Discussion paper 89 on the right of the Director of Public Prosections to appeal on questions of fact was published for general information and comment in January 2000. Particulars of the report appear in Chapter 4.
On 24 November 1999 the project committee approved in principle that attention should be given to the incorporation of inquisitorial elements in the procedure. Professor P J Schwikkard and Judge Nugent were contracted by the German Technical Co-operation to prepare a draft discussion document. A draft discussion paper was approved by the project committee on 21 November 2000. The discussion paper will be considered by the Commission early in 2001.
The Commission concludes that the Criminal Procedure Act, because it gives a wide discretion to the prosecution, directly and indirectly, does provide for plea agreements. What it does not cover, however, is sentence agreements. Studies show that plea (and even sentence) negotiation is active in South Africa and plays an important role in our criminal justice system.
There are two types of sentencing agreements. The one is where the prosecution, in exchange for a plea of guilty, undertakes to submit to the court a proposed sentence or agrees not to oppose the proposal of the defence. This type is known in our law. The agreement has no effect on the court and does not require any particular action from the court. The court can ignore the agreement or implement it. If it ignores the agreement, the plea of guilty stands, so does the sentence. The Commission concludes that there is no reason why this procedure should be dealt with by way of legislation. The second type is the case where the accused agrees with the state to plead guilty provided an agreed sentence is imposed. In the Commission's view it is this type of agreement that should be legalised and regulated.
° The prosecutor and an accused may enter into an agreement in respect of a plea of guilty to the offence charged or to an offence of which the accused may be convicted on the charge and an appropriate sentence to be imposed by the court if the accused is convicted of that offence.
° Such an agreement will become binding on both the accused and the prosecution as soon as the plea is entered, but it does not bind the court.
The objective is to develop a comprehensive Sentencing Act that would provide a permanent framework for sentencing in South Africa. The project committee appointed for the investigation plans to adopt a holistic approach to all issues related to sentencing, which would include placing victims at the centre of the criminal justice system. The names of the project committee members are reflected in Annexure B.
Discussion paper 91 on a new sentencing framework was published for general information and comment in April 2000. The report on a new sentencing framework is discussed in Chapter 4.
On 10 September 1999 a subcommittee on victim empowerment was established and it was resolved to outsource research in respect of a compensation fund for victims of crime. Financial assistance is being provided by the German Technical Co-operation. The contract was awarded to the Centre for the Study of Violence and Reconciliation and a draft discussion document was completed on 15 September 2000. The project committee approved a draft discussion paper on 9 November 2000. The discussion paper will be considered by the Working Committee early in 2001.
The Commission has been investigating aspects of the law relating to AIDS since 1993. Since then extensive research has been done, evidence has been heard from interest groups, and a discussion document (working paper 58) was published for general information and comment during 1995. Comments on the working paper reflected differences of opinion between interest groups. A project committee representative of divergent interests under the chairmanship of Judge E Cameron has been assisting the Commission in this task and developing final recommendations on several issues regarding HIV/AIDS since August 1996. The names of the other members of the project committee are reflected in Annexure B.
In 1998 the Commission completed a fourth discussion paper (discussion paper 80) dealing with the need for a statutory offence aimed at harmful HIV-related behaviour. The discussion paper was published in January 1999. Information regarding the discussion paper is contained in the 1998 annual report. The project committee has since considered the comment on the discussion paper, proceeded with additional research, and received inputs from the Commission's sexual offences project committee. In view of the divergent comments received, a consultative meeting with experts and interested parties was held. The compilation of a draft report has been kept in abeyance until the completion of work on the report dealing with compulsory HIV testing of persons arrested in sexual offence cases. A draft report on the need for a statutory offence aimed at harmful HIV-related behaviour was considered by the project committee on 7 December 2000. The report will be considered by the Commission early in 2001.
° Something similar to an Estate Duty Return is required to satisfy the Master that no estate duty is due.
° Subject to the provisions below or the provisions of an order of court every person shall, before letters of executorship are granted in his or her favour and thereafter as the Master may require, find security to the satisfaction of the Master in an amount determined by the Master for the proper performance of his or her functions as executor.
A report on the Interception and Monitoring Prohibition Act was submitted to the Minister in November 1999.
Work in this project was suspended for a substantial period as a result of the researcher's involvement in other urgent investigations and activities.
A draft discussion paper on computer-related crime: preliminary proposals for reform in respect of unauthorised access to computers, unauthorised modification of computer data and software applications and related procedural aspects was approved by the project committee in November 2000. The discussion paper will be considered by the Commission early in 2001.
The investigation focuses mainly on the question whether the provisions contained in the Marriage Act are adequate or whether they should be amended.
A discussion paper was published for general information and comment in September 1999.
The objective of the investigation is to determine whether or not the use of electronic equipment in court proceedings is a viable option to save costs or prevent delays in civil and criminal trials.