SOUTH AFRICAN LAW COMMISSION
8 September 1999
MEDIA CONFERENCE – PRESENTATION OF REPORTS AND DISCUSSION PAPERS TO THE MINISTER AND DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT

Documents handed out:
For copies of these reports go the SALC website:
Community Dispute Resolution Structures (Discussion Paper 87)
Domestic Arbitration (Discussion Paper 83)
The Review of the Marriage Act, 25 of 1961(Discussion Paper 88)
Aspects of the Law relating to AIDS (Discussion Paper 84)
Sexual Offences : The Substantive Law (Discussion Paper 85)
Review of the Law of Insolvency (Discussion Paper 86)

For copies of these media statements, go to press statements on SALC website:
Media Statement : Community Dispute Resolution Structures
Media Statement : Administrative Law
Media Statement : Domestic Arbitration
Media Statement : Conflicts of Law
Media Statement : Sexual Offences : The Substantive Law
Media Statement : Aspects of the Law relating to AIDS
Media Statement : Review of the Law of Insolvency


MINUTES
Professor T Nhlapo, South African Law Commission Commissioner, said that the media conference was called in terms of Section 7(1) of the South African Law Commission Act ,19 of 1973, to submit copies of the reports to the Minister of Justice for consideration. The existence of the reports are made known to members of the general public by means of a media statement (See Documents handed out).
Professor T Nhlapo handed the documents over to the Minister and Deputy minister and gave the chair to the Minister.

The Minister said that he had been asked by the SALC to say a few things about the two reports and the discussion papers. (See Appendix 1)

Questions
The Minister was asked when the Welfare Act and the Domestic Violence Act will come into operation. The Minister’s response was that "very soon", but hopes this would be before the end of the year. Indications were given by Mr L Labuscagne that the Domestic Violence Act will come into operation on 15 December 1999.

Another journalist asked now that the Minister had received the reports and discussions would there be any tabling of the reports or discussions. The Minister said that the next move would be to study the reports and discussions, only then the next step would be decided. It was made clear that the reports are still at discussion stage and will not be tabled during this session.

Since there were no further questions the meeting was closed.

Appendix 1
Report on Administrative law
The Commission's report on administrative justice and the draft Administrative Justice Bill seek to give effect to section 33 of the Constitution of 1998. Section 33(1) provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Section 33(2) makes provision that everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. Section 33(3) requires that national legislation must be enacted to give effect to these rights, and must-
· provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
· impose a duty on the state to give effect to the rights in subsections (1) and (2); and
· promote an efficient administration.

Report on Conflict of laws
This Investigation was necessitated by the acknowledgement that it Is not always clear when customary law should be applied in real life circumstances and the realisation that both Roman-Dutch law and customary law are now major components of the state's legal system.
Courts and litigants need clear and explicit choice of law rules to indicate when common law or customary law will be applicable to the facts of a particular case. A new enactment devoted exclusively to the application of customary law is now needed In order to disentangle choice of law rules. The report has attempted to achieve this purpose.

Discussion on Sexual offences (substantive law)
The Commission's discussion paper on sexual offences (the substantive law) and the draft Sexual Offences Bill seek to address the following chief concerns:
(a) the unacceptably high incidence of rape and other acts of sexual violence in South Africa;
(b) the growing problem of child sexual abuse and the commercial sexual exploitation of children; and
(c) sexual offences against mentally impaired persons.
The aim of the draft Sexual Offences Bill is to present a single comprehensive act In respect of all Sexual offences. However, this does not entail a complete codification of the common law offences relating to sexual offences.
The discussion paper on sexual offences (the Substantive law) is the first of a three-part series as the Commission also plans to release further discussion papers on the process and procedural law relating to the management of sexual offences and on adult commercial sex work and adult pornography later this year.

Discussion on Compulsory HIV testing of persons arrested in sexual offence cases
Recently there has been 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 discussion paper consequently debates the need for legislative intervention.

Discussion on Domestic arbitration
Arbitration is increasingly recognised as an important method of resolving commercial and other disputes, which can help to relieve the pressure on the civil Justice system. Arbitration needs to be supported by appropriate legislation. The objects of a modem arbitration statute are the fair resolution of disputes by an impartial tribunal without unnecessary delay and expense; party autonomy; balanced powers for the courts; and adequate powers for the tribunal to conduct the reference effectively. It is clear that the existing Arbitration Act 42 of 1985 fails to meet these objectives adequately. The discussion paper contains proposals for a new domestic arbitration statute intended to replace the Arbitration Act 42 of 1985.

Discussion on Review of the law of insolvency
The principal Act dealing with insolvency In South Africa is the Insolvency Act 24 of 1936. This Act replaced the Insolvency Act 32 of 1918 but did not amend it drastically. The 1938 Act has been amended more than 20 times, but it has not been reviewed as a whole.
The Commission has undertaken a comprehensive review of the law of insolvency. During 1996 a draft insolvency Bill and Explanatory Memorandum was published. The Draft Bill in the discussion paper published recently indicates the changes to the previous Bill to take account of comments on that Bill, further research and subsequent developments. This discussion paper has been prepared to elicit responses from key parties on these changes. The changes deal with matters such as a presumption of insolvency to assist in setting aside dispositions, the Master's discretion to appoint liquidators and preferent salary claims.

Discussion on Review of the Marriage Act, 1961
Requests are increasingly made that the provisions of the Marriage Act should be reconsidered and adapted to reflect the needs of contemporary South African society. The Commission noted these requests and decided to undertake a review of the provisions of the Act. Discussion paper 88 reflects these issues and contains provisional recommendations to remedy the shortcomings or the Act.

Discussion on Community dispute resolution structures
Community forums are at present diverse, fragmentary and tentative. Most initiatives are private or individual efforts and they tend to be unfocused. More importantly, Community forums suffer from a negative perception that they are all "kangaroo courts" or are linked with vigilantism. The truth of the matter is that if local justice and dispute resolution structures are properly recognised and supported, the broadened access to peaceful means of dispute resolution that they can provide will itself be an important hedge against the temptation for people to take the law into their own hands. The challenge is to devise ways of providing recognition, regulation and support without stifling the informality, flexibility, accessibility and community appeal that give these structures the legitimacy without which they cannot play a meaningful role in the communities in which they operate.I