Discussion Paper 133 on Project 25: Statutory law revision in respect of legislation administered by the Department of Home Affairs

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Justice and Correctional Services

The South African Law Reform Commission (SALRC) hereby releases its Discussion Paper 133 on Project 25: Statutory law revision in respect of legislation administered by the Department of Home Affairs for general information and comment. The discussion paper sets out the SALRC’s preliminary recommendations for law reform regarding statutes administered by the Department of Home Affairs.

In January 2003 Cabinet approved that the Minister of Justice and Constitutional Development co-ordinates and mandates the SALRC to review provisions in the legislative framework that may result in discrimination as defined by section 9 of the Constitution. This section prohibits unfair discrimination based on race, gender, sex, pregnancy, marital status, ethnic and social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. In 2004 the SALRC included in its law reform programme an investigation into the revision of the statute book to identify provisions that are redundant, obsolete or which infringe the equality provisions of the Constitution. The focus of the statutory law revision project at present is constitutionality of legislation in view of section 9 of the Constitution, and repeal of redundant and obsolete provisions. The methodology adopted in this investigation is to 2 review the statute book by Department – the SALRC identifies a Department, reviews the national legislation administered by that Department for constitutionality and redundancy, sets out the preliminary findings and proposals in a consultation paper and consults with that Department to verify the SALRC’s preliminary findings and proposals.

The next step that the SALRC undertakes is the development of a discussion paper in respect of the legislation of each Department, and upon its approval by the SALRC, it is published for general information and comment. Finally, the SALRC develops a report in respect of each Department that reflects the comment on the discussion paper and contains a draft Bill proposing amending legislation.

After having reviewed the statutes administered by the Department of Home Affairs, the SALRC proposes in Discussion Paper 133 that:

(a) The following statutes be repealed for the reasons set out in Chapter 2 of this discussion paper:
(i) Prohibition of Mixed Marriages Amendment Act, 1968 (Act No. 21 of 1968)
(ii) Elections and Identification Amendment Act, 1989 (Act No. 92 of 1989)
(iii)Electoral and Related Affairs Amendment Act, 1985 (Act No. 36 of 1985)
(iv)Population Registration Act Repeal Act, 1991 (Act No. 114 of 1991)
(v) Aliens Control Amendment Act, 1993 (Act No. 3 of 1993)
(b) The Acts set out in Schedule 2 of the proposed Bill contained in Annexure A be repealed to the extent set out in that Schedule, for the reasons set out in Chapter 2 of this discussion paper; and
(c) The provisions of the Acts set out in Schedule 3 of the proposed Bill contained in Annexure A be amended for the reasons set out in Chapter 2 of this discussion paper.

The project leader for the investigation is Mr Irvin Lawrence, a commissioner and an attorney based in Durban.

Comments can be emailed to Ms Maureen Moloi at GMoloi@justice.gov.za by no later than Saturday, 30 May 2015.

Enquiries can be directed to Ms Maureen Moloi on tel (012) 622 6330 or cell 082 822 5243


ISSUED BY THE SECRETARY, SA LAW REFORM COMMISSION, PRETORIA DATE: 18 JANUARY 2015