Apartheid-era laws on the chopping block

The Law Reform Commission has recommended a repeal of several apartheid-era laws, which it says do not belong in a constitutional democracy.

The commission, chaired by former Constitutional Court justice Chris Jafta, published a discussion paper on the “review of colonial and apartheid-era legislation”.

The commission has put together an advisory committee made up of senior silk Ishmael Semenya, Prof Shannon Hoctor and public and constitutional law expert Keneilwe Radebe to guide its work on the project to overhaul the outdated laws.

Among the laws the commission has called for to be repealed are the “Sunday observance laws”, which remain on the statute book.

These include the Sunday Observance Ordinance of 1838 of the Cape of Good Hope; the Lord’s Day Observance Act of 1895; the Sunday Law of 1896 of the Transvaal; Section 21 of the Police Ordinance of 1902 of the Orange Free State; and the Prohibition of the Exhibition of Films on Sunday and Public Holidays Act of 1977.

These laws restricted economic activity and public entertainment on Sundays. The Cape Bar Council, in its submissions to the commission, said the wide array of economic and social activity that now took place on Sundays was sufficient evidence these laws had become obsolete and redundant.

One of the criticisms levelled at the Sunday laws was that these laws were intended to provide a common pause day, and thus have a secular character and a religious objective.

Some legal scholars have also said any law that chooses Sunday as a rest day would raise the constitutional issue of unfair discrimination on grounds of religion.

The commission also wants the Prevention of Public Violence and Intimidation Act of 1991 to be repealed. This act established a commission of inquiry under the chairmanship of justice Richard Goldstone to look into the nature and causes of public violence in SA and propose solutions.

The inquiry has been credited with playing an important role in defusing the political violence that erupted when the country moved towards its first democratic elections. The Goldstone Commission found that political violence was fuelled by a “third force”. The commission said the act had served its purpose and become redundant.

Another law on the chopping block is Indemnity Acts of 1961 and 1977. The pieces of legislation gave police free rein to commit acts of violence, torture or kill in the pursuit of official duties. These acts were meant to shield police from culpability emanating from the 1960 Sharpeville massacre and the June 16, 1976 Soweto uprisings.

The commission did not weigh in on the Riotous Assemblies Act 17 of 1956. This is because whether the current provisions of the act should be retained, with or without amendments, will soon be receiving the attention of the legislature.

The Constitutional Court has already found that part of the Riotous Assemblies Act is inconsistent with a section of the constitution dealing with freedom of expression.

The National Prosecuting Authority had charged EFF leader Julius Malema under that section of the Riotous Assemblies Act for calling on people to occupy vacant land in 2014 and 2016.

The commission said judging from the submissions it had received, it appeared that laws allegedly inconsistent with the constitution were pervasive, and affected all functional areas and spheres of government.

“The commission’s remit in this inquiry is to assess whether the pre-democratic era laws administered by the department of justice & constitutional development are compatible with expressive rights contained in sections 15-19 of the constitution; and to advise, in respect of legislation found wanting in this regard, whether they should be retained, with or without amendments, or revoked,” the commission said.

“This discussion paper thus provides a synopsis of the preliminary findings and views of the commission contained in the issue paper; an overview and analysis of the pertinent comments received to the questions contained in the issue paper; the proposals the commission is inclined to make to the executive as its final recommendations, in this regard, and most importantly, a draft Bill which if enacted and promoted by the department of justice & constitutional development, would give effect to the said recommendations.”