To: Dr P M Maduna, MP, Minister for Justice and Constitutional Development.
I have the honour to submit to you in terms of section 7(2) of the South African Law Commission Act 19 of 1973, the Commission's report on all its activities during 1999.
Insurance Act 27 of 194321 4.
Project 115 - Review of administrative law30 5.
Project 119 - Uniform national legislation on the fencing of national roads70 6.
When the Commission assumed office on 1 January 1996 it committed itself to law reform processes that would be open, fair, relevant and responsive. This was a challenging task given the major discrepancies at the time between the ideal of justice and the content of law. The Commission shared the ideal of the South African population in expecting the legal system to embody justice and to promote respect for the democratic values of their Constitution. The different socio-economic circumstances of South Africans, the differing patterns of rural and urban life and the multicultural social fabric of our country emphasised the need for new approaches to law reform.
To achieve this ideal the Commission shifted the emphasis in its law reform programme to an approach that was responsive to the emerging needs of the new South African society. It was agreed that the execution of the Commission's mandate depends on establishing a creative and comprehensive process of consultation with South Africans to ensure that its work is responsive to their real needs. The Commission has consequently broadened its consultative base, while maintaining close cooperation with academic institutions, the private sector and non-governmental organisations. The Commission also extended its consultative process by conducting countrywide workshops in urban and rural areas. Inadequacies in the legal system have been approached from a multi-disciplinary perspective in appropriate cases.
The Commission's three-year term of office expired on 31 December 1998 and a new Commission was appointed for a period of three years with effect from 1 January 1999. With the exception of Judge P J J Olivier who served as Vice-Chairperson in the previous Commission, all the members were re-appointed. Judge Olivier was requested by the Minister of Justice to head a Task Team to advise him on the issues of court management, case management and judicial training. Judge Y Mokgoro is congratulated on her appointment as the new Vice-Chairperson and Judge M L Mailula whose appointment further advances race and gender representativeness, is welcomed as a new member of the Commission.
No issue papers were published during the year under review. Issue papers published by the Commission are listed in Annexure E.
Eight discussion papers were published for consultation purposes.
Draft reports in two comprehensive investigations, namely juvenile justice and review of the law of insolvency, were all but completed during the year under review. It is envisaged that these draft reports will be considered by the Commission in February 2000. It is also envisaged that draft reports on the need for a statutory offence aimed at harmful HIV-related behaviour and the compulsory HIV testing of persons arrested in sexual offence cases will be considered by the Commission in the first half of 2000.
No Acts emanating from reports of the Commission were adopted by Parliament during 1999.
No new investigations were included in the Commission's programme during the year under review.
Ë steps aimed at making the common law more readily available.
Ë 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.
In terms of section 3(2) of the Act the President may appoint one or more additional members if he deems it necessary for the investigation of any particular matter by the Commission. The volume of work generated by the research staff has increased considerably over the last few years. This has substantially increased the workload of Commissioners, which now involves the holding of workshops, especially in relation to project leadership. On 27 October 1999 the President appointed Ms Cora Hoexter, part-time lecturer in the School of Law, University of the Witwatersrand, as an additional member of the Commission for the investigations into statutory law revision; publication of divorce proceedings; the legal position of voluntary associations; and domestic partnerships.
Section 7A of the Act provides for the establishment of committees of the Commission. There are two categories of committee: those appointed by the Commission and consisting of members of the Commission only, and those consisting of members of the Commission and persons who are not members of the Commission. The latter are appointed by the Minister. The object of the second category of committees is to utilise the expertise of persons outside the Commission and to ensure direct community involvement in the activities of the Commission.
Under the first category of committee the Commission has established a working committee that consisted of Professor R T Nhlapo as convenor, and any other members of the Commission coopted for meetings according to their availability.
Project committees fall under the second category of committee. The Commission follows the practice of instituting project committees consisting of experts to assist with investigations and to advise the Commission if a specific investigation in the Commission's programme so requires.
During the course of the year under review a project committee was established on Islamic marriages and related matters. The names of the members of the committee appear in Annexure B. The Commission would like to express its appreciation to individuals and organisations for their willingness to serve on project committees of the Commission.
The research component of the Secretariat consists of 17 state law advisers from diverse backgrounds. Their task is to do the necessary research under the guidance of project leaders (who are designated by the Commission), to consult with interested parties, to compile discussion papers and draft reports and to carry out other assignments of the Commission.
Mr M F Palumbo also serves as assistant to the Commission's Secretary. Currently there is one vacancy for a state law adviser. The filling of the post is receiving attention.
The librarian is Ms M A Kgasago.
The filling of vacancies in the establishment of the administration is in progress. As a result of revised working methods and a community-oriented approach to law reform there has been a considerable increase in the workload of the administration. A work study investigation resulted in the creation of two additional posts in the administration. These posts, however, could not be established due to a lack of money. The services of two senior administration clerks, Ms P J Kotze and Mr A Singh, who are carried against posts elsewhere in the Department of Justice have been acquired. As a result of further increases in the workload of the administration the services of an additional administration clerk, Mr R Swart, have been obtained on the same basis. From time to time temporary staff have also been employed.
A further work study investigation is currently in progress to assess the establishment of the administration. The Commission would like to record its appreciation for the assistance rendered by the Department of Justice in striving to ensure that support services at the Commission are up to strength.
The Commission wishes to express its appreciation to the members of the Secretariat for their outstanding services to the Commission. The Commission wishes to make special mention of the generally high standard of working documents and reports submitted to the working committee and the Commission by the research staff. The Secretariat, both on the professional and administrative levels, carried a considerable workload during the year under review. This was the result of additional work generated by the community-oriented and consultation-based approach adopted by the Commission and the high priority accorded to investigations commissioned by government. It should be noted, however, that the Commission will find it extremely difficult to fulfil its obligations adequately in the forthcoming financial year unless its budget is increased adequately. Factors necessitating such an increase are the increase both in personnel and in the work done by the Commission. In addition, the implementation of the strategic plan as contemplated by the Department's Justice Vision 2000 document, in which the Commission is actively involved, will have a bearing on the Commission's resources.
The Commission's resources are supplemented by funding and technical assistance from foreign and local donors for specific projects. During the year under review the Commission has received financial support from USAID; the Swedish Embassy (Rapid Response Fund); the Department for International Development (UK); Save the Children Fund (UK); Rädda Barnen (Swedish Save the Children); Save the Children Fund (Southern Africa); the German Development Co-operation (GTZ); the Nelson Mandela Children's Fund; and the Department of Welfare and Population Development. The Commission records its deep appreciation to these agencies.
The Commission's present programme appears in Annexure C. An investigation removed from the Commission's programme during the year under review is dealt with in Chapter 3. The Commission also includes matters in the programme of its own accord.
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 and project committee (where one exists) 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 experiences elsewhere in the world. The consultation process is facilitated by the Commission's policy (since 1996) of compiling issue papers as a first step. 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. Responses to an issue paper and further intensive research form the basis for the preparation of a discussion paper.
Judging from comments received, the Commission's discussion papers and reports are of a high standard and are well regarded. There appears to be an increasing tendency in faculties of law to prescribe the Commission's discussion papers and reports as reading 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 are well substantiated and are the product of thorough debate. They also facilitate the passage of the Commission's proposed legislation which embodies the recommendations.
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. A research paper on the contemporary issue of domestic violence was published in the year under review. Papers published in this way are listed in Annexure G.
The Commission met five times during 1999, namely on 10 April, 5 June, 13 August, 22 October and 27 November.
The working committee of the Commission met four times, namely on 9 April, 4 June, 12 August and 2 December.
Three of the judges (Nienaber, Schutz and Marais JJA) in the Supreme Court of Appeal case of Clifford v Commercial Union 1998 (4) SA 150 (SCA) were of the view that consideration should be given to the amendment of the law to reverse the effect of the decision in Qilingele v South African Mutual Life Assurance Society 1993 (1) SA 69 (A). The other two judges refrained from expressing a view on the matter. The matter was referred to the Law Commission for consideration.
The Insurance Act 27 of 1943 was repealed in 1998 and replaced by the Short Term Insurance Act 53 of 1998 and the Long Term Insurance Act 52 of 1998. Sections 52 and 59 of the respective new Acts correspond with section 63(3) of the repealed Act. It transpired that the Financial Services Board was giving attention to the amendment of sections 52 and 59 of the new Acts. On 26 April 1999 a meeting was held with the Financial Services Board and it was resolved that for practical reasons the Board would continue with its process of amending the legislation and that the Commission should remove the investigation from its programme. On 5 June1999 the Commission approved the removal of the investigation from its programme.
The Minister endorsed the Commission's decision to remove the investigation from its programme.
On 15 December 1997 the General Assembly of the United Nations adopted a resolution, co-sponsored by South Africa, recommending that States review their legislation on cross-border insolvency and in that review give favourable consideration to the Model Law on Cross-Border Insolvency developed by the United Nations Commission on International Trade Law (UNCITRAL), bearing in mind the need for internationally harmonised legislation governing instances of cross-border insolvency. The Model Law was developed by the United Nations Commission on International Trade Law in close cooperation with the International Association of Insolvency Practitioners (INSOL) over a number of years and benefited from INSOL's expert advice during all stages of the preparatory work. Active consultative assistance during the formation of the Law was also received from Committee J of the Section on Business Law of the International Bar Association.
Ë facilitation of the rescue of financially troubled businesses, thereby protecting investment and preserving employment.
There is strong support for the enactment of the Model Law in South Africa. As few changes as possible have been made to the Model Law in order to strive for a satisfactory degree of harmonisation and certainty, but the Model Law has been adjusted in a draft Bill to suit South African law. In terms of the Bill the Insolvency Act is amended to indicate that foreign representatives and creditors have access to the court as provided in Chapter 2 of the Model Law and that applications for the liquidation of the estate of a debtor are limited as provided in Chapter 5 of the Model Law.
The interim report was submitted to the Minister on 23 June 1999.
This investigation was necessitated by the acknowledgement that it is not always clear when customary law should be applied in real life circumstances and the realisation that both Roman-Dutch law and customary law are now major components of the state's legal system.
Courts and litigants need clear and explicit choice of law rules to indicate when common law or customary law will be applicable to the facts of a particular case. A new enactment devoted exclusively to the application of customary law is now needed in order to disentangle choice of law rules. This report has attempted to achieve this purpose.
Ë Application of customary law should remain a matter of judicial discretion, but more exact guides to choice of law are necessary to bring certainty to an issue that is currently vague and confused. These guides should be precise, flexible, simple and in keeping with the way in which courts have been used to solving choice of law problems.
Ë The new choice of law rules should indicate that parties are free to agree on the law that best suits their needs. If no express agreement was made, courts should attempt to discern which law the parties would reasonably have expected to apply in the circumstances of the case. In order to assist courts in this inquiry, a list of factors that typically indicate the parties' expectations should be provided. No one factor on its own should be regarded as decisive in indicating the applicable law; rather, all the factors should be considered in combination in order to discover the legal system with which the case has its closest connection.
Ë The procedure contained in the Black Administration Act for exempting individuals from customary law is so closely identified with colonialism and apartheid that it must now be repealed.
Ë The repugnancy proviso no longer has a useful role to play and it should be repealed.
Ë Race should be irrelevant either as a criterion for applying customary law or for determining the jurisdiction of traditional courts.
Ë Section 23(1) of the Black Administration Act should be amended to provide that only the testator's personal interests in property may be disposed of by will and elements of gender discrimination should be removed from the regulations governing succession to land held under quitrent tenure.
Ë Existing choice of law rules contained in regulations issued under the Black Administration Act and in the Act itself should be deleted or amended, since they are poorly worded, conflict with proposed reforms in the customary law of marriage or no longer serve any useful purpose.
Ë Section 1(3) of the Law of Evidence Amendment Act should be repealed and a new provision should be drafted to give clearer rules on choice of law. Recognition should be given to the litigants' freedom to agree on the applicable law and, in the absence of an agreement, courts should apply the law with which the case has its closest connection.
The report was submitted to the Minister at a media conference on 8 September 1999.
A review and rationalisation of South Africa's security legislation is undertaken to ensure that the legislation is in accordance with international norms, the Constitution and present requirements of the country.
Ë The regulation of the interception of cellular communications.
Ë The insertion of a definition of "communication" into the Act to ensure that any conversation or communication can be intercepted.
Ë The addition of further offences in the definition of "serious offence" to fall within the ambit of the Act.
Ë 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.
Ë 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.
Ë 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.
Ë 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.
Ë 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.
Ë 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.
Ë 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.
Ë 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.
Ë 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.
Ë 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.
Ë 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 report was submitted to the Minister on 23 November 1999.
The provisions for the sharing of retirement fund benefits on divorce as provided for by the Divorce Act 70 of 1979, via the Divorce Amendment Act 7 of 1989, proved to be unsatisfactory in several respects.
Ë The sharing of retirement fund benefits between spouses on divorce must be governed by substantive legislation separate from the Divorce Act,1979.
Ë Provision should be made for the division of retirement benefits as such and not merely for the exchange of compensatory assets in place of such benefits.
Ë The exchange of compensatory assets in place of a share of retirement fund benefits should nevertheless remain as an option available to the spouses.
Ë Spouses may exclude pension sharing in terms of their antenuptial contract.
Ë A spouse may waive any right to retirement fund benefits.
Ë Spouses may agree in writing to share retirement fund benefits in different proportions than those prescribed.
Ë Subject to the principles contained in the proposed legislation, a retirement fund may make use of approximate calculations where exact data is not obtainable.
Ë The costs that are recoverable from spouses in respect of the division of benefits may be prescribed by regulation.
Ë The non-member spouse has a right to a share of the retirement fund benefits which accumulated in respect of the member during the marriage. The extent of the right is prescribed in the formulae set out in the proposed legislation in respect of the various types of retirement schemes.
Ë Any share of retirement fund benefits to which a non-member spouse is entitled is made available on a locked-in basis - in other words, by way of deferred pension and not as a cash benefit.
Ë Benefits to which a non-member spouse is entitled must be paid to him or her direct from the retirement fund by which the benefits are held on behalf of the non-member spouse.
Ë If the non-member spouse dies before the date on which the benefits become payable to the member, the withdrawal value of the benefits on the date of the death of the non-member spouse is payable to his or her estate.
Ë The sharing of retirement fund benefits is at this stage limited to spouses whose marriages are recognized as such in terms of existing law.
Ë The proposed legislation should make it clear that retirement fund benefits are not divided as part of the matrimonial property of spouses.
Ë The proposed legislation should be applicable in respect of marriages dissolved after the commencement of the new provisions.
Ë The new provisions should not apply in respect of spouses who have in terms of their antenuptial contract chosen complete separation of their property, but such spouses should be allowed to make the said provisions applicable to them by way of written contract.
The report was submitted to the Minister on 22 June 1999.
The Constitution of 1996 requires an Administrative Justice Act to be in place before 4 February 2000.
Ë Following section 33 of the Constitution, at the core of the draft Bill is the concept of "administrative action", which is widely defined. The key exclusions are the listed executive functions (which are not, properly viewed, administrative functions), and the legislative actions of Parliament, provincial legislatures and municipal councils. Administrative action by natural or juristic persons contemplated in section 8(2) of the Constitution and exercising a public power or performing a public function (e.g. non-statutory bodies controlling national sports codes) is specifically included. Collectively these bodies and organs of state are termed "administrators".
Ë Other important features of Chapter 1 are the wide definition of "standing" (in the definition of "qualified litigant"), and provision for a review jurisdiction which includes designated magistrates' courts.
Ë Chapter 2 of the Bill imposes a duty on all administrators to give effect to the rights in section 33(1) and (2) of the Constitution (clause 2 of the draft Bill, following section 33(3)(b) of the Constitution) and provides for the review of administrative action by the courts and independent and impartial tribunals (section 33(3)(a) of the Constitution).
Ë In accordance with the requirement in section 33(3) of the Constitution that national legislation "be enacted to give effect to" the rights in section 33(1) and (2) of the Constitution, the draft Bill requires administrative action to be procedurally fair. This is achieved by core requirements applying to all administrative action. Additional requirements may apply in appropriate circumstances. There is provision for a departure from the mandatory provisions if circumstances justify it, and then only to the extent necessary.
Ë Another important part of the Bill relates to the provision of reasons for administrative action. This places a general obligation on an administrator (pursuant to the constitutional obligation in section 33(3) read with section 33(2) of the Constitution) to give reasons in writing when requested. This must be done within 90 days after the person was informed of the administrative action and the reasons for it, or becomes aware of it, or might reasonably have been expected to have become aware of it. (Provision is made for the amelioration of this time period, and also for the enforcement of the obligation to furnish reasons.) Flexibility is also introduced in the Bill to ensure again that administration is not stultified by unrealistic requirements, while at the same time giving effect in a practical way to the constitutional entitlement.
Ë Chapter 4 focuses on the grounds of review, and the procedure for obtaining it. The Bill specifies the grounds of review established at common law, adapted in the light of recent formulations in South Africa and in other countries with a similar review jurisdiction. Two features are important: the distinction between review and appeal is retained, and the list is not a closed one. In this way, the opportunity exists for the courts to continue to develop and to define the South African law of review, in the spirit of section 8(3) of the Constitution.
Ë The Bill specifies remedies available in proceedings for judicial review. These encompass both mandatory and prohibitory interdicts, declaratory orders, orders to give reasons, and review orders in the classic sense, setting aside the administrative action in question and either remitting it or, in exceptional cases, substituting or varying the administrative action and directing the payment of compensation.
Ë Provision is also made for the extension of time periods specified in the statute. The solution proposed is to require the institution of proceedings in all cases without unreasonable delay, but with an outer limit of 180 days of the day on which the person was informed of the administrative action, or otherwise became aware of it, or might reasonably have been expected to have become aware of the action (the language of most prescription statutes, which have survived judicial scrutiny in the past). That outer limit, in turn, must be amenable to judicial dispensation in special cases where the interests of justice so require.
Ë Chapter 5 deals with rules and standards. The Bill requires administrators in general and flexible terms to take appropriate steps to communicate rules to those likely to be affected by them, and to impose upon administrators flexible obligations relating to the manner in which this is to be achieved. In relation to rules and standards, administrators are required to compile registers and indices to ensure accessibility. There is also provision for the proposed Administrative Review Council to devise ways of making these measures more accessible, of pruning them, and of improving their content.
Ë Chapter 6 focuses on the contemplated Administrative Review Council.
Ë The last chapter of the Bill deals with general matters. It allows the President, in providing for the proposed Administrative Justice Act to come into operation, to set different dates for the commencement of certain clauses.
In this Chapter the position regarding uncompleted investigations on the Commission's programme is discussed. Reports completed are discussed in Chapter 4.
The Commission resolved that the project should enjoy a very low priority.
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 deadwood 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.
Another important dimension of this investigation is the need to purge the statute book in order to identify and rectify unconstitutional provisions.
As a result of the cost implications identified above, negotiations are currently underway with USAID on the possibility of donor funding for the establishment of a Unit for Statutory Law Revision.
The project committee established for the purpose of the investigation met in 1990 and considered a working paper dealing with the nature of Islamic law and the conflict between the common law and Islamic law as well as the observance of Islamic law in South Africa. A comparative legal study received further attention during the year. Further work in the investigation was delayed by the finalisation of the 1996 Constitution, among other factors.
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 under a system of religious, personal or family law, 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.
In 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. On 3 March 1999 the Minister appointed a project committee with Judge M S Navsa as project leader. The names of the project committee members are contained in Annexure B.
A task team consisting of four members of the committee was appointed to investigate the constitutionality of a system of choice in terms of which parties to an Islamic marriage may opt for the application of secular law as opposed to Islamic law. The task team was also to develop draft legislation. On 5 June 1999 the Commission approved the appointment Mr Marcus SC to assist the task team. It was decided that Mr Marcus would draft a constitutional framework within which a system of choice could operate. The framework was considered by the task team on 9 October 1999 and a structure for possible legislation was developed. Mr Marcus was tasked to refine the structure, which will be considered by the project committee in January 2000.
It is expected that a discussion paper will be ready for consideration by the Commission in the first quarter of 2000.
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 were received. The Draft Insolvency Bill was amended to reflect the comments received, the results of further research and subsequent developments. Discussion paper 86 containing an amended Draft Insolvency Bill was published to elicit responses from key parties.
Ë Section 1 of Act 6 of 1991 substituting section 34 of the Insolvency Act, 1936, to regulate the voidable sale of a business.
Ë Section 1(3) to (5) of Act 57 of 1993 dealing with the preference conferred by a special bond over movable property.
Ë Act 122 of 1993 dealing with insolvency interdicts.
Ë Section 1 of Act 129 of 1993 dealing with appeals against sequestration orders.
Ë Act 32 of 1995 dealing with the protection of financial markets in the event of insolvency.
In May 1998 a proposed adaptation of UNCITRAL's Model Law on Cross-Border Insolvency for enactment in South Africa was distributed for comment. The Commission considered the comments and an interim report recommending the enactment in South Africa of UNCITRAL's Model Law on Cross-Border Insolvency was submitted to the Minister on 23 June 1999. The Bill was approved by Cabinet on 29 September 1999.
Ë Disqualification and personal liability of directors.
Ë Judicial management.
Ë Compromises and arrangements.
Ë The position of related companies.
Ë Dissolution and deregistration of companies.
Ë Provisions in respect of close corporations.
Ë Provisions in respect of other legal persons.
In April 1998 the Standing Advisory Committee on Company Law agreed that the Centre for Advanced Corporate and Insolvency Law at the University of Pretoria should undertake a project aimed at merging the liquidation provisions of the Companies Act 61 of 1973 and the Close Corporations Act 69 of 1984 into the draft Insolvency Bill drawn up by the Commission. The Centre produced a working document that was discussed at a symposium presented by the Centre and the Transvaal Law Society on 23 October 1998. The Centre held workshops during December 1998 to refine the proposals in the working document. A conference on a draft unified Insolvency Act was held on 6 October 1999. The Centre undertook to finalise a report on a unified Insolvency Act as soon as possible.
According to current planning the investigation will be concluded in the first quarter of 2000.
The investigation entails a comprehensive review of the Criminal Procedure Act 51 of 1977. Owing to the extent of the task 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 to investigate the influence of the Bill of Rights on the Criminal Procedure Act.
The Minister appointed anew project committee with effect from 24 July 1998.
Ë An investigation into the question whether or not the Director of Public Prosecution should be given the right to appeal on a question of fact relating to the merits of a case.
Ë An investigation into the viability of the establishment of a dual system of criminal procedure for defended and undefended accused persons and the incorporation of inquisitorial elements in the procedure. The project committee requested Professor Steytler, a committee member, to conduct research in this regard and to prepare a discussion paper and a report. Financial assistance for the task was provided by the German Technical Corporation (GTZ).
Ë An investigation into the application of the Bill of Rights to criminal procedure, criminal law, the law of evidence and sentencing.
A draft discussion paper on the right of the Attorney-General to appeal on questions of fact was approved for publication by the working committee on 2 December 1999. The discussion paper will be published early in 2000 and a summary of the recommendations contained in the discussion paper will appear in the 2000 annual report.
A draft discussion document on the establishment of a dual system of criminal procedure for undefended accused persons and the incorporation of inquisitorial elements in the procedure was considered by the project committee on 24 November 1999. The project committee requested Professor Schwikkard and Judge Nugent to do research and prepare a discussion paper during 2000.
A draft discussion paper on the application of the Bill of Rights to the criminal law, the law of criminal procedure and sentencing was approved for publication by the working committee on 2 December 1999. The discussion paper will be published early in 2000 and a summary of the recommendations contained in the discussion paper will appear in the 2000 annual report.
The objective is to develop a comprehensive Sentencing Act that would provide a permanent framework for sentencing in South Africa. In doing so the project committee, which was newly appointed in September 1998, 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.
The project committee considered the Criminal Law Amendment Act 105 of 1997 and noted that it was a temporary measure and that its sentencing provisions would cease to have effect at the end of April 2000. On 30 November 1998 the committee met to formulate principles of a broad sentencing policy and to consider a broad framework for empirical research to assess the impact of the Criminal Law Amendment Act 105 of 1997. Tenders to farm out the research were invited. On 2 February 1999 the committee considered the tenders and the Institute for Criminology (UCT) and the Institute for Security Studies were contracted by the GTZ to do preliminary research. A provisional report was submitted on 26 March 1999. Final research proposals were submitted in May 1999 and it is envisaged that the research will be completed in the beginning of 2000.
On 10 September 1999 the project committee resolved to enter into a contractual agreement with the project leader to do research and prepare a draft discussion paper on a comprehensive Sentencing Act by April 2000. Financial assistance will be given by the GTZ.
On 2 February 1999 the project committee also considered the continuation of its investigation into restorative justice with the emphasis on victim issues. A focus group was requested to consider the matter and to report back to the project committee on a plan of action. The focus group met on 29 March 1999. Draft discussion documents on victim impact statements, a compensation fund for victims of crime, and victims' rights were considered by the focus group on 25 May 1999. A workshop to develop a work programme for the focus group was held on 29 - 30 July 1999. On 10 September 1999 a subcommittee on victim empowerment was established. On 2 December 1999 the subcommittee decided to co-opt members of existing project committees and appoint additional members if necessary. The committee also decided that research in respect of the investigation into establishing a compensation fund for victims of crime should be farmed out.
The project committee adopted an incremental approach in dealing with its mandate. During the past three and a half years the Commission published five discussion papers and three interim reports. These dealt with health care related issues (discussion paper 68 and first interim report); pre-employment HIV testing (discussion paper 72 and second interim report); and HIV/AIDS in schools (discussion paper 73 and third interim report). The Commission's 1997 annual report contains information regarding the first interim report. Information regarding the other two interim reports is contained in the Commission's 1998 annual report.
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 and the closing date for comment was 31 March 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 focus discussion group meeting with experts and stakeholders will be held in February 2000.
A fifth discussion paper (discussion paper 84) dealing with the question of compulsory HIV testing of persons arrested in sexual offence cases was published for general information and comment in September 1999.
The discussion paper points out that our law at present provides for HIV testing only with the informed consent of the person concerned; that every person is entitled to privacy regarding medical information; and that no general legislation exists which allows for disclosures. Furthermore, neither currently available public health law nor criminal procedure make provision for compulsory HIV testing of persons arrested for having committed sexual offences with a view to disclosing their HIV status to victims. The discussion paper consequently debates the need for legislative intervention concentrating on the following critical issues: the high national prevalence of HIV coupled with the high occurrence of rape and other sexual offences; the utility and limitations of HIV testing; women's international and constitutional rights, including victims' rights; and the arrested person's constitutional rights, especially the right to privacy.
The Commission arrives at the preliminary conclusion that there is a need for statutory intervention to provide for compulsory HIV testing of arrested persons in sexual offence cases. The intervention is necessary in the light of women's undoubted vulnerability in South Africa today to widespread sexual violence amidst the increasing prevalence of a nationwide epidemic of HIV and in the absence of adequate institutional or other victim-support measures. In these circumstances there is a compelling argument for curtailing an arrested suspect's rights of privacy and bodily integrity to a limited extent to enable his accuser to know whether he has HIV. The benefit to alleged victims of the knowledge is not only immediately practical in that it enables them to make life decisions and choices for themselves and people around them; it is also profoundly beneficial to their psychological state to have even a limited degree of certainty regarding their exposure to a life-threatening disease. That the arrested person's rights are infringed must be acknowledged and this must be reflected in safeguards built into the process created.
Ë Compulsory testing of an arrested person should in principle be victim-initiated. This will ensure that only a person with a material interest in the arrested person's HIV status may apply for a compulsory testing order.
Ë In order to protect the victim from a further potentially traumatising confrontation, the arrested person should not be allowed to take part or give evidence in an application by the victim for compulsory testing, except to be able to challenge whether information on oath has in fact been placed before the magistrate in compliance with the provisions.
Ë A specified standard of proof should be required on which to base an order for compulsory HIV testing. The Commission is of the opinion that this should consist of the prosecution showing prima facie that the arrested person committed the sexual offence in question, and that the act was of a type that could indeed transmit HIV.
Ë Compulsory HIV testing of an arrested person should take place only on authorisation by a court. Furthermore, this should be a discretionary power resting with the presiding officer hearing the application.
Ë In order to guard against abuse of the procedure certain procedural and substantive safeguards must be provided for. These should include scrutiny by a magistrate of an application for the compulsory testing of the arrested person; a deposition on oath, whether oral or by affidavit; and prima facie evidence of a sexual offence in which exposure to the body fluids of the arrested person may have occurred.
Ë A deliberately false complaint would amount to perjury and a malicious activation of the procedure would be actionable.
Ë The procedure should ensure confidentiality of the test results so that the information is provided only to the victim and the arrested person.
Ë The use of information relating to the HIV status of an arrested person obtained under the proposed amendment should be clearly limited: test results obtained through compulsory testing should not be admissible as evidence in a criminal trial.
Ë The procedure need not necessarily be HIV specific.
On the basis of the above, the Commission provisionally recommends the adoption of a specific amendment to section 37 of the Criminal Procedure Act 55 of 1977. The closing date for comment on the discussion paper was extended from 15 to 30 October 1999. On 6 December 1999 the project committee considered the comment received. In view of a need, reflected in the comment, for draft legislation to be supplemented by regulations dealing with the practical implementation of the recommended testing procedure, a focus discussion group with stakeholders will be held in February 2000.
It is envisaged that interim reports dealing with the two issues expounded in the fourth and fifth discussion papers will be finalised in the first half of 2000.
On 22 October 1999 the Commission decided that the name of the project should be changed from "Harmonisation of the common law and indigenous law" to "Customary law", since the name would be a more appropriate description of the work in which the project committee is presently engaged.
The aim of the investigation is to ensure the orderly development of customary law as a component of the plural legal system in a way that is compatible with the Constitution.
Ë The recognition of customary marriages.
Ë Conflict of laws.
Ë Law of succession.
Ë Traditional Courts.
Information regarding the report on customary marriages appears in the 1998 annual report.
A draft report on conflicts of law was considered by the Commission and approved for publication on 13 August 1999. The report was submitted to the Minister at a media conference on 8 September 1999. Information regarding the report appears in Chapter 4.
An issue paper on succession was published for general information and comment on 28 April 1998. The closing date for comments was 30 June 1998. Information regarding the issue paper is contained in the 1998 annual report. The development of a discussion paper was receiving attention when the Department of Justice introduced a Bill in Parliament entitled the "Customary Law of Succession Amendment Bill". The Bill having since been withdrawn, the Minister ordered on 19 September 1999 that the investigation should go back to the Law Commission as a matter of urgency. A discussion paper will be finalised by the end of March 2000.
A discussion paper on the judicial powers of traditional leaders was published for general information and comment on 6 May 1999. The closing date for comments on the discussion paper was extended to 31 August 1999. A draft report will be finalised in the first quarter of 2000.
A report on international commercial arbitration was submitted to the Minister on 12 October 1998. Cabinet approval for the introduction of the Bill in Parliament was obtained on 28 April 1999.
A discussion paper on domestic arbitration was submitted to the Minister at a media conference on 8 September 1999. The closing date for comment was 29 October 1999.
The discussion paper contains proposals for a new domestic arbitration statute intended to replace the Arbitration Act 42 of 1965.
Arbitration is increasingly recognized as an important method of resolving commercial and other disputes, which can help to relieve the pressure on the civil justice system. Arbitration needs to be supported by appropriate legislation. The objects of a modern arbitration statute are the fair resolution of disputes by an impartial tribunal without unnecessary delay and expense; party autonomy; balanced powers for the courts; and adequate powers for the arbitral tribunal to conduct the reference effectively. It is clear that the existing Arbitration Act 42 of 1965 fails to meet these objectives adequately.
The Commission's investigation has revealed that there are three basic options for a new domestic arbitration statute. The first is to improve the existing statute while retaining its basic provisions. In view of the dramatic improvements to arbitration legislation in other jurisdictions, notably England, during recent years, this option does not appear to be practical. The second is to follow the approach adopted by several other countries and to adopt the United Nations Commission on International Trade Law (UNCITRAL) Model Law for both domestic and international arbitration. Because of the need, in the context of international arbitration, to keep changes to the content and language of the Model Law to a minimum, this approach also appears to be inappropriate for the needs of a new domestic arbitration statute for South Africa. The third approach, and that proposed by the Commission for consideration in this Discussion Paper, is to have a new statute combining the best features of the Model Law and the English Arbitration Act of 1996, while retaining certain provisions of the 1965 Act which have worked well in practice.
It is well known that the potential advantages claimed for arbitration compared to litigation, as a more expeditious and cost-effective method of resolving disputes, are often not achieved in practice, particularly in complex commercial disputes and in the construction industry. The Commission therefore proposes that a statutory duty should be imposed on the arbitral tribunal to adopt procedures which, while fair, in the particular circumstances of the dispute will avoid unnecessary delay and expense. Increased powers are proposed for the tribunal to enable it to comply with this duty. These powers include the power to rule on its own jurisdiction, the power to depart from the ordinary rules of evidence, a limited power to order interim measures and security for costs, the power to call witnesses, more effective powers to deal with a party in default and the power to limit recoverable costs. True to the principle of party autonomy the tribunal's statutory powers can be excluded or modified by the parties in their arbitration agreement.
The Commission proposes that the powers of the court should be reviewed and generally brought into line with the powers of the court under the Model Law, while retaining certain powers of the court in the 1965 Act not found in the Model Law, but in modified form. Particular attention has been given to the need to prevent applications to court being abused by unscrupulous parties intent on delaying the arbitration process. There are also certain provisions designed to facilitate the use of conciliation by the parties to an arbitration agreement. In the interests of consumer protection, certain restrictions are imposed on arbitration clauses in standard-form contracts entered into by consumers.
Ë the existing Arbitration Act 42 of 1965 should be repealed and replaced with a comprehensive new arbitration statute for domestic arbitration, based on the principles set out above.
A series of regional workshops was held countrywide during September 1999 to discuss the provisional proposals set out in the discussion paper. It is envisaged that a report will be finalised in the first quarter of 2000.
An issue paper dealing with all aspects of ADR was published for general information and comment during 1997. Information regarding the issue paper appears in the 1998 annual report.
A discussion paper on community dispute resolution structures was submitted to the Minister at a media conference on 8 September 1999. The closing date for comment was extended to 30 November 1999.
The investigation considers ways of getting community structures (whether indigenous, urban, township or religious) to play their proper role in ensuring that South Africans, particularly the poorest of the poor, receive access to justice. Community forums are at present diverse, fragmentary and tentative. Most initiatives are private or individual efforts and they tend to be unfocused.
Ë Because community-based dispute-resolution structures ("community forums") serve a useful purpose in meeting the needs of the majority of the South African population for accessible justice, these structures must now be recognised and supported by law.
Ë Reference to these structures as "community courts" is misleading and a new name should be found.
Ë Recognition of community structures should be based on an Act of Parliament setting out their status, role, functioning, jurisdiction, procedure and other related matters, such as the qualifications of personnel.
Ë Any such legislation should be drafted only after careful investigation and consultation and should take the form of creating a broad framework, to accommodate different models of local dispute resolution.
Ë Attendance at any community forum should be entirely voluntary and decisions of a community forum should be binding on the parties only if they have agreed beforehand to be bound by such decisions.
Ë Community forums should remain informal and flexible in their procedures, inexpensive in their operations as well as accessible, non-alienating and responsive to the needs of the communities in which they operate.
Ë There should be no appeal from community forums to the formal courts. If a matter remains unresolved, the dispute may be pursued in any other forum.
Ë An office of Ombudsman for Community Structures should be established to oversee the work of community forums and to enforce uniform standards.
Ë Where there is a functioning customary court in a rural area, a community forum should not be introduced.
Ë Persons operating in community forums should be empowered through training.
Ë The Commission requests comment on whether community forums should have criminal jurisdiction and if such jurisdiction is supported, on the restrictions, if any, that should be placed on such jurisdiction.
A national workshop on the discussion paper was held in Pretoria on 27 - 28 October 1999. It is envisaged that a draft report will be finalised in the first quarter of 2000. The finalisation of a report has been deferred in the light of the researcher's involvement in more urgent investigations.
Toward the end of the year under review judge P J J Olivier, former Vice-Chairperson of the Commission, kindly indicated that he would finalise a report. A draft report will be considered by the Commission in the first quarter of 2000.
The project committee resolved not to publish a discussion paper, but to proceed with the publication of an interim report. A summary of the recommendations contained in the interim report appears in the 1998 annual report.
The Maintenance Act 99 of 1998 came into operation on 26 November 1999. In 2000 the position under the new Act will be assessed with a view to determining whether further reform is necessary.
Matters relating to criminal procedure and sentencing are at present being dealt with as part of other investigations on the Commission's programme (see project 73 and project 82).
The previous Commission considered a request received from the Minister of Safety and Security addressed to the Minister of Justice and referred to the Commission. The Minister of Safety and Security proposed that a review and rationalisation of South Africa's security legislation should be undertaken by the Commission so as to ensure that the legislation is in accordance with international norms, the Constitution and the current requirements of the country.
In November 1998 a discussion paper on the Interception and Monitoring Prohibition Act 127 of 1992 was published for general information and comment. Information regarding the discussion paper appears in the 1998 annual report.
A report on the Interception and Monitoring Prohibition Act was submitted to the Minister on 23 November 1999. A summary of the recommendations contained in the report appears in Chapter 4.
The project committee will consider other areas of the law relating to security during 2000.
Ë The review of the crimes of terrorism and sabotage.
Ë The protection of classified information in the possession of the State.
Ë Regulation of private intelligence companies.
Ë Economic espionage as a threat to national security.
Ë Protection of the property and personnel of foreign governments and international organisations, including protection from intimidation, obstruction, coercion and acts of violence committed against foreign dignitaries, foreign officials and their family members.
Ë Hostage-taking in order to compel any government to do or abstain from doing any act.
A discussion paper on terrorism will be developed during the first half of 2000.
South Africa does not have a coherent juvenile justice system. Limited provisions providing specifically for the management of young people caught up in the criminal justice system are spread throughout a number of separate statutes such as the Criminal Procedure Act, 1977, the Probation Services Act, 1991, the Child Care Act, 1983, and the Correctional Services Act, 1959.
A discussion paper containing proposals relating to a new structure to govern children under the age of 18 years who are accused of having committed offences was published for general information and comment during November 1998. The closing date for comments on the discussion paper was 31 March 1999. Information regarding the discussion paper is contained in the 1998 annual report.
A draft report will be considered by the Commission early in 2000.
An issue paper was published in May 1997 for general information and comment. The closing date for comment was 30 September 1997. Information regarding the issue paper is contained in the 1998 annual report.
It became clear during the course of the investigation that any proposed changes to the law relating to sexual offences would have far-reaching effects on the position not only of children, but also of adults. Consequently, and as a result of various other requests, the Commission decided to expand the scope of the investigation to include sexual offences against adults.
A discussion paper on sexual offences: the substantive law, was submitted to the Minister at a media conference on 8 September 1999. An extensive consultation process on the discussion paper was launched. The closing date for comment was extended to 30 November 1999.
Ë The criminal law is the appropriate mechanism to address sexual exploitation, abuse and violence against women and children in particular.
Ë The Commission does not recommend the repeal of all the common law sexual offences. However, the adoption of one comprehensive new Sexual Offences Act is recommended.
Ë The Commission proposes the repeal of the common law offence of rape and its replacement with a new gender-neutral statutory offence. This new offence centres around "unlawful sexual penetration". The Commission says sexual penetration is unlawful per se when it occurs under coercive circumstances. Coercive circumstances include the application of force, threats, the abuse of power or authority, the use of drugs, etc. "Sexual penetration" is defined very broadly to include the penetration "to any extent whatsoever" by a penis, any object or part of the body of one person, or any part of the body of an animal into the vagina, anus, or mouth of another person. Simulated sexual intercourse is also included under the Commission's definition of "sexual penetration".
Ë Sexual penetration of any child below the age of 12 years should constitute rape.
Ë Absence of consent to sexual intercourse should no longer be an element of the offence of rape. (The accused should obviously still be able to raise consent to sexual intercourse as justification for his or her unlawful conduct, but should carry the burden of proof in this regard.
Ë A husband can be convicted of raping his wife.
Ë A statutory provision called "child molestation" is aimed at prohibiting sexual acts with children below 16 years of age. Consent by a child under 16 years of age to any sexual act should not be a defence to a charge under this provision.
Ë As most cases of intra-familial sexual abuse take place repeatedly and over long periods of time, child victims often have difficulty recalling precise details of the time and place when and where the alleged offences are said to have occurred. It is thus recommended that the "persistent sexual abuse of a child" should constitute a separate offence.
Ë The commercial sexual exploitation of children should be prohibited. Commercial sexual exploitation includes child prostitution, child pornography and trafficking in children.
Ë Although the Commission supports a total prohibition of child pornography, it nevertheless does not propose the inclusion of provisions on child pornography in the new Sexual Offences Act. The Commission does not recommend any legislative amendments pending the review of the Films and Publications Act.
Ë Specific provisions should deal with sexual offences against mentally impaired persons.
Ë The Commission recognises that a clear need exists for specific legislation criminalising stalking (or harassment) and recommends that a specific investigation be conducted in this regard.
Ë A statutory offence in respect of coercion to perform sexual acts covers the actions of a person who compels another person to engage in sexual acts with that person, a third person, an animal or the compelled person himself or herself.
Ë Comment is invited on the prohibition of female genital mutilation.
On completion of the consultation process, a report on the substantive law relating to sexual offences will be prepared. An effort will be made to finalise the report in the first half of 2000 so as to enable the Minister to introduce legislation in August 2000.
Draft discussion papers on process and procedure as well as adult commercial sex work and adult pornography will be finalised during the first quarter of 2000.
This investigation is aimed at addressing problems experienced in the field of criminal law and criminal procedure with respect to the investigation and prosecution of computer-related crime. These problems stem mainly from the intangible nature of information stored on or used by computers. Current statutory and common law offences are not wide enough to include many of the activities carried out in respect of computers. Furthermore, procedures for the gathering and presentation of evidence were not designed to function in a computerised society.
Ë The criminalisation of unauthorised access to computers as well as the unauthorised modification of computer data and software applications.
Ë The possibility of providing for the procedural aspects associated with the investigation and prosecution of the above-mentioned offences.
Ë The use of computers to commit offences such as theft and fraud.
Ë Offences committed by means of the Internet.
Ë Matters relating to encryption in order to protect information.
Ë The continuing education of the investigating and prosecuting authorities as well as the judiciary to understand and correctly apply the legislation which may be forthcoming from the this investigation.
Because of the wide scope of the investigation an incremental approach will be adopted. The first issue paper on options for reform in respect of unauthorised access to computers, unauthorised modification of computer data and software applications and related procedural aspects was published during August 1998. The closing date for comments was 26 October 1998. Information regarding the issue paper is contained in the 1998 annual report.
A draft discussion paper will be finalised for consideration by the Commission in January 2000.
The Department of Home Affairs approached the Commission in 1996 with a request to investigate and recommend legislation relating to a new marriage dispensation for South Africa. The Minister approved the inclusion of the investigation in the Commission's programme on 27 January 1997.
A discussion paper was submitted to the Minister at a media conference on 8 September 1999. The closing date for comment was 30 November 1999.
The investigation focuses mainly on whether the provisions contained in the Marriage Act are adequate or whether they should be amended and, in that event, the way in which such amendments should be effected.
Ë The question arises whether there is a need to accord recognition to foreign embassy or consular marriages in South Africa in view of the absence of such statutory recognition.
Ë Section 2(1) of the Act should provide that certain persons in the diplomatic and consular service of the Republic, namely Ambassadors, High Commissioners and Consuls should by virtue of their office and as long as they hold such office be ex officio marriage officers for the area in which they hold office.
Ë The Act permits the designation as a marriage officer of any minister of, or person holding a responsible position in, "any religious denomination or organization". It is restrictive in that marriage officers can be designated only for the purpose of conducting marriages according to "Christian, Jewish or Mohammedan rites or the rites of any Indian religion." One option suggested to the Commission is the amendment of the provision by the substitution of the words concerned with the phrase "according to the rites of the religious denomination or organisation concerned". Another option is to grant authority to the Minister of Home Affairs to appoint a person as a marriage officer who has been nominated by a religious denomination or organisation once the Minister is satisfied that the denomination or organisation concerned is a bona fide religious denomination or organisation. The problem with this option is that it suggests no other grounds for the Minister to refuse to appoint the person concerned (eg that he or she is unfit to be a marriage officer) except for a defect in the bona fides of the organisation. A third option is to empower the Minister to designate by proclamation recognised religious groups or religious organisations. The Marriage Act could then provide that ministers of religion or persons holding responsible positions in religious denominations or religious organisations recognised by the Minister by notice in the Gazette, may be designated by the Minister to be marriage officers. The Commission decided to leave the question to respondents and invites comment on these options. Comment is also invited as to whether criteria formulated to guide the Minister in the exercise of his or her powers should be included in the Act.
Ë The decision made by the Minister to designate someone as a marriage officer or to revoke the designation of the marriage officer should be reviewable by any provincial or local division of the High Court of South Africa.
Ë The Marriage Act provides for the solemnisation of marriages. It is clear that a marriage is not necessarily solemnised, but the alternative "celebrate" is not without its problems. The terms "conduct a marriage" or "join in marriage" are better substitutes and words to that effect should be used in place of the terms "solemnize" or "solemnization" where appropriate in the Act.
Ë A proposal was made that the joining of parties in marriage should be privatised, ie that persons other than those presently appointed should also be able to conduct marriages. In view of the limited requests calling for such a step, the Commission is not convinced that the appointment of marriage officers should be extended to include persons other than the present categories of marriage officers.
Ë The minimum age for marriage (set out in section 26) should be 18 years of age for males and females.
Ë Section 28 should make provision for the provincial or local division of the High Court to have jurisdiction to consent to a marriage between a man or a woman and the direct descendant of his or her deceased spouse if both parties have reached the age of 18 years and they are not related to each other by blood. This provision should correspond to the provision setting out the minimum age for marriage for males and females to be 18 years of age.
Ë Section 29(2) presently sets out the following places for the conducting of marriage ceremonies: churches, other buildings used for religious services, public places and private dwelling-houses with open doors. There are two options to be considered. In terms of the first option the range of places where marriages may be conducted would be less limited than is presently the case although they should still be limited to some extent. This would require the deletion of the statutory requirement that parties be joined in marriage in a private dwelling with open doors and the addition of the words "or in any other building or facility used for conducting marriages". The second option is that there should not be any limitations at all with regard to places where marriages may be conducted. Comment on these two options is requested: should the range of places where marriages may be conducted be limited or should there be no limitations Should some limitations still be considered desirable, the Act should also provide for the validity of marriages conducted at places other than the appointed ones?
Ë* The Act should further provide for a marriage conducted under or recognised in terms of the provisions of the Act to be recorded in the prescribed register, for the transmitting of the marriage register and records concerned to a regional or district representative of the department in whose district or region the marriage was conducted, and for causing the particulars of the marriage concerned to be included in the population register in accordance with the provisions of the Identification Act of 1997.
Ë The marriage formula set out in section 30(1) should be amended by the deletion of the words "and thereupon the parties shall give each other the right hand". The proviso dealing with the validity of marriages where the requirement that the parties shall give each other the right hand has not strictly been complied with, should also be deleted.
Ë Section 37 makes provision for South African courts having jurisdiction to try persons who contravene the provisions of the Marriage Act in any country outside the Republic of South Africa. There may be a number of offences parties may commit outside the geographical borders of South Africa in contravention of the provisions of the Marriage Act. One example is where a person who is already a party to a marriage contracts a second marriage in another country without obtaining a prior divorce and thereby committing the offence of bigamy. It should be possible under these circumstances to try the offender in South Africa. There is therefore no need to amend section 37 besides the substitution of the term "Republic" for the term "Union".
A report on the review of the Marriage Act will be finalised during the first half of 2000. Information regarding the issue paper appears in the 1998 annual report.
To enable the project committee to prepare a discussion paper with draft legislation, the members of the project committee and contract researchers are preparing consultation papers on selected issues as background documents to stimulate debate within specific focus groups.
The consultative research process will be followed by the preparation of a discussion paper and draft legislation. It is envisaged that a discussion paper will be published in August 2000. Mr G G Smit, a former Law Commissioner, was contracted to draft the legislation. He assumed duty on 1 October 1999.
In November 1996 the Minister requested the Commission to consider a proposal by Judge 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 since video conferences have the potential to reduce costs, for example, in cases involving witnesses having to travel from distant places or even residing in foreign countries. In certain instances inspections in loco could also be eliminated.
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 2000.
Ë South African media are wholly prohibited from disclosing any facet of divorce proceedings.
The researcher initially allocated to the project has been transferred to the Department of Transport. As a result of the new researcher's heavy involvement throughout June and July in the workshops on traditional courts and their aftermath, she was unable to start work on the project. She has also been appointed to do research on succession and administration of estates in customary law.
Another researcher had to be allocated to the project and he has commenced with research. It is envisaged that a draft discussion paper on the publication of divorce proceedings will be finalised in April 2000.
Ë The term "dangerous weapon" is fundamentally tautologous. The difficulty is that dangerous weapons may include objects designed to be weapons (e.g. firearms, spears, etc) or objects not designed to be weapons but which may be used as such and are easily capable of causing bodily injury (e.g. scissors, chains, etc and even objects such as stones, matches, etc). In short, in terms of the Dangerous Weapons Act, an object qualifies as a weapon not so much by its physical nature but according to the intent with which it is employed.
Ë Section 2(1) of the Dangerous Weapons Act penalises the possession of two distinct types of objects: a dangerous weapon as defined; and an object resembling a firearm (which object need not necessarily be a dangerous weapon). It appears that there are two distinct forms of the offence which would have to be separately alleged and proved.
Ë Section 2(2) of the Dangerous Weapons Act empowers the Minister of Law and order to effect certain prohibitions by way of notice in the Gazette. It does not appear necessary to show that the prohibited object was one likely to cause serious bodily injury if used to commit an assault (as is required in terms of section 2(1) of the Act), and the defence that the possessor had no intention of using such object for an unlawful purpose is not available.
Ë Section 4 prescribes certain penalties when dangerous weapons or firearms are used in the commission of offences involving violence. Although it was held that the definition of a dangerous weapon was the same for section 2(1) and 4(1) (hence something was either a dangerous weapon for all purposes of the Act or not a dangerous weapon for any of them), this appears to have been overlooked in many decisions concerning the application of section 4(1) of the Act.
Ë The Arms and Ammunition Act 75 of 1969. (Any person who has in his or her possession any arm, unless licenced to possess such arm, commits an offence. "Arm" is defined as any firearm other than a cannon or machine gun.
Ë The Control of Access to Public Premises and Vehicles Act 53 of 1985. (The definition of "dangerous object" in this Act includes any firearm, weapon, etc.
Ë The Regulation of Gatherings Act 205 of 1993. (In addition to the conditions that may apply to the holding of a gathering, this Act provides that participants at a gathering or demonstration shall abide by any law in respect of the carrying of dangerous weapons.
Mr R W Palmer, a senior lecturer at the University of Natal, has been appointed as a consultant to assist with the research. A planning meeting was held with Mr Palmer on 27 August 1999. Research is being done with a view to finalising a draft issue paper early in 2000.
Ë Voluntary associations such as the South African Agricultural Union and the Natal Agricultural Union fall within the ambit of sections 30(1) and 31 of the Companies Act, 1973. The South African Agricultural Union is therefore an illegal organisation in terms of the Companies Act with no locus standi or legal personality.
Ë A voluntary association ceases to exist when its membership exceeds twenty or where it adopts objectives which fall within the ambit of the prohibitions contained in section 30(1) of the Companies Act. Any property it owns at such time will become bona vacantia and will vest in the State. Any contracts which may have been purportedly concluded on its behalf would be unenforceable both by and against it.
Ë Whatever solution is found to the difficulty, provision must be made for carrying assets, liabilities, rights and obligations over into whatever regularised result is decided upon.
Research has been kept in abeyance because of the researcher's involvement in projects 107 and 108.
Media reports have suggested that consideration be given to the adoption of legislation relating to the recognition in South Africa of same sex partnerships. The matter has been rendered particularly acute by a judgment reported in the media (Langemaat v Minister of Safety and Security 1998 (3) SA 312 (T)) in which Roux J held ultra vires certain provisions of Polmed (the medical aid scheme of the South African Police Service), evidently on grounds related to perceived discrimination on the basis of sexual orientation in its provisions. In the circumstances the working committee at its own initiative examined the need for an investigation.
Research has commenced and it is envisaged that an issue paper will be published in the first half of 2000.
Ms N Bawa, a member of the Cape Bar, has been appointed as a consultant to assist with the research. A planning meeting was held with Ms Bawa on 7 September 1999. A draft issue paper will be submitted to the project leader early in 2000.
The Commission publishes a quarterly 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.
A brochure introducing the Commission is made available to the public at workshops and on other occasions.
The good relations that the Commission maintains with law reform bodies in other countries makes the exchange of working papers, reports and other information possible.
Two law reform officers of the Malawian Law Commission were attached to the South African Law Commission from 12 to 30 April 1999. The law reform officers were thoroughly exposed to the work of the Law Commission. They consulted with researchers in a number of projects which are of interest to the Malawian Law Commission. They were also briefed on the organisation of the library and received training on the law reform process, research methodology, the writing of research documents and networking. The visitors also received computer training in Windows 95 and WordPerfect 8 Basic which was facilitated by the Subdirectorate: Training in the National Head Office.
From 19 to 20 October 1999 two researchers of the Law Reform Commission of Lesotho visited the South African Law Commission. They were briefed on working methods and research methodology and they had an opportunity to consult with researchers.
On 8 September 1999 the Commission hosted a media conference in Cape Town. The conference was attended by the Minister and Deputy Minister for Justice and Constitutional Development as well as the Minister of Health.
Researcher had interviews with reporters from the Cape Argus, Daily Dispatch, Star and Mirror.
Researcher participated in "Justice for All" pre-recorded radio talk show.