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 VISION MISSION 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 VALUES 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: (012) 392 9540 South African Law Reform Commission Fax: (012) 320 0936 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 1 CHAPTER OVERVIEW Introduction The reform of the law of South Africa is the core business of the South African Law Reform Commission. The South African Law Reform Commission Act 19 OVERVIEW 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 law of the Republic of South Africa in order to make recommendations for the development, improvement, modernisation or reform thereof. 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. 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 CHAPTER 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 suggestion relating to its objects received from any 1 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 suggestion relating to its objects received from are considered and such weight is 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 of the community affected The Commission appointed under section 3 of the South African Law Reform Commission Act 19 of 1973, c. Potential benefits likely to accrue from with effect from 1 January 2007, continued its excellent undertaking reform or repeal of the law work.