SOUTH AFRICAN LAW REFORM COMMISSION 

• Introduction
• The Structure of the Commission
• The process of law reform

Introduction

The Commission's working methods are intended to promote law reform pursuant to its enabling statute, the South African Law Reform Commission Act 19 of 1973 ("the Act"). Professional independence; comprehensive research; transparency; interaction with interested persons and bodies; and the maximum involvement of the community at large are indispensable elements of the Commission’s working methods.

The structure of the Commission

The Commission consists of the following persons: Justice Y Mokgoro (Chairperson and judge of the Constitutional Court); Judge M L Mailula (Vice-Chairperson and judge of the High Court of South Africa); Adv J J Gauntlett, SC (member of the Cape Bar); Professor C E Hoexter (University of the Witwatersrand); Judge C T Howie (President of the Supreme Court of Appeal); Professor I P Maithufi (the Commission's only full-time member); Judge W L Seriti (judge of the Transvaal Provincial Division of the High Court); and Ms Z Seedat (practising attorney, Durban).

The Commission has established a Working Committee to perform the activities assigned to it by the Commission. The Working Committee serves as the executive committee of the Commission. In accordance with the Commission's directives this Committee attends to both routine and urgent matters. The Committee also considers the inclusion of new investigations in the Commission's programme. Furthermore, the Committee plans and co-ordinates the activities of the Commission's Secretariat. Activities performed by the Working Committee are deemed to be performed by the Commission. The Working Committee normally consists of three or four members of the Commission on a rotating basis.

In some instances the Commission follows the practice of instituting a project committee consisting of experts to assist with an investigation and advise the Commission if a specific investigation in the Commission's programme so requires. The establishment and operation of project committees are dealt with below.

The Commission is assisted in its task by a full-time Secretariat consisting of officials on the establishment of the Department of Justice. The Secretariat consists of an administrative component and a professional component. The Chief Director, Mr W Henegan, also serves as the Secretary to the Commission.

The process of law reform

The process of law reform may be divided into the following sequential steps:

(1) Initiation of law reform proposals

The process of law reform begins with the submission to the Commission of a law reform proposal. A proposal may emanate from the Minister for Justice and Constitutional Development, members of the Government, parliamentarians, State departments, the public or private sector, or members of the general public. In fact any person or body is at liberty to approach the Commission with a request to investigate a particular branch or aspect of the law which in his or her opinion is in need of reform. The Commission itself may also initiate law reform proposals.

 (2) Inclusion of a proposal in the Commission's programme

A law reform proposal is first assessed by the professional staff and then considered by the Working Committee. If considered appropriate in terms of section 5(2) of the Act, it is included as a project (investigation) in the Commission's programme after approval by the Minister for Justice and Constitutional Development. A priority rating for the investigation is also determined.

(3) Appointment of project committee and researcher

After the inclusion of an investigation in the Commission's programme, the Commission determines whether a project committee should be established in respect of the investigation. In this regard the Commission is guided by factors such as the complexity or specialised nature of the subject matter of the investigation and the availability of external expertise. In appointing a project committee the Commission generally attempts to find candidates who are representative of the population and who are knowledgeable in a particular field. The Commission endeavors to strike a balance between particular knowledge or experience related to a project, and the danger of introducing partisan participation in the project committee itself. Project committees usually consist of the following members:

• The project leader (as Chairperson) and members of the Commission designated by the Commission in terms of section 7A(1)(b)(i) of the Act.

• Persons who are considered to have particular knowledge in the relevant field of law or in a related field of study, and who, on the nomination of the Commission, are appointed by the Minister for Justice and Constitutional Development in terms of section 7A(1)(b)(ii) of the Act.

(4) Issue papers

In order to secure community participation at an early stage, an issue paper is published in appropriate circumstances as the first step in the consultative process. The purpose of such a paper is to announce a particular investigation (already included in the Commission's programme), to elucidate the problems that have given rise to the investigation, to point to possible options available for solving those problems and to initiate and stimulate debate on identified issues. An issue paper precedes the publication of any other document in the law reform process. It ensures direct involvement at the beginning of an investigation and broadens the consultation base.

(5) Discussion papers

After considering the comment received on an issue paper and further research conducted under the direction and guidance of the project leader or, if applicable, the project committee, the researcher responsible for the investigation prepares a draft discussion paper, which usually contains the following:

A draft discussion paper follows the same route as that indicated in respect of draft issue papers above. Upon completion it is submitted to the project leader and, if one has been appointed, the project committee to consider and approve its submission to the Working Committee. The Working Committee considers and approves the publication of the discussion paper for general information and comment. It is made clear that the opinions expressed in discussion paper do not represent the Commission's final views and that such documents are merely a further step in the consultation process. The publication of the discussion paper is also announced by way of a media statement and media conference, and it is posted on the Commission’s website.

(6) Workshops and seminars

A further method used to elicit comments and to stimulate debate on issue papers and discussion papers is the holding of workshops and seminars. It is important that the Commission be viewed by the public as an institution that improves the law, thereby enhancing the quality of life. Workshops and seminars provide the opportunity to discuss issue papers and discussion papers at grassroots level. Laws rooted in effective public consultation are more likely to function effectively and to enjoy public respect.

(7) Reports

After the comments on a discussion paper have been received and analysed, a draft report is prepared by the researcher under the direction and guidance of the project leader and project committee, if one has been established. The draft report is submitted to the full Commission for consideration and approval. In terms of the Act only the Commission is empowered to approve draft reports. The comprehensive report contains the Commission's final recommendations and, where applicable, draft legislation to give effect to its recommendations.

(8) Submission of reports to the Minister for Justice and Constitutional Development

Copies of the report are submitted to the Minister for consideration in terms of section 7(1) of the Act. The existence of the report is made known to members of the general public by means of a media statement and a media conference, and it is posted on the Commission’s website.

A course generally adopted is to publish comprehensive discussion papers and reports and, at the same time, to publish an executive summary which is more accessible to members of the public.