Current Investigations: Progress Report

Project 25 – Statutory law revision: The establishment of a permanently simplified, coherent and generally accessible statute book

Redundancy, obsoleteness and constitutionality of legislation

In 2004, the Commission embarked upon a major investigation aimed at revising the complete statute book with a view to removing or adapting legislative provisions considered to be unconstitutional, redundant or obsolete.  An audit of all national legislation (excluding provincial and secondary legislation) by the Commission revealed that there are close to 3 000 statutes on the statute book, comprising Principal Acts, Amendment Acts, Supplementary or Additional Acts and Private Acts.  Many of these Acts are not being applied anymore, while others contain provisions that are in conflict with the Constitution.  Redundant and obsolete provisions on the statute book are being identified and government departments are being consulted in order to verify these provisions.

Numerous meetings were held to develop a methodology for conducting the investigation into the constitutionality and redundancy of existing legislation.  The constitutional validity aspect of this investigation focuses on statutes or provisions in statutes that are clearly inconsistent with the right to equality entrenched in section 9 of the Constitution.  In practical terms, this means that this leg of the investigation will be limited to those statutes or provisions in statutes that:

  • differentiate between people or categories of people, and which are not rationally connected to a legitimate government purpose; or
  • unfairly discriminate against people or categories of people on one or more grounds listed in section 9(3) of the Constitution; or
  • unfairly discriminate on grounds which impair or have the potential to impair a person’s fundamental human dignity as a human being.

Consequently, a law or a provision in a law which appears, on the face of it, to be neutral and non-discriminatory, but which has or could have discriminatory effect or consequences, will be left to the judicial process.

In January 2010 a progress report on the investigation was forwardedto DOJCD for submission to the Minister of Justice and Constitutional Development (the Minister) with a view to informing Cabinet about the progress made in the investigation.  The progress report was placed on the agenda for the Cabinet meeting on Governance and Administration held on 16 February 2010.

Prof Cathi Albertyn developed a document for the SALRC setting out guidelines for the identification of legislative provisions that are obviously in conflict with section 9 of the Constitution.  The guidelines are based on an analysis of Constitutional Court judgements.  The tables of constitutional cases as per Prof Albertyn’s report have been updated and made available to the researchers involved with Project 25.  Future judgements of the Constitutional Court relating to the ‘equality’ clause in the Constitution will be added as and when they become available.

The Commission considered the status of Project 25 on 23 June 2007.  The Commission noted that internal research capacity to conduct statutory law review was limited due to the fact that the majority of researchers are attending to other projects on the Commission’s programme.  The Commission approved in principle the appointment of advisory committee members by the Minister to increase the Commission’s research capacity in respect of fourteen national state departments that administer a high number of statutes.  The departments at the time were the Departments of Agriculture, Communications, Defence, Education, Environmental Affairs and Tourism, Health, Home Affairs, Justice and Constitutional Development, Labour, Land Affairs, Minerals and Energy, National Treasury, Provincial and Local Government, and Trade and Industry.

The SALRC submitted a memorandum to DOJCD in September 2007 proposing the appointment of advisory committees by the Minister.  The Minister appointed 112 advisory committee members on 31 July 2008.  The first meetings of the advisory committees took place during October and November 2008.

After the reshuffling of state departments in 2009, the fourteen advisory committees appointed for Project 25 – Statutory law revision are now assisting with the review of legislation administered by the Departments of Agriculture, Forestry and Fisheries; Basic Education; Communications; Cooperative Governance and Traditional Affairs; Defence and Military Veterans; Energy; Health; Higher Education and Training; Home Affairs; Justice and Constitutional Development; Labour; Mineral Resources; National Treasury; Rural Development and Land Reform; Tourism; Trade and Industry; and Water and Environmental Affairs.

The statutes of the remaining Departments that administer a smaller number of statutes are being or will be reviewed by SALRC researchers, namely Arts and Culture; Correctional Services; Human Settlements; International Relations and Cooperation; Police; Public Enterprises; Public Service and Administration; Public Works; Science and Technology; Social Development; Sport and Recreation; State Security; Transport; and Women, Youth, Children and People with Disabilities.  The review of the legislation administered by the Department of Transport has been finalised.

Review of the Interpretation Act

The ad hoc Joint Committee on the Open Democracy Bill, 1998 (which resulted in the Promotion of Access to Information Act, 1998) in its resolutions on the Bill adopted on 24 January 2000, amongst others, requested the Minister to consider the amendment of the Interpretation Act 33 of 1957 to bring it in line with the principles of constitutional democracy and practices of interpretation used by Parliament and the courts since 1994.  The Commission decided on 17 November 2000 that the review of the Interpretation Act should form part of its existing Project 25 on Statute law: The establishment of a permanently simplified, coherent and generally accessible statute book.  This was subsequently approved by the Minister.

The Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) agreed to provide funding for the remuneration of an expert legal drafter to assist with the investigation.  An agreement between the consultant and the GTZ was concluded in November 2002.  The Commission approved the publication of a discussion paper on the review of the Interpretation Act on 9 September 2006.  A media statement announcing the availability of Discussion Paper 112 was released on 6 October 2006.  The discussion paper is discussed in the 2006/2007 annual report.  After several extensions to afford respondents more time to comment, the final closing date for comments on Discussion Paper 112 was determined as 30 April 2007.  Comment on the discussion paper was received as late as September 2007.  Evaluation of the comments and the development of a draft report commenced during 2007 and continued during the period under review.  It is envisaged that a report will be finalised by March 2011. Due to the researcher’s involvement in other aspects of Project 25, he was unable to finalise the draft report during the period under review.

Project 94 – Arbitration

The investigation initially dealt with international and domestic commercial arbitration only.  A report on international arbitration was submitted to the Minister in July 1998 and a report on domestic arbitration was submitted to the Minister in June 2001.

The investigation into arbitration was broadened on 8 July 1996 at the request of the Minister of JCD to include an investigation into alternative dispute resolution (ADR).  On 18 October 1997 it was decided to divide the investigation into three parts and to develop three separate discussion papers on ADR and the civil law; family mediation; and community courts.  It was further decided that the SALRC will deal with ADR and the civil law once it has completed the investigation into community courts (community dispute resolution structures) and family mediation.

Alternative dispute resolution

Alternative dispute resolution (ADR) covers all forms of dispute resolution other than litigation or adjudication through the courts.  It therefore includes a broad range of mechanisms and processes designed to assist parties in resolving disputes creatively and effectively.  These mechanisms and processes are not intended to supplant court adjudication, but rather to supplement it.  The most common types of ADR include negotiation, conciliation, mediation and arbitration.  An issue paper dealing with all aspects of ADR was published for general information and comment during 1997.

Information regarding Issue Paper 8 – Arbitration: Alternative dispute resolution published in May 1997 appears in the 1998 annual report.  Discussion Paper 83 – Arbitration: Domestic arbitration and Discussion Paper 87 – Arbitration: Community dispute resolution structures was submitted to the Minister of JCD at a media conference on 8 September 1999.  The closing date for comment was extended to 30 November 1999.  Information regarding Discussion Papers 83 and 87 appears in the 1999 annual report.  The Commission has considered the draft report on several occasions and referred it for amendment.  It is envisaged that the amended draft report will be considered by the Commission by the end of June 2010.

Family mediation

The field of family and divorce mediation developed in a highly segmented fashion as services in the past were provided along lines of race, culture and income level.  Family advocates and the divorce courts do utilise mediation, but family advocates have been criticised for not making proper use of mediation procedures, while mediation in the divorce courts is a limited, irregular and informal part of the settlement process.  Social workers in provincial institutions are also involved in this area and court referrals often result in intervention requests.

The advisory committee decided that a discussion paper on family mediation would be completed subject to the finalisation of the investigation into community dispute resolution structures.  At the moment the researcher is giving priority to Hindu marriages and Project 25 investigations.


Project 100 – Family law and the law of persons

The Commission approved on 23 June 2007 that the name of Project 128, ‘Review of aspects of the law of divorce’, be changed to ‘Custody of and access to minor children’ in accordance with its focus and that, because of possible mutual elements in Project 128 and Project 129 – Review of matrimonial property law, both investigations should be dealt with as subprojects under the Commission’s existing broad investigation into Family law and the law of persons (Project 100).  The Commission also approved that the Minister be approached to appoint a joint advisory committee for the two sub-projects.

The Minister on 20 May 2008 approved the inclusion of the former Project 128 – Review of aspects of the law of divorce and the former Project 129 – Review of aspects of matrimonial property law as subprojects under Project 100 – Family law and the law of persons.  The Minister also appointed a single advisory committee for the two investigations.

The Commission approved on 9 September 2006 the inclusion of an investigation into the recognition of Hindu Marriages in the programme.  This investigation is conducted as part of Project 100 – Family law and the law of persons.

Custody of and access to minor children

This investigation emanates from a request received from a family counsellor at the Office of the Family Advocate in Bloemfontein.  Data received from focus group forums, questionnaires and consultations held during 2008 were analysed and collated by the researcher for discussion by the advisory committee meeting.  The committee considered a draft discussion paper on 9 March 2009.

The researcher allocated to this project left the SALRC at the end of April 2009 and the project was assigned to another researcher from 1 May 2009.  The newly assigned researcher met with the advisory committee on 22 June 2009 to discuss the way forward.  It was decided that the existing draft discussion paper would be published as an issue paper after it has been remodelled according to a framework approved at the meeting.

In addition to the investigation into those aspects of family mediation that were covered in the original document,  the issue paper will also focus on the broader developments in family law in South Africa impacting on care and contact matters.  The investigation will include family mediation in the informal sector and the viability of family courts.  The object of the investigation is to develop a new integrated structure for the implementation of family law in South Africa with specific reference to care and contact issues.

Work on the issue paper has commenced.  However, the researcher’s involvement in the parliamentary process in respect of Protection of Personal Information Bill receives preference.  The target date for the submission of the draft issue paper to the advisory committee members for consideration and comment is 30 June 2011.

Review of aspects of matrimonial property law

The Matrimonial Property Act was passed in 1984 in order to deal with shortcomings in the matrimonial property law at the time.  The Act has been in place for more than 25 years.  Apart from problems which have in particular been brought to the SALRC’s attention, a number of social and legal changes since 1984 (including the adoption of the 1996 Constitution and the recognition of customary marriages and civil unions) suggest that a review of the law is necessary to ensure that it meets current needs.  The purpose of the investigation is to review the current law for greater legislative fairness and justice in governing interpersonal relationships between spouses.

The Minister on 20 May 2008 approved a request by the Commission to include the review of matrimonial property law and its investigation into custody of and access to minor children as subprojects under its existing broad investigation into Family law and the law of persons (Project 100).  This was done in view of possible mutual elements – such as a possible need to reform current divorce procedures – between these two subprojects.  The Minister also appointed a single advisory committee to assist with the two investigations.  The advisory committee met on 29 August 2008 to identify possible issues for reform for inclusion in the issue paper.

The question whether sharing of pension benefits on divorce should be included in the investigation in view of the envisaged pending implementation of draft legislation dealing with this issue was resolved through consultation with DOJCD in January 2009.  It was agreed that in view of the fact that DOJCD will not promote the Sharing of Pension Benefits Bill / Divorce Amendment Bill (which emanated from a 1999 report of the Commission) in the near future, problems pertaining to the sharing of pension benefits on divorce would also be addressed in the review of matrimonial property law.

Preliminary research to develop an issue paper proceeds while the researcher allocated to the investigation is still involved in Project 122.  Project 122, however, receives priority.

Hindu Marriages

The Commission approved on 9 September 2006 the inclusion of an investigation into the recognition of Hindu Marriages in the programme.  This investigation is conducted as part of Project 100 – Family law and the law of persons.  South African law does not recognise marriages by Hindu rites; therefore all the legal consequences of marriage do not apply to such marriages entered into in South Africa.  Couples in a Hindu marriage for example need not use the court if they want to get divorced.  Spouses can also not claim any of the legal consequences of divorce, such as maintenance, after the relationship has ended.  The aim of this investigation is to look into the recognition of Hindu marriages in order to afford these marriages full legal recognition and the same status as marriages concluded in accordance with civil rites.

It was decided in November 2008 to convert an issue paper developed on the Recognition of Hindu Marriages into a discussion paper and to recommend the appointment of an advisory committee to the Minister in order to expedite progress on the investigation.

On 7 September 2009 the Minister of JCD approved the appointment of four advisory committee members to assist the researcher to fast-track the investigation.  The advisory committee met on 23 November 2009 to decide on the way forward on this investigation.  At this meeting the advisory committee identified a need for an additional committee member to enhance the capacity of the committee.  The Minister appointed Advocate Devina Nadarajan Perumal as an advisory committee member on 12 January 2010.  It is envisaged that a draft discussion paper will be presented to the Commission in August 2010.  The target date for submitting the draft discussion paper to the project leader for consideration and comment has been extended to 31 March 2011.

Project 107 – Sexual offences: Adult prostitution

This investigation forms part of the larger project on sexual offences.  Issue Paper 19 – Sexual offences: Adult prostitution was published for general information and comment in August 2002.  This leg of the investigation was left in abeyance for a while as priority was given to the completion of the investigations into protected disclosures (Project 123), stalking (Project 130) and trafficking in persons (Project 131).  Research on law reform in respect of adult prostitution commenced in earnest again in 2008 and the Commission approved a discussion paper on this investigation on 28 March 2009.  Discussion Paper 1/2009 – Sexual Offences: Adult Prostitution was published on 6 May 2009 for comment.  Several workshops facilitated by the SALRC were held throughout the country during May, June and July 2009.  A number of focus group meetings were also held at the invitation of various sector specific organisations.

The legal response to prostitution differs from society to society and over the course of time.  Internationally, the topic of prostitution remains an emotive one and opinions on the legal response to prostitution are generally strongly polarised.  Within the current totally criminalised setting, this is no different in South Africa.  The researchers assigned to this project received in excess of 2600 email submissions in addition to many handwritten and faxed submissions and are currently processing these submissions for inclusion in the final report.  To ensure full public participation in the investigation and afford all interested parties an opportunity to express their views, the SALRC is planning stakeholder-specific meetings on a consultation paper, which will precede the report.

The researchers involved are planning to attend the Law and Poverty Colloquium from 29 to 31 May 2011 in order to explore solutions in respect of certain kinds of prostitution where poverty seems to be one of the primary drivers.

Project 113 – The use of electronic equipment in court proceedings

This investigation was included in the Commission’s programme on 14 June 1997.  The objective of the investigation is to determine whether the use of electronic equipment in court proceedings is a viable option to save costs or prevent delays in civil and criminal trials.  In view of several investigations with higher priority and lack of personnel due to vacancies, this investigation did not receive attention until 2003 when the Commission was requested by the office of the National Director of Public Prosecutions to expedite the investigation and to conduct a separate investigation into the possibility of postponement of cases via video conferencing.

The Commission’s report titled The Use of Electronic Equipment in Court Proceedings (Postponement of Criminal Cases via Audiovisual Link) was finalised in July 2003.  In its final report the Commission recommended the use of audio-visual links for applications for leave to appeal and appeals in respect of accused persons in custody in prison.  The recommendations of this report have been incorporated in the Criminal Procedure Amendment Act 65 of 2008, which was passed by Parliament on 22 October 2008.

Advancements in technology with the concomitant rapid growth of electronic / computer crimes have brought about a plethora of new forms of evidence.  In the broader context it has been recognised that any further investigation of the impact of technological developments on the law should extend beyond ‘equipment’ and focus holistically on procedures for collecting, storing and presenting electronic evidence in court.

The advisory committee recommended to the Commission that the remainder of the issues relating to evidence in Project 113 be included as a subproject under Project 126, the comprehensive review of the law of evidence.  At its meeting held on 1 August 2009, the Commission approved that the outstanding issues under Project 113 be included as a subproject under Project 126, the comprehensive project on the review of the law of evidence, and that Project 113 be deemed finalised and closed.

In proceeding under Project 126 an important consideration would be whether many of the technology-related evidentiary questions can be resolved under the existing rules of evidence.  This would require an overarching investigation into aspects of criminal and civil law with sub-projects focusing on rules of evidence and procedure to address concerns about the challenges presented by technological developments with regard to legal proceedings.

Project 122 – Assisted decision-making: Adults with impaired decision-making capacity

The SALRC, as far back as 1988, undertook an investigation with a view to improving the plight of mentally incapacitated persons who cannot afford the costs involved in securing a High Court appointed curator.  The Commission’s recommendations led to the adoption of the Mentally Ill Persons’ Legal Interests Amendment Act 109 of 1990, which amended the Mental Health Act 18 of 1973.  This amendment enabled an interested person to apply to the Master of the High Court (which entails insignificant costs) for the appointment of a curator to a person who is not declared to be mentally ill, but whom the applicant believes to be suffering from mental illness to such an extent that the person is incapable of managing his or her own affairs.

Although the present investigation revives the Commission’s previous investigation, it covers a broader spectrum.  Additional measures to protect the interests of persons who need support in exercising their legal capacity were also researched.  An issue paper on this project was published at the end of 2001.  A discussion paper was published for general information and comment in January 2004 and is discussed in the 2003/2004 annual report.

An extensive draft Bill comprising about 150 clauses was developed after broad consultation.  Consultation with the DOJCD policy unit and with the Chief Master of the High Court on policy issues took place during 2007.  Flow charts of processes reflected in the draft Bill were prepared at the request of the Chief Master during 2008 to enable long-term planning for the envisaged implementation of the proposed legislation.  Policy input on the draft Bill was received from DOJCD on 27 January 2009.

The compilation of a draft report for submission to the Commission was partly suspended between June and December 2007, and September 2008 and March 2009, due to the researcher's involvement in work pertaining to the improvement of the SALRC's processes (see Chapter 1 of the 2007/2008 annual report).

The finalisation of the SALRC's draft report and draft Bill on assisted decision-making was interrupted by a request from the South African Human Rights Commission in September 2009 that the report and draft Bill should take the United Nations Convention on the Rights of Persons with Disabilities (CRPD) into account.  The CRPD was ratified unreservedly by the South African Government.  Subsequent consultation with representatives of the Human Rights Commission and government stakeholders (including the Departments of Health; Social Development; International Relations and Cooperation; and the Ministry of Women, Children and Persons with Disabilities) between October and December 2009 confirmed national and international uncertainty about the interpretation of the provisions of the CRPD dealing with legal capacity that impact on the SALRC's draft proposals.  There is also reluctance on the part of government stakeholders to comment on the final draft text of the proposed Bill unless it complies with the CRPD.

The matter is complicated by the fact that the South African government has not yet taken concrete steps to implement the CRPD in South Africa by way of general legislation.  A South African interpretation of the relevant provisions of the CRPD is therefore not available.  On the advice of the Department of International Relations and Cooperation, and to take the matter forward, the SALRC in January 2009 embarked on further research to establish a draft interpretation of those articles of the CRPD which are relevant to the SALRC’s draft proposals.  The interpretation will serve as a basis for amendments to the text of the proposed draft Bill with a view to ensure its compliance with the CRPD.  The interpretation and the amended text of the draft Bill will be submitted for consultation to government and other stakeholders before work on the draft report is resumed.  A status report on progress with the investigation was submitted to the SALRC at its meeting on 13 March 2010.  The first draft of an interpretation of the relevant provisions of the CRPD was submitted to the project leader on 31 March 2010.

Project 125 – Prescription periods

No comprehensive review of the provisions providing for different prescription periods – whether of a contractual or delictual nature – has ever been undertaken by the Commission.  When reporting on the Bill which subsequently became the Legal Proceedings against certain Organs of State Act 40 of 2002, the Portfolio Committee on Justice and Constitutional Development recommended that the Minister be approached to request the Commission to conduct an investigation into the harmonisation of the provisions of existing laws providing for different prescription periods.  An investigation into the review of prescription periods was subsequently included in the SALRC’s programme.

Issue Paper 23 – Prescription periods was published for general information and comment in August 2003 and is discussed in the 2003/2004 annual report.  The researcher involved in the preparation of the draft discussion paper was transferred to another department, and the project was assigned to a newly appointed researcher in June 2008.  The researcher submitted the first draft of the discussion paper to the project leader in July 2009.  After incorporating comments from the project leader and doing additional research to address concerns raised by the project leader, the researcher submitted additional drafts of the discussion paper to the project leader in October 2009 and February 2010.

For the purpose of involving the public at an early stage of the investigation, the researcher presented a paper titled ‘Prior notice to sue – a test on equality’ at a Southern African Law Teachers Conference, which was held at the University of Kwazulu-Natal from 12 to 15 July 2009.

On 27 November 2010 the Commission approved the discussion paper for publication for general information and public comment, subject to amendments proposed at the meeting.  The researcher submitted the discussion paper to the project leader on the 24 January 2011 for comment.  The target date for the publication of the discussion paper is 28 February 2011.

Project 126 – Review of the law of evidence

In 2001 the Commission’s advisory committee dealing with the simplification of criminal procedure made a proposal for a review of the law of evidence with a view to simplifying this area of the law and aligning it with technological developments.  The Commission endorsed the decision of the advisory committee and recommended the inclusion of the project in its programme.  The Minister approved the inclusion of an investigation to review the law of evidence in the SALRC’s programme in December 2001.  An advisory committee for the investigation was approved on 26 November 2003.  The Commission resolved that the advisory committee on the review of the law of evidence should also direct the investigation into the use of electronic equipment in court proceedings.

The last decade has seen a rapid development in technology and with it unforeseen forms of evidence and attendant difficulties in determining admissibility.  In addition thereto, the new constitutional dispensation has impacted on the law of evidence in a number of ways.  The right of access to information, the entrenchment of the right to a fair trial and the exclusion of evidence obtained in an unconstitutional manner have all had an impact on the law of evidence and gave rise to a large body of new case law.  In addition, the right to equality requires a re-examination of evidence in so far as it departs from the requirements of formal equality.  The right to equality also necessitates a reconsideration of the rules of evidence in so far as the rules relate to effective equal access to justice.

Legal certainty on the extent of constitutionally enforceable rights is in the public interest.  It is equally important to be able to ascertain the rules of evidence for the sake of case preparation.  This issue impacts on the accused, the prosecution and the police in criminal cases, and on the parties to litigation in civil cases.  The law of evidence is integral to the enforcement of substantive law and consequently has attracted the interest of non-governmental organisations working in specific fields such as child justice and the abuse of women.

The publication of Issue Paper 26 – Review of the law of evidence was announced at a media conference on 7 March 2008.  The closing date for comments was 30 June 2008, but was extended at the request of a number of role players and because of limited response to the paper.  The issue paper was redistributed in January 2009 under cover of a letter summarising the contents and requesting comment by the end of March 2009.

The SALRC also received a request to include a proposal from the South African Professional Society on the Abuse of Children (SAPSAC) dealing with a code of ethics and an appropriate oath for expert witnesses.  The proposal was submitted to all professional bodies for comment.  The Advisory Committee considered the proposal on 16 May 2009 and recommended that it should not be included in the scope of the investigation into the review of the law of evidence, but be referred for consideration by the Rules Board for Courts of Law.  The Commission endorsed this decision at its meeting in August 2009.

The project leader reconsidered the advisory committee’s decision to proceed with discussion papers dealing with different aspects of evidence separate from its sub-investigation into the admissibility of electronic evidence in civil and criminal matters.  She recommended that further papers on the review of the law of evidence be put on hold until Issue Paper 27 on electronic evidence has been finalised and the consultation phase in respect of both the issue paper and the proposed discussion paper has been concluded.

Issue Paper 127 was released by media statement on 16 March 2010 with an extended closing date for comment of 31 March 2011.

Hearsay and relevance

Discussion Paper 113 – Review of the law of evidence: Hearsay evidence and relevance was released at a media conference on 7 March 2008.  The closing date for comments was 30 June 2008, but was extended at the request of a number of role players and because of limited response to the paper.  The discussion paper was redistributed in January 2009 under cover of a letter summarising the contents and requesting comment by the end of March 2009.  The advisory committee resolved not to embark on a public consultation phase and to finalise its report on hearsay and relevance based on the comments received from role players.

After research in this investigation had been completed, it transpired that the admissibility of electronic evidence, the provisions of the Electronic Communications and Transactions Act of 2002 (ECT Act) and the provisions of the Law of Evidence Amendment Act of 1988 dealing with hearsay evidence cannot be considered in isolation.  A report on hearsay evidence cannot be finalised without considering the provisions of the ECT Act and the admissibility of electronic evidence in general.

Electronic evidence

In view of the challenges posed by technological developments, an overarching investigation reviewing aspects of criminal and civil law is a long-term goal.  In adopting an incremental approach to the subproject on electronic evidence and related matters, the SALRC has in the first instance decided to publish an issue paper exploring issues relating to the admissibility of electronic evidence in criminal and civil proceedings.  Issue Paper 27 – Electronic evidence in civil and criminal proceedings: Admissibility and related issues was released for general information and public comment by way of a media statement issued on 16 March 2010.  The closing date for comment and input is 30 June 2010.

In the case of criminal proceedings, Issue Paper 27 is particularly concerned with the relationship between chapter three of the Electronic Communications and Transactions Act 25 of 2002 (ECT Act) and the rule against hearsay.  The purpose of the Issue Paper is twofold: Firstly, to facilitate a focused debate on issues concerning the admissibility of electronic evidence in criminal and civil proceedings; and secondly, to allow stakeholders and practitioners in two sectors (criminal and civil) affected by the applicability and scope of the evidential provisions of the ECT Act to consider the issues raised and be provided with an opportunity to bring other relevant matters to the Commission’s attention.

Comment and submissions received on Issue Paper 27, together with further in-depth research, will form the basis of a discussion paper where the issues identified for review and reform will be discussed in detail and preliminary recommendations for reform considered.  It is envisaged that a draft discussion paper will be submitted to the Commission by 31 March 2011 to consider its publication for general information and comment.

Following requests from various stakeholders, the closing date for comments was extended to 31 August 2010.  The researcher has since been seconded to the Office of the Chief Justice from 1 January until 31 March 2011.  In view of her secondment the closing date for comments was extended to 31 March 2011.

Project 127 – Review of administration orders

The Minister of JCD requested the SALRC to investigate administration orders by following an incremental approach to distinguish between reforms that could be effected in the short to medium term and reforms that could be effected in the medium to long term.

The Commission decided on 30 September 2005 that a proposal should be made to the Department of Trade and Industry that the National Credit Bill, 2005 should provide for certain amendments which would pave the way for the abolishment of administration orders in terms of section 74 of the Magistrates’ Courts Act 32 of 1944.  However, the Bill was passed by Parliament without any of the proposed provisions.  DOJCD then indicated that it would consider the repeal of section 74 amendments along the lines suggested.

When the Department of Trade and Industry submitted a proposal for urgent amendments to the National Credit Act and the Magistrates’ Courts Act, the Commission reconsidered the matter.  The Commission decided on 23 June 2007 that it would continue with the investigation.  During March 2008 the Commission published a questionnaire on the future of administration orders in view of the provisions of the National Credit Act 34 of 2005.  The Commission considered a document on 14 January 2009 detailing the researcher's response to comments on the questionnaire and approved the researcher's proposals on the way forward.

The Commission’s preliminary views include the following:

  • It would be to the detriment of debtors and others to abolish administration orders at this stage.
  • If administration orders are retained a comprehensive review should be undertaken, but amendments which could be dealt with urgently must be identified.
  • Administration orders should lapse after a specified number of years and all outstanding debts subject to the administration order should be discharged.  This is subject to a court order on good cause shown made on the basis of an application by a creditor before the lapsing of the order that the debtor should not obtain a discharge for some or all of the outstanding debts.
  • This is a matter where further consultation is advisable.  The consultation can commence with stakeholder meetings and workshops with debtors under administration.

Amendments to the Magistrates’ Courts Act 32 of 1944 are being drafted to address some of the problems identified.

Project 134 – Administration of estates

A discussion paper dealing with measures to improve the administration process and to reduce the work of the supervising authority and executors was approved for publication by the Commission in September 2005 and is discussed in the 2005/2006 annual report.

Draft legislation recommended in an interim report dealing with the administration of small estates and streamlined procedures for other estates was submitted to the Minister on 19 August 2008.  The draft legislation has not been promoted yet.

The Integrated Case Management System (Masters) has been enhanced to move closer to the use of electronic documents in the offices of the Master of the High Court.  It is envisaged that a discussion paper dealing with e-filing, internet access to documents, electronic reports, and electronic management of processes will be submitted to the Commission early in 2011.

Project 135 – Review of witchcraft legislation

The Commission received two submissions from the South Africa Pagan Council and the Traditional Healers’ Organisation respectively, requesting that the Witchcraft Suppression Act 3 of 1957 and the proposed Mpumalanga Witchcraft Suppression Bill 2007 be investigated to determine their constitutionality.

A meeting was held with stakeholders on 4 September 2008 to explain the process to be followed in determining whether this investigation should be included in the SALRC’s programme, as well as to clarify the substantive issues raised in the submissions.  A document was prepared for consideration by the Commission.  It provided background information on the concept of witches and witchcraft in South Africa; set out the current legal framework; described existing attempts at and suggestions for law reform in this area and measured the relevant facts against the Commission’s criteria for the inclusion of an investigation.

On 1 August 2009 the Commission approved the inclusion of the investigation in the SALRC’s programme.  On 23 March 2010 the Minister approved a review of witchcraft legislation for inclusion in the SALRC’s programme.

Project 136 – Multi-disciplinary legal practices

The request for the inclusion of this investigation emanates from the SALRC’s media conference of 7 March 2008.  The Cape Law Society submitted a proposal to the SALRC on the possible recognition of multi-disciplinary practices for attorneys and the parameters that would need to be set should multi-disciplinary practices be recognised.

The SALRC sent a memorandum to DOJCD on 6 June 2008 seeking guidance from the Director-General on the inclusion of the investigation in the SALRC programme, as it seems to fall within the purview of the Legal Practice Bill currently being developed by DOJCD.  The DG agreed with the DOJCD recommendation that the SALRC should investigate the issue of multi-disciplinary practices for attorneys.

The Commission approved the inclusion of an investigation into multi-disciplinary legal practices in the programme of the SALRC on 25 October 2008.  On 23 March 2010 the Minister approved an investigation into multi-disciplinary legal practices for inclusion in the SALRC’s programme.

Project 137 – Expungement of certain criminal records

The Minister approved the inclusion of the project in the Commission’s programme on 28 April 2010.  The target date for submitting a draft discussion paper to the project leader for consideration and approval was 30 September 2010 to enable the Commission to report back to the Minister.  The researcher responsible for the investigation, however, was unable to attend to the research in the project due to his involvement in Project 25 – Review of legislation administered by DOJCD, the Commission’s relocation and his appointment as Acting Secretary for the Rules Board for Courts of Law during the periods August and September 2010.  The Portfolio Committee for Justice and Constitutional Development requested the Minister to report to it on progress made in the investigation by 31 October 2010.  The revised target date for submission of a draft discussion paper to the project leader is April 2011.

Project 138 - The practice of Ukuthwala

On 14 August 2010 the Commission approved the inclusion of this investigation in the SALRC’s programme.  he Minister approved the inclusion of the project in the Commission’s programme on 28 April 2010 The SALRC issued a press release in this regard on 7 December 2010.

On 23 February 2011 the researcher attended a dialogue on customary practices including ukuthwala and ukuhlolwa (virginity testing), which was hosted by the Commission for the Promotion of Rights of Cultural, Religious and Linguistic Communities.

 

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Updated: 2011.03.22

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