South African Law Commission: briefing

Meeting report

JOINT MONITORING COMMITTEE ON THE IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF WOMEN
4 April 2003
SOUTH AFRICAN LAW COMMISSION: BRIEFING

Chairperson: Ms L M T Xingwana (ANC)

Documents handed out:
South African Law Commission: Sexual Offences Bill
Statutory Law Revision: South African Law Commission (Appendix 1)
Customary Law of Succession : South African Law Commission (Appendix 2)
Imbizo's with Communities (Appendix 3)
Department of Justice Budget & Work Programme
Compulsory HIV Testing of Alleged Sexual Offenders Bill 2003: Department of Justice (Appendix 4)

SUMMARY
South African Law Commission briefed the committee on Statutory Law revision, the Sexual Offenders Bill, and the Customary Law of Succession. Department of Justice and Constitutional Development informed the Committee on the Department's budget.

MINUTES
Sexual Offences Bill: South African Law Commission
Miss D Clarke, researcher, South African Law Commission (SALC), briefed the committee on the Sexual Offences Bill. Under current legislation, a victim of a sexual crime was gender specific as only a woman could be a victim. It states specifically that only penetration by the male sexual organ is a sexual offence. The recommendations put forward by the SALC were to change legislation to make it non-gender specific. That meant that a man could be legally recognised as a victim of a sexual crime.

A new offence suggested was the 'promotion' of a sexual offence with a child. Simply put, it allowed that anyone supplying or displaying to a child anything of a sexual nature, which included sex objects or pornography, may be charged with an offence. The suggested punishment for such is a fine and/or a prison sentence not exceeding six years.

Discussion
Ms D M Morobi (ANC) asked why prostitution could not simply be banned.

Ms Clarke answered that the recommendations put forward regarding prostitution were based on children only, which was indeed banned. The SALC was suggesting decriminalising child prostitution, so as to provide care for the child involved. Anyone promoting child prostitution, for example 'pimps' or clients, would be charged accordingly. This did not relate to adult prostitution, a separate discussion paper was being compiled for that purpose.

Ms N E Lamani (ANC) asked whether employers, in areas where childcare or child teaching was concerned, were able to screen applicants for past sexual offence convictions.

Ms Clarke said that the SAPS were currently expanding their '69 Register' which will allow for this information.

Customary Law of Succession
Prof I Maithufi, stated that there was unhappiness on the part of women that men were the customary successors to deceased estates. Although the greater amount of women were uncomfortable discussing this in the presence of men, most fully supported any legislation that might lead to a revision of this customary law. Many women were concerned that it might be only a 'paper law', and they questioned the effectiveness of the new law.

Discussion
Ms Xingwana asked how far any work was on getting this draft legislation introduced into Parliament. Many women were being cheated out of property by this customary law, and felt that government should fast-track this issue.

Prof Maithufi answered that a draft report giving women legal right on land and other inheritances was due to go before the SALC's Project Committee on the 24 April 2003, It was hoped that draft legislation would be ready to enable the Dept of Justice and Constitutional Development to introduce the Bill in Parliament later this year. This would be after approval by the SALC in July 2003.

Statutory Law Review
Mr G Hollamby, a State Law Advisor said that a project was currently underway to amend or repeal many Statutory Laws currently in the Statute Book. These would depend on their constitutionality and redundancy. This is an investigation of tremendous magnitude, as Statutes dating back to 1910 were under review.

The investigation began at the beginning of this year, when donor funding was obtained. Two Statutes used as examples were the Black Administration Act of 1927, and the Interpretation Act of 1957. With regards to the Black Administration Act, a discussion paper based on repealing six sections of the act should be ready by the middle of 2003.

This investigation had gained Cabinet approval and the programme had been endorsed. Cabinet had indicated that they wish the investigation to be extended to include an audit to eliminate inconsistencies with the right to equality.

Discussion
Ms Xingwana stated the opinion that the Black Administration Act, in its entirety, not just six sections, was invalid. If sections of the Act were to remain, perhaps it should be renamed. Also, on the Marriage Act, Ms Xingwana noted that it still referred to the old provinces, and this should be changed, as it was possibly not even constitutional.

Mr M Semple (DA) asked if there was a timeframe for the reviewing of the Statute Book.

Mr Hollamby answered that he could not give a definite timeframe on the exercise. It would be a costly and lengthy process, as many Statutes would be tested for their constitutionality. He volunteered the information that the English Law Commission had been busy with their own review since 1996.

Budget and Work Programme: Department of Justice and Constitutional Development
Mr P Du Randt, Chief Director of the Department stated that the major areas under review for 2003 were improved court infrastructure, including renovation and maintenance, security, and the allocation of sufficient funds to each court region.

Five major centres would be pilot regions for new Child and Family Courts. These courts were to serve divorce, maintenance, domestic violence, and children. These issues would be integrated into the new courts, each to have its own budget.

Another project was the implementation of the Child Justice Bill. There were currently 2200 under 18's awaiting trial. The Bill would relate to anyone under 18 committing an offence, and was aimed at encouraging a 48 hour turn around time to remove under 18's form custody, and the placing of these into the hands of parents or suitable guardians. The Bill was currently with the Portfolio Committee on Justice, and it was hoped it would adequately speed up the criminal justice system in relation to under 18's, and aid in Moral Regeneration.

Discussion
Ms Xingwana asked if the training of court officials in 47 courts stipulated in the presentation would be adequate, and whether the training of these people would include sensitivity programmes relating to gender and child issues.

Mr Du Randt answered that the Department was attempting to introduce it into courses at Justice College. Forty-seven courts were pilot projects, aimed at gauging the efficiency of the new training programme.

Compulsory HIV testing for sexual offenders
Ms T Ross, a State Law Advisor with the SALC said that the Bill was currently under review in the Portfolio Committee for Justice, including a letter from the Minister of Health addressing the financial implications.

The major point of the bill stressed that any victim of a sexual offence is able to apply to have the alleged offender tested for HIV, whether or not the offender is placed on trial for the offence. It follows an application procedure starting with the reporting officer, through the courts, and endind with testing at an approved Health facility. Failure to comply with this ruling by an alleged offender may result in a fine and/or jail time of not more than three years.

Discussion
Ms M Semple (DA) expressed a concern in the timeframe made evident by the Bill, between the application and acceptance. She felt it might be a long time for a victim to wait to hear the results. Did the Bill raise anything in relation to Human Rights? Would the forms for application be available at the police stations to speed up the process, or only at the courts?

Ms Ross answered that, in relation to the forms, it was mainly a logistical issue that would be looked at upon implementation of the Bill. As to the timeframe specified, the purpose of the Bill was to get a speedy resolution, and all consideration would be given to this issue.

Ms Xingwana asked about the window period for HIV testing. Would the Bill provide for retesting in the event that a result was not clear at initial testing.

Ms Ross said that the Bill was currently under review, and that this point had not been stressed. However, she was of the opinion that should retesting be necessary, it should be included in the Bill as an eventuality.

The meeting was adjourned.

Appendix 1
SOUTH AFRICAN LAW REFORM COMMISSION: BRIEFING ON STATUTORY LAW REVISION - 4 APRIL 2003

1. Introduction

The Commission has included in its law reform programme an investigation into statutory law revision. This entails a revision of all statute law from 1910 up to date. It is imperative to structure and prioritise an investigation of this magnitude. Consequently preliminary research was done in order to plan the investigation.

2. Preliminary research

Four main avenues of research were pursued:

• First, a series of role-player interviews were conducted with representatives of all three tiers of government, Chapter 9 institutions, the judiciary, the legal profession, academic and civil society. The interviews revealed a high level of support for the project. It also appeared that there is very little research capacity outside the Law Commission to do the work required.
• Secondly, an analysis of all decisions of the Constitutional Court has been undertaken. The three most problematic categories of legislative provisions were then identified. The three categories are:
• Reverse onus provisions.
• Discriminatory provisions.
• Provisions that infringe on the doctrine of separation of powers.

Guidelines summarising the Constitutional Court's jurisprudence in respect of each category were compiled.

• Thirdly, 16 randomly selected national statutes were tested against the guidelines. The outcome of the test was then compared against a control audit that tested the same statutes against the entire Bill of Rights, excluding socio-economic rights. A comparison of the outcomes revealed that a targeted revision of the statute book in accordance with the guidelines is surprisingly efficient.
• Lastly, a survey of five countries (United Kingdom, Germany, Norway, Switzerland and France) was conducted. With the exception of France, all the countries have conducted or are conducting statutory revision exercises although the motivation for and the outcomes of these exercises differ.
1. Defining the scope of the investigation

3.1 It is self-evident that the project should focus on those parts of the statute book that have the greatest impact on peoples' lives. At the same time, the success of the project ultimately depends on political backing in as much as any recommendations for the repeal or amendment of legislation will have to be taken up at this level.

3.2 Cabinet considered a submission on the Commission's involvement. Cabinet endorsed the investigation into statutory law revision and indicated that the investigation should be extended to include an audit of the statute book to eliminate inconsistencies with the right to equality.

3.3 Subsequently Cabinet identified the following areas which relate to statutory law revision:

• The identification of all legislation enacted prior to 1994 relating to gender insensitivity, or which is discriminatory in nature and unconstitutional.
• The review of provisions in the legislative framework that would result in discrimination as defined by section 9 of the Constitution (the prohibition of unfair discrimination on the basis of gender, sex, pregnancy, marital statutes and ethnic and social orientation).

3.4 The Law Commission has been requested to undertake this investigation. The Department has also requested the Commission to include in the investigation an audit of all legislation to determine which legislation prohibits or restricts disclosure of a record of a public or private body.

3.5 The limitation of the project to national statutes only would be artificial since there is a high level of interdependence between the national and provincial statute books. There has also been strong support for the revision of the various provincial statute books in the course of the preliminary research. A proper revision of the provincial statute book would include pre-1994 provincial legislation still in force. This would widen the investigation considerably.

3.6 Although local government legislation (as distinct from national and provincial legislation pertaining to local government) should be covered by the project, the inclusion of this facet in the investigation would make it completely unwieldy having regard to available capacity. There are other considerations as well. The rationalisation of local government legislation is specifically required by section 15 of the Local Government: Municipal Structures Act 117 of 1998. Possibly in consequence of this provision, the rationalisation process in the unicities surveyed in the preliminary investigation appears to be well advanced. The position in district councils is understandably different, with capacity problems and resource constraints currently hampering the rationalisation process. Section 14 of the Local Government: Municipal Systems Act 32 of 2000 gives the Minister of Provincial and Local Government the power to make standard draft by-laws by notice in the Government Gazette. The implementation of this provision may provide a more expeditious mechanism for the rationalisation of by-laws administered by District Councils.

3.7 As far as the vertical scope of the investigation is concerned there are two possibilities:

• The first would be to target specific areas of the statute book.
• The second possibility would be to review the entire statute book (national and provincial).

3.8 At this stage a separate process to review legislation for redundancy and absoluteness should initially receive a low priority initially. Although it is possible to define redundancy and obsoleteness as terms of art there appears to be a great deal of overlap in practice between redundant provisions and provisions that have become obsolete by reason of the passage of time or institutional change. An additional category such as provisions that "no longer service any useful purpose", as suggested by the Law Commission in the United Kingdom, may be analytically more useful. An important consideration for awarding a low priority to this component of the investigation is the workload it will place on government departments. Such provisions will, however, be dealt with incidentally in the initial phase of the investigation.

3.9 In view of the magnitude of the investigation as well as the urgent need to address certain high priority areas, both possibilities have been implemented in the planning of the vertical scope of the investigation.

1. Planning of the investigation
1. Ad hoc investigations

The following two ad hoc investigations have been identified as high priority

areas:

1. The Black Administration Act, 1927
1. The investigation is in progress. Consultants to undertake the research under supervision of the Commission have been appointed. The investigation will be conducted in two phases. The first phase will deal with provision that can be repealed. The research has been concluded and the investigation is in consultation phase. The following sections have been identified for possible repeal:
• Section1: Powers of the Governor-General as supreme chief
• Section 11A : Legal capacity of black women in relation to leasehold or property
• Section 26: List of proclamations to be laid before Parliament
• Section 27: General regulations
• Section 31: Letters of exemption
• Section 33: Exemption from stamp duty.

This phase will be concluded in the second quarter of this year.

The second phase will deal with more problematic provisions that may require legislative intervention. Research in the second phase is in progress. A discussion paper will be published for general information and comment in the second quarter of this year.

4.1.1.2 It should be borne in mind that a number of provisions have already been repealed by the Customary Marriages Act: Sections 11 (3) (b), 22 (1) to (5) and 22 bis of the Black Administration Act, 1927; Sections 3, 29, 37, 38 and 39 of the Transkei Marriage Act, 1978 (Transkei); Sections 22 and 27 (3) of the KwaZulu Act on the Code of Zulu Law, 1985; and Section 27 (3) of the Natal Code of Zulu Law, 1987.

4.1.1.3 The Traditional Courts Bill proposed by the Law Commission repeals the following laws: Sections 12 and 20 of the Black Administration Act, 1927; the whole of the Chiefs Courts Act (Transkei); the whole of the KwaNdebele Traditional Authorities Act; the whole of the KwaZulu Amakhosi and Iziphakanyiswa Act.

4.1.1.4 The repeal of provisions pertaining to succession is receiving attention in the Commission's investigation of the customary law of succession.

 

 

4.1.2 Interpretation Act, 1957

4.1.2.1 The investigation is in progress a researcher has been allocated and a legal drafter has been contracted.

4.1.2.2 The project planning is contained in the operational plan below:

Activity	Target date	Progress
Obtain donor funding	September 2002	Funding obtained from GTZ with effect from 1 January 2003
Allocate researcher	October 2002       April 2003	Researcher allocated Researcher appointed left Law Commission with effect from 1 April 2003   New researcher appointed
Contract legal drafter	December 2002	Legal drafter contracted
Research to commence	January 2003	Research commenced but delayed as a result of researchers involvements in the Review of the Child Care Act
Consultative meeting of experts	May 2003	In planning phase
Discussion paper and draft Bill published	July 2003
Consultation with relevant role players	August 2003
Draft report and draft Bill submitted	November 2003

 

1. General statutory law revision

The scope of the investigation

4.2.1 The first component of the investigation will deal with constitutionality. As a first step statutes should be identified where constitutionality is crucial. Legislation where actions are regularly instituted in the Constitutional Court would be an appropriate starting point because of the added value of not only relieving the burden of that court, but also of the relief to members of the public who currently have to bear the cost of litigation when it could be argued that the state has the responsibility of ensuring that legislation is in line with the constitution. In addition assistance would be rendered by the Law Commission to state departments that need assistance in this regard. Broadly speaking this component will run from 1994 backwards. Legislation that passes constitutional scrutiny will be fed into the second component. The Commission has already completed an investigation in respect of the Criminal Procedure Act.

4.2.2 The second component would be the repeal of obsolete or redundant legislative provisions. This exercise is similar to the one on pre-Union legislation where the Law Commission has already gained experience on approach and methodology. In this investigation the Law Commission recommended the repeal of approximately 1 200 Acts, Laws and proclamations enacted prior to 1910. This component will initially receive a lower priority than the first component and will be dealt with incidentally.

Operational structure

4.2.3 The following steps will be followed:

• The appointment of researchers.
• The preparation of a Cabinet memorandum to bind sate departments to the process and to obtain Cabinet approval for the designation of two legally qualified officials per state department to serve as advisors and liaison officials with the Law Commission.
• An audit of the statute book to determine departmental responsibility in respect of administration of legislation.
• The establishment of a project committee of the Law Commission comprised of suitable experts including constitutional law experts.
• Consultation with state departments in order to determine the needs and to determine the priorities.
• Finalisation of priorities by Law Commission
• The publication of discussion papers for general information and comment.
• Submission of reports.

 

5. Conclusion

1. In view of the magnitude of the investigation an incremental approach is followed in the planning and execution of the investigation.

5.2 Subject to available donor funding, outside constitutional law expertise will be obtained from human rights institutes at universities and non-governmental institutions.


Appendix 2
BRIEFING OF THE JOINT MONITORING COMMITTEE
ON THE IMPROVEMENT OF QUALITY OF LIFE AND
STATUS OF WOMEN: 4 APRIL 2003
PROJECT 90:

CUSTOMARY LAW OF SUCCESSION
1 Introduction
1.1 The South African Law Reform Commission briefed the Joint Monitoring Committee on the Improvement of Quality of Life and Status of Women on progress made in the investigation on customary law of succession on 18 October 2002 and this input will therefore focus on events following that briefing.

1.2 The Project Committee will be considering the first draft report on Customary Law of Succession at its meeting scheduled for 24 April 2003. In the meantime, additional submissions that have been received are being collated as part of the process of the report. Again, the aim is to have the draft report with draft legislation ready for consideration at the end of July 2003 to enable the Minister for Justice and Constitutional Development to introduce the Bill in Parliament later this year should he so wish.

2 Extended/Further consultation

2.1 In the initial stages of this further consultation process the Commission sought to maintain close contact with organisations with special responsibilities or interests in customary law. Agisanang Domestic Abuse Prevention and Training (ADAPT) in Alexandra, arranged a seminar on Customary Marriages Act and Succession on 26 October 2002 and invited the Commission as a partner. The purpose of the seminar was 'to educate and empower the seriously disadvantaged sector of our society - African women'.
2.2 As one of the methods of soliciting more input from stakeholders recommendations on Discussion Paper 93 were sent again to magistrates for comment. Telephonic comments were received from Chief Magistrate Nelspruit, Mr Ngobeni, Mr Mahapa, Magistrate Bochum and Mr Kgati, magistrate Maclear. Translated copies of the discussion paper have also been sent to the Provincial Houses of Traditional Leaders to be distributed to rural communities to complement the submissions that we have received. Written response to the discussion paper was quite disappointing, however, the position was improved after the consultation process when the Project Committee received additional comments.

2.3 Household surveys ( field trips) have been conducted in about twelve sections in the following townships:
Atteridgeville, Leondale, Thokoza, Katlehong, Mabopane, Letlhabile and Seshego.
The household survey were undertaken principally to gain as much information as possible on succession practices in different sections of these townships. The committee is planning later trips which will allow tentative proposals to be put to the people who were interviewed. The most common incidents in these townships is that when the husband dies the eldest son succeed to the deceased and he is instructed to take care of the beneficiaries. This does not happen as most of theses heirs do not live in the townships. What they do is collect whatever the deceased saved and abandon the widow and children.

Most of the people interviewed believed that the implementation of new succession rules is just going to result in mere paper law. They questioned the effectiveness of this law. On the other hand they were also hopeful that it will come to their rescue in dealing with these discriminatory practices.

2.4 The extended consultation was organized with the collaboration and assistance of the leading community workers and magistrates who liaised with the researcher to arrange some of the meetings, and committed ordinary people. The following meeting were held in the following provinces:



Province	Place	Organisation/Person	Date
Gauteng	Alexandra Dobsonville Katlehong Atteridgeville, Leondale, Katlehong,Thokoza	ADAPT Mrs Shelley Bosielo Ms Susan Valley Mrs Molatela Sefatsa House-to-house consultation	26/10/2002 2/11/2002 2/2/2003 28,29,30,31Jan 2003
Limpopo	Ga-Maphoto Seshego Ga-Matlala	Kgotla Dutch Reformed Church Zone 2 Anglican Church Zone 1 Mrs Johanna Thupana	21/12/2002 22/12/2003 22/12/2003 25/01/2003
North West	Zeerust	ANCWL-Community Hall -Ikageleng St Augustine Anglican Church Anglican Church-Braaklaagte Community Hall Zeerust	14/12/2002 15/12/2002 16/12/2002 29/12/2002
Western Cape	Gugulethu-Uluntu Centre	Sipho Citabatwa	8/2/2003
Mpumalanga	Daantjie-Kanyamazana	Mrs Motha	8/03/2003


Response from the meetings
Participants raised a concern that it is widows who usually have to shoulder the burden of the maintenance of children and the whole family that was depended on the deceased. Children are indirectly affected by any difficulty experienced by widows. According to them it is obvious that customary law provides insufficient protection to the most important family members , that is widows and children (except the male first born). There have been many complaints of property being grabbed by heirs, who are assisted by the deceased's family. It was further pointed out that heirs neglect to support surviving dependants and in most cases they even order the wife and children out of the house.

The participants suggested that the new law that is being proposed by the Commission should try to protect only the wife and all her children. Beneficiaries should be persons falling within commonly accepted family unit.

Women were not comfortable to speak on issues of customary inheritance in the presence of men, but as discussions continued they voiced their concerns and even later had separate discussion with the researcher. They explained that women's rights to land are especially insecure. They are threatened by chiefs, the rules and practice of customary law, and patriarchal household and community relations. Nevertheless, large numbers of women do have access to land and work on it daily. They protested that inheritance rights for women are limited under customary law. Where women inherit, they may find it difficult to keep control over their land. They come under pressure to sell land, or hand over their rights to others, usually male relatives. Often, but not always, widows continue using the land of their deceased husbands, but they still do not have the same rights and control over it as men do. They revealed that a few chiefs have started to promote gender equality under customary law while most chiefs continue to interpret customary law in the old way which privileges men. Women's voices are usually absent in traditional decision-making structures. In some areas this is changing as rural women organise themselves, younger men unite with women against older men, or as new attitudes are introduced from urban areas.

It was pointed out that property in townships should be differentiated from property in rural areas. This property belongs to the family (husband, wife, children, grandparents , brothers and sisters staying with the family-the relatives). This property cannot be sold on the death of the father. It is the family's house and the only asset that they have. In the rural areas the uncles and brothers will grab the property and cheat the dependants. In the townships most of the widows are assisted by municipal officers who refuse to change the name and require that the children of the deceased be given the house. This only happens if the official knows the people otherwise the relatives cheat the children out of their inheritance. It is revealed that property cheating/grabbing is not as prevalent here as in the rural areas.

Again they were informed about the disparities between urban and rural areas, with customs and traditions retaining most of their force in rural areas, and is discernible in many areas. Beliefs, such as accusations of witchcraft against the widow, most strongly impede women's inheritance in rural areas, higher prevalence of polygamous marriages in rural areas and lower education levels among rural women have contributed to the greater incidence of unequal inheritance in these areas. A widely-shared factor that explains this rural-urban divide is the separate existence of customary and statutory systems of marriage and inheritance.

The Project Committee will be considering the draft report at its meeting scheduled for 24 April 2003. In the meantime, submissions on the discussion paper are being collated as part of the process of report writing. Again, the aim is to have the amended report with draft legislation ready for consideration at the end of July 2003 to enable the Minister for Justice and Constitutional Development to introduce the Bill in Parliament later this year should he so wish.

Appendix 3
IMBIZO'S/MEETINGS WITH COMMUNITIES

INTRODUCTION
While waiting for the Provincial Houses to arrange imbizos for the Project Committee other activities took place. The Commission did not have the resources to undertake definitive or exhaustive consultations. However, its program of seeking information has been extensive. The Consultation was organized with the collaboration and assistance of the leading community workers, magistrates who liaised with the researcher to arrange some of the meetings, and some members of the project committee (ADR). A word of thank you is extended to all who have assisted the Commission in this venture. Although the meetings did not attract masses, they were very beneficial in the sense that every one participated actively. The meetings were held in the following provinces:


Province	Place	Organisation/Person	Date
Gauteng	Alexandra Dobsonville Katlehong Atteridgeville, Leondale, Katlehong,Thokoza	ADAPT Mrs Shelley Bosielo Ms Susan Valley Mrs Molatela Sefatsa House-to-house consultation	26/10/2002 2/11/2002 2/2/2003 28,29,30,31Jan 2003
Limpopo	Ga-Maphoto Seshego Ga-Matlala	Kgotla Dutch Reformed Church Zone 2 Anglican Church Zone 1 Mrs Johanna Thupana	21/12/2002 22/12/2003 22/12/2003 25/01/2003
North West	Zeerust	ANCWL-Community hall -Ikageleng St Augustine Anglican Church Anglican Church-Braaklaagte Community hall Zeerust	14/12/2002 15/12/2002 16/12/2002 29/12/2002
Western Cape	Gugulethu-Uluntu Centre	Sipho Citabatwa	8/2/2003
Mpumalanga	Daantjie-Kanyamazana	Mrs Motha	8/03/2003


GAUTENG
ADAPT: seminar held in Alexandra on 26 October 2002

In the initial stages of this further consultation process the Commission sought to maintain close contact with organisations with special responsibilities or interests in customary law. Agisanang Domestic Abuse Prevention and Training (ADAPT) in Alexandra, arranged a seminar on Customary Marriages Act and Succession on 26 October 2002 and invited the Commission as a partner. The purpose of the seminar was 'to educate and empower the seriously disadvantaged sector of our society - African women'.With the assistance of the Commission this seminar was a success. Women were equipped with knowledge on customary marriages, maintenance and customary law of succession.

Although this seminar was information sharing, questions and comments on customary law of succession were highlighted. The community were informed about the household visits that will be made in future. The problems that the people have here are property grabbing by fathers and uncles of the deceased husband. When the woman has died there are no problems experienced with her relatives. One other concern is that of the elderly who were dependent on the deceased. The young people are said to lock them out after the head of the family dies. They suggest that the people who were maintained partly or wholly by the deceased immediately before his death should be covered by the new rules.

Dobsonville 1 November 2002

Ms Susan Vally assisted in organising an informal, information-sharing gathering for women in Dobsonville's M'lotshwa street on 1 November 2002. The gathering was held at her home in the garage, which accommodated thirty-seven women, mostly domestic workers and a few teachers and nurses.

Participants submitted that the problem of unfair rules in the customary law of inheritance can be solved by making wills. One participant, however, noted that this is no real solution because only the literate and educated make wills. Until such time that the Black community is taught and made aware of this problem, it will still go on.

Participants raised a concern that it is widows who usually have to shoulder the burden of the maintenance of children and the whole family that was depended on the deceased. Children are indirectly affected by any difficulty experienced by widows. According to them it is obvious that customary law provides insufficient protection to the most important family members , that is widows and children (except the male first born). There have been many complaints of property being grabbed by heirs, who are assisted by the deceased's family. It was further pointed out that heirs neglect to support surviving dependants and in most cases they even order the wife and children out of the house.

The participants suggested that the new law that is being proposed by the Commission should try to protect only the wife and all her children. Beneficiaries should be persons falling within commonly accepted family unit.

They further proposed that as urbanisation and a changing lifestyle influenced women to take a more meaningful role in the household growth, they should be given the authority to continue doing what they have been doing during the lifetime of their spouses. These women felt that the rule of customary law of succession, which prohibits black women and all black children who are not eldest children from inheriting intestate, discriminates against them and must be corrected as it infringes the Constitution.

The information session was ended after six hours of active participation, with participants requesting for more information-sharing opportunities like these. As they were told that the Secretariat of the Commission are officers of the DOJCD, they praised the department for the important work that they are doing by bringing information to the people. We thank Ms Valley for assisting in bringing the women together.

Katlehong on 2 February 2002
Mrs Molatela Sefatsa, a community activist in Katlehong, arranged for women from Tsolo, Phake, Mokwena and Mosiliki sections to be addressed on customary marriages and succession on 2 February 2003. Although the researcher concentrated on the Recognition of Customary Marriages Act 120 of 1998, problems in customary law of succession were also brought to the fore. One member recounted a case of a widow where the father of the deceased had confiscated the contents of the widow's home. Children were taken from her and she was even promised to be kicked out of her house if she objected. Fortunately the widow had a cousin who was an attorney and she assisted her. It was highlighted that if this attorney did not assist the widow, the careless relatives would have taken everything. These are some of the situations that widows come across in the townships.

The women then submitted that they are annoyed by the situation. The government must do something for them and improve the laws. They suggest that the steps taken by the Law Commission should be expedited so that women can longer be treated like third class citizens.

LIMPOPO
Ga-Maphoto
The meeting was arranged on 21 December 2002, during the festive season when everyone was home in the rural areas. With the assistant of the headman, Mr Maphoto, about sixty four members of the community responded to his request to assemble under a tree so that they could be addressed by someone from the DOJCD.

Mr Philip Mabitsela cautioned that although most of the young generation feel that customary law of succession accommodates male issues only, several members of the community (even in townships) still practice customary law, and provision should be made for them in the reform process. People should be given choice in circumstances where a member of the family dies intestate, as to whether they want their estate to be governed by the principles of customary law or common law.

A question was then asked as to who should inherit under customary law of succession? The male participants concluded that it is the first born male issue of the deceased. According to them there was really nothing that barred female first born children to inherit. They gave an example of Kgosigadi Modjadji who was the first born child of the Kgosi of Balubedu.

At the beginning women were not comfortable to speak on issues of customary inheritance in the presence of men, but as discussions continued they voiced their concerns and even later had separate discussion with the researcher. They explained that women's rights to land are especially insecure. They are threatened by chiefs, the rules and practice of customary law, and patriarchal household and community relations. Nevertheless, large numbers of women do have access to land and work on it daily. They protested that inheritance rights for women are limited under customary law. Where women inherit, they may find it difficult to keep control over their land. They come under pressure to sell land, or hand over their rights to others, usually male relatives. Often, but not always, widows continue using the land of their deceased husbands, but they still do not have the same rights and control over it as men do. They revealed that a few chiefs have started to promote gender equality under customary law while most chiefs continue to interpret customary law in the old way which privileges men. Women's voices are usually absent in traditional decision-making structures. In some areas this is changing as rural women organise themselves, younger men unite with women against older men, or as new attitudes are introduced from urban areas.

The meeting was closed with members of the community requesting similar discussions in future.

Seshego
The meetings in Seshego were held in the Anglican and Dutch Reformed churches. The researcher in Seshego realised that communities now make family property available to all in accordance with need, accepting that the whole family and children contribute to the welfare of family members, particularly their parents. In families without sons, parents preferred to leave their property to their daughters than to customary heirs. In families with sons and daughters, parents ensure that both sons and daughters jointly qualify for the inheritance of their parents' property. To meet these preferences, families teach their children to live and embrace the family.

Participants described how widows are accused of witchcraft after their husbands death. In this area widows are particularly vulnerable to violence. Domestic violence is common especially at the hands of their husband's male relatives, and in connection with property grabbing. Coercive traditional burial and mourning rites are often degrading and harmful to widows, and frequently involve non-consensual sexual activity and extreme limitations on personal freedom. Eviction, homelessness, illiteracy, poverty and destitution force widows and their children into the most exploitative areas of informal sector work such as domestic service and prostitution. The precariousness of widows' lives often results in their children being deprived of education. Daughters are especially vulnerable, and their lack of education and training often propels them into too early marriage and consequent early widowhood. Thousands of widows are very young, many being recently widowed by HIV/Aids.

Ga-Matlala

The meeting at GaMatlala was held at a local primary school on 15 January 2003. This meeting was arranged by Mrs Thupana. One participant joined in and shared her personal experience. She described the way in which her uncles came and took everything, even beds, when her father died. Her mother, an educated woman, refused to pursue her legal rights, accepting it as customary that she be dispossessed and forced to begin rebuilding her life. This injustice happen not only to people leaving in the rural areas who we think are not educated, but it also happens to the educated.
We were informed that because succession in customary law is onerous and universal, the heir inherits not only the deceased's assets but also his obligations, both past and future. In consequence, the heir is liable to pay the deceased's debts, irrespective of the amount of property actually in the estate. This is seen as unfair to the heir and that such rules should be abolished.

NORTHWEST PROVINCE
Ikageleng Community Hall

The ANC Women's League at Ikageleng was requested to organise a meeting with women to consider and discuss the Recognition of Customary Marriages Act and inheritance in customary law. As we were approaching the festive season, the meetings were arranged for 14 ,15 and 16 December 2002 when most of the women will be home. Three places were touched on 14 December 2002 at Ikageleng community hall, on 15 December 2002, after the morning mass, at the Anglican Church (a meeting with the congregants), and on 16 December 2002 at Braaklaagte Bana-ba-kae Primary School, (a meeting with members of the community). A later meeting was also held on 29 December 2002 at Ikageleng community hall which allowed a discussion of the amendments suggested at the meeting of 14 December 2002.

At this imbizo it was discovered that the struggle for women's succession rights in customary law is now recently more important for various reasons. These, according to Ms T Mafora, include a sharp increase in the number of women widowed at a young age due to a high incidence of HIV/AIDS. She gave three examples which recently happened in the township where the in-laws chased the widow from their 'son's house'. Another major cause for the increased urgency of women's succession rights is the decline in formal employment, and these are thrusting upon women increased responsibilities for the survival of their families. Women are faced with combining their existing customary roles with those of providing for basic needs, and generating income. All of these roles are, of course, greatly intensified at the loss of a male family member.

On the other hand it was pointed out that property in townships should be differentiated from property in rural areas. This property belongs to the family (husband, wife, children, grandparents , brothers and sisters staying with the family-the relatives). This property cannot be sold on the death of the father. It is the family's house and the only asset that they have. In the rural areas the uncles and brothers will grab the property and cheat the dependants. In the townships most of the widows are assisted by municipal officers who refuse to change the name and require that the children of the deceased be given the house. This only happens if the official knows the people otherwise the relatives cheat the children out of their inheritance. It is revealed that property cheating/grabbing is not as prevalent here as in the rural areas.

MPUMALANGA

Daantjies Ga-Motha
With the assistant of the chief magistrate of Nelspruit, a meeting was organized at Kanyamazana in Mpumalanga, a township with a lot of villages around it. This was an ideal place to hold a meeting.
Headman Makhosini Motha, stated that there are factors which are considered sufficient to justify disinherison. An heir who is arrogant, extravagant, disgraced his father, worthless or a criminal, can be disinherited. The effect of this is that the disinherited heir lives without status. According to him this state of affairs must be brought to the attention of the inkosi or headman in the area. The inkosi must bring this to the family meeting after the death of the father.

Mrs Nnuku Motha, one of the wives in a polygamous marriage, described and referred to her situation and that of the other woman as 'being twins'. To her being the second wife was not a problem. She said that marriage in a polygamous setting is the same as if you are the only wife. Today the husband ensures that every wife has a house and this has solved a lot of problems. When he dies every wife has her property. The only thing that cannot be divided is the kraal property which supports all the houses.

One elderly women said that most people identified as heirs in house are men (sons) who have long being staying away from their families. Others would have deserted their families, but customary law calls for such issues to inherit assets in their father's estate. These are commonly irresponsible or are not interested in the estate except monetary gains. They will sell property for personal gain and leave other siblings without a shelter. No one will do anything if he wants to sell their home. Such cases are endured by women and their minor children and the male relatives do nothing. They also sell herds of cattle which are to be used for the maintenance of the children and the widow, whereas the cattle could be divided among the children and not benefit one child only.

WESTERN CAPE

Gugulethu

Sipho Citabatwa, a community activist, in Gugulethu, assisted in setting a meeting for information sharing with the community at one of their NY 140 street committee's meetings. Copies of the recommendations in English and IsiXhosa were sent to him in time to be distributed at one of the street committee's meeting.

Students from the University of the Western Cape attended and the taped sessions were very interesting. One student informed participants that sensible and sensitive law reform can nudge the African customary law of the family into the constitutional era without alienating its adherents or forcing a confrontation between so called Western values and African values. But it will not be easy: The South African Law Commission thus has to contend not only with the problems which it shares with other law reform agencies worldwide, but also with those of a purely South African value.

Again they were informed about the disparities between urban and rural areas, with customs and traditions retaining most of their force in rural areas, and is discernible in many areas. Beliefs, such as accusations of witchcraft against the widow, most strongly impede women's inheritance in rural areas, higher prevalence of polygamous marriages in rural areas and lower education levels among rural women have contributed to the greater incidence of unequal inheritance in these areas. A widely-shared factor that explains this rural-urban divide is the separate existence of customary and statutory systems of marriage and inheritance.

Appendix 4
BRIEFING: JOINT MONITORING COMMITTEE ON THE IMPROVEMENT OF
QUALITY OF LIFE AND STATUS OF WOMEN ON COMPULSORY HIV TESTING OF ALLEGED SEXUAL OFFENDERS BILL, 2003

INTRODUCTION
This Bill is currently before the Portfolio Committee for Justice and Constitutional
Development. It must therefore be stressed that the contents of the briefing will be based on the Bill as introduced.

BACKGROUND
The Compulsory HIV Testing of Alleged Sexual Offenders Bill, 2003 originates from the South African Law Commission's investigation and report on Aspects of the Law Relating to Aids. This Bill aims to provide a speedy and uncomplicated mechanism whereby the victim of a sexual offence can apply to have an alleged offender tested for HIV and to have information regarding the test results disclosed to the victim in order to provide him or her with peace of mind regarding whether or not he or she has been exposed to HIV during the attack. The Bill will serve as an added advantage to the victim over and above certain mechanisms already in place for victims of rape. During its investigation the Law Commission came to the conclusion that there is overwhelming support from the public, experts and interested parties for the proposed intervention.

In general, our law at present, provides for HIV testing, only with the informed consent of the person concerned. Moreover, every person is entitled to privacy regarding medical information and no general legislation exists which allows for disclosure of such information. Neither public health law nor our law of criminal procedure makes provision for HIV testing of alleged sexual offenders with a view to disclosing their HIV status to victims. The proposed intervention changes this by allowing HIV testing without the consent of the alleged offender and disclosing the test results in accordance with the prescribed requirements.

It must be stressed that the proposed legislation does not seek to undermine other valid

approaches to victim support. It aims to serve as an additional advantage to victims over and above the mechanisms already in place or to be put in place. The intervention under discussion should be seen as an essential element of a holistic and comprehensive approach to victim support.

Legislative intervention o{this nature is argued to be necessary in the light of the undoubted vulnerability of women and children in South Africa as a result of wide spread sexual violence accompanied by the increasing prevalence of a nation-wide epidemic of HIV, as well as the lack of adequate institutional or other victim support measures. In these circumstances it was suggested that there is a compelling argument for curtailing the alleged offender's rights to privacy and bodily integrity to the limited extent necessary to enable his or her accuser to know speedily whether he or she has been exposed to HIV during the attack.

The benefit to victims of this knowledge is not only practical in that it enables them to make life decisions for themselves and people around them, it is also beneficial to their psychological state to have a limited degree of certainty regarding their exposure to a life threatening disease.

That the Bill may spark constitutional controversy in so far as the alleged offender's rights are concerned must be acknowledged, and this has been reflected in the procedural and substantive safeguards that have been built into the processes, which are proposed in the Bill. These include the following:
A victim-initiated process based on information on oath, which requires the victim to have laid a criminal charge against his or her alleged assailant. This will ensure that only a person with a material interest in the arrested person's HIV status may apply for compulsory HIV testing.
A specified standard of proof (in the form of prima fade evidence that a sexual offence was committed against the victim during which exposure to the body fluids of the arrested person may have occurred).
Authorisation of compulsory HIV testing by a court. This consists of a discretionary power resting with the presiding magistrate hearing the application.


A right to apply to the High Court for review should the order for compulsory

testing not be "properly" granted (ie in the event that an order is not granted in accordance with the prescribed provisions).
Supplying the arrested person with prescribed information on the entire process before he or she undergoes HIV testing if an order for compulsory testing has been granted. The information explains, amongst, others why he or she was not given the opportunity to be present or to give evidence in the application.
Strict confidentiality measures in that the outcome of an application for a compulsory testing order may not be communicated to third parties bar the victim (or the interested person), the arrested person, the investigating officer, and persons required to execute the order (ie the medical practitioner or nurse requested to take body specimens from the arrested person, and the person required to perform the HIV test); and the result of the arrested person's HIV test may not be disclosed to any person other than the victim (or a person acting on his or her behalf) and the arrested person. It is moreover stressed in prescribed information to be supplied to victims together with their assailants' test results that the result may not be further disclosed except to those who need to know (eg a sexual partner).
Supplying arrested persons with prescribed information when providing them with their HIV test results. The information includes guidelines on how to deal with the result, stresses the importance of obtaining expert assistance in the form of post test counselling and indicates where such counselling is available.
A specified, limited time period within which an application for compulsory testing must be brought and carried out. The total period corresponds with the period of time during which a victim's own HIV test would not clearly indicate whether he or she has been infected with HIV (that is the window period) or, in other words, the period during which testing of arrested persons would have utility for victims of sexual offences.
Inadmissibility in evidence, in any criminal and civil trial, of the result of the HIV test performed. The Portfolio Committee has raised concerns over this issue and the Portfolio Committee has requested the Department to revisit these provisions.

A penalty clause aimed at the malicious use of the proposed procedure or the malicious disclosure of the HIV test results obtained.".
The Bill imposes a duty on a police officer to whom a sexual offence is reported to hand to a victim or an interested person, as defined in the definitions clause, a notice containing information regarding the availability of the proposed procedure that is the possible compulsory HIV testing of the alleged offender. The police official must also explain the contents of the notice to the victim or an interested person. An interested person has been defined in the Bill as "a person who has a material interest in the wellbeing of a victim and would include a spouse, family member, care-giver, friend, counsellor, medical practitioner, health service provider, social worker or teacher of the victim". (This is to provide for situations where victims are psychologically too traumatised to bring applications for HIV testing of the alleged offender themselves or where they lack legal capacity to act on their own.). This will particularly benefit illiterate and complainants from rural areas.

A mechanism is created in the Bill in terms of which a victim may apply to a magistrate for an order that the alleged offender be tested for HIV. An application can also be made by an interested person on behalf of the victim where such a victim is unable to do so himself or herself. Where an application is brought on behalf of a victim, the written consent of such a victim must be obtained. Consent can be dispensed with in certain circumstances such as where a victim lacks the legal capacity to give valid consent. The important aspect of this provision is that HIV testing of the alleged offender will be initiated by the victim, which will empower the victim, but will also place the responsibility on him or her to invoke the procedure, and thus creating a balance between the rights of the victim and the alleged offender. The application for HIV testing must be made at the earliest possible opportunity after a charge has been laid and may be made before or after the arrest of the alleged offender. It is the duty of the investigating officer to submit the application to a magistrate, who must be a magistrate of the district in which the sexual offence is alleged to have occurred. The Bill requires the victim to base the application on information on oath stating that a sexual offence in which exposure to the body fluids of the alleged offender may have occurred has been committed against him or her. This provision is one of the safeguards built into the Bill to protect the alleged offender's privacy rights.

The Bill also contains a provision dealing with the consideration of the application and the issuing of an order for HIV testing by the magistrate. The application for HIV testing of an alleged offender will be considered by the magistrate in chambers, and may not be attended by the alleged offender or his or her legal representative. The victim or an interested person need not attend the consideration of the application. The purpose of this is to ensure an uncomplicated and speedy process and to protect the victim from contact with his or her assailant, which could lead to further traumatisation. The requirements that must be satisfied before an order for HIV testing of an alleged offender can be issued are set out in the Bill. There must be prima fade evidence that-a sexual offence has been committed by the alleged offender against the victim; the victim may have been exposed to the body fluids of the alleged offender; and
not more than 50 calendar days have lapsed from the date of the alleged offence.
If the magistrate is satisfied that these requirements are present, he or she must issue an order for HIV testing of the alleged offender and disclosure of the test results to the victim or interested person and the alleged offender. The investigating officer has a duty to inform the victim or the interested person of the outcome of the application, and the alleged offender if an order for testing has been issued.

The Bill requires that an order for HIV testing must be executed within 60 calendar days from the date of the alleged offence, failing which it lapses. The 60 day period was calculated to coincide with the period during which the victim's own HIV test result may not show to be HIV positive if he or she were to be tested. The Bill also authorises a medical practitioner or a nurse to take the necessary body specimens from the alleged offender. The investigating officer must then take the specimens to a facility designated for testing by the Minister. The specimens must be tested and the results of the HIV test performed must be recorded in duplicate and sealed. The investigating officer must deliver the sealed records of the results to the victim or the interested person as the case may be, and to the alleged offender. The investigating officer must also hand the alleged offender and the victim a notice containing information on how to deal with the HIV test results.

The Bill limits the use of the information relating to the HIV status of an alleged offender obtained under the procedure envisaged under this Bill. The HIV test results obtained in terms of this Bill may not be used as evidence in criminal or civil proceedings. This will ensure that the application of the measures envisaged under the Bill are restricted to the primary purpose of this legislation, namely to provide victims of sexual offences with information regarding the alleged offender's HIV status.

Provision is made in the Bill for the National Commissioner for the South African Police Service to cause a register to be kept of all the applications made, and orders granted in terms of the legislation. This is to ensure that some measure of control is exercised over the applications submitted to the police and the execution thereof. The register will not contain the HIV test results.

The costs related to the applications and HIV testing in terms of the legislation envisaged will be borne by the State.

The Bill provides that if an order for HIV testing of the alleged offender has been granted, this fact may be communicated only to the victim or the interested person, the alleged offender, the investigating officer and the persons required to execute the order.

In terms of the Bill, disclosure of the results of the HIV test performed on the alleged offender may only be disclosed to the victim or interested person and the alleged offender. As already mentioned, this is to ensure that the infringement of the alleged offender's privacy rights is limited as far as possible.

The Bill also provides for offences and penalties aimed at the malicious use of the proposed procedure and the malicious disclosure of the HIV test results obtained. It will also be an offence for the alleged offender to unreasonably refuse to allow the collection of body specimens for the purpose of testing.

The Bill empowers the Minister to make regulations regarding matters which need to be prescribed in terms of the legislation. These regulations have already been drafted and are still being looked at by the State Law Advisers. I have made a copy of these draft regulations available to the Committee clerk should members want to see them as they read at present.
I would like to mention that during the discussions of the Portfolio Committee on Justice on the 27 March 2003 on the Bill, certain issues relating to the provisions of the Bill were raised. Among others, the following:
(a) the question of the inadmissibility of the HIV test results as evidence in court; (b) the period within which an order for HIV testing must be executed; and
(c) confidentiality of the HIV test results
As a result, the Committee requested us to re-consider the provisions relating to these issues. The effect of this is that the Bill might still be changed by the Portfolio Committee.

IMPLEMENTATION PLANNING

During its investigation the Law Commission consulted the Department of Health and the South African Police Service extensively. The Department of Justice also consulted these two Departments before Cabinet was approached, on cost implications, among others. We recently received a letter from the Minister of Health highlighting certain financial implications of this envisaged legislation and we intend looking into these in close conjunction with the Department of Health particularly.

Other implementation issues were raised during the deliberations of the Portfolio Committee on Justice and Constitutional Development and we are attending to these. For instance, the question of language barriers. The Bill is in English and a Sotho language. We are looking at the prospects of also having the legislation translated into a Nguni language and Afrikaans, which we hope can be done easily and cheaply. The State Law Advisers have a translator who we hope can assist us with the Nguni translation and the Afrikaans translation can be done quite easily within our own component This will assist in removing language as a barrier to the implementation of the legislation.

The police and magistrates will play a leading role in the implementation of the envisaged legislation. In order to ensure that all or most of the officials responsible for the implementation of the legislation are trained, Justice College has agreed to provide training to magistrates and the police throughout the country.