reform review anticipate

93 Pages·2009·1.46 MB·English

SOUTH AFRICAN LAW REFORM COMMISSION
THIRTY-SIXTH ANNUAL REPORT
2008/2009
REVIEW REFORM ANTICIPATE
THE PAST THE PRESENT THE FUTURE
To Mr J T Radebe MP
Minister of Justice and Constitutional
Development
I have the honour to submit to you, in terms of
section 7(2) of the South African Law Reform
Commission Act 19 of 1973, the Commission’s
report on all its activities from 1 April 2008 to
31 March 2009
Yours sincerely
Madam Justice JY Mokgoro
Justice of the Constitutional Court
Chairperson of the
South African Law Reform Commission
GALLERY OF COMMISSIONERS
2008/2009
Justice JY Mokgoro Judge WL Seriti Ms TN Madonsela
Chairperson and Justice Vice-Chairperson and Full-time Member
of the Constitutional Judge of the Gauteng
Court North High Court
Prof C Albertyn Judge DM Davies Mr NT Ngcukaitobi
Professor of Law Judge President Practising Attorney
University of the of the Competition Bowman Gilfillan
Witwatersrand Appeal Court Incorporated Attorneys
Advocate DB Ntsebeza SC Prof PJ Schwikkard Advocate M Sello
Advocate of the High Court Dean of Law Advocate of the High
of South Africa University of Cape Town Court of South Africa
N N
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To be a centre for excellence, producing The continuous reform
ground-breaking research pivotal to the of the law of South Africa
improvement and renewal of the legal in accordance with the
system of South Africa principles and values of
the Constitution to meet
S
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the needs of a changing In the execution of its duties the SALRC
society operating under strives to uphold the values of equality,
the rule of law integrity, inclusiveness, professionalism,
impartiality, excellence, responsiveness,
efficiency and respect for the dignity
of others.
The South African Law Reform Commission
The offices of the South African Law Reform Commission are situated in the Middestad Centre
(12th floor), corner of Andries and Schoeman Streets, Pretoria.
The postal address is as follows:
The Secretary Tel: [phone]
South African Law Reform Commission Fax: [phone]
Private Bag X668 E-mail: [email protected]
Pretoria Internet: http://salawreform.justice.gov.za
0001
REPUBLIC OF SOUTH AFRICA
CONTENTS
Chapter 1: Overview 10
Chapter 2: Objects, constitution and functioning 16
Chapter 3: Progress report 28
Chapter 4: Reports completed 46
Chapter 5: Public relations 54
Chapter 6: Acknowlegdements 68
Annexure A: Issue papers published by the Commission 70
Annexure B: Discussion papers published by the Commission 72
Annexure C: Investigations included in Commission’s programme since its establishment 77
Annexure D: Members of the Commission in order of appointment 87
Annexure E: Advisory committees of the Commission and their members 89
Annexure F: Present programme of the Commission 94
Annexure G: Papers published by the Commission in its research series 95
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1
RW Introduction
E
The reform of the law of South
I
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V Africa is the core business of
R the South African Law Reform
TE Commission.
V
O The South African Law Reform Commission Act 19
P
of 1973 states in section 4 that the objects of the
South African Law Reform Commission (SALRC) are
to do research with reference to all branches of the
A law of the Republic of South Africa in order to make
recommendations for the development, improvement,
modernisation or reform thereof.
H
However, before the SALRC can make recommendations
for legal reform by executing its objects, the SALRC must
be made aware of matters that require investigation.
C In terms of section 5 of the South African Law Reform
Commission Act (SALRC Act) the Commission, in order
to achieve its objects, must draw up a programme of
the matters that in its opinion require consideration.
It is significant that the SALRC Act states that the
Commission may include in its programme any
1
suggestion relating to its objects received from any
person or body.
The fact that the SALRC may include law reform
proposals for investigation in its programme
irrespective of the status or capacity of the source of
the proposal may be illustrated by examining the origin
of some of the current investigations. The Project 25
subproject reviewing the South African statute book
for constitutionality, redundancy and obsoleteness
originated in a request from Cabinet following a
submission by the Minister of Justice and Constitutional
Development. Another Project 25 subproject, review of
the Interpretation Act, as well as Project 124 - Privacy
and data protection, are the result of a request from a
parliamentary committee, the ad hoc Joint Committee
on the Open Democracy Bill, 1998 (the Bill resulted in
the Promotion of Access to Information Act, 1998).
The Project 100 subproject on custody and access
to minor children originated from a family adviser at
the Bloemfontein office of the Family Advocate, who
became aware of particular problems with access to
children after divorce during research for her Master’s
degree in social work. The other current Project 100
subproject, review of aspects of matrimonial property
10 THIRTY-SIXTH SALRC ANNUAL REPORT 2008/2009
law, was approved subsequent to among others a The first set of criteria is used to determine whether a
complaint lodged with the Commission for Gender proposal should be rejected even before a preliminary
Equality by a member of the public in respect of so- investigation is done. It creates a sifting mechanism
called ‘joint’ bank accounts. to reduce the number of preliminary investigations. If
the proposal does not meet the initial criteria set for
Project 122, the investigation into assisted decision- inclusion, it is rejected and a recommendation on this
making with regard to adults with impaired decision- basis is made to the Commission for consideration.
making capacity, was approved after a request for such However, where the initial criteria are met, a preliminary
an investigation was received from a member of the investigation is indicated and the second set of criteria
public. Project 124, the investigation into prescription is then used to evaluate the proposal and to determine
periods, was referred to the SALRC on request of the the ultimate inclusion or rejection of the proposal.
Minister of Justice and Constitutional Development
following a recommendation by the Portfolio Committee Whereas all the initial criteria need to be met when
for Justice and Constitutional Development. Project deciding whether to go ahead with a preliminary
investigation, a proposal need not
meet all the secondary criteria to
“It is significant that the SALRC Act states that the
be included in the programme. All
Commission may include in its programme any the criteria in the second phase
are considered and such weight is
suggestion relating to its objects received from
attached to a specific matter as the
any person or body.”
Commission deems appropriate in
the circumstances of each case.
126, the review of the law of evidence, emanates
from a proposal by a SALRC committee that had The criteria used in the two-phased approach are the
been appointed to look into the simplification of following:
criminal procedure.
1. Criteria used in the initial sifting process to
Given the human and financial resources and the determine whether a proposal should be subjected
amount of time expended on an investigation, it is to a preliminary investigation or whether it should
clear that the SALRC is unable to investigate each and be dealt with summarily
every proposal received. Since many more proposals
are received than what are possible for the SALRC to a. Whether the issues concerned are predom-
deal with at a given time, it is clear that the SALRC inantly legal
needs some method to determine when a proposal
for an investigation will be entertained and when it b. Whether the legal problem can be addressed
will be rejected. Although proposals for investigation in a way that does not require a change of the
are subjected to preliminary investigation, even a law, for example through a mere change in
preliminary investigation takes up valuable time and policy or improved implementation of existing
resources and may not always be necessary. legislation
After the period of introspection that the SALRC had c. Whether there is another institution or
embarked upon as alluded to in Chapter 1 of the SALRC’s government department better placed to deal
2007 / 2008 Annual Report, it became clear that the with the topic in question
SALRC had to develop selection criteria to determine
which proposals should be taken on as investigations, d. Pending legal developments (for example
starting with a decision on which proposals should be court cases or other draft legislation) that could
subjected to preliminary investigation. The selection influence the relevance of the investigation
criteria therefore provide for a two-phased process
to determine the inclusion of an investigation in the
SALRC’s programme.
CHAPTER 1: OVERVIEW 11
e. The availability of current resources in terms of The procedure explained above to determine the ultimate
capacity, funding and the effective management inclusion or rejection of a proposal for investigation has
of the research programme already been implemented and has proved to be a
success. In addition to affording the SALRC a valuable
2. Second phase criteria used in conjunction with tool to assist with the execution of its objects, it also
those set out in 1 above during a preliminary gives potential proposers of investigations an indication
investigation of the issues that are taken into consideration when a
proposal is considered, thus facilitating the submission
a. Extent to which the law is unsatisfactory (for and motivation of investigations.
example unconstitutional, unduly complex,
inaccessible or outdated)
Commission
b. Scale of the problem in terms of the proportion
The Commission appointed under section 3 of the
of the community affected
South African Law Reform Commission Act 19 of 1973,
with effect from 1 January 2007, continued its excellent
c. Potential benefits likely to accrue from
work. The Commission is comprised of the following
undertaking reform or repeal of the law
Commissioners appointed by the President:
d. The extent to which the investigation contributes
• Madam Justice Yvonne Mokgoro (Chairperson)
to the implementation of a broader government
policy
• Mr Justice Willie Seriti (Vice-Chairperson)
e. Enhanced constitutionality • Ms Thuli Madonsela (Full-time member)
f. Development and enhancement of the • Professor Cathi Albertyn
constitutional democracy
• Mr Justice Dennis Davis
g. Whether the issues span the interests of
• Mr Tembeka Ngcukaitobi
a number of government departments or
professional groups • Advocate Dumisa Ntsebeza SC
h. Whether the investigation would require • Professor Pamela Schwikkard
substantial long-term commitment and
• Advocate Mahlape Sello
fundamental review
i. Whether extensive public or professional
Completed reports receiving the attention
consultation would be necessary
of Parliament
j. Whether the investigation needs to be
• Project 90 - Customary law: Traditional Courts
done independently of central government
(introduced into Parliament as the Traditional
departments or other stakeholders because
Courts Bill, Bill 15 of 2008)
of –
• the existence of vested interests; or Completed reports receiving the attention
of government departments
• significant difference of views or objectives
in the different entities
Department of Justice and Constitutional
Development
k. Whether the investigation would promote
informed public debate on future policy The following reports were submitted to the Department
direction of Justice and Constitutional Development (DOJCD)
during previous reporting years:
l. The extent to which the investigation will
benefit poor and previously disadvantaged
communities
12 THIRTY-SIXTH SALRC ANNUAL REPORT 2008/2009