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					 Vol. 4 No. 2                                                                                                 July 1999

                         Newsletter of the South African Law Commission

                                         The following reports were
Farewell of Minister                     submitted to the Minister of Justice:    (c) fair and efficient administration of
A M Omar and                                                                      cross-border insolvencies that protects
                                         Project 63: Review of the Law of         the interests of all creditors and other
Deputy Minister M E                      Insolvency: Interim Report on the        interested persons, including the
Tshabalala-                              Enactment in South Africa of             debtor;
                                         UNCITRAL’s Model Law on Cross-
Msimang                                  border Insolvency                        (d) protection and maximization of
                                                                                  the value of the debtor's assets; and
The Commission would like to thank       On 15 December 1997 the General
Dr Omar and Dr Tshabalala-Msimang        Assembly of the United Nations           (e) facilitation of the rescue of
for their keen involvement in and        adopted a resolution, co-sponsored by    financially troubled businesses,
support of the activities of the         South Africa, recommending that          thereby protecting investment and
Commission. A number of important        States review their legislation on       preserving employment.
investigations received attention        cross-border insolvency and in that
during their term of office and their    review give favourable consideration     There is strong support for the
efforts to promote the Commission’s      to the Model Law on Cross-Border         enactment of the Model Law in South
reports and proposals for draft          Insolvency developed by the United       Africa. As few changes as possible
legislation in Parliament are highly     Nations Commission on International      have been made to the Model Law in
appreciated.                             Trade Law (UNCITRAL), bearing in         order to strive for a satisfactory degree
                                         mind the need for internationally        of harmonisation and certainty, but the
The Commission’s best wishes             harmonised legislation governing         Model Law has been adjusted in a
accompany Dr Omar in his new             instances of cross-border insolvency.    draft Bill to suit South African law. In
portfolio as Minister of Transport. Dr   The Model Law was developed by the       terms of the Bill the Insolvency Act is
Tshabalala-Msimang is congratulated      United Nations Commission on             amended to indicate that foreign
on her appointment as Minister of        International Trade Law in close         representatives and creditors have
Health.                                  cooperation with the International       access to the court as provided in
                                         Association        of      Insolvency    Chapter 2 of the Model Law and that
Welcoming        of                      Practitioners (INSOL) over a number      applications for the liquidation of the
                                         of years and benefited from INSOL's      estate of a debtor are limited as
Minister PM Maduna                       expert advice during all stages of the   provided in Chapter 5 of the Model
                                         preparatory work. Active consultative    Law.
and Deputy Minister                      assistance during the formation of the
CE Gillwald                              Law was also received from               Project 86: Euthanasia and the
                                         Committee J of the Section on            Artificial Preservation of Life
The Commission welcomes Dr               Business Law of the International Bar
Maduna and Ms Gillwald and assures       Association.                             The     report     contains     various
them of its support. The Commission                                               recommendations regarding end-of-
acknowledges the fact that it has a      The Objects of the Model Law are to      life decisions and the treatment of
vital role to play in the development    promote—                                 terminally ill patients. In certain
and transformation of our legal                                                   instances      legislation has been
system. To this end the Commission       (a) cooperation between the courts       proposed to give effect to these
endeavours to provide a quality          and other competent authorities of the   principles in view of current
service in a spirit of cooperation.      Republic and foreign States involved     uncertainty in the minds of the general
                                         in cases of cross-border insolvency;     public and medical personnel about
                                                                                  the legal position in this regard.
Reports                                  (b) greater legal certainty for trade
                                         and investment;
According to the present position in     our law it is unlawful to terminate a    person’s life in order to end his or her
unbearable suffering even if it is clear   patient.                                    euthanasia, the Commission does not
that death is inevitable and that the      To clarify the uncertain position the       make a specific recommendation. The
person is about to die. The intentional    Commission       recommends         the     Commission is aware of the array of
termination of such a person’s life        enactment of legislation to give effect     competing interests and the diversity
remains punishable even if the             to the following principles:                of social, moral and ethical values
suffering person expresses the wish to                                                 involved in the issue of active
die or even begs to be killed.             (a) A medical practitioner may, under       voluntary euthanasia. It has thus not
Withholding or withdrawing of life-        specified circumstances, cease or           formulated final recommendations in
sustaining medical treatment from a        authorise the cessation of all further      this regard, but submits the following
patient who is terminally ill may          medical treatment of a patient whose        options for further public debate and
however be permissible under specific      life functions are being maintained         discussion.     These options were
circumstances and subject to certain       artificially while the person has no        identified through comments received
conditions.                                spontaneous       respiratory     and       in consultations and from responses to
                                           circulatory functions or where his or       two discussion papers which were
The advances made in medical science       her brainstem does not register any         distributed for public information:
and especially the application of          impulse.
medical technology have resulted in                                                    (a) Option 1: Confirmation of the
patients living longer. For some           (b) A competent person may refuse           present legal position
patients this signifies a welcome          any life-sustaining medical treatment
prolongation of meaningful life, but       with regard to any specific illness         Under this option it is recommended
for others the result is a poor quality    from which he or she may be                 that there should be no change to the
of life which inevitably raises the        suffering, even though such refusal         current legal position in South Africa
question whether treatment is a benefit    may cause the death or hasten the           prohibiting      active      voluntary
or a burden. Furthermore, increased        death of such a person.                     euthanasia and physician-assisted
importance is being attached to patient                                                suicide. The arguments in favour of
autonomy worldwide. The need has           (c) A medical practitioner or, under        legalising euthanasia are not sufficient
therefore arisen to consider the           specified circumstances, a nurse may        reason to weaken society's prohibition
protection of a mentally competent         relieve the suffering of a terminally ill   of intentional killing since it is
patient's right to refuse medical          patient by prescribing sufficient drugs     considered to be the cornerstone of the
treatment or to receive assistance,        to control the pain of the patient          law and of all social relationships.
should he or she so require, in ending     adequately even though the secondary        Whilst acknowledging that there may
his or her unbearable suffering by the     effect of this conduct may be the           be individual cases in which
administering or supplying of a lethal     shortening of the patient's life.           euthanasia may seem to be
substance to the patient. The position                                                 appropriate, these cannot establish the
of the incompetent patient, as well as     (d) A medical practitioner may, under       foundation of a general pro-euthanasia
the patient who is clinically dead, has    specified circumstances, give effect to     policy. It would furthermore be
to be clarified as well.                   an advance directive or enduring            impossible to establish sufficient
                                           power of attorney of a patient              safeguards to prevent abuse.
Since matters concerning the               regarding the refusal or cessation of       (b) Option 2: Decision-making by the
treatment of terminally ill people are     medical treatment or the administering      medical practitioner
at present being dealt with on a fairly    of palliative care, provided that these
ad hoc basis, there is some degree of      instructions were issued by the patient     Under this option the practice of
uncertainty in the minds of the general    while mentally competent.                   active euthanasia could be regulated
public and medical personnel about                                                     through legislation in terms of which a
the legal position in this regard.         (e) A medical practitioner may, under       medical practitioner may give effect to
Doctors and families want to act in the    specified circumstances, cease or           the request of a terminally ill, but
best interest of the patient, but are      authorise the cessation of all further      mentally competent patient to make
unsure about the scope and content of      medical treatment with regard to            an end to the patient's unbearable
their obligation to provide care.          terminally ill patients who are unable      suffering by administering or
Furthermore, doctors are afraid of         to make or communicate decisions            providing a lethal agent to the patient.
being exposed to civil claims, criminal    concerning their medical treatment,         The medical practitioner will have to
prosecution and professional censure       provided that his or her conduct is in      adhere to strict safeguards in order to
should they withhold life support          accordance with the wishes of the           prevent abuse.
systems or prescribe drugs which may       family of the patient or authorised by
inadvertently or otherwise shorten the     a court order.                              (c) Option 3: Decision-making by a
patient's life, even if they are merely                                                panel or committee
complying with the wishes of the           As      regards    active    voluntary
Under this option the practice of          multi-disciplinary panel or committee
active euthanasia could be regulated       is instituted to consider requests for      Project     111:     Constitutional
through legislation in terms of which a    euthanasia according to set criteria.       Jurisdiction of Magistrates’ Courts

                                          remains convinced that magistrates          in the Report on the Sharing of
The Report comes after the                should be precluded from ruling on          Pension Benefits are the following:
publication of Discussion Paper 75        the validity of Acts of Parliament,
last year in which the Commission         legislation passed by the provincial        (a) The sharing of retirement fund
proposed certain amendments to            legislatures after 27 April 1994 and        benefits between spouses on divorce
sections 170 and 172 of the               any conduct of the President.               must be governed by substantive
Constitution Act 108 of 1996, section                                                 legislation separate from the Divorce
110 of the Magistrates’ Courts Act 32     The Commission accepts the argument         Act,1979.
of 1944, and the Magistrates’ Courts      that in view of the inapplicability of
Rules.                                    stare decisis in the lower courts the       (b) Provision should be made for the
                                          compulsory referral to a Full Bench of      division of retirement benefits as such
The two main aims of the amendments       a High Court of all rulings of              and not merely for the exchange of
were to confer constitutional             constitutional       invalidity       by    compensatory assets in place of such
jurisdiction on magistrate’s courts and   magistrates will result in unnecessary      benefits.
to ensure symmetry between their          inconvenience, costs and delays. It
constitutional jurisdiction and their     accordingly proposes that the               (c) The exchange of compensatory
ultra vires jurisdiction. A number of     suggested      compulsory        referral   assets in place of a share of retirement
responses to the Commission’s             mechanism be replaced with a                fund benefits should nevertheless
proposals were received. Generally        requirement that magistrates’ courts        remain as an option available to the
speaking most respondents supported       making orders of constitutional             spouses.
the aims of the amendments.               invalidity forthwith notify the relevant
However, opposing views were              organs of state of such order. The          (d) Spouses may exclude pension
expressed on two aspects of the           organs of state would then be in a          sharing in terms of their antenuptial
Commission’s proposals, namely -          position to seek a declarator from the      contract.
                                          High Court in appropriate cases - e.g.
(a) that magistrates be precluded from    where there is no appeal and where          (e) A spouse may waive any right to
ruling on the validity of Acts of         the organs of state have a sufficient       retirement fund benefits.
Parliament, legislation passed by the     interest in the matter and the other
provincial legislatures after 27 April    requirement for declaratory relief are      (f) Spouses may agree in writing to
1994 and any conduct of the               met. It is considered desirable that the    share retirement fund benefits in
President; and                            High Courts develop a set of rules and      different proportions than those
                                          requirements for the granting of            prescribed.
(b) that confirmation by a Full Bench     declaratory      relief     in      such
of a High Court be required before        circumstances.                              (g) Subject to the principles contained
any order of constitutional invalidity                                                in the proposed legislation, a
made by a magistrate has any force.       To give effect to the proposals set out     retirement fund may make use of
                                          above, the Report contains draft            approximate calculations where exact
In the Commission’s view the              amendments to section 170 of the            data is not obtainable.
jurisdictional and procedural scheme      Constitution; section 110 of the
established by the Constitution points    Magistrates’ Courts Act 32 of 1944;         (h) The costs that are recoverable
to magistrates’ courts being precluded    and the Magistrates’ Courts Rules.          from spouses in respect of the division
from ruling on the constitutionality of                                               of benefits may be prescribed by
Acts of Parliament and conduct of the     Project 112: Sharing of Pension             regulation.
President. The Commission also            Benefits
considers     it    appropriate    that                                               (i) The non-member spouse has a
magistrates be precluded from ruling      The provisions for the sharing of           right to a share of the retirement fund
on the constitutional validity of         retirement fund benefits on divorce as      benefits which accumulated in respect
legislation passed after 27 April 1997    provided for by the Divorce Act 70 of       of the member during the marriage.
by the provincial legislatures, which     1979, via the Divorce Amendment Act         The extent of the right is prescribed in
are representative legislatures with      7 of 1989, proved to be unsatisfactory      the formulae set out in the proposed
significant constitutional status and a   in several respects.                        legislation in respect of the various
range of exclusive legislative powers.                                                types of retirement schemes.
 For these reasons, the Commission        The main recommendations contained
(j) Any share of retirement fund          (k) Benefits to which a non-member          before the date on which the benefits
benefits to which a non-member            spouse is entitled must be paid to          become payable to the member, the
spouse is entitled is made available on   him or her direct from the retirement       withdrawal value of the benefits on
a locked-in basis - in other words, by    fund by which the benefits are held on      the date of the death of the non-
way of deferred pension and not as a      behalf of the non-member spouse.            member spouse is payable to his or
cash benefit.                                                                         her estate.
                                          (l) If the non-member spouse dies

(m) The sharing of retirement fund        provinces with Houses of Traditional      with the progress of the consultations,
benefits is at this stage limited to      Leaders. To answer a concern              especially the massive attendances at
spouses whose marriages are               expressed in the past, that the           all the venues and the meticulous
recognized as such in terms of            Commission consults only in urban         preparations by the respective Houses
existing law.                             areas, an effort was made to hold the     and their administrative departments.
                                          meetings wherever traditional leaders     The Commission also extends its
(n) The proposed legislation should       could be assembled. The schedule of       gratitude to the Regional Offices of
make it clear that retirement fund        workshops was as follows:                 the Department of Justice in the
benefits are not divided as part of the                                             provinces in question, who ensured
matrimonial property of spouses.          (a)       Northern Province               the attendance of Justice personnel,
                                                                                    especially magistrates, at each
(o) The proposed legislation should       9 June             Thohoyandou            meeting.
be applicable in respect of marriages     10 June            Giyani
dissolved after the commencement of       11 June            Lebowakgomo            Further meetings with other role-
the new provisions.                                                                 players are planned, some of which
                                          (b)       Mpumalanga Province             will be coordinated by the
(p) The new provisions should not                                                   Commission on Gender Equality.
apply in respect of spouses who have      22 June            KwaMhlanga
in terms of their antenuptial contract    23 June            Eerstehoek
chosen complete separation of their       24 June            Nkomazi
property, but such spouses should be      25 June            Nsikazi
                                                                                    Programme of the
allowed to make the said provisions                                                 Commission
applicable to them by way of written      (c)       Free State Province             The following projects on          the
contract.                                                                           Commission’s       programme       are
                                          28 June            Thaba Nchu             currently receiving attention:
                                          29 June            Qwaqwa
Workshops         on                                                                25       Statute       law:        The
traditional courts                        (d)       North West Province                      establishment        of      a
                                                                                             permanently        simplified,
and the judicial                          1 July             Mmabatho                        coherent and generally
function           of                     2 July             Taung                           accessible statute book
traditional leaders                       (e)       Eastern Cape Province           59       Islamic marriages and related
On 13 May 1999 the Law                    5 July             Umtata
Commission unveiled Discussion            6 July             Kingwilliams Town      63       Review of the law of
Paper 82 on Traditional Courts and the                                                       insolvency
Judicial Powers of Traditional Leaders    (f)       KwaZulu-Natal Province
at a briefing in the National Council                                               73       The     simplification     of
of Traditional Leaders in Pretoria.       12 July            Ulundi                          criminal procedure
The purpose of the briefing was to        13 July            Durban
explain the Commission’s proposals to                                               82       Sentencing
the Council, and to seek the Council’s    Summaries of the Commission’s
assistance in mobilising the provincial   proposals were prepared in all official   85       Aspects of the law relating to
Houses of Traditional Leaders to          languages and the consultations were               AIDS
arrange meetings in their areas to        conducted by the Chairperson of the
enable the Commission to discuss the      project     committee      on       the   90       Harmonisation    of   the
proposals with traditional leaders.       Harmonisation of Indigenous Law and                common law and indigenous
                                          Common Law, Professor Thandabantu                  law
The consultative workshops took           Nhlapo, and Ms Sindiswa Dube, the
place between 9 June and 13 July          researcher on the project. Both           94       Arbitration
1999 at 15 venues across all the          pronounced themselves well satisfied
96      The Apportionment of                       Rights on the criminal law,      107      Sexual offences
        Damages Act, 1956                          criminal procedure and
                                                   sentencing                       108      Computer related crimes
100      Family law and the law of
         persons:                         105       Security legislation            109      Review of the Marriage Act
         * Maintenance
                                          106       Juvenile Justice                110      Review of the Child Care
101      The application of the Bill of                                                      Act

113   The use of electronic
      equipment   in  court
      proceedings                                                               Most of the Commission’s documents
                                     Interested parties are invited to submit   are also available on the Internet. The
114   Publication   of    divorce    proposals for law reform and               site address is:
      proceedings                    information in respect of projects to
                                     the Commission.                            salc.html
115   Review of administrative
      law                            The Commission is housed in the            Subscribe to listserv on the site
                                     Sanlam Centre (12th Floor), c/o            address to be notified by email
                                     Andries and Schoeman Streets,              whenever there are new SA Law
116   The carrying of firearms and
                                     Pretoria.                                  Commission publications. (Note that
      other dangerous weapons in
      public or at gatherings                                                   this is not a discussion group.)
                                     The postal address is Private Bag          Send               e-mail          to
                                     X668, Pretoria 0001.             
117   The legal position       of
      voluntary associations                                                    Leave the Subject line blank , and
                                     Tel: (012) 322-6440                        type in subscribe salcnotify in the
                                     Fax: (012) 320-0936                        body of the message. Type end on a
118   Domestic partnerships
                                     E-mail:             new line, then send the message.
119   Uniform national legislation                                              You will soon receive a welcome
      on the fencing of national     The Commission’s office hours are          message from the listserv.
      roads                          from 07:15 to 15:45 on Mondays to


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