Ladies and Gentlemen
Today we stand before the nation with four critical reports which propose recommendations with far reaching effects for the law and our statute book and - more importantly – will have a significant impact on the lives of South Africans.
Historically there has been a major discrepancy between the content of the law and the ideal of justice. This is the task that the law commission is seized with. The content of the law must by all means possible match the ideal of justice. It is not good enough to have good laws on our stature book, but these laws must have a meaningful impact on the lives of people.
The South African Law Reform Commission is a bridge between the people the law. The Commission is tasked with research with reference to all branches of the law in order to make recommendations to Government for the development, improvement, modernisation or reform of the law.
The law is not static, nor is it forever cast in stone. The laws that apply in a country must be dynamic and subject to regular review and improvement when the need arises. As society changes, so must the law – constantly improving, asking what works and what doesn’t, and if and how it can be improved.
For the law to remain relevant and useful to society, it must be monitored and followed by extensive research and proper consultative processes. Government is therefore informed by pragmatic advice on the efficacy and desirability of the law. Government also needs to be alerted to any unintended consequences of such proposed legislation.
Today we are presented with four reports which address the various gaps in our law.
The First Project 107 Report on Sexual Offences (Pornography and Children)
This report addresses some of the gaps in the manner in which the law currently regulates and protects children from being exposed to pornography or child sexual abuse material or from being used to create child sexual abuse material.
Currently there is a fragmented legislative approach to criminalising certain aspects pertaining to pornography and children.
This is exacerbated by the use of new technology resulting in certain forms of harmful behavior being unregulated. The response by authorities has been found wanting due to deficient regulation and coordination by and of government in its response to these crimes. More and more of our children are online and this brings with it certain risks – these risks have been exacerbated by Covid-19 as we live our lives even more digitally than before.
One of the recommendations are that we adopt a multi-disciplinary approach to prevent, address and investigate child sexual abuse material and that directives and national instructions or standard operating procedures should either be developed or updated with a specific focus on the policing and prosecution of cases relating to child sexual abuse material.
These are absent in the current regulatory framework. The Commission recommends the inclusion of the Departments of Basic Education, Higher Education and Communications and Digital Technologies in the Inter-sectoral Committee for the Management of Sexual Offence Matters as provided for in the Sexual Offences Act.
It recommends that the Departments of Justice and Constitutional Development and Correctional Services, who are already members of the Inter-sectoral Committee, must issue directives regarding all matters relevant to sexual offence matters within the relevant department’s purview.
The Second Project: The Report on Project 142 - Investigation Into Legal Fees, Including Access To Justice And Other Interventions
This report aims to address some of the major problems bedevilling the South African civil justice system, such as that it takes too long to resolve legal disputes, the system excludes those who cannot afford to litigate in the courts, the average time it takes to resolve a legal dispute ranges between three to six years, and legal fees have escalated to a point where the majority of people are excluded from the system of dispute resolution.
The high cost of litigation in both civil and criminal matters is one of the main barriers to access to justice and the questions that must be asked are: What are the factors that give rise to unaffordable legal services? What interventions can be devised to address these challenges in South Africa? This report deals with these questions.
The Third Project: The Report on Project 138 - The Practice of Ukuthwala:
This report states that the enactment of a new statute is required to deal specifically with the issue of forced marriage so as to send a powerful message to perpetrators and ordinary South Africans alike. The seriousness of problems associated with distorted Ukuthwala is of such a magnitude that a clear and specific piece of legislation is necessary. This will also compel stakeholders to do the necessary to curb the practice and to deal appropriately with victims if such is outlined in law. The current law relating to the age of consent cannot be regarded as settled and a new definitive statement would go a long way towards clarifying this area of the law.
The Fourth Project: The Report on Project 125 - Harmonisation Existing Laws Providing For Different Periods Of Prescription
This report addresses the fact that there are certain anomalies in the law which allow creditors (including credit providers and debt collectors) to recover prescribed debt contrary to the principle of extinction contained in section 10(1) of the Prescription Act.
Section 10(1) provides for the complete extinction of debts by prescription if not recovered within certain prescribed periods.
However, contrary to the principle of extinction, sections 10(3) and 17(1) of the Prescription Act provide for the continued recovery of prescribed debt. The anomalies created by sections 10(3) and 17(1) of the Prescription Act are used by unscrupulous creditors to continue recovering prescribed debt from debtors who have limited or no understanding of the technical nature of prescription. In many instances, creditors employ psychological or physical intimidation in order to force debtors to pay prescribed debt.
These four reports go a long way in analyzing systemic problems in our justice system and in society and recommending an appropriate legislative remedy to address these.
The reports cover issues which are at the heart of access to justice, the distortion of cultural practices and the ability for claims to be justly adjudicated.
We welcome the research, investigations and recommendations as set out in the reports as we consider the necessary legislative changes, amendment bills and regulations.