NCOP SELECT COMMITTEE BRIEFING 28 MAY 2007 Legislative and Constitutional Development

1. NCOP SELECT COMMITTEE BRIEFING28 MAY 2007Legislative and Constitutional Development

2. 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 INDEX

3. 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. COMPOSITION

4. 2006/2007 R44 953 000-00 2007/2008 R47 661 000-00 Personnel: R31 347 000-00 (66%) Operational: R16 314 000-00 (34%) BUDGET

5. CHIEF DIRECTORATE: LAW REFORM

6. Statutory body established by SA Law Reform Commission 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. SECRETARIAT OF THE SA LAW REFORM COMMISSION

7. Personnel 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 1 PA/LIBRARY ASSISTANT TO A VISUALLY IMPARED SENIOR STATE LAW ADVISER Vacant 2 SECRETARIES R Bronkhorst J Nkabinde 1 OPERATOR K Mahlangu 1 MESSENGER G Maseko 1 FOOD SERVICES AID A Mahlangu 1 DEPUTY CHIEF STATE LAW ADVISER Vacant 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 U Behrtel P Sukhraj G Nesbitt F Mdumbe Vacant Vacant Vacant

8. Research Programme

9. Publications

10. 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). SECRETARIAT OF THE RULES BOARD FOR COURTS OF LAW

11. Personnel 1 PRINCIPAL STATE LAW ADVISER C Hartley 1 SECRETARY Y Kherekar 6 SENIOR STATE LAW ADVISERS M Setshedi S Govender N Maseko E Allers (Acting) Vacant Vacant

12. 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.

13. 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.

14. CHIEF DIRECTORATE: LEGISLATIVE DEVELOPMENT

15. 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.

16. Personnel 1 DEPUTY CHIEF STATE LAW ADVISER L Bassett 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 5 PRINCIPAL STATE LAW ADVISERS J de Lange I Botha T Ross K Pillay N Matibe K Molalathoko (Additional to Establishment) 1 ADMINISTRATIVE OFFICER M Matlanato 4 SECRETARIES E Moroke A Julius L Mpanza J Mokete

17. 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 Legislative Programme

18. 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.

19. 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

20. 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.

21. 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

22. CHIEF DIRECTORATE: CONSTITUTIONAL DEVELOPMENT

23. 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. STRATEGIC GOAL: TRANSFORMING JUSTICE, STATE AND SOCIETY

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

25. 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. STRATEGIC OBJECTIVE 1: DEVELOP AND IMPLEMENT A PROGRAMME THAT GIVES EFFECT TO THE CONSTITUTION AND ITS VALUES

26. 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.

27. 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”.

28. 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.

29. 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.

30. 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.

31. 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.

32. 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.

33. 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. LEGISLATIVE PROGRAMME

34. ACTIVITIES CONDUCTED REGARDING CONSTITUTIONAL 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. STRATEGIC OBJECTIVE 2: ASSIST AND PROTECT STATE INSTITUTIONS THAT STRENGTHEN CONSTITUTIONAL DEMOCRACY

35. 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.

36. Bills receiving attention in the Chief Directorate Commission on Gender Equality Amendment Bill. South African Human Rights Commission Amendment Bill. LEGISLATIVE PROGRAMME