Justice department to repeal apartheid, colonial legislation
THE Department of Justice and Constitutional Development has put into motion a process that will review all justice-related legislation dating back to the colonial and apartheid periods during 2021-22.
The initiative comes against the backdrop of the South African Law Reform Commission (SALRC) and department embarking on an investigation to identify and repeal or amend legislation enacted before 1994 that was designed to foster the policies of apartheid.
There has been a push for apartheid-era laws to be repealed, and Parliament has produced its own list that was sent to the executive to for consideration.
“The review of all the colonial and apartheid-era justice legislation is with the aim of aligning these legislations with the Constitution,” said director-general Doctor Mashabane.
The department’s head of strategy, Terence Raseroke, said the review and replacement of colonial and apartheid-era justice-related legislation was one of their priorities.
“The measure for this outcome is to have less than 2% of legislative instruments developed that failed to withstand constitutional court challenges. Only pieces of legislation that are not in sync with the Constitution must be reviewed and replaced,” Raseroke said.
“Over the medium-term expenditure framework period, we have about 12 justice-related apartheid and colonial era pieces of legislation that will be considered for repeal or replacement, for example the Trespass Act, the Riotous Assemblies Act and the Prevention of Public Violence and Intimidation Act,” he said.
Raseroke also said they would ensure that four bills and regulations should be submitted to the minister for approval in the current financial year.
Acting deputy director-general Nelson Matibe said the SALRC had in 2004 conducted a provisional audit of national legislation in the statute book since 1910.
“It established that roughly 2008 individual national statutes existed in statute books,” Matibe said.
He said they were looking at reviewing of apartheid-era laws on an ongoing basis and there was already a report on the justice-related legislation.
The SALRC said in a notice published last week that it was to identify and repeal or amend legislation which appeared neutral and not in contravention of the Constitution, but was designed to foster the policies of apartheid.
It has appointed an advisory committee for the project, comprising advocate Ishmael Semenya, advocate Anthea Platt and Professor Shannon Hoctor.
“The scope of this investigation is therefore quite wide and the inquiry will focus solely on legislation falling under the justice portfolio.
“Legislation that is administered by other departments identified through the process of consultation will be forwarded to Parliament’s legal services unit, which has been mandated by the National Assembly programming committee to initiate a similar process,” SALRC said.
It said a number of measures and interventions were over the years initiated to remove apartheid laws from the statute book.
“However, some pieces of legislation which are not overtly unconstitutional, unjust or antidemocratic, but that nonetheless still formed part of a suite of legislative enactments designed to foster the policies of apartheid, have survived.”
It made an example of the Transkei Penal Code of 1983, the Kwazulu Act on the Code of Zulu Law of 1985 and the Riotous Assemblies Act of 1956.
“The continued existence of these laws in our statute book still evokes painful memories. Government must, in a systematic manner, respond by reviewing and repealing these statutes.”
Written submissions are to be made by June 3.