MEDIA STATEMENT BY THE SOUTH AFRICAN LAW REFORM COMMISSION CONCERNING ITS RELEASE OF DISCUSSION PAPER 133 ON STATUTORY LAW REVISION IN RESPECT OF LEGISLATION ADMINISTERED BY THE DEPARTMENT OF HOME AFFAIRS

The South African Law Reform Commission (SALRC) hereby releases its Discussion Paper 133 on Project 25: Statutory law revision in respect of legislation administered by the Department of Home Affairs for general information and comment (see here - PDF). The discussion paper sets out the SALRC's preliminary recommendations for law reform regarding statutes administered by the Department of Home Affairs.

In January 2003 Cabinet approved that the Minister of Justice and Constitutional Development co-ordinates and mandates the SALRC to review provisions in the legislative framework that may result in discrimination as defined by section 9 of the Constitution. This section prohibits unfair discrimination based on race, gender, sex, pregnancy, marital status, ethnic and social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. In 2004 the SALRC included in its law reform programme an investigation into the revision of the statute book to identify provisions that are redundant, obsolete or which infringe the equality provisions of the Constitution.

The focus of the statutory law revision project at present is constitutionality of legislation in view of section 9 of the Constitution, and repeal of redundant and obsolete provisions. The methodology adopted in this investigation is to review the statute book by Department - the SALRC identifies a Department, reviews the national legislation administered by that Department for constitutionality and redundancy, sets out the preliminary findings and proposals in a consultation paper and consults with that Department to verify the SALRC's preliminary findings and proposals.

The next step that the SALRC undertakes is the development of a discussion paper inrespect of the legislation of each Department, and upon its approval by the SALRC, it is published for general information and comment. Finally, the SALRC develops a report in respect of each Department that reflects the comment on the discussion paper and contains a draft Bill proposing amending legislation.

After having reviewed the statutes administered by the Department of Home Affairs, the SALRC proposes in Discussion Paper 133 that:

(a) The following statutes be repealed for the reasons set out in Chapter 2 of this discussion paper:

(i) Prohibition of Mixed Marriages Amendment Act, 1968 (Act No. 21 of 1968)

(ii) Elections and Identification Amendment Act, 1989 (Act No. 92 of 1989)

(iii)Electoral and Related Affairs Amendment Act, 1985 (Act No. 36 of 1985)

(iv)Population Registration Act Repeal Act, 1991 (Act No. 114 of 1991)

(v) Aliens Control Amendment Act, 1993 (Act No. 3 of 1993)

(b) The Acts set out in Schedule 2 of the proposed Bill contained in Annexure A be repealed to the extent set out in that Schedule, for the reasons set out in

Chapter 2 of this discussion paper; and

(c) The provisions of the Acts set out in Schedule 3 of the proposed Bill contained in Annexure A be amended for the reasons set out in Chapter 2 of this discussion paper.

The project leader for the investigation is Mr Irvin Lawrence, a commissioner and an attorney based in Durban.

The SALRC invites comments on the proposed repeals or amendment of the legislation concerned. The closing date for comment is 30 May 2015 and all comments and representations must be sent to the following address:

The Secretary
South African Law Reform Commission
Private Bag X668
Pretoria 0001

Extract from the report:

(iv) Prohibition of Mixed Marriages Amendment Act 21 of 1968

2.49 The Prohibition of Mixed Marriages Amendment Act, 1968 (Act No. 21 of 1968) (-the Prohibition of Mixed Marriages Act‖) is obsolete as it amends an Act which no longer exists, namely the Prohibition of Mixed Marriages Act, 1949 (Act No. 55 of 1949). 55 

The Prohibition of Mixed Marriages Amendment Act should therefore be repealed.

2.50 Commenting on the Consultation Paper the DHA agreed that the Prohibition of Mixed Marriages Amendment Act, 1968 as pointed out in para 2.49 should be repealed as recommended.

Footnote:

55 The Prohibition of Mixed Marriages Act was repealed by s 1 of the Immorality and Prohibition of Mixed Marriages Amendment Act 72 of 1985 on 19 June 1985. Although the latter Act does not fall within the scope of the present review, it should be noted that s 7(2) of the Act might be unconstitutional: see Heaton "Family Law and the Bill of Rights" in Bill of Rights Compendium para 3C on p28.

Statement issued by Ms Maureen Moloi, The Secretary, South African Law Reform Commission, January 18 2015

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