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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There has been a push for apartheid-era laws to be repealed, and Parliament has produced its own list that was sent to the executive to for considerat­ion.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.

 ??  ?? Advocate Ishmael Semenya
Advocate Ishmael Semenya

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