1

NCOP SELECT COMMITTEE BRIEFING28 MAY 2007

Legislative and Constitutional Development

2INDEX• Composition of Branch• Budget• Chief Directorate: Law Reform

– Secretariat of the SA Law Reform Commission

– Secretariat to the Rules Board for Courts of Law

• Chief Directorate: Legislative Development

• Chief Directorate: Constitutional Development

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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.

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BUDGET2006/2007

R44 953 000-00

• 2007/2008 R47 661 000-00

Personnel: R31 347 000-00 (66%)

Operational: R16 314 000-00 (34%)

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CHIEF DIRECTORATE: LAW REFORM

6SECRETARIAT OF THE SA LAW REFORM COMMISSION

Statutory body established by SA Law ReformCommission Act 19 of 1973.

• Responsibilities– 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.– Members of the South African Law Reform Commission:

• Madam Justice Y Mokgoro (Chairperson); Mr Justice W Seriti (Vice-Chairperson); Mr Justice D Davis; Adv M Sello; Adv D Ntsebeza, SC; Mr T Ngcukaitobi; Prof P Schwikkard; Ms T Madonsela (Full-time member); Adv C Albertyn.

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1 DEPUTY CHIEF STATE LAW ADVISERVacant

10 PRINCIPAL STATE LAW ADVISERSM Palumbo

T CronjeA Havenga

W van VuurenA Louw

P Matshelo P van Wyk

D ClarkL Stuurman

M Moloi

9 SENIOR STATE LAW ADVISERSC PienaarR van ZylU BehrtelP SukhrajG Nesbitt

F MdumbeVacantVacantVacant

1 ASSISTANT DIRECTORM Oosthuizen

3 ADMINISTRATIVE OFFICERSA Singh J Kabini

M van den Berg6 ADMINISTRATION CLERKS

E LouwR Swart

V MavusoP Mashabelo

C KrebsA Kruger

1 LIBRARIANN Makgoka

1 PA/LIBRARY ASSISTANT TO A VISUALLY IMPARED

SENIOR STATE LAW ADVISERVacant

2 SECRETARIESR BronkhorstJ Nkabinde

1 OPERATORK Mahlangu

1 MESSENGERG Maseko

1 FOOD SERVICES AIDA Mahlangu

Personnel

8Research ProgrammeProject Title Priority

25 Statutory law revision A

94 Arbitration: Community dispute resolution structuresArbitration: Family mediation

D

107 Sexual Offences: Adult prostitution C

113 The use of electronic equipment in court proceedings 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

131 Trafficking in persons A

133 A specific civil action in respect of consequential damages arising from hoaxes D

134 Administration of estates A

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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 0 2

2006 2 2 0 4

Total 63 61 25 149

10SECRETARIAT OF THE RULES BOARD FOR COURTS OF LAW

• Responsibilities– The Rules Board for Courts of Law (“the Board”) was

established by the Rules Board for Courts of Law Act 107 of 1985 to review the rules of court and to make, amend or repeal rules, subject to the approval of the Minister for Justice and Constitutional Development.

– Section 9 of the Act provides for the establishment of a secretariat to the Board which is to perform the work incidental to the performance by the Board of its functions. The secretariat provides secretarial and administrative support to the Board. The secretariat also conducts research into the rules of court.

– Members of the Board:• The Hon Madam Justice BE Nkabinde (Chairperson); The

Hon Mr Justice KK Mthiyane (Vice-Chairperson); Prof C Loots; Dr C van Heerden; Adv J J Moses; Adv MH Sishuba; Mr J Mnguni; Ms B Majiki; Mr JB Skosana; The Hon Mr Justice BM Griesel; Mr CM Sardiwalla; The Hon Madam Justice LV Theron; Adv MJD Wallis (Alt); Mr T Jooste (Alt).

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1 PRINCIPAL STATE LAW ADVISERC Hartley

6 SENIOR STATE LAW ADVISERSM SetshediS GovenderN Maseko

E Allers (Acting)VacantVacant

1 SECRETARYY Kherekar

Personnel

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• Rules approved during 2006

– Rules in terms of section 79(3) of the Promotion of Access to Information Act, 2000.

– Rules in terms of section 7(2)(c) of the Criminal Procedure Amendment Act, 2003.

– Amendment of Rule 63 of the High Court rules to provide for authentication of documents executed outside the country.

– Amendment of Rule 3(1)9 of the Circuit Court Rules.– Amendment of Rule 38 of the High Court Rules.– Amendment of Rule 45(3)(b) of the High Court Rules.– Amendment of Rule 22 of the Magistrates Court

Rules.

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• 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.– Review of the Civil Justice System.

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CHIEF DIRECTORATE: LEGISLATIVE DEVELOPMENT

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• 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.

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5 PRINCIPAL STATE LAW ADVISERSJ de Lange

I BothaT RossK Pillay

N MatibeK Molalathoko

(Additional to Establishment)

1 DEPUTY CHIEF STATE LAW ADVISERL Bassett

10 SENIOR STATE LAW ADVISERSH du Preez

A van der Walt W Louw

S RobbersteJ van Rensburg

E SteynD Pillay

T SkhosanaW Ndou

1 ADMINISTRATIVE OFFICERM Matlanato

4 SECRETARIESE MorokeA Julius

L MpanzaJ Mokete

Personnel

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Legislative Programme• Bills before Parliament

– Judicial Service Commission Amendment Bill.– Superior Courts Bill.– Criminal Law (Sexual Offences and Related Matters)

Amendment Bill.– Compulsory HIV Testing of Sexual Offenders Bill.– Child Justice Bill.– Regulation of Interception of Communications and

Provision of Communication-related Information Amendment Bill.

– SA Judicial Education Institute Bill.– Criminal Law (Sentencing) Amendment Bill

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• LEGISLATION BEING PREPARED WITH THE VIEW TO INTRODUCTION DURING THE 2007 SESSION OF PARLIAMENT:

– A Bill to bring the Customary Law of Succession into line with the judgment of the Constitutional Court in the Bhe case.

– A Bill to regulate the judicial role and functions of traditional leaders.

– A Bill to address the issue identified by the Constitutional Court, where some Government Departments do not always comply with court orders made against them, particularly orders sounding in money.

– A Bill to ensure that certain immovable property is not sold in execution in respect of insignificant debts.

– A Bill intended to regulate the appointment procedure in respect of magistrates, in a manner similar to that regulating the appointment of judges.

– A Bill to give effect to the recommendations of the Khampepe Commission dealing with the correct positioning of the Directorate of Special Operationsl.

– A Bill to confer civil jurisdiction on Regional Courts, including the adjudication of family-related disputes.

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• OTHER NOTEWORTHY LEGISLATION BEING

PREPARED FOR SUBMISSION TO PARLIAMENT AS SOON AS CIRCUMSTANCES PERMIT:– A Bill to review the legislation regulating legal aid.– A Bill to further regulate the right of an accused

person to remain silent.– A Bill to give the prosecution the right to appeal on

facts in criminal cases– A Bill to give statutory recognition to Muslim

marriages.– A Bill to regulate the postponement of certain criminal

proceedings by way of audio-visual linkages

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IMPLEMENTATION OF LEGISLATION

Since 1994 the Department has prepared 114

Acts of Parliament. Of these only 8 have not

been fully implemented. A report on these 8, setting out further details will be provided.

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NOTEWORTHY SUBORDINATE LEGISLATION

WHICH HAS BEEN PREPARED:- Regulations regulating the appointment of

maintenance investigators- Practical Guidelines relating to protected disclosures

as contemplated in the Protected Disclosures Act, 2000

- Code of Good Administrative Conduct as contemplated in the Promotion of Administrative Justice Act, 2000

- Regulations dealing with the promotion of equality as contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000

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CHIEF DIRECTORATE: CONSTITUTIONAL

DEVELOPMENT

23STRATEGIC GOAL: TRANSFORMING JUSTICE, STATE AND

SOCIETY

• Strategic Objectives– Develop and implement a programme that gives

effect to the Constitution and its values.– Assist and protect state institutions that strengthen

constitutional democracy.

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1 DEPUTY CHIEF STATE LAW ADVISERO Sewpaul

6 SENIOR STATE LAW ADVISERSN PhakolaG Seleka

S MahlanguS Misser2 Vacant

2 PRINCIPAL STATE LAW ADVISERSS Chiloane

J Labuschagne

2 SECRETARIESL Langa

S Ferreira1 ADMINISTRATIVE OFFICER

L Blignault

Personnel

25STRATEGIC OBJECTIVE 1: DEVELOP AND IMPLEMENT A

PROGRAMME THAT GIVES EFFECT TO THE CONSTITUTION AND ITS VALUES

KEY ASPECTS OF THE PROGRAMME• Investigate, evaluate, prepare and promote amending primary

and subordinate legislation which has a bearing on the Constitution, constitutionally mandated legislation assigned to the Minister for Justice and Constitutional Development and relevant Chapter 9 Institutions.

• Conduct Seminar Series on Constitutional Court Judgments.• Publish articles on constitutional development and trends.• Co-ordinate an Africa Regional Meeting on Advancing Gender

Justice in Conflict-Affected Countries.• Develop a comprehensive programme on constitutional

education.

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• Promote the Constitution and its values through innovative programmes led by the DOJ&CD.

• Render assistance to the African Peer Review Mechanism (APRM) and the National Programme of Action.

• Co-ordinate and facilitate implementation of the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000)(PAJA), and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000) (PEPUDA).

• Conduct constitutional research.• Support initiatives on the African continent in

strengthening emerging constitutional democracies.• Provide strategic assistance to the Chapter 9 Institutions.

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ACTIVITIES THAT GIVE EFFECT TO STRATEGIC OBJECTIVE 1• A programme was developed on Constitutional

Development.• Finalised the DOJ & CD’s input to the APRM and

participated in seminars on the APRM.• Interacted with the Country Review Team of the APRM on

Theme 1: Democracy and Good Political Governance of the Country Self Assessment Report (CSAR) of the APRM.

• Participated in the APRM Cluster meetings with the Country Review Team of the APRM.

• Accompanied the Country Review Team of the APRM on their visit to Free State Province, Western Cape and Mpumalanga, and provided resource information on the topic “Democracy and Good Political Governance”.

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• Formed part of the government drafting team in developing the programme of action as required by the APRM.

• Conducted constitutional research and prepared a draft discussion document on South Africa’s constitutional obligations in relation to refugees and other types of migrants.

• Conducted constitutional research on the abolition of the death penalty for the Rights and Recourse TV programme.

• Updated the progress report on the implementation of the Bill of Rights by all government departments as outlined in the National Action Plan to Promote and Protect Human Rights.

• Updated the Handbook on the Constitution for Executive Members.

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• A draft report was prepared and submitted to the Office of the Speaker on steps taken by the Department to promote the Constitution and its values.

• Provided assistance to the Office of the Speaker regarding the coordination of events for the 10th anniversary of the Constitution.

• Prepared and submitted background paper for the Presidency on the 10th anniversary of the Constitution.

• Provided the Presidency with an executive summary on the evaluation of the implementation of the Bill of Rights by government departments.

• Investigated proposed amendments to the Constitution.

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ACTIVITIES TO FACILITATE THE IMPLEMENTATION OF CONSTITUTIONALLY MANDATED LEGISLATION• Conducted a baseline study, aimed at evaluating PAJA

compliance, in the Masters Office. Submitted report on findings to the Chief Master.

• Developed a communication strategy in conjunction with the Unit: Public Education and Communication on the PAJA.

• Conducted PAJA awareness training in the Cape Town Unicity.

• Conducted strategic planning workshop with SALGA and legal advisers for the North West Province to map out the factors that would have to be considered when rolling out the PAJA sub-project.

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• Edited and submitted the Administrators Guide on the

PAJA for printing.• Made presentation on the PAJA to the SALGA working

group. Councillors recommended that a pilot be identified in each province to enable all provinces to move at the same pace with the PAJA implementation.

• Partnership established with the head of SALGA to discuss the way forward in local government in respect of implementing the PAJA.

• Convened national inter departmental PAJA meeting. This is a platform established to discuss the successes and challenges experienced with the PAJA implementation process.

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• A presentation on implementation initiatives undertaken thus far and progress made with the implementation of PAJA was made to the Portfolio Committee on Public Service and Administration.

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LEGISLATIVE PROGRAMME• Bill identified for promotion during the 2007

session of Parliament– Constitution Thirteenth Amendment Bill of 2007.

• Bills receiving attention in the Chief Directorate– Omnibus Constitution Amendment Bill.– Constitution Fifteenth Amendment Bill.– Public Funding of Represented Political Parties

Amendment Bill.

34STRATEGIC OBJECTIVE 2: ASSIST AND PROTECT STATE

INSTITUTIONS THAT STRENGTHEN CONSTITUTIONAL DEMOCRACY

ACTIVITIES CONDUCTED REGARDINGCONSTITUTIONAL DEMOCRACY• Published notice of invitation for nomination of candidates

in the media and Government Gazette, for the Commission on Gender Equality.

• Finalised the international comparative desk top study on National Human Rights Institutions of certain countries across the world.

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• Prepared Department’s submission to the Ad Hoc Committee on the Review of Chapter 9 Institutions and Associated Institutions and attended some of their meetings.

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LEGISLATIVE PROGRAMME

• Bills receiving attention in the Chief Directorate – Commission on Gender Equality Amendment Bill.– South African Human Rights Commission

Amendment Bill.