The South African Law Reform Commission (SALRC) was established by the South African Law Reform Commission Act 19 of 1973 (the Act).
The objects of the Commission are set out as follows in section 4 of the Act: To do research with reference to all branches of the law of the Republic and to study and investigate all such branches in order to make recommendations for the development, improvement, modernisation or reform thereof, including –
In short, the Commission is an advisory body whose aim is the renewal and improvement of the law of South Africa on a continuous basis.
The members of the Commission are appointed by the President.
In terms of section 3(1)(a) of the Act the Commission is constituted as follows:
New Commission to be appointed by the President (2012)
The powers and duties of the Commission are set out in section 5 of the Act. Section 5 directs the Commission to draw up programmes that include, in order of preference, the various matters which in the Commission’s opinion require consideration. The programmes must be submitted to the Minister for Justice and Constitutional Development (the Minister) for approval. The Commission may include any suggestion for investigation relating to the Commission’s objects received from any person or body.
The Commission has to investigate the matters appearing on the programme as approved by the Minister and may consult any person or body for the purpose of the investigation. The Commission prepares draft legislation if it is of the opinion that legislation ought to be enacted with regard to the matter investigated.
Section 7A of the Act provides for the establishment of committees of the Commission. There are two categories: committees appointed by the Commission and consisting of members of the Commission only (such as the working committee), and committees 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.
Committees of the Commission perform the functions assigned to them by the Commission and are subject to the Commission’s directives. Activities performed by committees are deemed to be performed by the Commission and for the purposes of remuneration, members of committees are deemed to be members of the Commission.
Under the first category of committees, the Commission has established a working committee which consists of members of the Commission co-opted for meetings according to their availability (section 7A(1)(a) of the Act).
The working committee may be considered the executive committee of the Commission. In accordance with the Commission’s directives, this committee attends on a continuous basis to routine matters and other matters that require urgent attention. The working committee may exercise all the functions of the Commission excluding the approval of reports. The committee also considers the inclusion of new investigations in the Commission’s programme. Furthermore, the committee plans and manages the activities of the Commission’s Secretariat.
Advisory committees fall under the second category of committees. The Commission follows the practice of instituting advisory committees consisting of experts to assist with investigations and to advise the Commission if a specific investigation in the Commission’s programme so requires (Section 7A(1)(b) of the Act).
Although the Act does not specifically refer to the appointment of project leaders, it is the Commission’s practice to appoint a project leader for an investigation on its research programme. A project leader could be a Commissioner, a member of an advisory committee appointed by the Minister (section 7A(1)(b)(ii)), or any other person who is not a Commissioner and who is not a member of an advisory committee (section 8(2)).
The main task of a project leader is to guide the designated researcher by providing advice and direction and evaluating the research. If the project leader is the designated chairperson of a committee as envisaged in section 7A(3) of the Act, he or she will also guide the proceedings of the advisory committee.
The Commission is assisted in its task by a full-time Secretariat consisting of officials on the establishment of the Department of Justice and Constitutional Development. The Secretariat consists of an administrative component and a professional component. The Deputy Chief State Law Adviser (Chief Director), Mr Michael Palumbo serves as the Secretary of the Commission.
The research component of the Secretariat consists of 14 State Law Advisers (excluding vacancies) from diverse backgrounds. Their task is to conduct the necessary research under the guidance of project leaders (who are appointed by the Commission), to consult with interested parties, to compile issue papers, discussion papers and draft reports and to carry out other assignments of the Commission.
Law reform cannot be delivered without high quality research. The in-house researchers at the South African Law Reform Commission (SALRC) are professionally qualified lawyers, the majority of whom have vast experience in the law reform environment. The result has been the development of scholarly research publications and the involvement of the researchers in various activities.
TThe Act provides that the Commission must, from time to time, draw up programmes listing in order of preference the matters which in its opinion require consideration. The Commission’s programme is subject to the Minister’s approval.
Any person or body is free to submit proposals for law reform to the Commission. In each case the Commission considers the merits of a proposal. In some instances a preliminary inquiry is instituted to determine whether the inclusion of a matter in the Commission’s programme is justified. The Commission may also include matters in the programme of its own accord.
Every effort is made to dispose of urgent matters with the least possible delay. However, the Commission has to follow certain procedures which sometimes take up considerable time. The availability of funds and skilled research capacity, the nature and extent of the inquiry and the need for consultation all determine the time spent on each project. Consultation, in particular, is time-consuming, but the Commission regards it as an indispensable part of the law reform process.
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, project leader, advisory committee (where one exists), the general public, stakeholders and 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.
Discussion papers contain essential information on the investigation and the Commission’s tentative proposals for reform. In particular, a discussion paper will include a statement of the existing legal position and its deficiencies, a comparative survey and a range of possible solutions. In most cases the discussion paper will also include a draft Bill. Members of the public are informed of the availability of discussion papers by means of press releases and press conferences. In addition, copies are distributed to organisations and, sometimes, to individuals whose views on the subject under discussion the Commission particularly wishes to canvass. The responses to the provisional proposals are carefully studied before final decisions are made. The Commission also hears oral evidence in appropriate cases. Its recommendations are embodied in comprehensive reports, which are submitted to the Minister.
In making its recommendations, the Commission bears in mind that there is a need to provide access to justice for all; to protect the rights of all parties – especially those of women, children and the poor; to make legal processes affordable; to make the law less complicated; and to give effect to the values and principles underlying the Constitution.
Judging from comments received, the Commission’s discussion papers and reports are of a high standard. The faculties of law of various universities often prescribe the Commission’s research publications as literature for their students at undergraduate as well as postgraduate level.
The many valuable comments and proposals received on the Commission’s recommendations as contained in its documents, confirm that its working methods are successful. These methods ensure that the Commission’s final recommendations are well-substantiated and are the product of thorough debate. The working methods also facilitate the enactment of the Commission’s proposed legislation, which embodies the recommendations.
In the course of its activities, the Commission publishes a variety of documents. The document series of the Commission consists of the following:
Commission papers and committee papers
Commission papers and committee papers are internal documents that are normally not available outside the ranks of the Commission. In these papers proposals for the inclusion of matters in the Commission’s programme, research results for the information of or consideration by the Commission, draft issue papers, discussion papers and reports as well as a variety of other matters in respect of the functioning of the Commission are dealt with. The papers are numbered in sequence as they serve before the Commission.
In order to involve the community actively at an earlier stage, the Commission publishes issue papers for appropriate investigations as the first step in the consultation process. The purpose of an issue paper is to announce an investigation, to clarify the aim and extent of the investigation, and to suggest the options available for solving existing problems.
Discussion papers, previously referred to as working papers, are documents in which the Commission’s preliminary research results are contained. In most cases discussion papers also contain draft legislation. The main purpose of these documents is to test public opinion on solutions identified by the Commission.
The Act requires the Commission to prepare a full report on any matter investigated by it and to submit such reports together with draft legislation, if any, to the Minister for consideration. All reports of the Commission are official, but not all are published.
In addition to the reports on particular investigations, the Act provides that the Commission must annually submit to the Minister a report on all its activities during the previous year.
Papers in the Commission’s research series
This series has been used mainly for publications intended to make the common law more readily available and contains translated common law sources and noters-up. This series is also used to make research done by the Law Reform Commission that did not culminated in reports available to interested person and institutions.
Issue papers and discussion papers are supplied free of charge to interested institutions and persons who wish to comment on a particular matter. These papers are widely distributed and are also obtainable from the Commission’s offices. The annual report, papers in the research series and reports on investigations that are published, may be purchased from the Government Printer in Pretoria.