The Commission's investigation revealed four possible options for reform which were set out for comment in a discussion paper, published in 2001. In evaluating the response received to the discussion paper it was clear that most commentators felt that the privacy of parties to a divorce should be respected as far as possible; that in the context of divorce, it would be appropriate for the press to have to make out a case for publication; and that children involved in divorce cases stand in need of special protection.
The amended section will also make it an offence to furnish particulars of a divorce action or any information or evidence which emerges during the course of such an action unlawfully to third parties.
The investigation initially dealt with international and domestic commercial arbitration only. A report on international arbitration was submitted to the Minister in July 1998 and a report on domestic arbitration was submitted to the Minister in June 2001. At the request of the Minister the investigation was broadened to include an investigation into alternative dispute resolution (ADR) at all levels. The project committee was broadened for this purpose. The names of the project committee members are reflected in Annexure B.
A discussion paper on community dispute resolution structures was published for general information and comment in September 1999. After it had already considered two draft reports, the project committee met on 15 March 2003 to finalise the draft report on community courts, but decided to obtain expert comment on the report before submitting it to the Commission. An amended draft report will be considered by the project committee in the third quarter of 2003.
A new researcher who assumed duty on 1 February 2002 was allocated to the project. A discussion document had been finalised after which a meeting of experts was convened. A draft report will be considered by the Commission in the second quarter of 2003.
An issue paper on adult prostitution was published for general information and comment in August 2002.
Generally prostitution is regarded as the exchange of sexual acts for reward. While it is often said that prostitution is one of the oldest professions, the legal response to it differs from society to society and over the course of time. Internationally, the topic of prostitution remains an emotive one and opinions on the legal treatment of prostitution are generally strongly polarised. This is no different in South Africa.
The Sexual Offences Act, 1957, regulates various aspects of prostitution. The keeping of brothels, the procurement of women as prostitutes, soliciting by prostitutes, and living off the earnings of prostitution are inter alia criminalised. In addition, various other pieces of legislation such as the Liquor Act 27 of 1989 and municipal bye-laws apply to prostitutes. Of particular interest is section 20(1)(aA) of the Sexual Offences Act, 1957, which provides that any person who has unlawful carnal intercourse or commits an act of indecency with any other person for reward is guilty of an offence. This section was declared inconsistent with the Constitution and therefore invalid in the Transvaal Division of the High Court in Jordan and others v The State 2002 (1) SACR 19 (TPD).
Criminalise all aspects of adult prostitution.
Legalise adult prostitution within certain narrowly circumscribed conditions.
Decriminalise adult prostitution which will involve the removal of laws that criminalise prostitution.
The Commission sets forth the implications should a particular option be adopted and poses questions as to all the options presented. Consequently no draft legislation is proposed in the issue paper.
A draft discussion paper on adult prostitution will be finalised in the last quarter of 2003.
At a meeting between the Department of Justice and Constitutional Development and the National Director of Public Prosecutions it was decided that a project be launched to accelerate the initiative to postpone cases of awaiting trial prisoners by means of audio visual link between correctional facilities and courts. The project committee was requested to assist in the pilot project by reviewing the legislative implications. A draft discussion document was considered by the project committee at its first meeting on 13 March 2003. The committee was of the view that the procedure should also be allowed for postponements and bail applications but that it should not extend to the actual trial and the hearing of evidence. A subcommittee will meet with the Office of the National Director of Public Prosecutions during April 2003.
The granting of recognition to partnership contracts and the enforceability of such contracts against third parties.
An issue paper on domestic partnerships (issue paper17) was published for general information and comment in September 2001 (see the previous annual report for details).
A draft discussion paper on domestic partnerships will be considered by the project committee in the second quarter of 2003.
In November 1999 a Justice Departmental workshop was held on international cooperation between South Africa and foreign states in civil matters. There have been no significant developments in the field of international civil matters and there is a need to revisit our legislation with a view to developing consolidated legislation. The workshop concluded that the Law Commission should be mandated, in consultation with business, to undertake thorough research of existing legislation with a view to preparing consolidated legislation on international cooperation in civil matters.
A new researcher who assumed duty on 1 March 2002 was allocated to the project.
An issue paper on consolidated legislation pertaining to international co-operation in civil matters was published in January 2003.
The present position is that, subject to certain statutory exceptions, a foreign judgment is not directly enforceable in South Africa. The common-law procedures are expensive, time-consuming and complex. In response to this the legislature enacted various pieces of legislation providing for international co-operation in civil matters. This is achieved by way of designation of countries under the various pieces of legislation.
To date only a few countries have been designated in this way for the purpose of co-operation in civil matters. The introduction of statutory enforcement procedures was intended to overcome the cumbersome common-law procedures, but these have proved unsuccessful. For example, in respect of judgments relating to money, Namibia is the only country designated under enabling regulations as a country with reciprocal enforcement procedures.
A similar situation prevails in respect of the enforcement of other types of civil judgments such as maintenance orders. The relevant Act applies only to a limited number of designated countries. This means that maintenance orders emanating from countries which are not designated under the Act cannot be enforced in South Africa. This exclusion applies to most countries. The reciprocal service of legal documents is hindered by the same issue of designation.
The necessary pieces of legislation exist in our statute book but are not achieving their purpose. The first possible reason is that there are too many statutes governing this area, thereby complicating rather than facilitating the process of co-operation. The second possible reason is that the relevant statutes operate on the basis of designation of foreign countries, thereby excluding most countries from their application.
The recognition and enforcement of foreign judgments.
The reciprocal service of legal documents.
Mutual assistance in the obtaining of evidence.
A draft discussion paper on consolidated legislation pertaining to international co-operation in civil matters will be finalised in the second quarter of 2003.
The Commission, as far back as 1988, undertook an investigation with a view to improving the plight of mentally incapacitated persons who cannot afford the costs involved in securing a High Court appointed curator. Its recommendations led to the adoption of the Mentally Ill Persons' Legal Interests Amendment Act 109 of 1990, which amended the Mental Health Act 18 of 1973. This amendment enabled an interested person to apply to the Master of the High Court (which entails insignificant costs) for the appointment of a curator to a person who is not declared to be mentally ill, but whom the applicant believes to be suffering from mental illness to such an extent that the person is incapable of managing his or her own affairs.
The present investigation means a revival of its previous investigation, but on a wider basis. Additional measures to protect the interests of those whose legal capacity has for some reason been diminished are researched.
The Minister approved the appointment of a project committee on 30 July 2002. The names of the project committee members are reflected in Annexure B. The project committee met on 18 September 2002 to evaluate the comment received on the issue paper. A draft discussion paper on assisted decision-making: adults with impaired decision-making capacity is being prepared and it will be considered by the project committee in the third quarter of 2003.
The Committee was of the view that certain matters referred to in its report should be investigated fully before a review of the provisions of the Bill could take place and it requested the Minister for Justice and Constitutional Development to consider referring these matters to the Commission for investigation. The Minister approved the inclusion of the investigation in the Commission's programme on 8 December 2000.
The Act purports to protect employees from the victimisation of employers.
provide for certain remedies in connection with any occupational detriment suffered on account of having made a protected disclosure.
Whistle-blowers who intend using the provisions of the Act to conceal their own involvement in criminal activities are not protected. Where a law has been contravened, the Act does not protect the employee from criminal prosecution or civil liability to third parties. Thus there is no exclusion of civil or criminal liability for making a protected disclosure.
The Act allows employees to pursue unspecified remedies where they have been subjected to an occupational detriment, but provides no particular remedy. Furthermore, it is not an offence in terms of the Act to subject an employee to occupational detriment or for an employee knowingly to make a false disclosure.
A draft discussion paper on protected disclosures will be finalised in the third quarter of 2003.
The Ad Hoc Joint Committee on the Open Democracy Bill submitted its report on the Promotion of Access to Information Bill to Parliament on 24 January 2000.
The Committee noted that the Bill only dealt with the aspect of access to private information of an individual, be it access by that individual or another person, and did not regulate other aspects of the right to privacy, such as the correction of and control over personal information.
Foreign jurisdictions with freedom of information regimes enacted separate legislation which, as an important component of democracy legislation, regulates aspects such as the correction of and control over personal information. Privacy legislation generally provides for more detailed mechanisms and provisions dealing with personal information in the hands of another person by empowering that individual, amongst others, to demand the correction of incorrect information.
The Committee requested the Minister for Justice and Constitutional Development to introduce privacy and data protection legislation in Parliament as soon as possible. Since the preparation of this type of legislation will require extensive research, the Minister requested the Law Reform Commission to consider the possible inclusion of such an investigation in its programme. The Minister approved the inclusion of the investigation in the Commission's programme on 8 December 2000.
A project committee was established and the first meeting of the project committee was held on 22 July 2002. The names of the project committee members are reflected in Annexure B.
A draft issue paper is being prepared which will be considered by the project committee in the third quarter of 2003.
The Ismail Mahomed Prize For Law Reform was established in honour of the late Chief Justice and Chairperson of the Law Reform Commission. For 2001 the Law Reform Commission is grateful to Juta Law for sponsoring a worthwhile prize valued at R10 000 and consisting of a personal computer and a set of Juta's Statutes of South Africa (in print and on CD-ROM).
The winner for 2001 is Mr Daniël Smit from the University of Stellenbosch for his excellent essay entitled "Legal Understanding: From Pre-understanding to Better Understanding". The prize was awarded at a ceremony hosted by the Commission on 16 August 2002.
It is sincerely hoped that Juta Law will be amenable to sponsoring future Ismail Mahomed Prizes in the interest of law reform in our country.
For the efficient performance of its functions, the Commission depends on the cooperation of institutions and persons who 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 issue papers and discussion papers published for general information and comment.
The Commission publishes a regular Bulletin, the aim of which is to inform people about the work of the Commission. The Bulletin contains information on the activities of the Commission, an update on current projects and items on new and completed investigations.
The good relations maintained by the Commission with law reform bodies in other countries makes the exchange of working papers, reports and other information possible.
A delegation from the Malawi Law Commission undertook a study visit to the South African Law Reform Commission from 22 - 26 April 2002. The delegation was briefed on the working methods of the Commission as well as on a number of research projects. Meetings were also facilitated with the Office on the Rights of the Child at the Presidency and with representatives of Save the Children (Sweden & UK).
Commissioners for the Gender and Law Reform Programme undertook a study visit to the South African Law Reform Commission from 3 - 7 June 2003. The delegation was briefed on the working methods of the Commission as well as on a number of research projects relating to relating to the delegation's brief. Meetings were facilitated with the National Director of Public Prosecutions; the South African Police Service; the National Network on Violence against Women; the Gender Commission; and the Department of Justice and Constitutional Development.
A member of the delegation, Ms M M Katopola (Assistant Chief Law Reform Officer), remained for a work attachment from 10 - 28 June 2003, during which time she acquainted herself fully with the operation of the South African Law Reform Commission.
The Secretary and Assistant 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 and project committee members often participate in activities not initiated by the South African Law Reform Commission nationally and abroad. They are invited by government departments, non-governmental organisations and other institutions to attend seminars or conferences and to participate in workshops relating to investigations on the Commission's programme. In addition, they are frequently requested to present papers or lectures on the research projects that they are involved in. This approach facilitates cooperation between the Commission and other role players, serves to publicise the Commission's activities and ensures that duplication of initiatives is avoided.
see Chapters 3 and 5.
>The Minister of Water and Environmental Affairs of South Africa, Ms Buyelwa Sonjica, in her capacity as the President of the African Ministers Council on Environment (AMCEN) would like to reiterate that Africa s position as articulated in the Nairobi Declaration remains.
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This morning I will briefly talk about the impacts of climate change on Africa, the status of the international negotiations, South Africa s position which is informed by our socio-economic context, and our expectations from Copenhagen.>Impacts on Africa>According to the projections of the Intergovernmental Panel on Climate Change, Africa will experience some of the worst effects of climate change.
Indeed, the task is not finished when four millions of our people still find themselves without access to clean potable water.>Water is also fast becoming a constraint to development in South Africa. The fight against crime and corruption includes preventing the illegal use of water, and our department remains committed to taking action against unlawful water use.>We need to discourage unlawful acts for the benefit of all that depend on our scarce water resources.
>The Minister of Water and Environmental Affairs Ms Buyelwa Sonjica will be hosting a water Indaba in Durban from 2 to 3 November 2009. She will be joined by the Provincial Premier Dr Zweli Mkhize.>The Indaba brings together all water sector partners and stakeholders to discuss the challenges faced by the province in relation to water security.
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>The Minister of Water and Environmental Affairs, Ms Buyelwa Sonjica cordially invites you to the National Assembly Environment budget vote on Friday, 16 April at 10h00.>After delivering her speech, the minister will address the media to brief them on the areas of priorities that the speech will address and the plans for the environmental sector in this financial year.
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