South African Law Commission on Sexual Offences; Customary Law; Statutory Law Revision and Aspects of the Law Relating to Aids.

Meeting report

IMPROVEMENT OF THE QUALITY OF LIFE AND STATUS OF WOMEN JOINT MONITORING COMMITTEE
29 August 2001
SOUTH AFRICAN LAW COMMISSION ON SEXUALOFFENCES;CUSTOMARY LAW; STATUTORY LAW REVISION AND ASPECTS OF THE LAW RELATING TO AIDS

Chairperson: Ms P Govender

Documents distributed:
SA Law Commission on Sexual Offences; Customary Law; Statutory Law Revision; Aspects of the Law Relating to AIDS

Presenters were Mr Henegan, Commission secretary; Professor IP Maithufi and Ms Moloi of the Project Committee on Customary Law; and Ms D Clarke and Mr G Hollamby of the Sexual Offences project Committee.

SUMMARY
The South African Law Commission briefed the Committee on matters that fall within the ambit of the Committee’s monitoring activities. The commission then answered questions regarding the sexual offences; customary law; HIV/AIDS; and Statutory law investigations

MINUTES
South African Law Commission Reports
The Committee pointed out that these briefings are process and procedure documents which outline the research of the appointed project Committees in the South African Law Commission. The investigations have a multi-disciplinary, inter-sectoral approach, involving the government, NGO’s and the private sector in the consultation process which will eventually determine the commission’s recommendations, and accordingly the final draft legislation. Emphasis is placed on including the ‘voice of the community’, especially women and children, in this consultation process. Ms Govender suggested the Committee discuss the reports in terms of process, not content, leaving the issue of HIV/AIDS for a later date.

Sexual Offences
Ms S Botha asked why the sexual offenders bill is not being finalised in Parliament in 2001. The Law Commission was asked how it determines what a sexual offence is. The Commission was also asked about implementation post-adoption of a particular draft legislation. Clarity was called for on the time frame for proposed legislatory measures.

Mr Henegan replied that the SA Law Commission is a consultative body which makes recommendations, not implementations. It was necessary to consider the full financial implications of implementations before making recommendations, especially considering the lack of adequate training in the SAPS. In terms of defining sexual offences the commission realised the need to correct the existing laws as well as the limits of legislation in correcting pervasive social and cultural attitudes.

Ms Govender queried the budgetary allocation for the implementation of the domestic violence act, and furthermore whether the process of implementing the sexual offences legislation would be complete by the end of this year. On Mr Henegan’s response that this would only be complete by the second half of next year, Ms Govender commented that this is a long time between the prioritisation of this issue and implementation.

Other members commented on whether this time lapse is due to the complexity of the issues or the slowness of the decision making process. Mr Henegan alluded to a backlog of legislation in the transition process. Since 1994 the commission has published101 reports, of these only forty have been implemented, the rest are under consultation, revision or discussion. The lengthiness of time frames is due to the complexity of the issues. ‘Sexual offences’ has highest priority, however the inheritance of an unrepresentative legal system has meant the need for a lengthy consultation process. As opposed to just doing ‘legal transplants’ of laws from other countries lengthy comparative studies with international legislation are necessary to make this system representative of all South Africans.

Further issues raised were the problem of addressing only males as perpetrators of HIV infections, as well as to address same-sex relationships within the document’s terminology. Mr G Hollamby (childcare) apologised for use of the word ‘he’ to refer to HIV infectors; and said that the legislation terminology is being updated, including reference to male-male rape. Ms D Clarke referred to the fact that re-examination showed that only the SAPS has enforced the legislative guidelines strictly, while in the department of Health, and other departments the guidelines are virtually non-existent.

Mr Henegan spoke of the necessity for a charter of victims, since victims need to be educated with respect to their rights. Ms Govender requested a copy of the victims charter. Ms M Madubisa commented on the reluctance of victims of sexual offences to approach the court due to the difficulty of filling in forms. The Commission was asked what provision there is for compulsory HIV testing, especially with respect to the correctness of statistics.

The issue of female genital mutilation and sexual harassment in and outside the workplace, as well as the childcare legislation was raised. The commission acknowledged the lack of district surgeons to implement childcare legislation, and the difficulty of defining harmful cultural practices, for example female circumcision initiates who are unable to communicate about their condition except with other initiates. Sexual harassment should be discussed in terms of land rights. Further responses would be given to questions around sexual offences submitted in writing.

Customary Law of inheritance and Succession
Issues raised were the impact of European law on South African traditional law. In terms of the ‘Amendment made to the Maintenance of surviving spouses Act’ the inclusion of the extended family was questioned, as the wife is the ‘end sufferer’. Specifics were requested regarding the rights of nuclear versus extended family where the wife has contributed to the accumulation of wealth as opposed to merely occupying a collective family property.

Members commented on the need to address the issue on a provincial level; here legislative processes take place in urban areas while wives are located in distant rural areas. In terms of the repeal of laws in Kwazulu Natal one member commented that polygamy is not only practised in Kwazulu Natal but pervades all cultures and areas.

Ms Govender enquired on the number of men versus women on the task team investigating customary law. Finally a member asked what legal recourse women have in those cases where customary law conflicts with civil law.

The Commission’s Professor Maithufi and Ms Moloi responded that the repeal of laws with a bearing on customary law of succession was not limited to Kwazulu Natal, but national. The commission was also aware that polygamy was practiced throughout the country. The conflict of customary and civil law was resolved by finding the common ground between customary and civil law where possible, and to implement new legislation which would ensure equality where agreement could not be found.

Ms Moloi explained that the decision to place workshops in Urban areas was made after lengthy consultations with NGO’s, and traditional leaderships, which concluded that these sites were the most accessible. The issue of the extended versus the nuclear family was unresolved and would be discussed at the meeting on 30 August 2001 with CALS at WITS. Finally the Commission noted that there were two women and two men, as well as one female researcher on the Task Team. Furthermore, the Committee was impressed that the number of women exceeded the number of men in the Law Commission.

Statutory Law
Ms Govender asked for further discussion at a later date of how the law commission identifies those discriminatory (for women and girls) pieces of legislation in its revision process. She thanked the Law Commission for their detailed presentation and ensured the commission of the Committee’s co-operation on these issues. Mr Henegan commented on the importance of this interaction between the Committee and the Law Commission.

The meeting was adjourned.