufficient attention is not being paid to the concerns of victims of crime; and that, largely because of unmanageable overcrowding, sentenced prisoners are being released too readily.
The background research conducted by the Commission has shown that the mandatory minimum sentences introduced by the 1997 Criminal Law Amendment Act, which sought to ensure that some serious offences were punished more severely and also to bring a measure of uniformity to the sentencing process, has effected some changes. Sentences for some crimes, most prominently rape, are now longer than they were before. However, some difficulties with the 1997 Act remain.
Judicial officers, many of whom were opposed to the Act from its inception, have continued to criticise it for limiting their discretion. Even if their objection in principle is set aside, there are difficulties for sentencers in applying the new legislation. The Act deals with only some of the crucial issues. Only a limited number of crimes is covered while other serious crimes are not dealt with at all (kidnapping, for example, is not included), thus disturbing the proportionality between various types of crime. Most importantly, judges have interpreted inconsistently the "substantial and compelling circumstances", which have to be found before departure from the prescribed minima is allowed. Where they have thought that the prescribed sentence would on balance be too heavy they have sought to find that "substantial and compelling circumstances" were present and have described aspects of crimes as making them less serious. In the process they have both incensed the public and defeated the legislative objective of consistent toughness. The finding that a father who raped his young daughter represented no threat to the public at large, and that a ruling of substantial and compelling circumstances justifying the departure from a prescribed minimum sentence could be based on that "fact", amongst others, is a notorious example of such a case.
When the1997 Criminal Law Amendment Act was passed no thought appears to have been given to what impact it would have on sentencing patterns, which in turn would have a knock-on effect on the prison system that would have to implement the new longer sentences. The reason for this may be that the legislation was designed to be temporary. The problem was not picked up immediately as the Act only came into force on 1 May 1998. Even then its effect was not felt for a considerable time since it applied only to offences committed after that date. The serious offences for which minimum sentences are prescribed take several months to come to court with the result that only in the latter half of 1999 were the minimum sentences prescribed by the Act regularly being imposed. Nevertheless, the impact of a sudden and significant increase in the number of life sentences, for example, will be felt for many years to come.
The research on mandatory minimum sentences, which the Committee conducted at the same time as the 1997 Criminal Law Amendment Act was passing through Parliament, confirmed that there was considerable opposition from the judges in particular to a scheme of legislated fixed sentences, even though it might provide a solution of a kind to the problems of sentencing disparity and of ensuring that serious crimes were punished with sufficient harshness. There was also significant opposition to binding guidelines developed by an independent sentencing commission. The idea of a system operating along the lines of the well-known Minnesota Sentencing Guidelines, which are generated by an independent commission, did, however, receive the support of the majority of the members of the Natal bench of the High Court.
The research conducted on restorative justice revealed that there was near universal support for giving victims an increased, although still not dominant, role in the sentencing process. It also found a significant sentiment favouring the use of restorative justice initiatives in less serious cases. In addition, there was no doubt that respondents felt that current measures for the compensation of victims of crime could be improved.
The Commission accepts that there is substance to the criticism of the sentencing system that has been advanced in the past decade, both before and after the introduction of the 1997 Criminal Law Amendment Act. An ideal system should be seen to promote consistency in sentencing, deal appropriately with concerns that particular offences are not being regarded with an appropriate degree of seriousness, allow for victim participation and restorative initiatives and, at the same time, produce sentencing outcomes that are within the capacity of the State to enforce in the long term. The Commission therefore proposes a framework that in its view can meet all these desiderata to the greatest extent possible.
Such a framework will require the co-operation of the different branches of government. A single branch cannot solve the problem on its own. Reform proposals should combine, as far as possible, the advantages that may be derived from the involvement of all three branches of government in the sentencing process and eliminate the disadvantages inherent in giving a single one of them priority. In the model that the Commission proposes, sentencing decisions will continue to be made by the courts, but these decisions will be informed by new initiatives from the legislative and administrative branches that will meet the need for consistency, as well as for sensitivity to the seriousness of offences, the needs of victims and the capacity of the system to carry out sentences that have been imposed.
The key recommendation of the Commission is that the different arms of government enter into a new partnership on sentencing. To limit sentencing disparities there must be more guidance for the courts on sentencing. In the first instance this will take the form of more specific guideline judgments and of normative sentencing guidelines. The Supreme Court of Appeal will give the guideline judgments in the course of the normal appellate process. These judgments will set guidelines in the light of principles developed by Parliament in legislation and information provided by a new Sentencing Council on sentencing patterns, the efficacy of various sentences and the capacity of the State to implement such sentences. The judiciary, key criminal justice departments, sentencing experts, and civil society through representatives of victims' organizations will be represented on this Council.
The Sentencing Council will be able to develop normative guidelines for categories of crime for which the Supreme Court of Appeal has not set guidelines. In addition the Sentencing Council will have to collect and publish comprehensive sentencing data on an annual basis. The Council would have to do research and publish reports on the efficacy and cost effectiveness of the various sentencing options provided by legislation and make policy recommendations on the further development of community corrections in particular.
The guideline-setting function of the Supreme Court of Appeal will retain a key role for the senior judiciary in sentencing decision-making, while provision for the Court to have placed before it information provided by the Sentencing Council would allow it to take into account factors that cannot normally be entertained when single cases are considered in isolation.
The Sentencing Council set up in the way proposed will have the advantages of a sentencing commission in the sense that it would be able to take an overall view of the entire system and make recommendations based on requirements of principle in that light. Its information function will also be important, both in assisting the courts and in shaping public perceptions about the reality of sentencing options.
The Sentencing Council will not be isolated from public opinion as it will have a duty to consult widely. In addition, both cabinet ministers and Parliament would be able to ask it directly to consider the development of guidelines for a category of offences that the public might regard as not being treated with the appropriate degree of seriousness.
A new sentencing framework requires not only a new partnership amongst the different arms of government. It requires also a new partnership between the State and the public in general and victims of crime in particular. The key to this partnership is improved provision for victim involvement in the sentencing process and recognition of victim concerns in the type of substantive sentences that are handed down.
At a substantive level, explicit attention is given to restitution and compensation for victims of crime. Restitution and compensation are key elements of the comprehensive new sentence of community corrections, which also allows victims to benefit from other orders such as community service by the offender and victim-offender mediation. Sentences may also be suspended on condition of restitution or compensation for victims of crime. In every case where neither of these sentences is imposed the court must consider whether a separate restitution or compensation order should be made.
The procedural innovations designed to benefit victims of crime include a requirement that prosecutors, when they intervene on sentence, must consider the interests of victims in every case. There is provision for victim impact statements to be presented to the courts so that they may learn what impact the crime had in practice. Victims must be told when and how they may be involved in the eventual release of sentenced offenders from prison. These innovations are backed by detailed rules to ensure that victims are told of their rights. There are also provisions to ensure that the income of offenders is revealed so that they can be ordered to make reparation for their crimes in an appropriate way.
The various changes that are proposed will be combined in a new piece of legislation, the Sentencing Framework Act. The Commission is putting forward a draft proposal for such a new Act. The new legislation will contribute to legal certainty by bringing together in one easily accessible law all the provisions dealing with the imposition of sentence. The general principles applicable to sentencing will be clearly stated. The publication of normative sentencing guidelines will simplify the task of the courts, thus contributing to speedy and effective justice and ensuring that offenders know what to expect. Simplified procedural rules will make it clear to the public what is happening in the sentencing process and encourage public participation in the administration of justice.
The closing date for comment on discussion paper 91 is 31 May 2000.
In March 1996 the Minister of Justice approved the inclusion of the review of security legislation in the Commission's programme and subsequently appointed the project committee to deal with this investigation. The Interception and Monitoring Prohibition Act of 1992 is the first subject which was considered by the project committee as part of this investigation. In future the project committee will consider other areas of the law relating to security.
The Working Committee of the Commission approved the publication of Discussion Paper 78 for general information and comment in December 1998. Discussion Paper 78 deals with the Interception and Monitoring Prohibition Act of 1992 and contains recommendations on the amendment of the Act.
Twenty seven respondents commented in writing on the discussion paper. The project committee met on 29 May 1999 with parties representing telecommunication service providers, law enforcement, intelligence and security agencies. Their views and those reflected in the written comments were taken into account. The Report containing a draft Bill was submitted to the Minister for Justice and Constitutional Development on 23 November 1999.
The regulation of the interception of cellular communications.
The insertion of a definition of "communication" into the Act to ensure that any conversation or communication can be intercepted.
The addition of further offences in the definition of "serious offence" to fall within the ambit of the Act.
That communications between a legal representative and his or her client may not be intercepted or monitored, except if on reasonable grounds, the judge is satisfied that such a legal representative is involved in, or aiding or abetting a serious offence or an offence threatening the security of the Republic.
That the judge upon application may direct further additions or amendments to an existing directive if he or she is satisfied that the addition or amendment is necessary.
That no person, body or organization rendering a telecommunication service, may provide any such service which does not have the capacity to be monitored and that the investment, technical, maintenance and operating costs in enabling a telecommunication service to be monitored, shall be carried by the person, body or organization rendering such a service.
That any person, body or organization rendering a telecommunication service shall at own cost and within the period specified in a directive by the Minister for Posts, Telecommunications and Broadcasting, acquire the necessary facilities and devices to enable the monitoring of communications and that the remuneration payable to telecommunication service providers referred to in the Act shall only be in respect of direct costs incurred in respect of personnel and administration and the lease of telecommunications systems, where applicable, and shall not include the costs of acquiring the facilities and devices.
That the South African Police Service, the South African National Defence Force, the Intelligence Agency and the Secret Service shall, at State expense, equip, operate and maintain central monitoring centres for the authorized monitoring of conversations or communications and that an agreement on the sharing of any such central monitoring centre shall not be excluded.
That the availability of the procedures set out in the Bill in respect of the ongoing provisioning of call-related information shall exclude the use of any power in any other Act, to obtain evidence or information in respect of a person, body or organization.
That any person, body or organization rendering a telecommunication service shall ensure that proper records regarding identities and addresses are kept in respect of clients to whom a telecommunication service is provided, whether on a prepaid or contract basis and to require positive identification from a client to whom such a service is provided.
That any person, body or organization rendering a telecommunication service, shall provide such information regarding the customer who has contracted for the use of such telecommunication service to the South African Police Service, the South African National Defence Force, the Agency or the Service, as may be required by an officer or member, to fulfil the functions and exercise the powers authorized by law.
That if a judge considers any case to be sufficiently urgent, the procedure set out in the Act may be dispensed with and the matter may be dealt with in such manner and subject to such conditions as the judge may deem fit, including the grant in any appropriate case of an oral directive followed up by written application incorporating the terms of the directive within one week, and that where an oral directive was issued, the judge must reduce it to writing within two days.
That the use of any information obtained through the application of the Act, or any similar Act in another country, as evidence in any prosecution, is subject to the decision of a Director of Public Prosecutions or an Investigating Director.
That information regarding the commission of any criminal offence, obtained by means of any interception or monitoring in terms of the Act, or any similar Act in another country may be admissible as evidence in criminal proceedings.
The Commission recently submitted its report on the review of the Law of Insolvency to the Minister for Justice and Constitutional Development.
A project committee was appointed to assist with the investigation. The committee held 28 meetings. Six interim reports were issued and seven working papers were published for comments. Discussion Papers 66 and 86 with Draft Bills and Explanatory Memoranda were published for comments during 1996 and 1999 respectively. More than 350 pages of comments were received on Discussion Paper 66 alone.
The principal Act dealing with insolvency in South Africa is the Insolvency Act 24 of 1936. This Act replaced the Insolvency Act of 1916 but did not amend it drastically. The 1936 Act has been amended more than 20 times, but it has never been reviewed as a whole.
The main aim of the investigation was to balance and satisfy the needs of the different stakeholders. The major stakeholders are the commercial community in general (creditors in particular), insolvent debtors, insolvency practitioners and the government. Because of conflicting interests it is often difficult to strike a fair balance between the different interests. Effective, speedy and fair procedures are important needs of stakeholders and formed the basis for the review.
A draft Bill for the insolvency of individuals is contained in Volume 2 of the report. A summary of the changes proposed in the Bill appear on page 14 of Volume 1 of the report. Many of the changes are technical.
Only a person who is a member of a professional body recognised by the Minister may be appointed as liquidator (clause 53(1)(a)).
The discretion of the Master of the High Court to appoint a liquidator of his or her choice has been limited in cases where creditors nominate or vote for a liquidator (clauses 32, 52, 54, 55, 58 and 60).
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 (clause 41(3)).
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 (clause 38).
A creditor under a financial lease agreement is treated as a secured creditor and must prove a claim (clause 76).
Many of the preferent claims (for instance for taxes) are abolished in terms of clause 80.
In respect of dispositions before liquidation that may be set aside, wider provisions apply to associates of the insolvent than to other persons (clauses 18 and 20) 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 (clause 25(2A)).
A cap of R200 000 has been placed on the exclusion of pension benefits from the insolvent estate (clause 15(4)) and certain extraordinary contributions to pension funds may be recovered for the benefit of creditors (clause 22).
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 (Schedule 4).
The value of reforms of a practical or technical nature should not be underestimated. It is in the interest of the economy and society as a whole that insolvency problems should be solved fairly and efficiently. For instance, a seemingly innocuous proposal that directions by creditors should be obtained early in the liquidation process is expected to have a marked effect on finalising insolvencies and limiting the time that funds are caught up in insolvent estates; especially in difficult economic times it is important that money should be available to generate growth and should not be entangled in tiresome and time-consuming procedures.
The Commission appreciates the importance of corporate insolvencies and the benefit of uniform legislation for all corporate and individual insolvencies. Considerable progress on the finalisation of uniform legislation has been made by the Centre for Advanced and Corporate Insolvency Law of the University of Pretoria. It is envisaged that final proposals for uniform legislation, which incorporate the proposals for individuals in the Commission's report, will be available in the near future.
The public are invited to submit proposals for law reform to the Commission and to give information in respect of any of the projects of the Commission.