BRIEFING OF THE JOINT MONITORING COMMITTEE ON IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF WOMEN: 29 AUGUST 2001
1. The South African Law Commission wishes to thank the Joint Monitoring Committee on Improvement of Quality and Life and Status of Women (the Committee) for the opportunity to give a presentation on matters in the Law Commissionís research programme that fall within the ambit of the Committeeís monitoring activities.
2. The following briefing documents are attached:
A: Sexual Offences
B: Customary Law
C. Statutory Law Revision
D: Aspects of the Law Relating to AIDS
3. On 22 August 2001 the Department of Justice and Constitutional Development was requested to brief the Committee on, inter alia, an audit of discriminatory laws that are to be removed. Since the Law Commission has a statutory law revision project, the Director-General indicated that the Law Commission should provide a more extensive briefing on the issue.
4. The attachment to your letter of 14 August 2001addressed to Mr Pikoli points out that the Committee reporting will cover HIV/AIDS, poverty and violence against women. The Law Commissionís extensive investigation into the legal aspects relating to AIDS has recently been completed. A briefing document on the completed reports and their status is attached for your information.
5. The paramount difficulty experienced by the Law Commission in the process of the finalisation of draft legislation relates to capacity. At present there is a 30% shortage of researchers on the establishment of the Law Commission. In the previous financial year sufficient funds to fill vacancies were not allocated. Sufficient funds have, however, been approved in the course of this financial year and the Law Commission is in the process of filling vacancies as a matter of extreme urgency.
A: SEXUAL OFFENCES
1.1 The drafting of legislation to combat the sexual exploitation of children was one of the priorities identified in the National Plan of Action for Children. The Minister for Justice accordingly requested the South African Law Commission to include an investigation into sexual offences by and against children in its law reform programme late in 1996 and a project committee was appointed on 4 December 1996. As such this investigation was one of three investigations on the Commissionís programme related to children: the other two being Project 106: Juvenile Justice and Project 110: The Review of the Child Care Act.
1.2 It became clear during the course of the investigation that any proposed changes to the law relating to sexual offences will have a far-reaching effect on the position not only of children but of adults as well. In the latter half of 1998 the Commission was requested by the Justice Portfolio Committee and the Department of Justice to extend its terms of reference to include all facets of sexual offences.
1.3 In so doing the investigation lost its particular child focus.
2. The role of the Project Committee
2.1 The project is managed by a project committee established under the auspices of the South African Law Commission. The project committee plans the investigation, does or has the necessary research done, and will submit its findings in the form of issue papers, research papers, discussion papers and reports to the Commission. The report(s) with draft legislation will be submitted to the Minister for Justice and Constitutional Development who may then implement the recommendations proposed by introducing the draft legislation.
2.2 The project leader is Mrs Joan van Niekerk of Childline Durban. The other members of the Project Committee are:
Dr Roseline September, Institute for Child and Family Development, UWC
Ms Charlotte McClain, South African Human Rights Commission
Ms Bronwyn Pithey, formerly at Rape Crisis and now with the NDPP
Professor John Milton, School of Law, UN
Mrs Lebo Malepe, previously at Tshwaranang and now with the Department of Justice
Ms Zubeda Seedat, Chairperson and member of the SA Law Commission
Judge Thumba Pillay, Mrs Evanthe Schurink and Mrs Edmara Mthombeni resigned from the Project Committee for various reasons.
2.3 The Project Committee brings together experts from various disciplines and constituencies - from law and social science - from government, the NGO and the private sector. This reflects the realisation of the need for a multi-disciplinary approach, inter-sectoral co-operation, and the importance of involving all stakeholders in the process of drafting legislation.
3. The Commissionís working methodology and consultation process
3.1 It is Commission policy to publish first an issue paper and then to consult broadly on the issue paper. After this consultation process a discussion paper is prepared taking into account the submissions made and inputs received. The discussion paper contains the preliminary recommendations of the Commission. These recommendations are usually embodied in the draft legislation that accompany the discussion paper. The discussion paper and draft legislation are subjected to a comprehensive consultation process where particular emphasis is placed on the draft legislation. After taking into account the comments made and submissions received, a report is prepared. The report contains the final recommendations of the Commission. These final recommendations are embodied in the draft legislation which forms part of the report. Once the report is handed to the relevant Minister, the Commission becomes functus officio. It remains the prerogative of the Minister to implement the recommendations made by the Commission by introducing the draft legislation in Parliament. Once introduced in Parliament, another process starts.
3.2 It is also important to ensure that the community is on board when these processes are taken forward. The voice of the community, and especially the voices of women and children, must continue to be heard. A broad process of consultation will continue to be followed and will involve various state departments, tertiary institutions, local and international experts, various bodies supporting democracy, other relevant NGOís, FBOís, CBOís, and obviously women and children. The Commission believes a properly conducted consultation process on the discussion paper and draft legislation will ensure broad support for the eventual legislation introduced in Parliament. Such a consultation process will also bring to light deficiencies and gaps in the draft legislation before the Parliamentary legislative process starts. In our experience, insufficient consultation at draft discussion paper stage can actually delay the eventual passage of the legislation in Parliament.
4. Status report and project history in brief
4.1 After the appointment of the Project Committee in December 1996, the process started smoothly and an issue paper on sexual offences against children was published in May 1997 for general information and comment. The issue paper was workshopped extensively. The closing date for comment was 30 September 1997 but this was extended at the request of numerous respondents.
4.2 During 1998 the project was reassigned to another researcher and it suffered a setback. The Commission reassessed its priorities in the beginning of 1999, accorded the investigation an A+ priority and addressed the research capacity problems experienced by reassigning the project to a senior researcher and assigning two newly appointed researchers to the investigation.
4.3 The Commission has decided that the most effective way of dealing with the myriad of issues that have arisen during the investigation into sexual offences is to compartmentalise this project into four overarching focus areas, i.e. the substantive law, process and procedural law, adult prostitution and child pornography. As part of this incremental approach, the Commission released the discussion paper on the substantive law relating to sexual offences in August 1999. This discussion paper including a draft Bill was widely workshopped over a two month period.
4.4 In February 1999 the then Deputy Minister of Justice and Constitutional Development commissioned a discussion document on the Legal Aspects of Rape in South Africa. This document was jointly compiled by Rape Crisis (Cape Town), Women & Human Rights Project, Community Law Centre, UWC and the Institute of Criminology (UCT). After being briefed by the researchers at the Commission on the ambit of the sexual offence investigation, the Deputy Minister agreed that the Commission process should be supported and that the work done by the abovementioned group and their recommendations should be incorporated into the Commissionís papers. As far as is possible this has been done.
4.5 The approach adopted by the Commission in the discussion paper on sexual offences: the substantive law was purposely a liberal one: For instance, the gender neutral statutory definition of rape proposed by the Commission in this discussion paper was very wide and included the penetration of all body orifices. Some of the other contentious issues raised in this discussion paper are the commercial sexual exploitation of children, harmful HIV related behaviour, female genital mutilation, and stalking.
4.6 Numerous submissions were received in response to the recommendations contained in this discussion paper. Following the collation of these submissions and further deliberations by the Sexual Offences Project Committee the draft Bill which accompanied this discussion paper has been substantially revised. As a result of the revision of the draft Bill on the substantive law the Project Committee has decided to release the revised draft Bill with the discussion paper on the process and procedural law in order to ensure the widest possible public participation.
4.7 In this regard, it is perhaps interesting to note that the Commission has considered afresh the question of what the role of the criminal law should be in enforcing morality and specifically whether bestiality (sex between persons and animals) and incest (sex between consenting adult family members) should be criminal offences.
4.8 A final draft of the second discussion paper dealing with the process and procedural law relating to sexual offences will be tabled at the next Sexual Offences Project Committee meeting scheduled for 6 and 7 September 2001. It is envisaged that this discussion paper will be released by the Commission for public participation by the latest during November 2001.
4.9 The contentious issues related to this aspect of the investigation is further discussed below.
4.10 The second draft of a discussion paper on adult prostitution is nearing completion and it is envisaged that a discussion paper on this contentious issue will be released by the Commission for public participation by the latest during November 2001. Due to a lack of research capacity this discussion paper is being compiled by a consultant, Ms Helene Combrinck. Child prostitution has been dealt with in the discussion paper on the substantive law. The Commission unequivocally condemned child prostitution and made legislative proposals, contained in the draft Bill, to this effect. This document will address the benefits and disadvantages of four legal options in respect of adult prostitution, further criminalisation, decriminalisation, legalisation and regulation.
4.11 The fourth discussion paper will deal with child pornography. This discussion paper will receive attention once the joint report on the substantive and process and procedural law relating to sexual offences and the report on adult prostitution have been completed.
4.12 After submissions and input from the workshop process have been integrated into the proposals and draft legislation, a joint report on the substantive and process and procedural law relating to sexual offences and a report on adult prostitution will be prepared which will be submitted to the Minister for Justice and Constitutional Development for his consideration. Separate reports will be prepared in respect of adult prostitution and child pornography. These reports will be accompanied by final recommendations containing draft legislation where appropriate.
5. Contentious issues and difficulties encountered
5.1 The extended terms of reference of the sexual offences investigation touches on many facets relating to sexual offences which could easily be justified as necessitating investigations on their own. The investigation into the substantive law relating to sexual offences necessitated not only the gender sensitisation of codified and common law sexual offences but also the drafting of very progressive new offences. An example of the former is the Commissions recommendation relating to incest in which this common law offence is retained in the common law. However its ambit is expanded to make this offence gender neutral. Presently fathers cannot be found guilty of the crime of incest in relation to their sons and similarly mothers with their daughters. The recommended changes address this issue. With regards to the latter, an example is the enactment of a statutory provision called child molestation aimed at prohibiting sexual acts with children below 16 years of age.
5.2 The scope of this investigation is such that existing and proposed new legislation is affected thereby. Due to the specific focus on sexual offences the draft Discussion Paper on Process and Procedure proposes, to name but a few, the repeal of the existing Sexual Offences Act, the repeal, amendment and enactment of new provisions in the Criminal Procedure Act, the Riotous Assemblies Act and the Prescription Act. Furthermore, constant interaction has been necessary with several other investigations at the South African Law Commission, such as the Review of the Child Care Act Project, the HIV/AIDS Project; the Sentencing Project and the Simplification of the Criminal Procedure Act Project. The aim is to prevent unnecessary overlap whilst retaining a focus on the issues pertinent to sexual offences. The impact of this overlap has led to joint project committee meetings on common issues which have not always resulted in consensus.
5.3 In compiling the process and procedural law discussion paper the researchers assigned to the sexual offences investigation have been faced over and over again with the reality of addressing a variety of complex topics which could easily justify separate investigations. In certain circumstances after an intensive investigation recommendations have been made that certain aspects dealt with should form the basis of investigations of their own. For this reason the Commission have in principle approved the inclusion of trafficking and stalking onto the Commission programme as soon as a researcher becomes available to deal with it. No foreign jurisdiction could be found which has attempted to address the topic of sexual offences in as comprehensive a manner as is being done in the draft discussion paper. To the contrary, foreign jurisdictions have separated their investigations into several investigations, for example concentrating on the single issue of hearsay evidence in relation to sexual offences. The draft discussion paper on process and procedure attempts to as comprehensively as possible address, and where apposite, make proposals for legislative and other recommendations regarding the manner in which the pre trial, trial and post trial matters are dealt with within the criminal justice system. Despite the need for legislative amendments and enactments the researchers have also been mindful of the fact that the law is not a panacea for all ills and where appropriate have made recommendations for training and re-skilling of officials within the criminal justice system.
5.4 Throughout this investigation the researchers have had to be mindful of several legal challenges to the Sexual Offence Act, for example the Constitutional challenge regarding prostitution in the recent Jordaan case and the Constitutional approval of a right to sue the Ministers for Justice and Constitutional Development and Safety and Security in the Carmichele case relating to accused persons being released on bail and committing further sexual offences. Not only has this branch of the law been in flux, cognisance had to be had to the roll out of the sexual offences courts orchestrated by the office of the National Director of Public Prosecutions and the Sexual Offence Court Task Team chaired by Professor Loots and the subsequent formation of the National Intersectoral Coordination Committee under the auspices of the Directors General of the relevant Government Departments including the Departments of Education, Welfare and Health. The pilot phase of the roll out of the sexual offence courts, specifically the evaluation of the Wynberg Sexual Offence Court and the developments and changes in this regard, are ongoing and therefore continuously inform the process.
6. The process agreed on in addressing the contentious issues and difficulties encountered
As mentioned above, the investigation now holds the highest possible priority rating at the Commission, namely A+. Presently, despite other pressing investigations, two researchers are assigned in a full time capacity to this investigation. As a result of the present lack of research capacity and in order to fast track the process even further, whilst still doing justice to each aspect of the investigation, a consultant has been appointed to compile a discussion paper on prostitution. The Project Committee was expanded to include two legally qualified representatives of the National Network of Violence Against Women, Ms Pithey and Ms Malepe, of whom Ms Pithey also co-authored the discussion document commissioned by the Deputy Minister, referred to above, and a Professor in Criminal Law from the University of Natal. In addition to these arrangements the Project Committee have taken responsibility for the consultation and workshop process.
7. Time Frames
7.1 The Discussion Paper on Process and Procedure, including the revised draft legislation on the substantive law, will be tabled in final form at the next Project Committee Meeting to be held in September 2001, for its approval. Thereafter, in terms of the Commissionís operational plan, it will be tabled for the approval of the Commission in October 2001. It is envisaged that this discussion paper accompanied by the revised substantive law bill and the proposed process and procedural Bill, will be published for comment and public participation in November 2001. Consultations with experts in the process and procedural arena will follow alongside with consultations and workshops with the broader public from December 2001 till March 2002. The consultation process will be short and focussed, concentrating on the proposed new Sexual Offences Bill. Preference will be given to consulting with essential stakeholders such as the National Director of Public Prosecutions. Evaluation of the comment and input received will be done thereafter. Once the input has been collated and where appropriate given effect to, the joint report will be tabled before the Project Committee, then the Working Committee of the Commission and thereafter, if approved, the final report will be tabled before the full Commission for its approval. The report accompanied by recommended draft legislation, where appropriate, will then be forwarded to the Minister for Justice and Constitutional Development.
7.2 According to the Commissionís operational plan the Discussion Paper on Prostitution will follow the same timeframes as the Discussion Paper on Process and Procedure. Compliance with these timeframes are however dependant on timeous delivery by the appointed consultant.
7.3 It is envisaged that the legislative amendments and enactments relating to sexual offences will be tabled in the second session of Parliament in 2002.
B: CUSTOMARY LAW OF SUCCESSION
1.1 The project leaderís resignation with effect from 1 October 2000 delayed the completion of the investigation. On 30 March 2001 Professor IP Maithufi was appointed as the new project leader.
1.2 The following time frames have been included in the Law Commissionís operational plan:
m Evaluation of comments and inputs from workshops 30/11/2001
m Finalise report 30/01/2002
m Submission of report to project committee 28/02/2002
m Report submitted to Commission 30/03/2001
m Submission of report to Minister 30/04/2002
2. Process undertaken in ensuring finalisation of legislation
2.1 Task Teams
A project committee comprising of the following persons has been established:
Professor IP Maithufi
Professor T Bennett
Judge Y Mokgoro
Ms LG Baqwa
Professor Charles Dhlamini
Ministerial response for the appointment of Professor Mqeke, Mr P Mawila, Professor Chuma Himonga and Ms Likhapha Mbatha to this project committee is awaited.
A Discussion Paper was published for general information on 8 August 2000. The closing date for comment on the Discussion Paper was 22 September 2000 but was extended to 31 December 2000 due to the public requesting enough time to comment. Comments received on the discussion paper have been collated.
To ensure that all the necessary measures are taken to make the development of law reform on customary succession law inclusive of all, the Centre for Applied Legal Studies and the South African Law Commission are hosting an Ďexpert meetingí on 30 August 2001 to discuss the recommendations made by the Law Commission. A further conference which will include all identified stakeholders will be held during November 2001.
Workshops will be held in all the provinces starting from 02 October 2001 as appears in the following table:
VENUES AND DATES FOR WORKSHOPS
02 October 2001
03 October 2001
09 October 2001
11 October 2001
16 October 2001
17 October 2001
SA Law Commission
18 October 2001
23 October 2001
25 October 2001
The dates are subject to confirmation and are dependent on the response received from the participants invited.
2.3 Contentious issues
Draft Bill for the Amendment of the Customary Law of Succession
m The draft Bill seeks to ensure that a spouse to a customary marriage becomes an heir to the intestate estate of his/her spouse.
m The surviving spouse, in terms of the draft Bill, is also entitled to inherit the deceasedís house.
m If the deceased was married to more than one wife by custom, all the surviving spouses become heirs to his intestate estate.
m The deceasedís children, irrespective of age and sex, also become heirs in equal shares.
2.4 Difficulties encountered
No specific difficulties have been encountered to date, except for the organising of workshops on dates that would be suitable to all identified stakeholders.
2.5 Process agreed on to address contentious issues
m Appropriate legislation to include the wife(ves) and children, irrespective of age and sex, as heirs to the intestate estate of their deceased husband/father.
m It is envisaged that the proposed legislation, if accepted, will not have retrospective effect, but will apply to all intestate estates not yet wound up at the date of its commencement.
m The State Language Services is in the process of translating the proposed Bill into all Black languages.
A copy of the proposed draft Bill contained in the discussion paper is included as Annexure A.
The discussion paper is available on the Law Commissionís Website at:
DRAFT BILL FOR THE AMENDMENT OF THE CUSTOMARY LAW OF SUCCESSION
1. In this Act, unless the context indicates otherwise,
Ďcustomary lawí means the laws and customs traditionally observed by the indigenous African peoples of South Africa which form part of the culture of those peoples, whether or not such laws and customs are codified;
ĎMinisterí means the Minister of Justice;
Ďpersonal belongingsí mean a deceased personís articles of clothing, personal use or adornment, furnishings and other items of household equipment, simple agricultural and hunting equipment, books, motor vehicles or means of transportation; the term does not include money or security for money or articles used by the deceased for business purposes;
Ďtraditional leaderí means any person who in terms of customary law or any other law holds a position in a traditional ruling hierarchy.
Succession2. (1) Notwithstanding any law to the contrary, a personís estate must upon that personís death devolve in accordance with that personís will or, failing a valid testamentary disposition, either wholly or in part, according to the law of intestate succession prescribed by the Intestate Succession Act, 1987 (Act No 81 of 1987).
(2) The Intestate Succession Act, 1987 (Act No 81 of 1987), applies with the changes required by the context to the intestate estate of a person who, before this Act comes into force, entered a valid customary marriage which subsisted at the time of that personís death.
(3) (a) Notwithstanding any law to the contrary, and subject to paragraph (b) below, a spouse inherits the deceasedís house and personal belongings
(b) If a deceased owned more than one house, the surviving spouse may inherit only one of the houses, provided that the surviving is entitled to
choose which house.
(4) This Act does not apply to issues concerning succession to the office of a traditional leader.
Amendment of the Intestate Succession Act (81 of 1987)
3. Section 1 of the Intestate Succession Act (Act No 81 of 1987) is hereby amended Ė
(a) by the substitution for paragraph (a) of subsection (1) of the following paragraph:
"(a) is survived
by [a] one spouse, but not by a descendant, such spouse shall inherit the intestate estate;
(ii) by more than one spouse, but not by a descendant, such spouses shall inherit the intestate estate in equal shares;"
by the substitution in paragraph (c) of subsection (1) for the words preceding subparagraph (i) of the following words:
"is survived [by a spouse as well as a descendant] -
by the substitution for subparagraph (i) of paragraph (c) of subsection (1) of the following subparagraph:
" by a descendant and Ė
one spouse, such spouse shall inherit a childís share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed by the Minister by notice in the Gazette, whichever is the greater; or
more than one spouse, such spouses shall inherit a childís share of the intestate estate or so much of the intestate estate in equal shares as does not exceed the amount fixed in terms of subparagraph (aa), whichever is the greater; and" and
by the substitution for paragraph (b) of subsection (4) of the following paragraph:
"(b) Ďintestate estateí includes any part of any estate which does not devolve by virtue of a will [or in respect of which section 23 of the Black Administration Act, 1927 (Act No 38 of 1927), does not apply];" and
by the substitution for subsection (6) of the following subsection:
"(6) If a descendant of a deceased, excluding a minor or mentally ill descendant, who, together with [the] a surviving spouse of the deceased, is entitled to a benefit from an intestate estate renounces his or her right to receive such a benefit, such benefit shall vest in the surviving spouse who is the parent of the said descendant."
Amendment to the Maintenance of Surviving Spouses Act (27 of 1990)
4 Section 1 of the Maintenance of Surviving Spouses Act, 1990, (27 of 1990), is amended by the addition of the following words in the definition of Ďsurvivorí Ė "together with any child or other person related to the deceased who was in fact dependant upon the deceased for support prior to the deceasedís death".
Repeal of laws
5. (a) The Codes of Zulu Law in KwaZulu/Natal, Act 16 of 1985 and Proclamation R151 of 1987, are repealed to the extent that they are inconsistent with this Act and the Intestate Succession Act, 1987 (Act No 81 of 1987).
(b) Section 23 of the Black Administration Act, 1927 (Act No 38 of 1927), is repealed.
(c) Any customary laws obliging an heir to maintain the dependants of a deceased person or to settle debts incurred by the deceased are repealed.
Short title and commencement
Short title and commencement6. This Act is called the Amendment of the Customary Law of Succession Act, 2000, and will come into operation on a date to be fixed by the President by proclamation in the Gazette.
C: STATUTORY LAW REVISION
1. object of investigation
The object of this investigation is the ultimate establishment of a permanently simplified, coherent and generally accessible statute book. It is a task of immense proportions and deals with, inter alia, the constitutionality of legislation; the rectification of discriminatory legislation and gender insensitive provisions; the repeal of obsolete and redundant provisions; and the systemisation of the statute book by ordering provisions that belong together. The repeal of the Black Administration Act, 1927 has been identified as the first priority.
2. Cabinet endorsement of the revision of the statute book
2.1 Cabinet considered a submission of the Commissionís involvement submitted by the Minister on 11 May 2000. Cabinet endorsed the investigation into statutory law revision and indicated that the investigation should be extended to include and audit of the statute book to eliminate inconsistencies with the right to equality.
2.2 On 8 February 2001 the Cabinet Committee for Governance and Administration recommended that the Directors-General Clusters should investigate all legislation enacted prior to 1994 with the view to identifying provisions of legislation that are in conflict with the Constitution and develop new legislation that is aligned to the Governmentís policy and the new political dispensation.
2.3 On 14 February 2001 the Cabinet resolved that -
m "all departments identify legislation enacted prior to 1994 falling within the ambit of their area of jurisdiction with regard to gender insensitivity, discriminatory in nature and unconstitutional;
m the abovementioned process be coordinated by the Minister for Justice and Constitutional Development with a view to finalising the process by 31 December 2001; and
m regular progress reports be submitted by Departments to the coordinating Minister."
3. Involvement of the German Technical Cooperation (GTZ)
3.1 The purpose of the German Technical Co-operation (GTZ) Legislative Drafting Project is to assist South Africa in developing and partially implementing a law reform policy in core areas. The project started in 1998 and the first phase ended in December 2000. In July 2000 a project progress review took place to evaluate the first phase of the Legislative Drafting Project. The recommendations of this review (approved in August 2000) were, inter alia -
m that the first phase of the project be extended until the end of 2001 and;
m that a study on the areas and scope of a project on the revision of the statute book be undertaken, including an assessment of capacity available within government, the Law Commission and other institutions to undertake such a task.
3.3 In May 2001 the revision of the South African statute book was identified as a focal area proposed for the second phase of the Legislative Drafting Project. An envisaged output is the creation of structures which allow for the continuing development of an ordered and accessible statute book.
3.4 The design of the second phase of the project has to be accepted by the Federal German Ministry for Economic Co-operation and Development.
3.5 In July 2001 Government to Government negotiations took place in Germany at which occasion a proposal for the funding of the project on statutory law revision was put forward. The outcome of the negotiations are expected by 30 September 2001.
4. departmental funding
There had been no budget allocation for the statutory law revision project at the time when Cabinet endorsed the project (see paragraph 2.1 above). Additional funds of R350 000 have been obtained recently and will be transferred to the Commissionís budget in September 2001 in order to commence with the investigation pending the acquisition of donor funding.
5. task teams
5.1 The Law Review Project (a section 21 Association) is undertaking the "Good Law Project" which overlaps with the Law Commissionís investigation into statutory law revision. The Minister has indicated that ways to coordinate the efforts should be investigated. This has already been effected.
5.2 It is envisaged to establish a statutory law revision unit by November 2001 and a statutory law revision project committee by January 2002. Research should commence in February 2002.
6.1 Role-player interviews formed an essential part of the feasibility study referred to in paragraph 8.1 below.
6.2 Crosscutting consultations are an important aspect of the Law Commissionís working methods and the envisaged project committee will consult with all role-players.
7. contentious issues/difficulties encountered
At the outset the following issues had to be addressed:
m A critical reflection on the need for and focus areas for such a project.
m The content of the investigation:
∑ Vertical approach: on all spheres of government (even municipal by-laws)?
∑ Horizontal approach: throughout all different branches of the law and government departments?
∑ Primary as well as secondary legislation?
∑ What sections of the Bill of Rights should be focussed on?
∑ Should only clearly unconstitutional issues be targeted?
m The recommendable organisational structure (should the whole task be assigned to the Law Commission?)
8. addressing contentious issues and difficulties
8.1 The Law Commission and the GTZ commissioned the Centre for Applied Legal Studies (CALS) at the University of the Witwatersrand to undertake a study to determine the feasibility, scope and operational structure of revising the South African statute book for constitutionality, redundancy and obsoleteness. Four main avenues of research were pursued:
m A series of role-player interviews
m An analysis of all decisions of the Constitutional Court
m Testing of 16 randomly selected national statutes from different time periods and different departments against Constitutional Court jurisprudence
m Comparative survey of laws
8.2 The final report on the study (April 2001) supports an investigation into the revision of the statute book and the following recommendations are made:
m That the Law Commission set up a project to respond to requests from interested national government departments and provincial governments to revise particularly problematic sections of the statute book.
m That a comprehensive audit be conducted of all national and provincial legislation.
m That redundant and obsolete provisions be dealt with incidentally in the course of the Law Commissionís work with interested parties.
m It is not recommended that the Law Commission assume responsibility for the rationalisation of local government legislation at this stage.
8.3 The project committee which is to be established is ultimately responsible to the Law Commission and therefore the abovementioned recommendations are not peremptory. The feasibility and implementation study conducted be CALS does, however, serve as a valuable core document in the development of the project.
D: ASPECTS OF THE LAW RELATING TO AIDS
1. non-controversial matters related to the health care setting (first interim report on aspects of the law relating to aids)
1.1 Problem Analysis
Certain aspects concerning HIV/AIDS in the health care setting warrant urgent intervention. From a scientific, medical and legal viewpoint the reforms appear to be relatively uncontroversial.
The recommendations include:
m Limiting the use of non-disposable syringes, needles, and other hazardous material in health care settings.
m Implementing universal precautions in the work place.
m Implementing a national compulsory standard for condoms in accordance with international standards.
m Promulgating a national policy on testing for HIV infection.
m Amending, finalising and promulgating the Draft Regulations Relating To Communicable Diseases and the Notification of Notifiable Medical Conditions 1993 (which deschedule AIDS as a communicable disease in respect of which certain coercive measures apply mandatorily).
1.3 Status of Recommendations
Draft Regulations for Hazardous Biological Agents were published by the Department of Labour on 1 November 1999. The draft regulations include provisions relating to the implementation of the Commission's recommendations relating to the use of non-disposable syringes and the utilisation of universal precautions in the work place. The closing date for comment was 31 January 2000. The draft regulations are being finalised by the Department for promulgation.
The Department of Health is in the final stages of implementing the recommendations relating to an international standard for condoms and a national policy for HIV testing. As regards the latter the Department on 10 December 1999 published a national policy on testing for HIV, based on the Commission's recommendations, for public comment. The closing date for comment was 10 February 2000. The policy is currently being finalised for promulgation.
No action has been taken by the Department of Health to realise the recommendation in respect of the promulgation of the 1993 Draft Regulations relating to Communicable Diseases and the Notification of Notifiable Medical Conditions.
2. pre-employment hiv testing (second interim report on aspects of the law relating to aids)
2.1 Problem Analysis
There has been no specific statutory prohibition on pre-employment testing for HIV in our law. There has also been no clarity as to the circumstances under which an employer could require an applicant for employment to take an HIV test. Legislative intervention aims to attain the twin objectives of maintaining otherwise healthy persons with HIV in productive employment, and protecting the rights of persons with HIV in the workplace.
Principles recommended by the Commission for legislative intervention on pre-employment HIV testing are as follows:
m To create certainty and clarity on the legality or otherwise of HIV testing as a specific form of discrimination in the employment relationship.
m To prohibit testing where it constitutes unfair discrimination and an unfair labour practice.
m To balance the rights of persons with HIV and those of employers.
m To intervene statutorily so as to prohibit HIV testing per se, subject to permissible exceptions.
m To deal legislatively with both job applicants and existing employees in order to enable the fair allocation of employee benefits.
m Although the Commission initially aimed for a prohibition on pre-employment HIV testing to cover all employees, it was accepted that, given the framework of existing and prospective labour legislation, which excludes them, such legislative intervention could not apply easily to the South African National Defence Force, the South African Secret Service, and the National Intelligence Agency.
m A prohibition on HIV testing in the workplace should not be absolute but should allow for exceptions where testing is allowed under legislation and in certain circumstances where it is fair and justifiable. Justification for testing should be based on medical facts, employment conditions, social policy, the fair distribution of employee benefits and the inherent requirements of the particular job. All of these factors should be considered jointly and individually in ascertaining whether testing is fair and justifiable.
m An intervention should provide a flexible standard to allow for the law to develop in accordance with scientific knowledge, society's understanding of the epidemic, changing socio-economic circumstances, and the possible emergence of new rationales for HIV testing in the work place.
m In determining whether or not HIV testing should be allowed, both justifiability and fairness need to be taken into account equally.
m The burden to show that HIV testing under specific circumstances is fair, should rest upon the employer.
m An impartial forum (such as the Labour Courts created by existing labour legislation) should be available to adjudicate whether HIV testing (or an application to authorise such testing) was fair and justifiable.
m The Labour Court, in authorising testing for HIV, should be given wide powers. These would include issuing instructions regarding counselling, confidentiality, and information or submissions regarding medical facts, employment conditions, social policy, the inherent requirements of the job and the fair allocation of employee benefits.
m Judicial appeal procedures should be an integral part of a statutory prohibition.
m Legislation prohibiting HIV testing in the workplace should be accessible and enforceable.
m Statutory intervention need not be HIV/AIDS specific.
2.3 Status of Recommendations
The principles of the Commission's recommendations regarding pre-employment HIV testing were embodied in the Employment Equity Act 55 of 1998.
3.1 Problem Analysis
A national policy for HIV/AIDS in schools is urgently required in order to protect learners with HIV from unfair discrimination in the school environment. However, such intervention will have to take into account the rights of all learners and should aim for a fair balance between the rights of learners with HIV and those without HIV.
The Minister of Education, under the National Education Policy Act, 1996, should determine national policy on HIV/AIDS in schools.
It was recommended that such a policy:
m Should apply nationally, it should prevail over any other policy instrument on HIV/AIDS in public schools, and have children of school going age (including children in the pre-primary phase) as its chief focus.
m Should set out broad guidelines in accordance with constitutional principles. In view of the wide variety of circumstances prevailing in South African schools it is recommended that a governing body of a school should, in addition, be able to adopt a more specific HIV/AIDS policy at school level to give operational effect to the national policy.
m Should include the following basic principles:
∑ Compulsory testing of learners as a prerequisite for admission to any school, or any unfair discriminatory treatment (for instance the refusal of continued school attendance on the basis of the HIV status of the learner), is not justified.
∑ However, it is recognised that special measures in respect of learners with HIV may be necessary. These must be fair and justifiable in the light of medical facts, school conditions and the best interests of learners with and without HIV.
∑ Learners' rights to privacy are confirmed. Where HIV-related information is disclosed to a member of staff, the policy provides that, except where statutory or other legal authorisation exists, such information may be divulged only with the informed consent of the learner (above the age of 14 years) or in other cases with the consent of his or her parent or guardian.
∑ The needs of learners with HIV should, as far as is reasonably practicable, be accommodated within the school environment.
∑ "Universal precautions" (standard precautionary measures aimed at the prevention of HIV transmission including instructions concerning basic hygiene and the wearing of protective clothing such as rubber gloves when dealing with blood and body fluids) should be implemented by all schools to exclude effectively the risk of transmission of HIV in the school environment. The policy contains specific provisions on participation in contact sport and contact play.
∑ All learners have a right to be educated on HIV/AIDS, sexuality and healthy lifestyles, in order to protect themselves against HIV infection. The policy recognises the need for the involvement - although limited - of parent communities in order to ensure that sexuality education will take into account the community ethos and values. The policy requires that information on HIV/AIDS be given in an accurate and scientific manner.
∑ All learners should respect the rights of other learners.
∑ A school's governing body should be able to adopt an HIV/AIDS policy at school level to give operational effect to the national policy. This would however have to take place within the framework set by the national policy.
3.3 Status of Recommendations
The Department of Education adopted the Commissionís recommendations in promulgating a policy as suggested on 10 August 1999. The Department, however, also made the promulgated policy applicable to educators in public schools, and to students and educators in further education and training institutions. The Commission's recommendations give rise to Universities starting to address the position of students with HIV/AIDS in tertiary education institutions. A policy in this regard is currently being drafted.
4. compulsory hiv testing of persons arrested in sexual offence cases (fourth interim report on aspects of the law relating to aids)
4.1 Problem Analysis
The need for compulsory HIV testing of sexual offenders was raised by the Parliamentary Justice Portfolio Committee. The request was made against the background of mounting public concern and pressure on the authorities to take appropriate action with regard to the deliberate transmission of HIV infection. This has come about largely in response to a number of widely publicised incidents of deliberate transmission of HIV, together with the very real concern that for the most part women and young girls are exposed to HIV infection in this manner.
In general, our law at present provides for HIV testing only with the informed consent of the person concerned; every person is entitled to privacy regarding medical information; and no general legislation exists which allows for disclosures. Furthermore, neither currently available public health law nor criminal procedure makes provision for compulsory HIV testing of persons arrested for having committed sexual offences with a view to disclosing their HIV status to victims.
The Commission concluded that there is a need for statutory intervention to provide for compulsory HIV testing of arrested persons in sexual offence cases at the instance of the victim. The intervention is necessary in the light of women's undoubted vulnerability in South Africa today to widespread sexual violence amidst the increasing prevalence of a nationwide epidemic of HIV and in the absence of adequate institutional or other victim-support measures. In these circumstances there is a compelling argument for curtailing an arrested person's rights of privacy and bodily integrity to a limited extent to enable his or her accuser speedily to know whether he or she has HIV. The benefit to alleged victims of the knowledge is not only immediately practical in that it enables them to make life decisions and choices for themselves and people around them; it is also profoundly beneficial to their psychological state to have even a limited degree of certainty regarding their exposure to a live threatening disease. That the arrested person's rights are infringed must be acknowledged and this must be reflected in procedural and substantive safeguards built into the process created.
It is therefore suggested that the proposed change to the law should be based on the following principles:
m Compulsory HIV testing of an arrested person should in principle be victim-initiated. This will ensure that only a person with a material interest in the arrested person's HIV status may apply for a compulsory testing order.
m A specified standard of proof should be required on which to base an order for compulsory HIV testing. The Commission is of the opinion that this should be prima facie evidence reflected in depositions on oath that a sexual offence has been committed against the victim by the arrested person; that in the course of the offence the victim may have been exposed to the body fluids of the arrested person; and that no more than 50 calendar days have lapsed from the date on which it is alleged that the offence in question took place. (The latter forms part of the total period of 60 calendar days allowed for execution of an order for compulsory HIV testing which is referred to below.)
m Compulsory HIV testing of an arrested person should take place only on authorisation by a court. This should be a discretionary power resting with the presiding officer hearing the application.
m In order to ensure an uncomplicated and speedy process and to protect the victim from a potentially further traumatising confrontation with his or her attacker, the arrested person (or his or her legal representative) should not be allowed to be present or give evidence in an application for compulsory HIV testing. The arrested person should retain his or her right to apply to the High Court for review in the event that an order for compulsory testing is not properly granted in accordance with the prescribed requirements.
m The procedure should provide for the confidentiality of the arrested person's HIV test results so as to ensure that this information is disclosed only to the victim and to the arrested person.
m A limited period of time should be allowed for bringing an application for compulsory HIV testing and executing it. This period should coincide with the period during which a victim's own HIV test would not clearly indicate whether he or she had been infected with HIV (the "window period"). The Commission considers a time limit of 60 days to be appropriate.
m The state should be responsible for all costs related to an application for compulsory HIV testing of arrested persons and the execution of an order for such testing.
m The use of information relating to the HIV status of an arrested person obtained under the proposed legislation should be clearly limited: the HIV test results obtained should not be admissible as evidence in criminal or civil proceedings.
m Malicious activation of the proposed procedure or the malicious disclosure of the test results should be punishable.
4.3 Status of Recommendations
A report on compulsory HIV testing of persons arrested in sexual offence cases was submitted to the Minister for Justice and Constitutional Development on 7 December 2000 and Tabled in Parliament on 26 June 2001. According to the legislative programme as on 24 July 2001it is not envisaged that the Compulsory HIV Testing of Sexual Offenders Bill will be finalised in the 2001 session of Parliament.
5. the need for a statutory offence aimed at harmful hiv-related behaviour (fifth interim report on aspects of the law relating to aids)
5.1 Problem Analysis
Harmful (i e unacceptable) sexual behaviour by persons with HIV or AIDS could transmit HIV or expose others to HIV. As in the case of the Fourth Interim Report, this enquiry was also undertaken at the request of the Parliamentary Justice Portfolio Committee. The request was made against the same background of public concern and pressure for appropriate action regarding deliberate or knowing transmission of HIV infection. The concern resulted from a number of widely publicised incidents of deliberate transmission of HIV, accompanied by the very real concern that mostly women and young girls are being exposed to HIV infection in this manner.
The recommendations cover only consensual sexual activity. Transmission of or exposure to HIV can also occur during non-consensual sexual acts such as rape. The need for further measures in the latter regard will be dealt with under the Commission's investigation into sexual offences.
The Commission concludes that the creation of a statutory offence is neither necessary nor desirable and recommends that the current legal position be maintained. The Commission is of the view that arguments against legislative intervention override arguments supporting such step.
In concert with this recommendation, the Commission identifies a pivotal need for the development of practical mechanisms by government departments to utilise effectively the existing common law crimes in cases of harmful HIV-related behaviour; and to encourage a culture of responsibility regarding HIV status.
These mechanisms may include:
m Making the public aware of applicable common law crimes coupled with the assurance that our existing law will indeed be used in respect of harmful HIV-related behaviour.
m Introducing practical measures to establish a standard of policing, investigation and prosecution that would ensure successful prosecutions of harmful HIV-related behaviour under the existing law.
m Maintaining and improving public health measures relating to awareness about HIV and its prevention, and public access to HIV testing and counselling. Such activities should be aimed at encouraging a culture of responsibility.
Major reasons for the Commission's conclusion are the following:
m Lack of scientific, empirical or even informal evidence that the behaviour to be targeted by intervention is occurring to such an extent that the creation of a statutory offence is necessary.
m Enactment of a statutory offence will have no or little practical utility and could be largely symbolic, especially in view of the existence of an array of common law crimes that could be utilised against harmful HIV-related behaviour.
m The social costs entailed in creating an offence targeting negligent behaviour (in the form of negligent transmission of or exposure to HIV - which is not covered by existing common law), is not justified. Negligence in the HIV/AIDS context would involve an individual who is not aware that he or she has HIV and in this state of ignorance unknowingly transmits HIV or exposes another to HIV. The Commission is convinced that where the majority of persons in South Africa with HIV are unaware of their HIV status and where there are insufficient resources for the widespread HIV testing that would be required to enable a change of behaviour, it is not just and right that persons who are ignorant of their health status (but ought perhaps ideally to know that they are infected), should be punished. In effect such individuals would be punished for their failure to know their HIV status - which may lie outside their control.
m The extent of intrusion into sexual privacy that will be inherent in any HIV-specific statutory offence is not justified.
5.3 Status of Recommendations
A report on the need for a statutory offence aimed at harmful HIV-related behaviour was submitted to the Minister on 6 June 2001.