SELECT COMMITTEE BRIEFING 4 MAY 2006 Legislative and

SELECT COMMITTEE BRIEFING 4 MAY 2006 Legislative and Constitutional Development

INDEX • Composition of Branch • Budget • Chief Directorate: Law Reform – Secretariat of the SA Law Reform Commission – Secretariat of the Rules Board for Courts of Law • Chief Directorate: Legislative Development • Chief Directorate: Constitutional Development 2

3 COMPOSITION • Chief Directorate: Law Reform (Includes the Secretariat of the South African Law Reform Commission and the Secretariat of the Rules Board for Courts of Law). • Chief Directorate: Legislative Development. • Chief Directorate: Constitutional Development.

4 BUDGET 2005/2006 R 42 980 000 -00 • 2006/2007 R 44 953 000 -00 Personnel: R 32 007 850 -00 (71%) Operational: R 12 945 150 -00 (29%)

CHIEF DIRECTORATE: LAW REFORM

SECRETARIAT OF THE SA LAW REFORM COMMISSION • Responsibilities – Statutory body established by SA Law Reform Commission Act 19 of 1973. – Executing the law reform programme of the Commission by conducting legal research (any branch of the law, all departments). – Developing proposals for law reform. – Preparing legislative proposals. – Assisting Parliamentary Committees and advising Ministers on relevant issues. 6

7 Personnel 1 DEPUTY CHIEF STATE LAW ADVISER Mr W Henegan 10 PRINCIPAL STATE LAW ADVISERS M Palumbo T Cronje A Havenga W van Vuuren A Louw P Matshelo P van Wyk D Clark L Stuurman M Moloi 9 SENIOR STATE LAW ADVISERS C Pienaar R van Zyl Vacant Vacant 1 ASSISTANT DIRECTOR M Oosthuizen 3 ADMINISTRATIVE OFFICERS A Singh J Kabini M van den Berg 6 ADMINISTRATION CLERKS E Louw R Swart V Mavuso P Mashabelo C Krebs A Kruger 1 LIBRARIAN N Makgoka 2 SECRETARIES R Bronkhorst J Nkabinde 1 OPERATOR K Mahlangu 1 MESSENGER Vacant 1 FOOD SERVICES AID A Mahlangu

Research Programme Project Title 8 Priority 25 Statutory law revision A 94 Arbitration: Family mediation D 107 Sexual Offences: Adult prostitution C 113 The use of electronic equipment in court proceedings D 118 Domestic partnerships A 121 Consolidated legislation pertaining to international co-operation in civil matters D 122 Assisted decision-making: Adults with impaired decision-making capacity B 123 Protected disclosures C 124 Privacy and data protection A 125 Prescription periods D 126 Review of the rules of evidence B 127 Review of administration orders A 128 Review of aspects of the law of divorce D 129 Review of aspects of matrimonial property law D 130 Stalking D 131 Trafficking in persons A 133 A specific civil action in respect of consequential damages arising from hoaxes D 134 Administration of estates A

9 Publications Year Reports Discussion Papers Issue Papers Total 1994 14 4 0 18 1995 5 6 0 11 1996 3 8 4 15 1997 1 5 7 13 1998 10 6 3 19 1999 5 8 0 13 2000 5 7 2 14 2001 5 8 2 15 2002 4 0 3 7 2003 6 1 3 10 2004 3 4 1 8 2005 0 2 Total 61 59 25 145

SECRETARIAT OF THE RULES BOARD FOR COURTS OF LAW • Responsbilities – Statutory body established by the Rules Board for Courts of Law Act 107 of 1985. – Responsible to review the rules of court and to make, amend or repeal rules, subject to the approval of the Minister. – Secretariat provides secretarial and administrative support to the Board. – Conducts research into the rules of court, develops proposals and prepares draft rules. – Members of the Board: • The Hon Madam Justice BE Nkabinde (Chairperson), the Hon Mr Justice CM Somyalo (Vice-Chairperson), the Hon Mr Justice BM Griesel, Mr N Makabanyane, Adv M Wallis, Mr C Sardiwalla, Mr T Jooste, Dr C van Heerden, Mr S Jiyane, Ms M Monama, Prof C Loots, Adv J Moses (Alt), Adv K Green (Alt). 10

11 Personnel 1 PRINCIPAL STATE LAW ADVISER C Hartley 1 SECRETARY N Mathebula 6 SENIOR STATE LAW ADVISERS M Setshedi S Govender N Maseko K Beja Vacant

12 • Rules approved during 2004/2005 – Draft amendments of the Supreme Court of Appeal Rules, the High Court Rules and the Magistrates’ Courts Rules to provide for the new appeal procedure. – Draft rules in terms of the Promotion of Access to Information Act 2 of 2000. – Draft rules in terms of the Promotion of Administrative Justice Act 3 of 2000. – Draft amendments of the High Court Rules and the Magistrates’ Courts Rules to provide for the appointment of more than one sheriff for an area in terms of section 3(2)(b) of the Sheriffs Act, 1986. – Amendment of rules 46 of High Court Rules.

13 – Rules 70(4) Taxation procedure in High Court. – Amendment of Rules 50(5) of High Court Rules. – Amendment of Rule 58 of High Court Rules. – Insertion of sub-rule 49(1)A of High Court Rules. – Amendment of Rule 63 A of High Court Rules. – Amendment of Rule 10 A of High Court Rules.

14 • Conferences and Workshops – On 7 March 2005, the Rules Board invited judges, magistrates, legal practitioners and academics to an expert meeting to discuss the draft rules to be compiled in terms of the Promotion of Administrative Justice Act, 2000.

15 • Rules currently under consideration by the Rules Board – Constitutional validity of rules governing execution procedures in the Magistrate and High Courts. – Rules in terms of the Prevention of Organised Crime Act, 1988. – Review of Sheriff’s and Attorney’s fees.

16 • Review of the Civil Justice System – There is an urgent need for a complete and in-depth review of the rules of court. In November 1995 the Rules Board committed itself to streamlining the court procedures with the view to promoting speedy and affordable access to justice. Prof Erasmus was asked to draft a set of core rules. The harmonisation project was embarked on in 2001 but was not completed. – The Rules Board secretariat is presently conducting research and a comparative study into appropriate methodologies for review of the civil justice system.

CHIEF DIRECTORATE: LEGISLATIVE DEVELOPMENT

18 • Responsibilities – Evaluating and investigating primary and subordinate legislative proposals. – Preparing primary and subordinate legislation. – Assisting and advising Parliamentary Committees. – Reviewing fees and tariffs. – Advising the Minister on relevant legal issues. – Preparing proclamations for commencement of legislation. – Preparing proclamations for referral of matters to Special Investigating Unit.

19 Personnel 1 DEPUTY CHIEF STATE LAW ADVISER L Bassett 5 PRINCIPAL STATE LAW ADVISERS J de Lange I Botha T Ross K Pillay N Matibe K Molalathoko (Additional to Establishment) 10 SENIOR STATE LAW ADVISERS H du Preez A van der Walt W Louw S Robberste J van Rensburg E Steyn D Pillay T Skhosana W Ndou 1 ADMINISTRATIVE OFFICER M Matlanato 4 SECRETARIES E Moroke A Julius L Mpanza J Mokete

20 Legislative Programme • Bills before Parliament – Judicial Conduct Tribunals Bill. – Judicial Service Commission Amendment Bill. – Magistrates Amendment Bill. – Superior Courts Bill. – Criminal Law (Sexual Offences and Related Matters) Amendment Bill. – Compulsory HIV Testing of Sexual Offenders Bill. – Child Justice Bill.

21 • Bills already approved by Cabinet and receiving the attention of the State Law Advisers – Insolvency and Business Recovery Bill. – International Arbitration Bill.

22 • Bills identified for promotion during the 2006 session of Parliament – Constitution Fourteenth Amendment Bill. – Customary Law of Succession Amendment Bill. – Traditional Courts Bill. – State Liability Amendment Bill. – Magistrates Courts Amendment Bill. – Legal Practice Bill. – Magistrates (Appointments) Amendment Bill.

23 • Bills identified for submission to Cabinet and Parliament with a view to the finalisation thereof as soon as possible – – – – Legal Aid Amendment Bill. Criminal Procedure Amendment Bill. Contingency Fees Amendment Bill. Constitution Thirteenth Amendment Bill. Judicial Matter Amendment Bill. Attorneys Amendment Bill. Debt Collectors Amendment Bill. Extradition Bill (including a chapter on the surrender of persons to International Tribunals).

24 – Legal Graduates’ Community Service Bill. – South African Human Rights Commission Amendment Bill. – Commission on Gender Equality Amendment Bill. – Criminal Law Amendment Act Amendment Bill. – South African Justice Training College Bill. – Judges’ Remuneration and Conditions of Employment Amendment Bill (Allowances). – Sheriffs Amendment Bill. – Application of Customary Law Bill. – Criminal Procedure Second Amendment Bill. – Criminal Procedure Third Amendment Bill. – Prohibition of Hate Speech Bill. – Muslim Marriages Bill.

25 • Private Members’ Bills – Public Funding of Represented Political Parties Amendment Bill. – Magistrates Courts Amendment Bill.

26 • Extended list of Bills to be submitted to Parliament when they are ready for introduction with a view to the finalisation thereof when circumstances permit – Prevention of Organised Crime Amendment Bill. – Special Investigating Units and Special tribunals Amendment Bill. – Promotion of Access to Information Amendment Bill. – Criminal Procedure Fourth Amendment Bill. – Criminal Procedure Fifth Amendment Bill. – Admiralty Jurisdiction Regulation Amendment Bill.

27 – Application of the United Nations Financial Sanctions Bill. – African Charter on Human and Peoples’ Rights Bill. – Criminalisation of Torture Bill. – Publication of Divorce proceedings Bill. – Appointment of Damages Amendment Bill. – Sharing of Pension Benefits Bill/Divorce Amendment Bill. – Control of Unreasonable or Oppressive Stipulations in Contracts Bill. – Domestic Arbitration Bill. – Public Interest and Class Actions Bill. – Rules Board for Courts of Law Amendment Bill.

Implementation of Legislation YEAR NUMBER OF ACTS IMPLEMENTED 1996 All Acts fully implemented (11) except for – * section 11 (confessions) of the Criminal Procedure Amendment Act, 1996 (Act 86 of 1996); and * section 13 (cost orders) of the Criminal Procedure Amendment Act, 1996 (Act 86 of 1996) – p 4. 1997 All Acts fully implemented (15). 1998 All Acts fully implemented (13) except for – * the provisions relating to the further regulation of lay assessors as provided for in the Magistrates’ Courts Amendment Act, 1998 (Act 67 of 1998) – p 10; * the amendment of rules to facilitate the appointment of more than one sheriff in an area, as provided for in the Sheriffs Amendment Act, 1998 (Act 74 of 1998) – p 11; * the provisions relating to maintenance investigators as provided for in the Maintenance Act, 1998 (Act 99 of 1998) – p 12; and * sections 6 and 20 of the Witness Protection Act, 1998 (Act 112 of 1998) and the regulations – p 12. 28

29 YEAR NUMBER OF ACTS IMPLEMENTED 1999 All Acts fully implemented (3). 2000 All Acts fully implemented (6) except for – * the Code of Good Administrative Conduct in terms of the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000) – p 15; * the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000) relating to the promotion of equality – p 15; and * the guide contemplated in the Protected Disclosures Act, 2000 Act 26 of 2000) – p 16. 2001 All Acts fully implemented (10). 2002 All Acts fully implemented (13) except for – * the Regulation of Interception of Communications and Provision of Communication-related Information Act – p 20. The Act, with the exception of sections 40 and 62, came into operation on 30 September 2005 and sections 40 and 62(6) will come into operation on 30 June 2006 – p 20.

30 YEAR NUMBER OF ACTS IMPLEMENTED 2003 All Acts fully implemented (7) except for – * the Judicial Matters Second Amendment Act, 2003 (Act 55 of 2003) – p 23. 2004 One Act implemented – p 24. 2005 One Act has been partially implemented – p 24.

CHIEF DIRECTORATE: CONSTITUTIONAL DEVELOPMENT

32 • Established to perform the functions relating to constitutional development that were assigned to the Branch and to administer the legislation that were transferred to the Minister for Justice and Constitutional Development. • CD became operational during 2002.

33 Personnel 1 DEPUTY CHIEF STATE LAW ADVISER Vacant 2 PRINCIPAL STATE LAW ADVISERS O Sewpaul J Labuschagne 6 SENIOR STATE LAW ADVISERS N Phakola G Seleka H Mekwa S Mahlangu S Misser S Chiloane 2 SECRETARIES L Langa S Ferreira 1 ADMINISTRATIVE OFFICER L Blignault

34 What is Constitutional Development? • CD is involved with implementation of constitutional values, norms and principles, the rule of law, and respect for human rights. • Implementation, co-ordination, monitoring and evaluation of programs and activities aimed at deepening democracy, the rule of law, equality (non-sexism and non-racism), good and cooperative governance, separation of powers, social justice, popular participation, promotion of human rights and the commitment to respect international law.

35 Stakeholder Involvement • CD is a dynamic process involving many stakeholders with specific mandates tied together. • CD component has the primary mandate to co-ordinate, monitor, direct and evaluate the unfolding of this dynamic process.

36 Three Components of the Constitution • Constitutional democracy. • State and Government Institutions, structures and systems. • Culture of respect of human rights.

37 Components of CD • Overall monitoring of the performance as well as actively empowering State and non-State Institutions and individuals in relation to constitutional matters. • Co-ordinating Government’s efforts aimed at promoting and protecting human rights. • Supporting State Institutions. • Safeguarding democratic governance by ensuring adherence to democratic principles. • Playing a gatekeeper’s role in relation to constitutional and human rights jurisprudence. Also keeping track of developments and trends at both international and regional levels.

38 Responsibilities • Administer the Constitution of the Republic of South Africa, constitutionally mandated legislation assigned to the Minister for Justice and Constitutional Development and legislation which has a bearing on relevant Chapter 9 Institutions. • Assist and protect Chapter 9 Institutions to ensure their independence, impartiality, dignity and effectiveness.

39 Achievements for 2005 • • Citation of Constitutional Laws Act, 2005. Constitution Twelfth Amendment Act, 2005. Assistance to Chapter 9 Institutions. Finalization of remuneration and conditions of service of the Deputy Public Protector. Constitutional Matters Amendment Act, 2005. Publication of Invitation for Nominations of Candidates to the Commission on Gender Equality. Preparation of Cabinet Report on the work undertaken by the South African Human Rights Commission. Preparation of terms of reference for the review of Chapter 9 Institutions.

40 • Workshop with Deputy Minister and Chapter 9 Institutions. • Finalized 1999 -2004 report on the National Action Plan on Human Rights. • Entered into Memorandum of Understanding with the PSC and the GTZ on the monitoring and evaluation of the implementation of PAJA. • Developed an implementation strategy for the implementation of the PAJA and the PEPUDA. • Conducted seminar with the University of the Northwest on Democracy and Good Governance.

41 • Conduct a seminar with magistrates on the constitutional provision of equality. • Conducted training sessions for legal advisers in Government Departments at national and provincial level on PAJA. • Co-ordinated DOJ&CD’s input for the APRM on “Democracy and Good Governance”.

42 Priorities for 2006 • Constitution Thirteenth Amendment Bill. • South African Human Rights Commission Amendment Bill and Commission on Gender Equality Amendment Bill. • Public Funding of Represented Political Parties Amendment Bill. • Finalise appointments of Commissioners in the Commission on Gender Equality. • Develop a concept document and a programme of activities for the 10 th Anniversary of the Constitution. • Finalise the research on the review of the Chapter 9 Institutions.

43 • Strengthen programmes on the implementation of the constitutionally mandated legislation emanating from the Bill of Rights (Promotion of Administrative Justice Act, 2000 (Act 3 of 2000) and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000)). • Update the indicators in the National Action Plan to Promote and Protect Human Rights. • Continue to participate in the APRM process. • Strengthen the relationship with the Chapter 9 Institutions.