Legislation and policies

Introduction

Sexual offences

Maintenance

Domestic violence

Human trafficking

Introduction

The following instruments of legislation are relevant to the successful functioning of the Department of Justice and Constitutional Development:

• Legislation providing for the establishment and functioning of the superior courts, magistrates’ courts and special courts: Constitutional Court Complementary Act, 1995 (Act 13 of 1995), the Supreme Court Act, 1959 (Act 59 of 1959), the Magistrates' Courts Act, 1944 (Act 32 of 1944), and the Small Claims Court Act, 1984 (Act 61 of 1984).
• Legislation providing for the appointment of judges and other judicial officers, the conditions of service, discipline and training: the Judges Remuneration and Conditions of Employment Act, 2001 (Act 47 of 2001), the Judicial Service Commission Act, 1994 (Act 9 of 1994) as amended, the South African Judicial Education Institute (SAJEI) Act, 2008 (Act 14 of 2008), and the Magistrates Act, 1993 (Act 90 of 1993).
• Legislation providing for the establishment and functioning of the National Prosecuting Authority (NPA), the Special Investigating Unit (SIU) and the Asset Forfeiture Unit (AFU); the conduct of criminal proceedings; the investigation of organised crime and corruption; and the forfeiture of assets obtained through illicit means: the National Prosecuting Authority Act, 1998 (Act 32 of 1998), the Criminal Procedure Act, 1977 (Act 51 of 1977), the Prevention of Organised Crime Act, 1998 (Act 121 of 1998), the Special Investigating Units and Special Tribunals Act, 1996 (Act 74 of 1996) and the Witness Protection Act, 1998 (Act 112 of 1998).
• Legislation providing for the establishment and functioning of bodies responsible for legal aid, law reform and rulemaking: the Legal Aid Act, 1969 (Act 22 of 1969), the South African Law Reform Commission (SALRC) Act, 1973 (Act 19 of 1973) and the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985).
• Legislation providing for the appointment of Masters of the High Court and the administration of the Guardian’s Fund and deceased and insolvent estates: the Administration of Estates Act, 1965 (Act 66 of 1965), and the Insolvency Act, 1936 (Act 24 of 1936).
• Legislation regulating the provisioning of legal advisory services to government departments: the State Attorney Act, 1957 (Act 56 of 1957).
• Legislation relating to the promotion, protection and enforcement of certain human rights: the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000), the Promotion of Access to Information Act, 2000 (Act 2 of 2000), and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000) better known as the Equality Act, 2000.
• Legislation pertaining to the protection of vulnerable groups: the Child Justice Act, 2008 (Act 75 of 2008), the Children's Act, 2005 (Act 38 of 2005), the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007), the Maintenance Act, 1998 (Act 99 of 1998), and the Domestic Violence Act, 1998 (Act 116 of 1998).
• Legislation providing support to Chapter 9 institutions: the Human Rights Commission Act, 1994 (Act 54 of 1994), and the Public Protector Act, 1994 (Act 23 of 1994).
• Legislation regulating the management and control of public expenditure: the Public Finance Management Act, 1999 (Act 1 of 1999).
• Legislation regulating operations in the Public Service: the Public Service Act, 1994 (Act 103 of 1994), as amended.
• Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2012 (Act 6 of 2012)
• Criminal Procedure Amendment Act, 2012 (Act 9 of 2012)
• Judicial Matters Amendment Act, 2012 (Act 11 of 2012)
• Repeal of Black Administration Act and Amendment of Certain Laws Amendment Act, 2012 (Act 20 of 2012)
• Sheriffs Amendment Act, 2012 (Act 14 of 2012).
• The Criminal Law Special Investigating Untion (Forensic Procedures) Amendment Bill, 2013 paves the way to regulate and promote the use of DNA in combating crime, taking into account constitutional requirements. The use of DNA evidence holds the potential to alleviate bottlenecks in the criminal justice system. Maximising the use of DNA evidence promotes fairness, confidence and certainty in the administration of South Africa’s laws.
• The Constitution 17th Amendment Act of 2013 is implemented with the Superior Courts Act, 2013 (Act 10 of 2013), which repeals the Supreme Court Act of 1959.
• The Legal Practice Act, 2014 (Act 28 of 2014) establishes a new regulatory framework for the profession, enhances opportunities to enhance access to services of attorneys and advocates, and creates mechanisms to address the spiralling cost of litigation.

Sexual offences

The Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007) [PDF], provides a legal framework to support an integrated approach to the management of sexual offences, thereby aiming to reduce secondary trauma to victims of such crimes.

National Register for Sex Offenders

The Department of Justice and Constitutional Development has developed the NRSO, which was deployed in 195 courts. The NRSO was established by an Act of Parliament in 2007.

It is a record of names of those found guilty of sexual offences against children and people with mental disabilities. The NRSO gives employers in the public or private sectors, such as schools, crèches and hospitals, the right to check that the person being hired is fit to work with children or mentally disabled people.

Information on whether a person is on the list is available on request, along with the relevant motivation, before any confirmation or information is released.

Maintenance

The main objective of the Maintenance Act, 1998 (Act 99 of 1998), is to facilitate the securing of maintenance money from parents and/or other persons able to maintain maintenance beneficiaries, mainly children, who have a right to maintenance.

Parents and/or guardians must maintain children in the proportion in which they can afford. Therefore, both parents and/or sets of families need to take responsibility for the maintenance of the child or children concerned.

The Maintenance Amendment Act, 2015 (Act 9 of 2015) further ensures that maintenance systems are effective, putting the following measures in place, among others:

• A beneficiary will be able to claim maintenance where they work and not only where they live. This will make it easier for beneficiaries to go to the maintenance court during working hours.
• If the person from whom maintenance is sought cannot be located, despite all reasonable efforts, the court can grant an order directing electronic communication service providers to provide the court with contact information.
• Maintenance courts must complete their enquiries as speedily as possible. The views of the person who is obliged to pay maintenance must be sought.
• If a person has defaulted on paying maintenance, their personal details will be submitted to all credit bureaus. This will prevent maintenance defaulters from continuing to receive credit while owing maintenance. They will effectively be blacklisted.

From the 369 maintenance courts nationwide, the Department of Justice and Constitutional Development registers about 200 000 new maintenance complaints a year. To reduce the maintenance queues at courts, the department installed technology to process payments through electronic financial transfers to replace the card-based manual system. The courts are also increasingly making orders for payments to be deposited directly into the accounts of beneficiaries.

Guardian’s Fund is a fund created to hold and administer funds which are paid to the Master of the High Court on behalf of various persons known or unknown, for example, minors, persons incapable of managing their own affairs, unborn heirs, missing or absent persons or persons having an interest in the moneys of a usufructuary, fiduciary or fideicommissary nature. Each Master of the High Court has its own Guardian’s Fund. Through the Fund, the Department of Justice and Constitutional Development contributes substantially to poverty alleviation.

Domestic violence

Rigorous steps being taken by the Justice Crime Prevention and Security (JCPS) Cluster to root out gender-based violence (GBV) include the adoption of zero tolerance towards rape, violation of the rights of lesbian, gay, bisexual, transgender and intersex people, and other forms of violence towards women and children.

The Ndabezitha Project trains traditional leaders and clerks of the court in domestic violence matters in rural areas. This includes the development of a safety tool and intersectoral statistical tool by the National Prosecuting Authority and the Department of Justice and Constitutional Development.

The Protection from Harassment Act, 2011 (Act 17 of 2011), is the first specific legislation to address sexual harassment in the Southern African Development Community (SADC) region. The essence of the Act is to provide a quick, easy and affordable civil remedy in the form of a protection order for incidences of stalking. The legislation arose out of a SALRC investigation into the legal framework governing stalking and domestic violence.

A key component of the Act is that it seeks to cover all forms of stalking, not just that involving people engaged in a relationship. A protection order can be issued instructing the harasser to cease harassment.

The Act sets out how a complainant is to apply for a protection order and the procedure to be followed in granting one. The legislation also provides for the issuing of an interim protection order without the knowledge of the respondent, given certain conditions.

A victim of cyberstalking can apply to a court for an interim protection order even when the identity of the alleged stalker is unknown. The law will also empower the police to investigate a stalker to identify the perpetrator even before a victim launches
an application for a protection order.

Human trafficking

The Prevention and Combating of Trafficking in Persons Act, 2013 (Act 7 of 2013) , defines trafficking to include the recruitment, transportation, sale or harbour of people by means of force, deceit, the abuse of vulnerability and the abuse of power for exploitation. The Act addresses the scourge of trafficking in persons holistically and comprehensively.

Besides creating the main offence of trafficking in persons, the legislation creates offences such as debt bondage; the possession and destruction of, and tampering with, travel documents; and using the services of victims of trafficking, all of which facilitate innocent persons becoming victims of this modern-day form of slavery.

The legislation gives effect to South Africa’s international obligations in terms of the United Nations (UN) Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.

South Africa fully recognises the existence of human trafficking and smuggling activities. These crimes are mostly perpetuated by transnational syndicates, hence the call from many states for regional and international cooperation, as well as the introduction of aligned legislation and immigration procedures.

To address these challenges, UN member states require fair, responsible, ethical and efficient criminal justice systems and crime prevention strategies that contribute to sustainable economic and social development. It also imposes a responsibility on states to work together.

These scourges have also had a negative impact on the people of South Africa. Government therefore fully supports the UN’s promotion of objectives relating to the continued and focused national and international prevention, and combating of these crimes.

In South Africa, migration and human trafficking are a result of a complex set of interrelated push-and-pull factors. On the push side, factors such as poverty, lack of opportunities, dislocations from family and community, gender, racial and ethnic inequalities and the break-up of families are all relevant. The pull factors include the promise of a better life, consumer aspirations and lack of information on the risks involved, established patterns of migration, porous borders and fewer constraints on travel.

As a result of these factors, South Africa has become a source, transit and destination country for trafficked and smuggled men, women and children. South African girls are trafficked or smuggled for the purposes of commercial sexual exploitation and domestic servitude, while boys are trafficked or smuggled for use in street vending, food service and agriculture.

The Prevention and Combating of Trafficking in Persons Act of 2013 deals comprehensively with human trafficking in all its forms and, in particular, provides for the protection of and assistance to victims of trafficking.

Persons engaged with trafficking will be liable on conviction to a severe fine or imprisonment, including imprisonment for life or such imprisonment without the option of a fine or both. Other existing laws being used to prosecute traffickers include the Children’s Act, 2005 (Act 38 of 2005), which provides for the criminalisation of the trafficking of children, while the Criminal Law Sexual Offences and Related Matters Amendment Act, 2007 (Act 32 of 2007) contains provisions that criminalise trafficking in persons for sexual purposes.

South Africa has also been successful in using the racketeering offences in the Prevention of Organised Crime Act of 1998 to deal with criminal organisations involved in trafficking. Under common law, depending on the circumstances of each case, persons suspected of trafficking could be charged with kidnapping, common assault, assault with intent to do grievous bodily harm, extortion, attempted murder and murder.

Those involved in acts of trafficking in persons may be prosecuted using other acts that include the Immigration Act, 2002 (Act 13 of 2002), the Basic Conditions of Employment Act, 1997 (Act 75 of 1997), the Intimidation Act, 1982 (Act 72 of 1982), the Domestic Violence Act of 1998, and the Films and Publications Act, 1996 (Act 65 of 1996).

Source: South Africa Yearbook 2021/22