Requesting an Investigation

Any person or body is free to submit proposals for law reform to the Commission. In each case the Commission considers the merits of a proposal. In some instances a preliminary inquiry is instituted to determine whether the inclusion of a matter in the Commission's programme is justified. The Commission may also include matters in the programme of its own accord.

Every effort is made to dispose of urgent matters with the least possible delay. However, the Commission has to follow certain procedures which sometimes take up considerable time. The availability of funds and skilled research capacity, the nature and extent of the inquiry and the need for consultation all determine the time spent on each project. Consultation, in particular, is time-consuming, but the Commission regards it as an indispensable part of the law reform process.

Selection criteria for inclusion of investigation in SALRC Programme

The selection criteria provides for a two-phased process to determine the inclusion of an investigation in the SALRC's programme.

The first set of criteria is used to determine whether a proposal should be rejected even before a pre-investigation is done. It creates a sifting mechanism to reduce the number of pre-investigations. If the proposal does not meet the initial criteria set for inclusion, it is rejected and a recommendation on this basis is made to the Commission for consideration. However, where the initial criteria are met, a pre-investigation is indicated and the second set of criteria is then used to evaluate the proposal and to determine the ultimate inclusion or rejection of the proposal.

Whereas all the initial criteria need to be met when deciding whether to go ahead with a pre-investigation, a proposal need not meet all the secondary criteria to be included in the programme. All the criteria in the second phase are considered and such weight is attached to a specific matter as the Commission deems appropriate in the circumstances of each case.

The criteria used in the two-phased approach are listed below:

1. Criteria used in the initial sifting process to determine whether a proposal should be subjected to a pre-
    investigation or whether it should be dealt with summarily:

a) Whether the issues concerned are predominantly legal;

b) Whether the difficulty with the law can be overcome other than by a change of the law, such as for example through a
    mere change in policy or improved implementation of existing legislation;

c) Whether there is another institution or government department better placed to deal with the topic in question;

d) Pending legal developments (eg. court cases or other draft legislation) that could influence the relevance of the investigation;

e) The availability of current resources in terms of capacity, funding and the effective management of the research programme.

2. Second phase criteria used in conjunction with those set out in 1 above during a pre-investigation:

a) Extent to which the law is unsatisfactory (for example unconstitutional, unduly complex, inaccessible or outdated);

b) Scale of the problem in terms of the proportion of the community affected;

c) Potential benefits likely to accrue from undertaking reform or repeal of the law;

d) The extent to which the investigation contributes to the implementation of a broader government policy;

e) Enhanced constitutionality;

f) Development and enhancement of the constitutional democracy;

g) Whether the issues span the interests of a number of government departments or professional groups;

h) Whether the investigation would require substantial, long-term commitment and fundamental review;

i) Whether extensive public or professional consultation would be necessary;

j) Whether the investigation needs to be done independently of central government departments or other stakeholders
    because of -

     * the existence of vested interests; or
     * significant difference of views or objectives in the different entities;

k) Whether the investigation would promote informed public debate on future policy direction;

l) The extent to which the investigation will benefit poor and previously disadvantaged communities.