SALRC Annual Report 2018-19

REPORT ON ACTIVITIES OF THE SOUTH AFRICAN LAW REFORM COMMISSION South African Law Reform Commission Report: 2018/ 2019 ii Activities of the South African Law Reform Commission TO: MR R LAMOLA, MP MINISTER OF JUSTICE AND CORRECTIONAL SERVICES 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 2018 to 31 March 2019. Yours sincerely Judge Jody Narandran Kollapen (Gauteng North Division of the High Court) Chairperson of the South African Law Reform Commission iii The address of the South African Law Reform Commission is as follows: Postal address The Secretary South African Law Reform Commission Private Bag X668 Pretoria 0001 REPUBLIC OF SOUTH AFRICA Physical address Spooral Park Building 2007 Lenchen Avenue South Centurion Telephone: (012) 622 6300 Fax: (012) 622 6362 E-mail: [email protected] Internet: http://salawreform.justice.gov.za iv Activities of the South African Law Reform Commission Gallery of Commissioners Chairperson: Vice-Chairperson: Prof M Budeli-Nemakonde Judge JN Kollapen Mr IBW Lawrence Director of School of Law Judge of the Gauteng Practicing Attorney: Durban University of South Africa NorthHigh Court Adv HJ de Waal, SC Prof W Domingo Prof K Govender Advocate of the High Court Dean of School of Law Advocate and retired Cape Bar University of the Witwatersrand Professor of Law University of KwaZulu-Natal Adv HM Meintjes SC Adv AL Platt SC Adv LT Sibeko SC Advocate of the High Court Advocate of the High Court Advocate of the High Court Retired DDPP Johannesburg Bar Johannesburg Bar v Vision, Mission and Values of South African Law Reform Commission Vision To be a centre for excellence, producing ground-breaking research pivotal to the improvement and renewal of the legal system of South Africa. Mission The continuous reform of the law of South Africa in accordance with the principles and values of the Constitution to meet the needs of a changing society operating under the rule of law. Values In the execution of its duties the SALRC strives to uphold the values of equality, integrity, inclusiveness, professionalism, impartiality, excellence, responsiveness, efficiency and respect for the dignity of others. vi Activities of the South African Law Reform Commission Contents Page Chapter 1: Overview 1 Chapter 2: Objects, constitution and functioning 11 Chapter 3: Progress report 23 Chapter 4: Reports completed 57 Chapter 5: Public relations 76 Chapter 6: Acknowledgements 93 Annexures 95 Annexure A: Issue papers published by the Commission 96 Annexure B: Discussion papers published by the Commission 99 Annexure C: Investigations included in the Commission’s programme 110 since its establishment Annexure D: Members of the Commission and terms of appointment 128 Annexure E: Current advisory committees and members 130 Annexure F: Current programme of the Commission 138 Annexure G: Papers published by the Commission in its research series 139 Chapter 1: Overview 1 CHAPTER 1 Overview 2 Activities of the South African Law Reform Commission CHAPTER 1 OVERVIEW Appointment of the new Commission The most important event that took place during the year under report was the announcement by the President of the Republic of South Africa of the appointment of new Commission members. These appointments are effective for five years. The Commission is appointed in terms of section 3 of the South African Law Reform Commission Act 19 of 1973. The term of office of the former Commission members - who were appointed with effect from 19 July 2013 (Chairperson and Vice- Chairperson), and 12 August 2013 (remaining members of the Commission) - expired on 18 July 2018 and 11 August 2018, respectively. The current Commissioners were appointed with effect from 05 October 2018. The SALRC Secretariat extends a warm welcome to the new Commissioners. The current Chairperson and Vice-Chairperson are, respectively: § Judge Jody Narandran Kollapen, Judge of the Gauteng North High Court. § Mr Irvine Lawrence, attorney in private practice. The current Commissioners are as follows: § Prof Mpfariseni Budeli-Nemakonde, Director of the School of Law, University of South Africa. § Adv Johan De Waal, SC, member of the Bar. § Prof Wesahl Domingo - Dean of the School of Law, University of the Witwatersrand. § Prof Karthy Govender – Advocate and retired Professor of Law, University of KwaZulu-Natal. § Adv Hendrina Magaretha (Retha) Meintjes, SC - retired Deputy Director of Public Prosecutions. § Adv Anthea Platt, SC - member of the Bar. § Adv Leon Tshepo Sibeko, SC - member of the Bar. Chapter 1: Overview 3 Brief biographies of the Commissioners follow below: Chairperson of the SALRC: Judge Jody Kollapen The President of the Republic of South Africa re-appointed Judge Kollapen as the part-time Commissioner and Chairperson of the SALRC with effect from 05 October 2018. Before then, Judge Kollapen served as the Vice-Chairperson of the SALRC from 19 July 2013 to 31 March 2016, before his promotion to becoming the Chairperson with effect from 1 April 2016 to 18 July 2018. Judge Kollapen is a judge of the North Gauteng High Court in Pretoria and has also acted as Justice of the Constitutional Court. Judge Kollapen obtained his Bachelor of Laws and BProc degrees from the University of the Witwatersrand. He practised as an attorney in Pretoria for many years and focussed on public interest litigation. He joined Lawyers for Human Rights (LHR) where he coordinated the “Release Political Prisoners” programme, which championed the rights of political prisoners. He was National Director of LHR from 1995 to 1996. He joined the South African Human Rights Commission (SAHRC) in 1996 as a Commissioner. He was appointed as the Chairperson of the SAHRC in 2002, in which capacity he served until 2009. Judge Kollapen has served on various boards and statutory bodies. These include the National Advisory Council of Correctional Services, the International Board of Article 19 (London), the Legal Resources Trust, and the Foundation for Human Rights. He previously served as an extraordinary lecturer in the Centre for Human Rights at the University of Pretoria. Vice-Chairperson of the SALRC: Mr Irvin Lawrence The President of the Republic of South Africa appointed Mr Lawrence as the Vice-Chairperson of the SALRC with effect from 05 October 2018. Before then, Mr Lawrence served as an SALRC Commissioner from 12 August 2013 to 18 July 2018, which is when the term of office of the previous Commission came to an end. Mr Lawrence is a practising attorney and is a director at the law firm Edward Nathan Sonnenbergs. Mr Lawrence obtained a BA from Rhodes University and his LLB and LLM (corporate law) from the University of KwaZulu-Natal. Mr Lawrence has 23 years’ experience as an employment attorney, specialising in employment and constitutional law. He has conducted arbitration and mediation and has appeared in the High Court, Labour Court, and Labour Appeal Court. He has litigated for corporate clients and has advised bargaining councils and executive employees. He has experience in restructuring businesses and conducting sales or transfers of going concerns. He served as Arbitrator of the Court of Sport in Lausanne, Switzerland from 2003 to 2006 and has acted as a Judge in the Labour Court in December 2012, January 2013 and January 2015. 4 Activities of the South African Law Reform Commission SALRC Commissioner: Prof Mpfariseni Budeli-Nemakonde Professor Mpfariseni Budeli-Nemakonde obtained an LLB degree (2001) and an LLM (cum-laude) (2003) from the University of the North (currently University of Limpopo). In 2007, she became the first Black South African woman to be awarded a PhD in Commercial Law from the University of Cape Town (UCT). From 2003 to 2008, she was employed as a Lecturer (2003-2006) and a Senior Lecturer (2007) in the Faculty of Management Sciences and Law at the University of Limpopo. She served as a Senior Lecturer (2008-2009) and later as an Associate Professor (2010-2011) in the Department of Mercantile Law, College of Law, University of South Africa (UNISA). In 2012, she became a full professor in the same Department, and she is currently the Director of the School of Law in the College of Law at the same University. Professor Budeli-Nemakonde has written book chapters and articles in peer-reviewed journals. She has also presented papers at national as well as international conferences. Her research publications focus on Constitutional law and Collective Labour Law, particularly on the right to freedom of association at the workplace and trade unionism in Africa. She holds the membership of several societies, including the African Labour Law Society, the South African Society of Labour Law, the Society for Law Teachers of Southern Africa, and the African Network of Constitutional Lawyers. She seats on the editorial boards of academic journals such as the Journal of Law, Society and Development (UNISA), the SADC Law Journal (UCT) and the African Journal of Democracy and Governance (Institute of Democracy, Governance, Peace and Development in Africa, IDGPA). Since 2008, she is a member of the International Labour Organisation’s (ILO) Network of Experts on Freedom of Association and Collective Bargaining. Professor Budeli-Nemakonde received several awards, including the South African National Department of Science and Technology Women in Science Award (WISA) for the category of Distinguished Young Women in Social Sciences and Humanities (2013). She is one of the founding members of the South Africa Young Academy of Sciences (SAYAS). She has been a visiting Professor at the University of Dar-es-Salaam, Tanzania and the University of Lusaka, Zambia. Professor Mpfariseni Budeli-Nemakonde is also an admitted Attorney of the High Court of South Africa. SALRC Commissioner: Adv Johan De Waal, SC After completing his LL.B (cum Laude) at the University of Stellenbosch in 1987, Adv De Waal studied human rights and constitutional law at the University of Notre Dame in U.S.A where he obtained the LL.M degree (magna cum Laude).

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