Mr. Speaker, the hon. member for Brakpan concedes that the hon. member Mr. Schutte made out a good case to show why the courts should steer clear of politics. The hon. member added that the Speaker stood outside of politics and was an unprejudiced, objective judge. For that reason the hon. member objected to the Speaker being consulted in terms of clause 17 (2) (a). According to him this brings the Speaker into the fray.

The hon. member adds that he is going to move an amendment to the effect that the courts must be given the testing right. In reply to a question asked by the hon. the Minister he said that the courts should even have a testing right on merit decisions by the President. Therefore, if the hon. member objects to bringing the Speaker into the fray because that would affect his image, I find it strange that he does not have the same objection to giving a right of decision to our courts and thereby causing them to be similarly affected.

Clause 16 (1) (b) provides that the question whether any particular matter is an own affair or a general affair, is also a general affair. Therefore the right of decision that the hon. member advances here to back up his criticism that the President has dictatorial powers, is in fact a matter for the executive as a general affair. For that reason a testing right of a matter which is at the discretion of the executive would be still less acceptable. For that reason I am unable to support the instruction.

Mr. Speaker, I want to place on record the fact that in the Select Committee I supported a similar amendment to that contained in this instruction. I did that while clause 20 was worded as it appeared in the original Bill. But in view of the fact that clauses 20 and 36 of the original Bill were amended to provide that the traditional testing right which exists in the present constitution be specified in the amended Bill, my objections were removed. I then voted in favour of the new clause 18, and I believe that the instruction before us is therefore no longer relevant or necessary [Interjections.] I shall deal with that in a moment. However, I just wanted to make my position clear in case the official Opposition accuses me of voting for their amendment in the Select Committee and now opposing it. I want to make it clear that the circumstances then were quite different from those that exist with the amended clause in the Bill.

I want at the outset to deal with what I regard as a most unfortunate reference made by the hon. member for Sandton. I am referring to his unfortunate statement to the effect that there were only two options open. I want to make sure that I understood him correctly. He said there were only two options open. One had either to give a testing power to the courts and then pack them as was done in the 1950s—those were his words as I wrote them down—or one had to strip the courts of their power. I think that this is a most unworthy reflection upon the courts of South Africa. It was in the 1950s that we had the Harris case when the Appellate Division declared an Act of Parliament to be invalid because it had not been passed in terms of the provisions of the constitution.

It went a little further than that.

Yes. It was that same Appellate Division which rejected a subsequent attempt in the form of the High Court of Parliament Act to circumvent that ruling. Therefore, in the 1950s to which the hon. member for Sandton referred, when the courts were packed—as he put it—the Appellate Division of the Supreme Court of South Africa ruled against Parliament on the basis that Parliament had not passed laws in conformity with the provisions that were necessary for the passing of such laws.

In the first case but not in the second case.

In the second case it was on the basis of evasion.

Correct.

In other words, it was a circumvention of the provisions of the constitution of South Africa.

But the Bill had been properly passed.

It remained a bypassing of the provisions. It was an avoidance of the provisions of the Act and therefore it was improper in that it sought by means of subterfuge to avoid the provisions of the entrenched sections of the constitution.

It was not given its proper testing right.

Why don’t you make a speech, Brian?

Yes, Sir. It would be interesting to hear that hon. member make a speech. He only speaks once a year and that is to complain that we sit too long. That is a very important speech! The hon. member stands up and talks about legislation by exhaustion.

I have never said that in my life.

I sincerely hope that the hon. member will participate in this debate. It would be interesting to hear what he has to say.

Not only do I think that the statement by the hon. member for Sandton was an unfortunate reflection upon our courts but I also think that there is another aspect that must be clarified. I am referring to the different issues involved in the Harris and other cases. In the first of these, it was whether Parliament had acted within its powers and within the provisions of the constitution. In the others, cases like the Ingwavuma-Kangwane case, the Rikhoto case and others, what was involved were executive actions that were tested against ordinary laws of the country. In these cases it was not a question of ascertaining whether the law was valid. Those were tests of executive action taken by the Government—among hundreds of others. The hon. the Minister of Law and Order is always having to settle cases out of court where the Government has been taken to court in regard to something that it has done. All departments have experienced this over the years. Therefore, there are two issues. The first is the right to test an Act of Parliament and the second one is the right to test actions by the executive in terms of the law of the land, not only in relation to the constitution but in relation to any Act of Parliament.

The instruction of the hon. member for Sandton calls for three things. By the way, he gives the Appellate Division a fancy name but it still remains the Appellate Division. However, that is not material. Firstly, he calls for it to act as the final authority for interpreting and enforcing the constitution and its conventions. I do not know how one tests a convention which is an unwritten practice—described in broad terms in books and in rulings—but which is not part of the constitution. Apart from the convention aspect, it must act as the final authority for interpreting and enforcing the constitution. That is exactly what the Bill now provides. In clauses 18 and 34 the Bill provides specifically and unequivocally that the courts shall have that power. Clause 18 reads as follows—

Clause 34(2) reads—

That is exactly the power which existed in the old constitution though not specified. It was a legal power of the courts which was not specified in the constitution. To make it quite clear, the Select Committee has spelt that out in the words I have quoted. Therefore it is no longer simply a general power of the courts in common law; it is now a specific power provided in the constitution to test whether a Bill which becomes an Act of Parliament has been passed in terms of the provisions of the constitution under which Parliament operates, and similarly whether a decision of the President in terms of clause 17 was taken as laid down; in other words, whether the President followed the procedure laid down. That is the first leg of the instruction moved by the hon. member. It is something which exists now, which is specified in the Bill before us. I therefore believe it is quite unnecessary as the position is now exactly as it was before the new constitution was introduced.

The third leg was to protect any person, group or community whose rights as set out in the constitution are infringed. Again that is a power which is there. The courts have that power and any person whose rights set out in the constitution are infringed could go to court and the court would protect him. Of course, what the hon. member had in mind there, was the Bill of Rights to which I shall come to in a moment.

The second leg was to pronounce upon the validity of certain presidential decisions. I think it is important that the clear difference be established between the right of the courts to test whether an Act has been passed according to the procedures laid down in terms of the constitution and what is here requested, that a Presidential decision be testable by the courts on its content, on the merits of the content of the decision. This is where I disagree with the official Opposition because what is being asked here is a test on merit, not whether an act has been performed correctly as provided in the constitution, but whether it is a good or a bad action, whether the decision in its content is a good one or a bad one.

Mr. Speaker, may I ask the hon. member whether he will concede that the judgment in the constitutional case in the 1950s in connection with the proposed High Court of Parliament was in fact a decision on the merits of a step taken by Parliament and that the step was procedurally correct?

It was a step taken in a clear and deliberate attempt to circumvent the provisions of the constitution. That was the ruling, namely that a procedural device was used in order to circumvent a provision of the constitution. Its objection in that second case was therefore that action was being taken to circumvent the constitution in conflict with the intention of the constitution and a specific requirement for repealing or amending an entrenched clause. Although the content of the Bill was looked at, it was looked at in so far as it circumvented the constitution. What is being asked by the hon. member for Sandton is that the merits of the President’s decision should be tested on merit. I want to ask what the yardstick is.

Let me first come back to what I said a moment ago. In his other requested testing right, the hon. member envisages a Bill of Rights and that there can then be a test against that Bill of Rights. He admitted that it was in fact an essential element of the instruction which was aimed at a testing right measured against a Bill of rights. He quoted Prof. Dugard at some length, if I am not mistaken on three occasions, but he did not quote what Prof. Dugard is reported to have said according to the Rand Daily Mail or yesterday, 16 August—

He continued—

He also did not quote Prof. Marinus Wiechers of the University of South Africa, who was also reported yesterday in the same article, who—

Now who wanted to do that?

They did not quote those views yesterday when we were arguing that identical claim of it being impractical. [Interjections.] That was our case. You cannot introduce a Bill of Rights and test it as has been requested in this instruction, but you can include it as a declaration of intent. [Interjections.] Mr. Speaker, it is so difficult to compete with cackling.

The hon. member for Sandton used Professor Dugard as his reference, as his authority, and I am simply quoting back to him the same authority he quoted on a different issue.

Let me deal with the courts. The hon. member for Sandton seeks, and admits he seeks, political decisions by the courts. In fact, he quoted that as his reason for suggesting that the Appellate Division should be the constitutional court. He said his intention was that it should take political decisions and that the Appellate Division would be the most impartial body able to take political decisions. It is his own case and I take his own argument as the basis. There I must agree with the hon. member Mr. Schutte. He emphasized the need, particularly in South Africa’s divided society, to separate the functions of the legislature from those of the judiciary. What this instruction seeks to achieve is in fact to confuse the functions of the legislature and the judiciary. There is the existing testing right to ensure that the constitutional procedures laid down are adhered to. I have taken the trouble to check this out with other authorities. I checked it out again this morning with one of South Africa’s best known authorities on this matter. I have also had it confirmed from numerous other sources because I do not pretend to be legally trained. I am not. The present position allows a test to be made on the method followed in passing an Act or making a decision to see whether it is constitutional; it also allows a test of bona fides or mala fides. [Interjection] That is common law, but it is there. It is a power of the courts. Therefore one can test the bona fides of a decision by the President and one can test whether he has followed the prescribed procedures. What we are looking at now is whether one tests the merit, the content of his decision. I say that I do not believe that it is possible. The courts in South Africa have never done so. They have never been authorized to question or to adjudicate on the merits or demerits of the contents of a Bill, except in that one case which was an evasion of an entrenched clause and which was rejected on that basis. On what does one test merit? If there is no Bill of Rights, against what does one test the merit? If there is a Bill of Rights one can ask whether a particular Bill infringes upon the Bill of Rights. But if there is no Bill or Rights, against what does the court test a measure? I hear the advice being given, inter alia by the hon. member for Bezuidenhout, i.e. “natural justice”. I am talking about a specific test which the courts can apply. The same applies to the question: How does one test an unwritten convention? Against what yardstick or measure does one test a decision of the President? And that is what is being asked here. Does one say that natural justice prescribes that he should not decide that …

Mother love is good.

Yes, mother love is good. That would be a Prog one! It is the Progs who all talk about mother love being good, do not beat your wife in public and that sort of thing. Let us take something like marriage practices, a specific thing. If the President should rule that is an own affair for a community, against what natural justice would the courts determine whether that is correct or wrong? If it were natural justice—I think one of the Government members quoted Roman-Dutch law—would that be right or wrong because it permitted polygamy? If it was Islamic law, would it be right because it conformed with the Islamic law? I think one can quote example after example where there are no laid-down standards against which one can test.

That is why we in this party do not go along with the concept that the courts should be placed above Parliament by giving them the power to test the merits of the laws passed by Parliament or by the President. The courts should be there as a watchdog to ensure that the constitution is not breached; a watchdog to ensure that nothing is done mala fide and that nothing is done illegally or beyond the powers of the constitution. Parliament is the body which must legislate. The supreme court to which Parliament is responsible is the electorate of South Africa. The laws, the methods of passing them, the procedure to be followed, this is a matter for the courts, but when it comes to the merits of the laws the electorate of South Africa is the judge.

May I ask you a question?

Yes, certainly.

Seeing that you do not want the courts to have a testing right…

No, that is not correct.

At any rate as far as the contents of the Bill are concerned. Mr. Speaker, does the hon. member then reject the jurisdiction which the Appellate Division has in testing legislation of Bophuthatswana against its Bill of Rights?

Mr. Speaker, the hon. member has actually put two questions. As regards the first, I pulled him up because he was reacting typically of the PFP. Had I not pulled him up he would have gone on record as saying that I do not want the courts to have testing rights. That is typical of the half-truths that Progs put to the public. They are putting the halftruth across that the new constitution excludes the testing rights of the courts. That is untrue. I want it to be quite clear that this untruth has been propagated by that party in order to build up opposition to the proposed constitution. Mr. Speaker, the position is that I am not in favour of removing the testing rights of the courts. On the contrary, I am in favour of retaining the existing testing rights of the courts. What I am against is extending those rights to the contents of a measure.

The second question of the hon. member was whether I was against the Bophuthatswana decision. Sir, that is not my business. They have chosen to have a Bill of Rights which per se gives to the courts the testing right. So the courts can exercise that right perfectly legally. But be that as it may, that is their decision. My submission is that it will not work in South Africa, and in this respect I entirely agree with Prof. Dugard and with Prof. Wiechers who both say that it will not and cannot work in South Africa. America also has a Bill of Rights. Well, if that is what America wants, let them have it. My submission is that it is not practical for South Africa in the situation in which we find ourselves…

Under this Government.

Yes, under this Government.

That brings me to the last point I want to make. I believe we should separate the two responsibilities: the responsibility of parliament to the electorate from the function of the courts, i.e. the interpretation and application of laws. I believe this separation is essential. In the motion before the house the PFP admits by implication that they do not expect ever to win an election to become the Government of South Africa. They accept that the NP is entrenched for ever. This is implicit in all of their statements about the new constitution. Well, I am not so pessimistic. The electorate of South Africa is the only final arbiter of who should govern the country, and if the PFP does not believe it can win an election, then it is exposing its own weaknesses. It admits thereby that it is so ineffective as an official Opposition that it wants itself to be replaced as the official Opposition in South Africa by the courts. They want the courts now to become the official Opposition. Mr. Speaker, the NRP does not go along with the attempt to extend the testing rights of the courts to testing laws on merits. For the reasons I stated yesterday this is not practical for South Africa, a view which Prof. Dugard and Prof. Wiechers agree with.

Mr. Speaker, there is not much about which I can quarrel with the hon. member for Durban Point. He adopted fundamental standpoints with which, for the most part, I am able to agree. Nor can I find any fault with his attack on the PFP, in the person of the hon. member for Sandton.

In turn, I want to cross swords with the hon. member for Sandton concerning one aspect of his argument. At no stage did he give us an indication of what kind of testing the PFP advocated. Nor is this clear from his motion. Legislation can either be tested when it is introduced, or some stage before after promulgation. My conclusion is that the hon. member wants testing to take place after promulgation, since only then is it a judicial task and no longer a political one. The fact that he specifically wants to involve the judges of the Appeal Court, indicates to me that his argument is based on testing taking place after promulgation. As a point of departure, the hon. member assumed—and he quoted Prof. Dugard in the process—that the Government accepts that there will, in fact, be clashes between the three Chambers in the future and that a mechanism will therefore have to be created to defuse such clashes. Now I do not know whether the hon. member lives in such an idyllic world that he is able draw up a constitution in terms of which such clashes need not be defused. I find no logic in the standpoint the hon. member has adopted in this regard. For example, mechanisms such as a Bill of Human Rights, the separation of power and authority and, in certain cases, testing rights of the courts, are to be found in the constitutions of countries throughout the world. Such mechanisms were developed through the centuries because, from the earliest times, people feared official tyranny, suppression, arbitrary action, as well as the detrimental effects a dictatorship may have. As a result of this, checks and balances were incorporated into constitutions, such as, for example, in the case of the position of the President in relation to the House of Assembly, the position of the House of Assembly in relation to the Cabinet, mechanisms such as budgets, control over the Defence Force, rules of order for Parliament, etc. It is an accepted principle in a democracy that the sharing of power by separate authoritative institutions is essential to avoid domination.

In such a case, proper functioning is dependent on co-operation with those institutions of power in order for one’s own institution in which one operates to function properly. More effective government, however, has not been, and should not be made impossible by such mechanisms, since this could only result in the disappearance of stability. I believe that the NP shares the idealism of certain hon. members of the PFP, although I also believe that this should be tempered by a certain amount of realism. We cannot begin at the end. One cannot put a roof on a house before the foundations have been properly dug; before the foundations have been properly laid and the walls have been completed.

In contrast to hon. members of the CP, we as realists realize that we must begin somewhere, and that in a country like South Africa, the basis of such a beginning must be acceptable to all reasonable people; acceptable to all other groups as well.

What is the end of your argument?

Mr. Speaker, if only the hon. member for Rissik would listen to me, he would perhaps understand my argument.

I am listening to you. That is why I am putting questions to you.

Mr. Speaker, the hon. member should rather just sit quietly and listen to me. If he still has questions when I have reached the end of my argument, I shall try to reply to them.

We accept that we as Whites in South Africa, which is a heterogeneous country, do not live in isolation. We also accept that there are other Whites—radical Whites as well—who also want to relinquish everything, or who are so selfish, and who want to keep everything for themselves, to the exclusion of all the other citizens of South Africa, that they are not interested or do not care whether we are headed for future disaster. There are also those who arrogate to themselves the right, as sole decision-makers, to determine in which countries the other citizens of this country will be permitted to have a share. [Interjections.] The independence and security of the judiciary serves as an essential mechanism in our country. The Judiciary is an institution that has fulfilled that task very honourably until now. It is essential, however, that such an institution should stand completely outside of the field of uncertainty of political transitions, and that it also be excluded from the vehement displays of emotion which sometimes occur in public. After all, these are matters that only serve to cloud a clear judgment. Of course, it is only possible to succeed in this if one does not politicize the Judiciary.

I think the hon. member Mr. Schutte demonstrated very effectively what our dilemma is with regard to systems in which political appointments have to me made in order to ensure that the objectives of a particular government are maintained. He indicated very clearly that even the Americans concede that a constitution is necessarily a political instrument, and not an instrument of the courts. I refer in this regard to the work of Carwen and Peltasons, Understanding the Constitution, in which it is stated clearly by Judge Roger Taney, who is quoted under the heading “Restrictions on Judicial Review: The Doctrine of Political Questions”, as follows—

I agree wholeheartedly with that exposition by the American Judge.

Clear views on this issue are also expressed by one of our professors of law, Prof. Johan van der Vyver from the University of the Witwatersrand. I think it is known that he is not a supporter of this Government, but the hon. member for Sandton quoted him so selectively, that I think one should refer in a little more detail to the standpoints of Prof. Van der Vyver in this respect. I should very much like to refer to his book, Die Beskerming van Menseregte in Suid-Afrika. Prof. Van der Vyver states clearly on page 42 et seq. that when one speaks of the protection of human rights in South Africa, people throughout the world attach a negative connotation to this.

I never quoted him.

He says—

He goes on to say—

In that respect, I can quote Prof. Van der Vyver with great respect and emphasize his opinion. I think he is absolutely correct as far as that is concerned. However, that does not mean that the South African Government does not support human rights and make their views on this issue very clear. The hon. member for Krugersdorp has referred to the judgment of Mr. Justice Van Wyk de Vries in the case of Simon Langa et al vs. Massinga et al, a judgment in which Mr. Justice Van Wyk de Vries, a judge of the Supreme Court of South Africa known for his balanced decisions, made his view on this issue very clear. It is set out on page 740 of that judgement.

Another question which arises is what the testing right of the South African courts was in the past. Before coming to that, however, I just want to refer briefly once again to Prof. Van der Vyver’s view on the American system on the one hand, and the system of the United Kingdom on the other. I refer to page 43 of his book in which he states—

In contrast, he sets out the position in the United Kingdom as follows—

In contrast, the Parliament of the United Kingdom is absolutely sovereign. Van der Vyver mentions at the bottom of the relevant page that a testing or entrenchment of human rights based on the American pattern would be worthless in the United Kingdom. As a result of the background and traditions of our legal system, we have been influenced mainly by English law in this regard. All the basic human rights are recognized one by one in our common law. This has been tested repeatedly in our criminal and civil law. A writer like Prof. Van der Vyver readily concedes that.

The question which now arises is what the testing right of the South African courts has been, and is, during the present discussion of this particular legislation. Prof. Van der Vyver sets this out clearly on page 44—

He then quotes section 59(2), which reads—

This refers to our language rights and those specific aspect that are entrenched and in which we cannot lightly interfere unless specific steps determined by the constitution are followed.

Mr. Speaker, may I ask the hon. member a question?

No. The proposed sections 34 and 68 are virtually a verbatim repetition of the passages I have just quoted from Prof. Van der Vyver’s book and from the existing constitution. Specific exceptions in respect of clause 18, to which the hon. member for Brakpan objected, are stipulated in the proposed legislation. I want to make this very clear. I think the hon. member for Nelspruit also made the position very clear. Those are political decisions that will have to be taken accordingly in good faith. An American judge, Judge R. B. Taney, has set out the principles in that respect very well. He says that we cannot allow the Judiciary to be politicized in order to interpret the political decisions that have to be taken on that basis. The Judiciary then immediately becomes involved in politics, and the Judiciary would immediately have to be packed by the government of the day. Then one would no longer have an independent Judiciary.

I respectfully wish to suggest that safety measures have already been incorporated since the first draft of this legislation was submitted to this House. Not only will there be consultation, but also prolonged negotiation. I cannot agree with the statement of the hon. member for Brakpan that even mala fides on the part of the President would be excused in terms of the present provisions of the legislation. I really cannot see how a lawyer of his stature can put forward such an argument. The example that pointed out that if the President were to telephone the chairmen of the various Chambers, he would be able to circumvent the provisions of the relevant section, indicates that the attitude of those hon. members as regards the constitution is not a serious one. They are peddling their standpoint in an improper manner.

This side of the House is in earnest about consulting in the proper manner in that respect. I believe that this side of the House realizes only too well that if the President does not have proper consultation with the Speaker and the Chairmen of the other Chambers as the leaders of their respective Chambers, the new dispensation has no hope of succeeding. Such consultation will have to take place on a bona fide basis.

Let me continue by referring briefly to the testing right of the Standing Order and the role the courts can play in this respect as well. The hon. member for Sandton did not argue this point at all, nor did he give an indication in his motion as such as to whether he would want a testing right which would, for example, include the Standing Order of the House of Assembly or of the other Chambers of Parliament. I think this is an aspect to which one of the next speakers of the official Opposition could give attention.

I want to point out in this regard that out of a total of 47 countries investigated by a reliable source, there are only nine countries that permit the testing of the rules of their parliamentary institutions in some form or another. They are the Federal Republic of Germany, France, Kuwait, Monaco, Argentina, Austria, Brazil and the Republic of Korea. In contrast, there are a number of systems that do not permit this, inter alia, Australia, Belgium, Canada, Denmark, Israel, Italy, the Netherlands, New Zealand, Norway and Switzerland.

I respectfully suggest that if we look at the testing right of the courts in a country such as Italy—America too, to a certain extent—we find that over the past 10 years there have been so many reported cases of the testing of the constitution, that it makes government in Italy very difficult.

That is why they have already had 34 since the war.

That is true; I agree.

In our system, as in any comparable system—for example, the Swiss system—extra-parliamentary consultation on our legislation takes place from the day the need for that legislation arises. Long before a draft Bill appears in our Gazette there is a need for that legislation in a particular circle or area. It is a very long procedure before that particular piece of legislation eventually gets to the legal advisers. Once it gets to the legal advisers and it is published, the Government continually consultates with all organizations in South Africa that have an interest in that legislation. In fact, comments, as well as contributions by any citizen of the country, regardless of colour or race, are invited. The experiences of any group can be relayed. These are the rights that exist in this free democracy of ours.

In view of this, I want to suggest that so many safety measures already exist, that we need not try to incorporate a mechanism, with a testing right for our courts, which is completely alien to our system, particularly to the composition of our population, since we would only be creating trouble and instability for ourselves. This can spell no good for us on the road that lies ahead.

As far as the existing laws are concerned, they remain in force in terms of the proposed clause 87. As regards clause 94, the rights, obligations, the conventions, are recognized and accepted by this Government as being binding.

I respectfully suggest that this instruction, just like the previous one, is nothing but a smoke-screen for the political bankruptcy of that party. The hon. member for Yeoville has not been a very happy man at all. Despite the exposure he has had for two days, I have never seen that hon. member as unhappy as over the past two days. I respectfully suggest that it is impossible to support this instruction, and I am sure the hon. the Minister will go on to deal with this effectively.

Mr. Speaker, I think it is unworthy of the hon. member for Roodepoort to make the accusation that he has made at such an important juncture in the discussion of this constitutional legislation, in respect of which we have moved these instructions, by saying that the instructions that we have moved are nothing but a smokescreen. The hon. member is inferring that our efforts to instruct the Committee—which is the purpose of an instruction—to do something that it would otherwise not be empowered to do, by means of an instruction which is not mandatory but which only seeks to empower the Committee to act in a certain way, are a subterfuge. The hon. member has suggested that our request that a constitutional court be established in South Africa is a smokescreen, and I say that it is unworthy of that hon. member to have made that suggestion, it is also unworthy of the Government. If the hon. member had consulted the minutes of the Select Committee he would have seen that an amendment was moved by the hon. member for Sandton on behalf of this party and he would not have come to light with the remarks that he has made here today.

The hon. member for Roodepoort dealt at some length with the Bill of Rights and one would have thought that is a subject that he should have discussed under the motion for the previous instruction. Therefore, I am not going to discuss the merits or demerits of his argument in that respect at this stage. The hon. member also wanted to know whether he intended legislation to be referred to a constitutional court prior to or after promulgation. The hon. member quoted several authorities with which I shall deal at a later stage in regard to the whole question of the referral of legislation to a constitutional court before or after promulgation. The hon. member stated that the judiciary should be separate from Parliament. That is exactly what we are asking for. We are trying to ensure that the judiciary is separated from Parliament. There was one argument that was common to all the arguments advanced by hon. speakers on the other side. This argument was advanced originally by the first speaker on that side, the hon. member Mr. Schutte, and it was then repeated by the hon. member for Nelspruit and the hon. member for Roodepoort. The argument was that if this instruction was agreed to it would politicize the judiciary, it would drag the judiciary into the political arena and that would mean that the Government in power would appoint the judges. I think that is a scandalous allegation for those hon. members to have made because I think it is a reflection upon the entire judiciary. That is a reflection on the appointments made by the hon. the Minister of Justice.

I want to quote what was said by the hon. member Mr. Schutte in referring to the hon. member for Sandton. He said (16 August)—

Then he goes on to say” … nie gesien sal word as ’n verdere Regeringsarm nie”. I have always understood that judges who have been appointed are able to disabuse their minds from any personal feelings that they may have, that they can adjudicate on matters by disabusing their minds from irrelevant matters in order to come to the correct decisions. I think lawyers and the hon. the Minister will agree with that. I think judges are capable of doing that. For example, let us say that a judge has to try a matrimonial case. He may have matrimonial difficulties or certain ideas on matrimony, but he is not going to allow his personal ideas on matrimonial matters to influence his judging that matrimonial case. On that same basis a judge who judges a political matter may have his own ideas and politics, but is this Government suggesting that he is going to give judgment according to his own political ideologies and doctrines? Is that the judgment they expect from him? Because he is judging a political matter, does that involve him in politics? We have had hundreds of cases of politics being dragged before the judges.

Where?

Election cases dealing with special votes, postal votes, the counting of votes, etc.

Those are not political cases.

Does that drag judges into politics? Does the fact that two political parties are fighting mean that he will give a judgment according to his political beliefs? Where is your faith in the judiciary?

The Speaker and the Chairman of this House have their own political beliefs, but they are not going to give rulings in this House according to their political beliefs. They are going to obey the rules and procedures of this House and disabuse their minds of whether they like an NP or his politics. Surely that is the name of the game in South Africa.

The hon. member Mr. Schutte then made the following statement I have difficulty with—

To suggest that the courts in the United States are not independent is a scandalous allegation. The trouble of the three members on the other side who have spoken—and perhaps it reflects the view of the NP—is that they are in fact inferring that if a court makes a decision which they do not like, it is not good, but if a court makes a decision which they like, then it is okay. As long as the court makes a decision that they like, the court is okay, but they are afraid that a court, which is independent, will make a decision which is against them. That is what they are trying to guard against. This is precisely what it is all about.

In passing I just want to refer to what was said by the hon. member for Brakpan. He has put across the point of view of the CP. I can understand his point of view that he is against the provisions of clause 18. We are also against those provisions, but that does not mean that we are against a constitutional court. I think we must see the two in a different light. Whereas there may be opposition to clause 18 (2) it does not mean that there will be a constitutional court. They are two separate things.

The hon. member for Durban Point, on behalf of his party, has done another egg-dance here this afternoon. Having supported a constitutional court proposed in the Select Committee, as can be seen in the minutes of the Select Committee …

As an alternative for some authority.

He offers the excuse that amendments were made with regard to clauses 20 and 36 and that those amendments satisfy him and his party to such an extent that he can no longer support the concept of a constitutional court. Those amendments which were moved by hon. members who sat on the Constitutional Committee do not detract from the aspect of whether a constitutional court should be established as a separate independent body in order to decide upon matters contained in the hon. member for Sandton’s instruction with regard to the authority for interpretation and enforcing the constitution, to pronounce on the validity of certain Presidential decisions and to protect any person, group or community whose rights are set out in the constitution.

It is not going to be a special separate court.

We are dealing with a separate constitutional court. I am sorry, but those are semantics. The hon. member for Durban Point has once again done an egg-dance and I can only say that the NRP has done so for political reasons with an eye on the referendum and the support that they wish to get. [Interjections.]

Since the Second Reading of the Bill took place we are happy to a certain extent with regard to what we want to put as our point of view. That is why we have moved this instruction in order to show out deep concern for what we think is actually right. Extending the provisions of the Bill in order to provide for an independent constitutional court, is relevant and not contradictory to the subject matter of the Bill as read a Second Time. We asked that this instruction be accepted so that the Committee can consider the role of the Supreme Court. The role of the Supreme Court, of the Appellate Division and subdivisions of the Appellate Division, is in fact enshrined in the constitution in so far as clause 68 is concerned. The judicial authority is, after all, the Supreme Court with the Appellate Division and its other divisions having jurisdiction in terms of clauses 18 and 34. Clause 18 allows the Supreme Court to pronounce upon whether clause 17 (2) was complied with in the case of a decision of the President. That merely relates to a certificate in respect of a Bill or an amendment and that he has consulted the Speaker of Parliament and the Chairman. However, clause 18 (2) goes further and states that no court of law shall be competent to inquire into or pronounce upon the validity of a decision of the President when it comes to own affairs of a population group or not. To this extent the courts are excluded. Clause 34 provides that—

In other words, what we are dealing with is whether the procedures have been complied with and whether Parliament has been properly constituted. That is all. However, according to the rules of the House they are excluded in terms of clause 34 (1) (b). Furthermore, when one comes to subsection (3)—and this is the crunch—“no court of law shall be competent to inquire into or pronounce upon the validity of an Act of Parliament.” I know this is section 59 (2) of the constitution which is being re-enacted, but are we not dealing here with a new constitution? In dealing with this instruction to the Committee of the whole House, surely this is the opportunity to put this matter right? Surely this is the opportunity to allow the validity of Acts of Parliament to be tested by the courts? The amendment that we moved in the Select Committee is our standpoint and I think we were supported by the CP in that they agreed with our standpoint. This is referred to on page 158 of the minutes where the CP supported us.

Hon. members will agree that there is indeed only a token mention made of the role of the courts, and that the token role of the courts is in no way extended but remains exactly as it is at the moment. The role of the court is indeed somewhat more limited when we look at it in the light of clause 18 (2) of the Constitution Bill. It is consequently imperative that a constitutional court should be established to function independently in order to interpret and enforce the constitution and its conventions. The constitutional court should be an independent judicial body consisting of 13 judges of the Supreme Court. Hon. members of this House have said those judges would be politically appointed. If hon. members are afraid that they might be politically appointed I suggest they look again at the wording of the motion introduced by the hon. member for Sandton in the Select Committee, in which he asked for the establishment of a judicial appointment board to handle the appointment of judges. If hon. members still have any fears in this regard, I suggest that the hon. member for Sandton offers them the solution to their problem here. By giving effect to what the hon. member for Sandton suggested in the Select Committee they would be able to allay all their fears in this regard.

A constitutional court will have to pronounce upon the validity of certain decisions by the President, and certainly also on the validity of Acts of Parliament. Most important will be its function to protect any individual or group. In this respect I do not want to repeat the arguments already advanced in respect of a Bill of Rights. Much has already been said here about the fact that group rights are not included. Surely any hon. member will understand that when one talks about individual rights it also includes group rights. In fact if hon. members are prepared to look at the Order Paper again, I should refer them to page 471, where they will see that initially, when the hon. member for Sandton gave notice of the instruction he was going to move in respect of the introduction of a Bill of Rights, the third leg of his motion stated as follows—

What is suggested by the hon. member for Sandton in his motion, Mr. Speaker, is entirely in accordance with PFP policy. On pp. 27 and 28 of our Blue Book it is clearly stated that the Federal Supreme Court will consist of two divisions, the first of which will be the Federal Appeal Court, that will handle appeals on non-constitutional issues, and the second of which, the Federal Constitutional Court, will adjudicate on all constitutional matters. That is exactly what we are seeking to achieve by way of the instruction moved by the hon. member for Sandton. The need for this is paramount. In our judicial system the judges have earned the respect of the entire Western world. Their integrity and impartiality, I believe, can be said to be beyond dispute, and our people have confidence in the courts. This has been proved over and over again. The reputation of the court of law is the ultimate yardstick by which its ability can be judged to act as guardian of the constitutional and fundamental rights of the people. Confidence in our courts of law must exist in the minds of friend and foe alike.

Mr. Speaker, I should like to refer now to the NP, which is the party governing the country at the moment. Throughout the years since 1948 the NP Government has established for itself a very shady and questionable track record when it comes to abusing legislation and the mechanisms of Parliament. Whenever legislation does not favour their plans they are very fond—when they see that they are losing the game—of bending the rules of the game in mid-stream, so to speak. What I say now is borne out by many decisions and actions on the part of the Government, especially in the early 1950s. This has already been referred to by the hon. member for Durban Point and by the hon. member Mr. Schutte, as well as by the hon. member for Brakpan. I think the time has come now that the record should be put absolutely straight as far as this matter is concerned. I believe that the dismal history of this is quite relevant too to the whole discussion conducted in this House today. It also has a direct bearing on entrenched clauses in this Bill, which can only be amended by a two-third majority of the whole House.

To begin with I refer hon. members to the case of Harris, Dean and Others versus the Minister of the Interior and an Electoral Officer. In that specific court case the Separate Representation of Voters Act—Act No. 46 of 1951—was the cause of the dispute because in terms of that Act the Coloured people in South Africa were removed from the common voters’ role. This was an appeal on a constitutional matter according to the court itself. In question was whether the entrenched clauses of the constitution then, namely clauses 35 and 152, were indeed entrenched and whether the Bill was properly passed which required a two-thirds majority of both houses sitting together. Since it did not, five judges ruled that Act 46 of 1941 was invalid.

The drama goes on.

Alf, could that happen today?

Yes. Next there is the case in which Harris was the applicant and Dönges and others the respondents. Judgment was given on 29 August 1952 before De Villiers, J.P., in the Cape Provincial Division. That concerned Act 35 of 1952 in terms of which the High Court of Parliament was created to deal with the entrenched clauses 35 and 137 and to overrule the decision in the Harris case. That Act instituted a final court of review, appointing the High Court of Parliament to review the Harris decision.

That is the point.

The judgment read as follows—

Act 35 of 1952 was declared invalid. Then we had an appeal by the Minister of the Interior to the Appellate Division. Judgment was given on 13 November 1952. In it Justice Centlivres said—

He had enumerated them—

This was agreed to by Hoexter, Weinberg, Schreiner and Van der Heever. The appeal was dismissed with costs.

However, the drama did not end there. What did the NP Government do at that stage? Let me just outline the steps they then took. In July 1953 they introduced a Bill to repeal section 35, limiting the jurisdiction of the court, but they failed to get a two-thirds majority. So, two days later they wanted to reconstruct the Appellate Division into a civil and criminal court on the one side and a constitutional court on the other side. So there the NP wanted to create a constitutional court. Now, in 1983, however, they do not want to constitute such a court. The relevant Bill lapsed before it reached the House, before it was adjudicated on. Then a Bill was introduced to amend the Separate Registration of Voters Act of 1951, but in June 1954 they again failed to obtain a two-thirds majority.

Not content with that, what did they do? There was the case of William David Collins and others vs. the Minister of the Interior in the Cape Provincial Division. That case was initially heard on 18 May 1956. The object was to declare invalid the Senate Act of 1955, which was passed by this House. What treachery was there in that case? Out of a Senate of 48 members at that stage, 29 were members of the NP. Out of a House of Assembly of 159 members, 94 were members of the NP. That gave them a total of 123 members. Out of a total of 207 members, however, to get a two-thirds majority they required 138 votes. So they were 15 short. What did they then do? They dissolved the Senate and increased the number of Senators from 48 to 89 through the electoral College. That was done on 25 November 1955. They elected 59 Senators. The result of the election was that 77 of the 89 were members of the NP, which gave them a two-thirds majority by a margin of five. That was bought, but the CPD in fact upheld the right of this Parliament to do what it had done. Prior to the matter going to the CPD in terms of Act 27 of 1955 the Appellate Division was, for constitutional reasons, increased to have a quorum of 11. They now got ready to receive any cases of a constitutional nature, not with a quorum of five judges, but with a quorum of 11 judges. When the matter finally went to the Appellate Division again all the judges, except Justice Schreiner, agreed to it. He said—

He therefore dissented on that judgment. Let us get that record straight. I will refer to these cases a little later. Looking outside South Africa, the ability and rights of the Supreme Court composed of judges to whom, if necessary, legislation is passed by Parliament, is common to 46 countries. I will not name them all. However, amongst those countries are the German Democratic Republic, Hungary, Poland, Czechoslovakia, Yogoslavia and even Russia. According to Parliaments of the World, issued by the Inter-parliamentary Union, in 12 countries legislation on constitutional matters must be referred to the courts first. In 26 other countries it has to be referred afterwards and in 10 countries it has to be referred before ánd after. My authority can be found in table 55, pages 71 to 77.

As far as rules of procedure are concerned, this can be referred to constitutional courts in 11 countries. The hon. member for Roodepoort named some of them. As far as constitutional courts are concerned, the leading country is the USA. Going right back to 1791 when the constitution was created, the first case was heard in 1803. That was referred to by the hon. Mr. Schutte. I mention this case, not in the sense that he referred to it. The case there was that the federalists had lost the election and their President, John Adams, had nominated 42 JPs. The next President, Jefferson, would not do so and he was taken to court. That was the first constitutional case in the USA. Since that date only approximately 500 cases on constitutional matters have been tested by the federal courts in the USA.

Japan has a constitutional court. West Germany also has one. I can read out the particulars about them, but I do not have enough time.

As far as clause 34 is concerned we must look at the present position regarding the validation of procedures that must be followed by this House. Firstly, I want to refer to clause 32. One or two Houses can reject a Bill. Two can pass different versions of it or reject it. Two can pass other versions. Each can pass a different version, it may also be referred to the President’s Council or withdrawn before the President’s Council give its decision. In terms of subsection (2) if the Bill is not disposed of within 14 days it is deemed to be rejected and deemed to be passed by Parliament in terms of section 32(4). What is deemed is whether that is not a matter that should be tested by a court, what is different versions, and if an amendment means the same thing whether there are different versions. Clause 31(3) requires a certificate endorsed by the Chairman of the House. These certificates may have to be tested. In addition, the Speaker has to be consulted, and what is consultation? Only recently the courts had to adjudicate on the KwaZulu case, and this case was set aside. If anyone wants to upset clause 89, which is to be entrenched by clause 99, and he wants to resort to the type of tactics that were used in the 1950s, what protection is Parliament to have in order to ensure that the proposed entrenched section 89, dealing with the English and Afrikaans official languages, is in fact going to be entrenched? What steps will be taken to ensure that, in terms of the further subsections, they may not decide to make one month Afrikaans and one month English? Is that not a matter that should be tested by court? Therefore, in so far as the courts are concerned, we need an independent constitutional court with judges who will be independent of the voters and who will be specially trained. They must be independent and the public must feel secure.

Mr. Speaker, let me quote Thomas Payne, who said—

I say that a constitutional court is to liberty what language is to freedom.

Mr. Speaker, in my opinion, the hon. member for Hillbrow, with the greatest respect, used very weak and empty arguments. I agree with the hon. member for Roodepoort that this instruction, as it appears on the Order Paper, is nothing but a smokescreen. I will attempt to deal with it later on in my argument, when I will specifically deal with the contradiction which exists in their argument: On the one hand asking for a brand new method of appointing judges and on the other hand the politicizing of our courts.

The hon. member for Hillbrow tried to say that the courts in the USA are not politicized. This is in fact just not true. The reason why appointments to the United States Supreme Court are always controversial, is because of the fact that their judges stand in the midst of their political strife. Consequently, the appointment of a judge in the USA is of the utmost importance as to the trends which will be followed there by the courts. Therefore I cannot in any way agree with the hon. member that our courts will not be politicized by instituting this particular court that they ask for. A court is politicized when it is asked to express its view on the will of Parliament.

*Mr. Speaker, the instruction requested by the hon. member for Sandton is, of course, very closely related to the hon. member for Yeoville’s motion. In this regard they actually go hand in hand. Because that instruction was not passed yesterday, I would at least have expected the hon. member to leave paragraph 3 of his instruction out of his arguments. I do not think we need have any further argument in this connection. The instruction itself, of course, is old hat by this time, because this is the third time it is being moved as a substantive motion. The perseverance with which this instruction is being propagated is, in my view, more a question of stubbornness or wilfulness than dedication to any lofty ideals. At a cursory glance it appears as if that hon. member’s only objective, according to his own personal view of things, is to have some lofty principle incorporated into the constitution. Such an attitude is, of course, praiseworthy in itself. If it is placed within our present political context, however, and particularly within the context of the present constitutional developments, one is forced to conclude that here again we have the customary ulterior motives in the PFP, i.e. the creation of a platform for a display of high moral indignation, combined with wilfulness. In support of this statement I just want to refer to an editorial in The Argus of Friday, 12 August 1983. The editorial is headed “Incompatible with any Bill of Rights”, and I just want to quote the following brief passage—

The haughtiness of the PFP is very clearly and succinctly articulated in this editorial. The proposals for such a court are, of course, based on the American model and, as the hon. member for Sandton said yesterday, this is also the case in Italy and West Germany. That does not hold water, however, because the conditions there are completely different. It is my contention that the request for this instruction is an obvious and transparent gimmick—and an extremely dangerous one at that—that has extremely far-reaching consequences for the whole judicial system, a system that is admired throughout the world for its independence and integrity. By their support for this instruction, hon. members are actually asking for a drastic change in the nature and function of our courts. The impression that is implicitly being created is that if one is not in favour of the courts having a testing right in regard to human rights and related matters, one is thereby showing one’s indifference to the rights of individuals. That is a gross insult, because it is common knowledge that in our country the rights of individuals are protected.

I want to contend that in its Preamble the constitution does give certain solemn undertakings in regard to the rights of individuals. This indicates the seriousness with which we regard this matter. In my view this motion for the establishment of a constitutional court does, of course, fit into the broad pattern of the PFP’s approach to this whole reform process. Again I agree with the hon. member for Roodepoort in this regard. The hon. the Leader of the Opposition and hon. members on that side of the House present themselves as being serious about adding to or improving upon the present system. What is being proposed, however, has the effect of, or is aimed at, making the whole move towards reform unworkable. We only have to look at the whole batch of instructions they proposed here. No one has yet pointed out to those hon. members that only two of the seven instructions have come up for discussion. They did, however, want to move the whole batch. It is also the fundamental point of departure of these proposals that provision should be made for group interests. In practice the constitution would be completely unworkable if we were to subject it to the testing right they have proposed here, including, what is more, a Bill of Human Rights independent of the group identity of individuals. The only conclusion I can come to is that the instruction is simply a further effort, on the part of the PFP, to bedevil this plan for reform and make it suspect.

I agree with the editorial in Die Burger yesterday morning that here we are merely dealing with a propaganda exercise to draw attention away from their real intentions. That was why the hon. member for Hillbrow was so sensitive about having this pointed out to him. My contention is that no amount of constitutional ingenuity can, in itself, ensure the success of a constitution. For that one needs other factors which will only manifest their presence, or show themselves to be absent, as time goes by. If the communities involved in this constitution have it as their aim to seek and to achieve consensus in all good faith, then we have one of the most important elements for ultimate success, though of course not the only one. There are numerous other elements that will prove equally necessary for the proper functioning of this constitution. The Government’s aim are, however, quite clearly the drawing up of a constitution, as mentioned in the Preamble, within the practical confines of the circumstances, traditions and customs of the Republic.

Further confirmation of my suspicion that the PFP’s primary motivation in moving this instruction has undoubtedly been an attempt to sink the constitution, lies in the fact that in the Select Committee, and now again in this House, the hon. member for Sandton proposed a procedure for the appointment of judges which differs drastically from the one we have at present. This procedure for appointing judges, which the hon. member proposed, appears in one of his proposed amendments to the constitution Bill on page 487 of the Order Paper. There it is proposed that the President, acting on the advice of a Judicial Appointments Board, whose members are mentioned in the proposed amendment, appoints the judges of appeal, the judges president, the deputy judges president and all other judges of the Supreme Court of South Africa.

The fundamental aim in doing this is probably to bring about a further severing of the ties between the executive authority and the judiciary, thereby facilitating the greater independence for the judiciary and de-politicizing it. This is what is evident, by implication, from this procedure for the appointment of judges. I just want to add that I do not believe that there has ever been any doubt about the independence of our judges. I maintain that the South African judiciary’s independence is not the result of the appointment procedure, but rather the degree to which their dismissal is inhibited. Nor is it quite clear whether the hon. member’s proposal is not perhaps a veiled attack on our present judiciary. Let me, however, give the hon. member the benefit of the doubt in this regard.

The establishment of a constitutional court would, of necessity, result in the judiciary being dragged into the political arena. As this instruction reads, it would be the appeal court that would thus be politicized, because this constitutional court would, for the most part, be involved in political decisions. From the very nature of the case, political considerations would, as in America, have to be given serious consideration when judges were appointed. I think this would be completely monstrous and quite foreign to legal thinking in South Africa. In fact, it would be a sad day indeed!

On the one hand the hon. member advocates the politicizing of our courts of law by requesting a constitutional court, whilst on the other hand advocating non-politicizing when it comes to the appointment procedure. The propagation of these two contradictory aspects can only be ascribed to wilfulness.

†I want to tell the hon. member that surely he cannot on the one hand ask that we politicize the courts and on the other hand ask for their independence. One cannot have one’s cake and eat it. If this is an effort to change the status and the functions of our courts, then I think this is a highly irresponsible instruction. This is, in fact, what I think those hon. members want to do.

*Lastly I want to focus on the impractical aspects of a motion such as this, because it is surely common knowledge that the decisions of the President must be implemented with all due speed in order to ensure the smooth running of the State machine. If such decisions were to be made subject to possibly continuous court judgments, this would paralyse the system of orderly government, or even make it impossible, because the administration of justice, as we all know, is a slow and thorough process. Whilst legal decisions are being awaited, legal uncertainty would paralyse the administration of the country.

Let me conclude by saying that there is now fortunately every indication that the electorate is growing tired of the PFP’s negative wilfulness. In this constitutional exercise they have thus far actually played a destructive role, and even in those instances in which, as they have alleged in regard to this instruction, they have been trying to play a positive role, it would appear, on closer analysis, to be nothing more than a pretence. Under the guise of these sentiments they have consistently been trying to put a spoke in the wheel as far as this reform plan is concerned, and I therefore ask that this instruction be denied.

Mr. Speaker, like the hon. member for Durban Point, I want to refer, at the very outset to what the hon. member for Sandton said in the course of his speech. He said, amongst other things, that there were two possible ways for the Government in power, by the steps it can take, to rid itself of unnecessary interference by the courts. He went on to say—

I think that either the hon. member was not thinking coherently when he spoke, or that if he was thinking coherently, what he was doing was making a scandalous insinuation about those venerable judges of the Supreme Court of South Africa who, as senior lawyers and advocates of stature, were pleased to accept appointments to the Bench. I think the hon. member owes the South African Bench an apology.

In analysing the PFP’s instruction objectively, one involuntarily asks oneself what precisely they aim to achieve. The motion embodies, amongst other things, provision for the establishment of a special constitutional court which is to consist of all the judges of the Appellate Division of the Supreme Court of South Africa. If such a special constitutional court were indeed established, would it be the PFP’s objective to have that special constitutional court adopt a set of legal rules other than those which constitute the law of the land at present, and which, in the final analysis, are interpreted and implemented by the Appeal Court? If one reads the hon. member for Sandton’s speech carefully, it is clear that he does not see his envisaged constitutional court as purely a court of law in the classic sense in which we have always regarded it in our country and elsewhere in the world, but rather as a quasi-political judicial body. He says, amongst other things—

The most important aspect here is the fact that he says that “such a court will be involved in political disputes”. In other words, the hon. member not only envisages a judicial function for his constitutional court, the function of interpreting and applying justice and the laws of the land, for he sees it as much more. This court must involve itself in the settling of political disputes.

The hon. member goes further and mentions a few reasons. He says, amongst other things—

He says that such a constitutional court would result in the diffusion of political power in the country. With that standpoint adopted by the hon. member for Sandton this party cannot, in any way, identify itself. By adopting that standpoint, the official Opposition directly wants to involve the highest court in the land, or in terms of their motions the judges of the Appeal Court, who are to constitute their constitutional court, in political disputes in South Africa. I think it would be an evil day indeed if the Supreme Court of South Africa, or any other court of law, were forced to act as an arbiter in political disputes in our country. For that reason we find this unacceptable.

We in the CP have a specific problem as far as the proposed constitution is concerned. The intention was—so I gather—that the new dispensation should mean the creation of a Parliament that would function in two ways, firstly as a Parliament consisting of the President, acting in conjunction with three houses that must pass legislation in regard to so-called general affairs and, secondly, a Parliament consisting of the President, merely acting in conjunction with a single House of Parliament to pass legislation in regard to so-called own affairs. I think that was the intention. The governing party’s dilemma is that their legal draughtsmen tried to express that intention, on the part of the Government, in a draft constitution. It is my view—and I also think that of each and every individual with some legal background—that any Act, and in particular one’s constitution, should be so worded in such a way that the wording of each clause, particularly in the case of the constitution, lends itself to objective interpretation so that there can be no misunderstanding about exactly what the intention is. What, however, do we find in this case? In this draft constitution we find the provision that Parliament—I am now putting it in layman’s terms—will consist of a President and three Houses when it comes to legislation in regard to all general affairs. General affairs, of course, are all those affairs which are not so-called own affairs. An attempt is then made in clauses 14 and 16—I do not want to give it any higher status than that, and I do not think any lawyer would give it any higher status than that either—to define what so-called own affairs are. From the interpretation of that wording Parliament, in the form of the President cum one House, ought to derive its powers. Surely that ought to be the intention, and also the interpretation. The Government, however, has now come up against the dilemma that because the wording of clauses 14 and 16 are as wide as the heavens above, one cannot give an objective interpretation without there being continual clashes and conflict between the various Houses of the future dispensation.

What, however, do we now find? Because the Government realizes, quite rightly, that one cannot apply an objective criterion to the interpretation of clauses 14 and 16 of the Bill under consideration, it does not want to permit an objective assessment of those clauses. It does not want to permit that, and hence the introduction of the provision that the President will now decide on what those clauses do, in any event, mean. The so-called right of each group to pass legislation on so-called own affairs and to have the final say as far as that is concerned, consequently does not depend on, and cannot be determined by, what is contained in clauses 14 and 16 and Schedule 1. It does, however, depend on the arbitrary decisions of whatever President there happens to be.

Nonsense!

Just go and read clause 14. [Interjections.]

The President’s decision will be taken in terms of the provisions laid down in the legislation. [Interjections.]

Mr. Speaker, that is an interesting remark we have just had from the learned hon. member for Pretoria Central.

Sabra’s man.

He says that the decisions of the State President will have to comply with the provisions contained in the relevant clauses of the Bill.

Yes, of course. Provisions are laid down in terms of which he must decide. That is quite clear, not so?

Then let me put the following question, Mr. Speaker. If that is so, why is the Government party afraid to give the highest court in South Africa the right to interpret whether the President has, in terms of those measures, abided by the provisions of the legislation? [interjections.]

It is indeed a pity that you are now adopting standards that are suspect. [Interjections.]

Louis, you certainly will not succeed in putting me off. [Interjections.] What is more, Mr. Speaker, the hon. member for Roodepoort let the cat out of the bag. He said that these decisions on the part of the State President, including decisions about what would be own affairs and so-called general affairs, were going to be political decisions.

Yes, that is what he said.

Those were his words. If I heard him wrongly, he must please correct me.

No, he did indeed say so.

The hon. member said that they were going to be political decisions and that he consequently did not want the court to interfere in such decisions. The hon. member for Roodepoort therefore concedes that these decisions on the part of the State President will not so much be based on the criteria laid down in the Constitution Bill—as the hon. member for Pretoria Central alleges—but will rather be purely political decisions in line with the political needs of the Government of the day. [Interjections.]

The hon. member for Roodepoort never made that statement.

Of course he said it.

You were not here when he said it.

Yes, that hon. member was, of course, absent again; he was, naturally productively absent again. [Interjections.]

Mr. Speaker, as far as I am concerned that is precisely what it is all about. My contention is therefore that if the Government persists with the provisions of clause 18, those of clause 14, those of clause 16 and those of Schedule 1—even if all this is written into this constitution Bill—it is worth about as much as something written into a propaganda document drawn up for the NP by the hon. member for Brits. It would have precisely the same legal validity.

Yes.

It does not matter what the State President’s decision in terms of the constitution Bill is; no one can test whether he has adhered to any norm that has been laid down.

Not even the NP congresses.

I should like to have a reply in this connection—from the hon. the Minister as well.

You will get your answer.

I should like to know why this specific exception is being made. The way I sum the matter up, in an instance such as this in which a particular House is trying, in terms of the Constitution Bill, to grant a particular group sovereign legislative powers in regard to so-called own affairs, as far as the individual group is concerned, such power is not objectively defined in the relative legislation. Why that is not being done, and why those powers are, in the final analysis, going to depend on the decision of a future President, acting in consultation with his future multiracial Cabinet, is something I would like to know. I want to call upon the governing party to go and tell our people …

Your people or mine?

Both. Let them go and tell our people: “Look, what stands here is not all that important; what is important is that the State President is going to decide what are your affairs, what are the Brown people’s affairs and what are the Indians’ affairs.”

They can also tell that to Mr. Rajbansi.

Yes, and Mr. Vorster too.

We must tell our people, without beating about the bush. This aspect must be spelled out to all the population groups.

You are misrepresenting matters, because you are ignoring the legislation.

I am not talking about the legislation. It is stated that in terms of this draft constitution the so-called own affairs of any group—not only of the Whites, but also of the Coloureds and Indians—are being entrenched here, but that is simply not true. Let me repeat: If they are indeed being entrenched, why is the Government not prepared to state that these provisions must be subject to testing, in the light of day, by the Supreme Court of South Africa?

That is a political decision.

It is my submission that in this constitution we are not dealing with an administrative decision on the part of the future President. It is not an administrative decision he is going to take in terms of the proposed constitution. His decision is going to determine and restrict the legislative powers of each of the Chambers of the future Parliament. It is, moreover, going to determine the legislative powers of the three Chambers, acting in conjunction with the State President, as the future legislator in regard to all the so-called general affairs.

In consultation.

Yes, in consultation—that much I do concede.

That is a political decision.

The hon. member for Pretoria Central, however, says it is not a political decision.

No, I did not say that.

Then he and the hon. member for Roodepoort must decide amongst themselves who is right.

Just wait a moment! [Interjections.]

I think the hon. member must request a turn to speak. [Interjections.]

However ingenious the effort to conceal the President’s true function in the new dispensation, the practical implications of the powers being given to him cannot be ignored. Not only is he to become President and head of the executive authority, but these provisions also grant him the legislative authority, because by his decision he is to determine what the legislative authority of each separate Chamber, and/or the three Chambers jointly, will be.

Is that not the same power that the present Prime Minister has?

No, the present Prime Minister does not have the power to decide on provisions in the present constitution. Nor does he have the power to say “It does not matter what is contained in any section of the constitution; I have decided that it means this or that”, after which Parliament is bound by his decision and one cannot have recourse to the courts.

That is an over-emphasis.

But it remains a fact.

Since the hon. member for Durban North is interrupting me, let met say that I can understand how the NRP so easily fell into such an obvious trap. Since the Government, as a gesture, has said that the President will take the trouble to telephone or consult the Speaker and the Chairman of the other two houses, the NRP is suddenly satisfied that decision on the part of the President will be quite in order and completely constitutional.

The procedure will be valid.

Oh yes, the procedure will be valid. If one were to embody, in the constitution, that we are electing a President who is solely responsible for passing laws, without consulting anyone, it would also be valid.

[Inaudible.]

Of course, if it were to be accepted by way of legislation, it would be legislation. Is it, however, what we, as democrats, want in this country?

As democrats we want to extend democracy.

The hon. member says they want to extend democracy, but then he comes along and tells the Whites that their right to self-determination is not at stake. Then we include a pious clause 14(1) in the legislation. I would like to know how any legal man, except Prof. Sampie Terre-blanche—I understand he is becoming a famous legal man these days—could interpret that clause.

You are now being insulting.

No, I am praising the man.

He is not a legal man.

Oh, he is not? Then he must not talk about things he knows nothing about. [Interjections.] Our standpoint is that this Parliament, and any future Parliament established by this Parliament in terms of its judical and legal powers, will be the sovereign authority in this country. That is a fact. That does not mean, however, that in order to bring that about one should eliminate the inherent right of the courts of one’s country to determine whether the people who profess to have acted in accordance with the rules established by that sovereign Parliament have complied with those rules or not. It is our standpoint that although we advocate that Parliament should be sovereign, this does not mean that one should relinquish the sovereignty of the law. Even the highest authority in the land, Parliament, derives its authority from the law applying to a particular period.

I therefore want to conclude by saying—also to the hon. the Minister—that however ingenious he may be, he cannot escape the suspicion, nor the actual fact, that a future State President is not going to take decisions in accordance with the proposed provisions of the constitution, for they are going to be nothing more than political decisions that are going to have a fundamental influence on the powers of the Parliament that is to be created by this Constitution Bill.

Mr. Speaker, when I heard that I had to speak after the hon. member for Barberton, I found the prospect quite a pleasant one. He has, however, greatly disappointed me. Here we are discussing an instruction dealing with a constitutional court. In the approximate 25 minutes that the hon. member spoke he devoted approximately three minutes to the subject. The rest of his speech he devoted to a discussion of clauses 14 to 18. They will actually be coming up for discussion at a later stage, but I do concede that they are of marginal importance here and that one can consequently refer to them. He, however, built up his whole speech around those clauses. When those specific clauses come up for discussion we shall be coming back to the subjects he discussed. He did make one or two statements which, although not completely wide of the mark, one simply cannot ignore for the simple reason that those remarks were made. One statement he made was that the President was gaining legislative authority by virtue of the fact that he would be able to determine the legislative authority of both Parliament and the three chambers individually. Thereby he would be obtaining legislative authority. He could therefore delimit the sphere of legislative authority of Parliament and the three Houses. That is a fallacy, however, because although there is a small grain of truth in it—as is frequently the case with arguments made by hon. members on that side of the House—that small grain of truth lies in the fact that the President can determine the powers of the three Houses in cases where they act separately and where that stops and the powers of Parliament consequently begin. If one presents the whole legislative field as a specific spatial dimension, all the President can do, by way of his decisions, is to move the boundaries between the two portions a little this way or a little that way by way of a decision about whether a matter is an own affair or a general affair. He cannot thereby remove legislative powers from Parliament and hold onto them himself. If he takes powers away from Parliament, he gives them to the three Houses individually, but he cannot hold on to them himself. It is therefore not a question of any legislative function. The statement made by the hon. member for Barberton was that the President would be able to determine the limits of the legislative powers of Parliament and the three Houses, and there he is being extremely misleading and actually a little wilful. Moreover, he made quite an issue of the fact that the decisions the President would be taking in terms of clause 16 would be political decisions. They would be political decisions—in saying this I am choosing my words carefully—in the sense that they would be related to political matters and that they would sometimes be of such a nature as to give rise to disputes. They would be concerned with political matters, and in that sense they would be decisions involving politics. For that reason those decisions would involve political controversy. One could therefore not take these decisions to the courts because this would polarize the courts, a point I shall be coming back to. That is the biggest single reason why such decisions should be kept out of the courts.

I also want to come back to the speech of the hon. member for Brakpan, however, because this links up with the speech the hon. member for Barberton made. The hon. member for Brakpan quoted the evidence of Prof. Dean of the University of Cape Town. He said that Prof. Dean had indicated that he was referring to various court decisions, distilling from that the grounds on which the courts would be able to address a specific executive decision such as these would be. He put it in these terms—

What he therefore wants is for this official-in this case the president—to give this matter thorough and bona fide consideration. It is built into the provision in clause 7 in the sense that the President is expected to consult with interested parties. One can dispute whether they are the right parties, but he has to consult with interested parties. Once he has done so, he has shown himself to have heard the other side of the matter, to have heard the views of all parties, to have thought about the matter and not to be acting in bad faith. He would thus have proved that. If the President were therefore to comply with the procedure prescribed to him, he would be complying with the normal requirements on the strength of which he could have been taken to court. If he were not to comply with those requirements—the requirements of clause 17—he would not be complying with the requirements a court would normally lay down either. Then he could be taken to court on procedural grounds and one could still keep the political question, as such, out of the courts. That is the reason why this provision has been drawn up in this way.

There is a second point which the hon. member for Brakpan raised—I am glad he is here now—and which was echoed by the hon. member for Barberton in the sense that in his argument the hon. member for Brakpan said the following about the extent of this defect in the legislation—

I reiterate that he said that presidential decision was a vital one. The CP must just decide one way or another. On occasions they allege that the content of the schedule is such that there is really no such thing as these own affairs. They are simply figments. If that is the case, why are presidential decisions in such instances of vital importance? Why do they cut to the very quick?

I said that on the basis of the provisions of the Bill.

We shall have another chance to argue this matter further when we get to the discussion of the clauses. Provisionally I just want to make those few points.

In the course of today’s discussion here it has been very clearly proved that when a political matter is referred to the courts for judgment, such a court is politicized. It cannot be otherwise. I should like to come back for a moment to a few statements made by the hon. member for Sandton on the one hand and, on the other, a few statements made by the hon. member for Hillbrow. If one were to investigate the reasons why, for example, the review function of the American courts characterizes them as political courts, one would find the reason to be because the matters involved are political matters, matters about which people have very strong political feelings. We also saw that the decisions that the court would have to take, if the hon. member for Sandton’s motion were to be accepted, would also be political decisions. What are the consequences of politicizing the courts? That matter has received a fair amount of attention, but it was very clear to me, from the remarks made by the hon. member for Hillbrow, that either he had not heard previous speakers advancing evidence to prove this, had not understood what they were saying or was not present at the time. It was something of that sort, because he said it was scandalous to allege that the American courts are politically orientated courts. He said it was scandalous to allege that the judges gave politically-based judgments. [Interjections.] Let me quote him a few passages. The first problem one has with politically orientated courts is that they are surrounded by controversy, because exactly what the hon. member for Hillbrow referred to does, in fact, take place there in the sense that some people are in favour of the decisions and say “This court is right”, whilst other people are not in favour of the decisions and say “This court is a politically-orientated court”. I have quotations to prove this. Let me quote one small point from a book by Austin Ranney—

That is what he said—a president of a university. That is also the answer to a question the hon. member for Sandton put to the hon. the Minister. He asked—

There is his answer, because when we come to the actual administration of justice, as in the case of Bobby Seale in America, we can have confidence in our courts’ objectivity and independence, in the fact that they will not pay any heed to anyone outside their own sphere of activities. That is why it is important to maintain the independence of the courts.

Now I come to the second point, which, although it has already been raised a few times, I should nevertheless like the hon. member for Hillbrow to listen to. The next point is that the unavoidable consequence of a politicized court is that of politicized appointments. There are many instances to prove that this happens in the American legal system. There are many examples of political appointments having been made, for example in the following statement by Ranney—

One swallow does not make a summer. Let us look at another book, that of Wolfinger and others. There one sees the following said about the American President—

It is stated—

So one can investigate the conduct of each of the American Presidents, as is done in these books. How many judges from his own party did each President appoint, and how many who belonged to the other party? One notices that it works out to an average of 90% being appointed from the President’s own party, specifically because, when he comes into office, he finds that the judges are not politically sympathetic to his way of thinking. He then politically sets about trying to put matters right. There is a further reference here from which it becomes very clear that even after they take up their posts, the judges still do not relinquish their political ties. In these books reference is consequently made to judges having refused to retire because, at that stage, they did not like the political dispensation of the administration and were afraid that the President would make political appointments at odds with their own political considerations.

Then there is still this final point, i.e. that relating to quality. Here I want to refer again to the hon. member for Sandton. He said that we should not leave these important decisions to a President’s Council consisting of a bunch of biased ex-politicians, but should rather leave them to the objective judgement of highly qualified jurists. He said—

That is a fair statement.

The hon. member should have regard for what happens in respect of the Supreme Court in the United States. These quotations of mine are not taken from a book which is in the least prejudiced against …

Mr. Speaker May I ask the hon. member the following question: Despite all the objections he has now raised to the Supreme Court in America and all its faults he has pointed out, would he concede that on the whole the United States Supreme Court has the total approval of the whole population of the United States?

I will not concede that point. One finds that almost every major decision of the Supreme Court in America is always surrounded by a lot of controversy.

Do they want to change the system?

There is much talk about changing the system and I can quote the hon. member a passage in this book relating to that. When these judges, these esteemed and learned jurists, are appointed, just listen to what is said about that in this book—

*In other words, only a quarter of the people appointed to the Supreme Court, i.e. judges, have previous legal experience. The writer goes on to state—

Here now we have the hon. member for Sandton’s “specialist court”.

Mr. Speaker, may I put a question to the hon. member?

Unfortunately I do not have any more time left to answer a question.

One sees what the consequences are of the courts performing political tasks, and one would be able to take matters very much further and prove that our courts have been spared those iniquities. Although the Americans have to live with those aspects, we must not try to introduce them here, specifically because our society is a deeply divided one, with even deeper political divisions. The controversy surrounding the courts would therefore be even greater. I therefore think it would be better, in the long run, to keep the courts out of this so that we can, on the one hand, have an independent Bench and, on the other hand, promote effective government.

Mr. Speaker, in fact the hon. member for Helderkruin merely advanced the same argument as all the other Government speakers, viz. the question of the politiciation of the judiciary. However, before reacting to that argument, I just want to react briefly to the speech by the hon. member for Durban Point.

†In an historical context this is a sad day for a party which was the official Opposition 27 years ago when in a joint sitting in 1956 the South Africa Act Amendment Bill was being debated. That was a very important debate because clause 2 of that Bill removed the courts’ power to pronounce upon the validity of any Act of Parliament. That was an occasion at which I think only three members presently in this Chamber were present, i.e. the hon. the Prime Minister, the hon. member for Houghton and the hon. member for Durban Point, who was at that stage a Senator. In 1956 the United Party put up a very strenuous and well-reasoned fight against clause 2. They spoke with conviction and argued that one should not remove the testing powers of the courts as far as the validity of measures was concerned. The hon. member for Durban Point spoke in that debate—he took part in that debate—in support of his colleagues’ attitude condemning the removal of the power which the courts had and which in terms of that clause were going to be removed. What is his attitude today? Today he argues that clause 20 of the Republic of South Africa Constitution Bill is in fact an improvement on what it was in the previous Bill. The amendment that was accepted in the Select Committee is no more than an attempt to make this clause more marketable to the public. Subsection (1) which the hon. member for Durban Point is impressed with, does no more than merely state the common law, the existing powers which the courts have anyway. It does not introduce anything that is not in existence at the moment, and only someone like the hon. member for Durban Point could be bluffed or taken in by that. It is subsection (2) that remains as it was. Subsection (1) has been introduced to make it more marketable, and the hon. member for Durban Point and his party have fallen for it. It is perhaps interesting to refer to the speech made by the hon. member for Durban Point in 1956. He did not specifically deal with clause 2, but I think it is interesting to see what his standpoint was with regard to the duty of an Opposition party and the attitude it should adopt when it debates Bills of that nature. How did the United Party and the hon. member for Durban Point personally see the role of the Opposition parties in those years? I want to quote what the hon. member for Durban Point said here in this House on 17 February 1956, namely (Hansard, Joint Sitting, 1956, col. 337)—

The hon. member for Durban Point has thrown in the towel, Mr. Speaker. [Interjections.] He and his party have thrown in the towel. He has surrendered a little bit every time, and has now finally thrown in the towel. [Interjections.]

What were the arguments, however, that were advanced by the hon. member Mr. Schutte? They have already been dealt with to some extent. He made the point, however, that the proposed court would plunge the legislature into uncertainty. He said it would cause uncertainty. Mr. Speaker, why have we had the concept of the sovereignty of Parliament, and why have we not had the situation in which the counterbalance to Parliament is a Supreme Court? It was argued in 1956 that the reason for this was solely because we had inherited the Westminster system, with the concept of complete sovereignty of Parliament. Indeed, in that debate the then Prime Minister, Mr. J. G. Strijdom, argued that it was only because of the sovereignty of Parliament that he could justify the exclusion of the courts as far as the merits of the Bills of Parliament were concerned. The then Prime Minister argued in 1956 that once one had a divided sovereignty the testing powers, the reviewing powers, of the courts made sense, which meant that they should actually exist.

As far as I can see it, Mr. Speaker, the question is: Will we, under this new constitution, have a sovereign Parliament or will we have some sort of dispensation in which we will have a divided sovereignty? I should like to ask the hon. member Mr. Schutte whether he can tell me where, in terms of the new constitution, sovereignty will rest. Will it rest with one chamber, with the three chambers, the State President or the President’s Council? [Interjections.] He is not answering my question, Mr. Speaker.

It will depend on the circumstances.

The hon. member says it will depend on the circumstances, Mr. Speaker. [Interjections.] All right, then, I shall put the question to the hon. member for Helderkruin. Where, in terms of the new constitution, will sovereignty rest? Will it rest with one chamber, with the three chambers, with the State President, or with the President’s Council? [Interjections.] He is not answering my question, Mr. Speaker. [Interjections.]

That is because he does not know. [Interjections.]

The position is indeed that under the new constitution it will be virtually impossible to establish exactly …

Mr. Speaker, may I put a question to the hon. member?

No, Mr. Speaker, I am not answering any questions now. [Interjections.] It is not possible to establish exactly where sovereignty will rest in terms of the new constitution. Perhaps the hon. the Minister can tell us what the position will be. It does appear, however, that it will be a divided sovereignty; divided among four components of the new constitutional dispensation—a single chamber, all three chambers together, the State President, and the President’s council. Those four bodies will in fact share sovereignty, and as such it will be divided sovereignty. If one accepts the reasoning and the argument of the South African Prime Minister in 1956, namely that when one has a divided sovereignty a constitutional court or a court with testing powers is justified, I submit, that in terms of our new constitution, where we will have a divided sovereignty. A constitutional court or a court with testing and reviewing powers is indeed justified. That will in fact be the position under the new Bill.

Mr. Speaker, an argument which has been used by virtually every speaker on the Government side is that the constitutional court will not be independent. It has been argued that the courts will become politicized and that for that reason they will fall into disrepute. The hon. member for Uitenhage made the point that our bench is independent because its members cannot be dismissed since their tenure is entrenched. Our bench dealt with the Ingwavuma case, which was a political dispute. Although it was not decided on a political point, it resulted from a political dispute. It featured on television and in every newspaper in the country and was a political dispute between the Government of South Africa and that of kwaZulu. It was obviously a political dispute. Why did South Africa as a whole accept the decision of that court? We did so because we trusted that the Supreme Court would look at the matter objectively.

Why should any aspect before the court we propose be dealt with differently, with different attitudes on the part of the judges, to the way in which the Ingwavuma case was dealt with? There has been no substantial argument advanced suggesting why a new constitutional court, as suggested, will suddenly make the judges weak-kneed and will make of them political lackeys and why the court would then fall into disrepute. Our Supreme Court Act at the moment …

Mr. Speaker, may I ask the hon. member whether in his view the court’s decision in the Ingwavuma case was on political issues?

I had hoped that the hon. the Minister was listening to me.

I was.

I specifically said it was not decided on political issues, but the Ingwavuma case itself, the whole conflict, was political by nature. The case was decided on whether or not there was consultation and on other technical matters and aspects of interpretation.

Our present Supreme Court Act of 1959 deals, in section 12 (1) (b), with the quorum the Appellate Division should have when dealing with constitutional matters, it provides as follows—

Our existing Supreme Court Act, therefore, already contemplates—it does by no stretch of the imagination go as far as our instruction—a situation where the Supreme Court will have to deal with Acts of Parliament.

Our instruction takes it a step further by providing that the court suggested should be able to look at the merits of the legislation that has been passed. I cannot agree with the hon. member for Brakpan who said yesterday, according to my notes—

This is not correct. Clause 34 specifically excluded the power of the courts to decide the merits of the case. If clause 18 were removed altogether, the courts would still not be entitled to go into the merits of legislation.

The hon. member for Barberton asked us by what sort of rules the new court would abide. He suggested it would be a new set of rules which would be foreign to our system and therefore unworkable. I have referred to the existing Supreme Court Act. There is no reason whatsoever why the new court we suggest would not operate in terms of existing rules. I do, however, agree entirely with one aspect of the hon. member for Barberton’s argument. He made the very solid point that, as far as clause 14 is concerned, we are being bluffed by arguments such as that advanced by the hon. member for Helderkruin viz., that the issue of what is own affairs is not an area in which the courts can operate. It is an area from which the courts are specifically being excluded so that the NP can manipulate the provisions of that Bill to their liking. No one has effectively countered the very good argument put forward on that aspect by the hon. member for Barberton.

I do however disagree with another aspect of his argument. He said we would make out of this constitutional court a political court and that we want to have it as a political court. I think he contradicts himself by making that submission because he in fact wants the court to decide on a political matter—that relates to clause 14—as to whether or not the President applied those norms. If that does not bring a court into the political arena then there are very few other matters which bring it into the political arena. The powers which he wants the court to have, namely to, deal with clause 114, must inevitably also, on his argument, involve political decisions or problems. That does not mean that the judges or the court will suddenly change their centuries of traditions and standards in the country to suddenly become party politicians. That is our argument. A judge no less than Judge Diemont, who has been referred to by the hon. member for Sandton, reaffirms this. He is a judge of the Appellate Division. He asks for a court with review and testing powers. He says in an address to students at Cape Town University that about 60 Western countries already have testing and reviewing rights. A lot of flak has been shot at the United States’ Supreme Court and its systems. Suddenly we are most critical of their Supreme Court and the way in which they run their country.

I challenge any hon. member on that side to give me examples of where the independent constitutional court in West Germany has become politicized, has not been accepted by the population as a whole, has given twisted judgments or has lost its standing in the community. Give me a single example where that has happened. We must look at the most recent creation of a constitutional court. That is a creation of a constitutional court sitting independently as such, where the judges are elected by the two chambers of their parliament. No one has suggested until now that system is not working. To the contrary, hon. members on that side, if they want to, will be able to quote numerous writers who in fact praise that system. We are after the best system that can be devised. What we are suggesting is a concept. If that is agreed to, if the instruction is accepted, then one can work out the details.

Do you advocate that we adopt the German system in South Africa? [Interjections.]

The hon. member for Helderkruin has also argued that once we introduce this constitutional court it will not be a court of specialists anymore. He showed on the basis of an American source that the standards have dropped in America and that people are appointed as judges who should never have been appointed. Why should the criterion for the appointment of our judges differ in any way under the proposed system from what is applied at present? In fact, we want to take it a step further. We say not only should the same standards be applied so that judges with the same experience could be appointed, but we want to take it even more out of the arena of possible political influence, through the proposed amendment by the hon. member for Sandton. We talk about a body which will consist of various other representatives. Can the hon. member suggest to me why that body will not be an improvement even on our present situation?

It will ensure that political appointments, as he anticipates it, will not be made. [Interjections.] The hon. member Mr. Schutte further said that we need a strong executive to deal with our situation in South Africa, an executive, he suggested, which should not be bothered, nibbled and sniped at and criticized—it is my way of putting it—by a Supreme Court. The executive must rule and must decide what should be done. He has not in any way reacted to the arguments which the hon. member for Sandton put forward, namely that it is precisely in a period of change with so many different population groups involved and with so many different political currents involved that one needs an objective and trusted body which can take the punches and pains of political change that is taking place in the sense that such a body, in its interpretation of legislation, will receive far more trust and support than any strong executive. In fact, a strong executive would probably achieve the opposite, because that executive under the new system will exclude 70% of the South African population. At least, with an independent constitutional court the South African population as a whole will have trust in the decisions of that court. It is only a party, or a Government, which is intent on manipulating the constitution for its own party political purpose which is afraid of the creation of a court with testing and reviewing rights. It is only a party like that which will oppose this instruction and it is only a lackey, in the form of the NRP, who will go along with it.

I support the motion of the hon. member for Sandton.

Mr. Speaker, the hon. member for Durban Central, the hon. member for Sandton and other members of the PFP are, by way of this motion of theirs, running away from the voters’ legitimate verdict at the polls and from responsible government. On the one hand they are afraid of the balanced finding of the electorate and they want to escape it by placing matters in the hands of a court. The PFP wants to replace the judgment of the voters with the judgment of a so-called independent court.

Louis, what does Japie say?

Jaap is very cross with you! Jaap says that you are political scandalmongers.

On the other hand, they are afraid of the responsibility of office. They flinch from it. They lack the courage for it. That is why they transfer the responsibility and the authority from the Government to a court. I do not know whether one should pity the PFP or be angry with them. I think that in fact, one should be sorry for them, because the main reason for their inept conduct, for this inept instruction, is a lack of insight into the foundations of statecraft and the Constitution Bill. The hon. member for Sandton has a good knowledge of the law, but his knowledge of statecraft is, to say the least, not even standard. That is why the PFP is faring so badly in politics and why they are rejected by the voters time and again. That, too, is why they are going to have a hard time of it in the coming referendum. The PFP have made a habit of overlooking political history and allowing the process of political development to pass them by. Accordingly they do not grasp the spirit and contents of this Constitution Bill. That is why they come forward with such a meaningless and impractical instruction. It does not take into account the historical and political development and the elementary principles of statecraft. In contrast to the negative actions of the PFP and this anti-normative instruction, the NP, the Government, always acts to promote reform and renewal—a characteristic of civilized progress, as reflected in the political thinking that underlies this Constitution Bill.

A Government, a President, has to conduct the day-to-day running of government and make its important decisions. Its actions as a government, its decisions, its policy, its conduct are tested at specified times at the polls, and are not tested by a so-called independent constitutional court. Surely that is elementary statecraft. What, then, is the purpose of elections? To take the PFP’s instruction to its logical and ridiculous conclusion, they should really abolish elections and appoint a so-called independent court every five years, which would issue a ruling every five years as to whether a government was governing correctly and justly or not. They must put that court in the place of the poor voters, because after all, those learned judges are far more intelligent than the ordinary electorate. They are far more independent. Surely this so-called independent court would give a better and a more just verdict than the poor voters of South Africa! What a false and absurd instruction and point of departure in statecraft! This instruction is indeed an insult to the voters of South Africa, and the voters of South Africa will not tolerate it. After all, it is a basic and inherent right of a voter to test, assess and weigh the policy, decisions and exercise of power of the Government every five years and then to pass his own verdict by making a cross, not in a few pages as a so-called independent court would do. I say that this is an ill-considered instruction. It is incredible that the judgement and verdict of the voter should be replaced by the judgment and verdict of a so-called independent constitutional court.

Because the PFP lacks profundity and insight into the foundations of constitutional law, basic structures in society are confused, violated, distorted and ignored. The relationship between government and subject in the State context is inverted by the PFP. Basically, their instruction is a blunder, and is based on a fiction, a false point of departure. The PFP’s instruction would inter alia paralyze effective government. Delays of government decisions would be the order of the day. The Third World War would long be past and we would still be awaiting the finding of the so-called constitutional court. The PFP confuses the task and function of a court with the task and function of a government. After all, a court cannot take over the task and function of a government. This instruction of the PFP constitutes a serious violation of the principle of sovereignty in one’s own circle.

What are the task, structure and function of the courts? What are the task, structure and function of a government? Surely they are poles apart. The PFP lacks the necessary profundity in the field of the philosophy of government. The PFP does not perceive the order of society, with its various institutions, links, communities and groupings. Therefore the PFP confuses the authority of the government with the authority of the court. That is why the PFP confuses the task and function of the government with that of a court. Every institution has its unique authority, structure and character. In the family we have the authority of love, in the church the authority of belief and in the economy, economic power. As far as the government is concerned, we have the State’s juridical integratory authority, and the court has its unique legal authority. I do not want to be unfriendly or unkind to the PFP, but they must first go and make a proper study of the nature and structure of society and its institutions. They will first have to study great thinkers, philosophers of government, such as Augustine, Calvin, Abraham Kuyper, Dooyeweerdt, Taylor and others, and master their works. Only then will they perceive and understand the principles of sovereignty in one’s own circle and the encapsulated intertwining of the various institutions of society with preservation of identity.

I am sorry to say this, but the philosophy and approach of the PFP, their liberalist approach and views, their liberalist thinking as regards the philosophy of the State, compel them to come up with an instruction of this nature.

Where do you speak of sovereignty in this constitution?

Let me try to prove it.

Mr. Speaker, may I ask the hon. member a question?

Sir, my time is limited and I cannot allow any questions. [Interjections.]

The standpoint of the PFP is anchored to their liberal point of view. So much emphasis is laid here on the freedom of the individual that there is no recognition of governmental authority. Nor are there any limits to the freedoms of the citizens. Therefore this implies licence in the style of humanist liberalism: Rather no State, no effective authority, and freedom is absolutized at the expense of the authority of the State. There is State nihilism—as little State as possible and as much freedom as possible. The authority of the State is rejected and undermined by a so-called court. Liberalism holds to a philosophy of the constitutional state in which juridical integratory norms of the governmental authority are ousted by the personal responsibility of the government. The personal responsibility of the government is replaced by a so-called fictitious rule of law, a so-called independent court, and in this way the authority of the state is undermined, subverted and eventually destroyed.

A so-called independent and constitutional court is unnecessary, because the government governs and a government that is oriented towards the Christian religion surely governs in the interests of all and preserves and protects the rights of all. Such a government does not govern solely in the interests of the White man but also in the interests of the Coloureds and the Indians; not only in the interests of NP members, but also in the interests of PFP, CP and NRP members—in the interests of all. For this a so-called constitutional court is unnecessary. All minority groups are protected and taken into account; therefore point 3 of the instruction proposed by the PFP is totally irrelevant.

After all, in the period from 1924 to 1934, and since 1948, it has been an outstanding merit and characteristic of all NP Governments that they governed in the interests of all. This verdict has been tested, this conduct was judged in 1924, 1929, 1948, 1953, 1958, 1961, 1966, 1970, 1974, 1977 and in 1981. This will also be the case in the coming referendum and in future elections. No court has passed judgment on this. The NP has not worked and fought for the rights of the Afrikaner alone; it has also fought for the rights of the English-Speaker and the Black peoples and now for the rights of the Coloured and the Indian as well. A court is not equipped to do this. In this regard we differ radically and fundamentally with the PFP and the CP.

The PFP absolutizes Black rights, the CP White rights, but the NP governs in everyone’s interest. As far as the CP is concerned they have again, as often in the past, left their principles behind the day they broke away from us. They left their principles behind with us and are now acting pragmatically, as their attitude will indicate when they walk out when there is a vote on this. Since the hon. member for Barberton made an astonishing remark here about where authority originates, I call upon the hon. members for Waterberg and Koedoespoort to give him a lesson on authority.

If the PFP had a reasonable instinct for politics, if they had an instinct for constitutional law and a knowledge of the constitutional principles contained in the envisaged constitution, the PFP, like all reasonable people in South Africa, would recognize that by way of a fair, just and constitutional plan we have a vision for South Africa, a plan that seeks to maintain democracy, the constitutional state, and we shall see to it that it continues to exist. The PFP’s instruction would lead to a totalitarian state, a dictatorship, because the office of government is thereby assailed and undermined and the responsibility of the voters is destroyed by the introduction of a so-called institution, and independent court alien to the normative structure of the date and the correct principles of statecraft.

The PFP does not distinguish between constitutional law and non-constitutional law. After all, the Government is not the only guardian of the law and legislation in the constitutional sphere. There are also non-constitutional institutions, each of which maintains and forms its own internal law. We have ecclesiastical law, family law, industrial law and so on. The government has a unique task that no other body can take over from it, not even a court. The Government has the task of keeping a multiplicity and variety of legal interests in equilibrium and harmony. The Government has a unique legal task, viz. constitutional control and juridical integrality. Therefore it is the task of the Government to maintain a public constitutional order in which the right of the nongovernmental holders of rights is guaranteed. We find this in Part VII of the Constitution Bill, the judicial administration, and even in the preamble it is very strongly emphasized. The Government ensures impartial administration of justice, not a kind of independent administration of justice, because then one has a second governing power in the State and this clashes with the structure of the State.

This instruction of the PFP also clashes with two special, characteristic aspects of government authority, that are basic to and elementary in constitutional law. Each type of authority is irreplaceable. One cannot replace the authority of Government by a court. Every seat authority is indivisible and in the State no more than one government is necessary.

Why is the PFP so concerned about totalitarian powers and a dictatorship, as is evident from paragraph 3 of their instruction? In terms of the Constitution Bill the voter has political freedom, freedom of speech, freedom of the Press, the freedom of association and the freedom of organization. He is given the opportunity to put a Government in power. If the Government does not govern in accordance with the policies of the opposition parties, that does not constitute oppression. After all, they have the opportunity to state their case and come to power at every election. Because the proposed new constitution will cause the light of freedom to shine out like a bright beacon, it is borne by a responsible and effective government, elected and tested at specific times by a responsible and reasonable electorate and not by a so-called independent court.

Mr. Speaker … [Interjections.] The last time I heard the noises I am hearing now from the NP side was when I attended a UN debate and a White man stood up to speak and was barracked by a whole lot of Third World delegates.

The hon. member for Bloemfontein East referred to the CP and said that we had abandoned our principles when we left the NP. However, I want to tell him that my life-long political philosophy has been that of self-determination, that is, self-determination linked to a geographical area. This was also the policy of the NP.

May I ask you a question?

No. The hon. member must listen now.

That is why the Transkei gained its independence, viz. its right to self-determination, linked to a geographical area. The same happened to Bophuthatswana and Venda. I also claim the right to self-determination for myself and I have always believed in this. Here in my hand I have an instruction which I intended to move and which is concerned with the right to self-determination. It is linked to geographical areas and is therefore in conflict with the principles of this legislation. However, the hon. member must not tell me that my principles have changed. His principles have changed. I still stand by the principles I was elected on in 1977 and in 1981.

Hear, hear!

The instruction of the hon. member for Sandton has been discussed thoroughly and at length and a number of standpoints have been adopted regarding it. Because I am the last CP speaker, I want to take this opportunity to make our standpoint very clear.

In the first place, the CP believes in the orderly subdivision of the State structure into the legislative, executive and judicial authorities. In the second place we believe that each of these three components has a non-negotiable right to a meaningful existence in our State structure. In the third place we believe that sovereignty should vest in Parliament, as is at present the position in terms of section 59(1) of the existing Constitution Act, Act No. 32 of 1961. Section 59(1) reads as follows—

We therefore feel that sovereignty should vest in this Parliament.

In the fourth place we also feel that Parliament’s sovereignty may not be called in question by a court of law. For that reason we also support section 59(2) of the existing Constitution Act in which the courts are declared to be incompetent to inquire into the validity of Acts of Parliaments. Section 59(2) reads as follows—

These are the entrenched language clauses.

In the fifth place we are satisfied with the present powers of the courts to interpret laws and to review decisions based on discretion in certain cases. This is extremely valuable judicial control which gives protection against arbitrary action by the State. That, in brief, is our standpoint. It therefore means that we cannot support the instruction of the hon. member for Sandton because we believe that the existing constitutional arrangements in respect of the judicial authority are satisfactory.

However, the entire constitutional set-up has been plunged into uncertainty by the introduction of this Constitution Bill now before us. We believe that the new dispensation will never come into effect, because the Government’s proposals are going to be defeated in a referendum. [Interjections.] The hon. members opposite who are making such a noise need only look back upon the four by-elections which took place on 10 May. In 1977 Mr. Vorster polled 77% of the votes cast in those four constituencies, whereas the P. W. Botha regime polled a mere 44%. If that is not a political decline and if that is not a sign of the people have rejected that party, I do not know what it is.

However, the Constitution Bill is before us now and the question is to what extent it changes the existing constitutional situation, with specific reference to the role of the judicial authority. We believe that there is a drastic change in the constitutional status quo. We believe that the principal characteristic of the new constitutional dispensation is going to be conflict. There is going to be conflict in the new dispensation, on a large scale. The crucial question is what the role of the judicial authority is going to be as an instrument to assist in resolving conflict. I believe that the conflict which will arise can be resolved legally in one of three ways. In the first place, it may be resolved according to the instruction moved by the hon. member for Sandton, which we reject. In the second place, according to what is being proposed by the Government in the Constitution Bill, which we also reject. In the third place we feel that the existing legal situation covers the position adequately and we therefore support the existing situation as it is contained in the existing constitution.

I should like to motivate my contention that large-scale conflict is inherent in the new system and why this issue influences an evaluation of the instruction. The hon. the Minister of Constitutional Development and Planning has already stated on several occasions that the Government intends to move away from conflict, and will move in the direction of consensus politics. He has said that the peaceful atmosphere of Standing Committees was ideal and that we would be able to reach consensus there.

Now I want to make it quite clear that we on this side of the House also believe in consensus. Of course we believe in consensus. It is better than conflict. However, we do not believe in consensus at any price. Nor do we believe in consensus if this results in our right to self-determination being encroached upon. However, we maintain that the hon. the Minister, when he thinks he is moving in the direction of consensus politics, is living in a dream world. We believe—and I say this with all due respect—that the hon. the Minister, if he thinks that he is moving in the direction of consensus, is indulging in a pipe-dream. Mr. Speaker, allow me to quote an example to illustrate what I mean.

Only White members are serving on the Select Committee on the Constitution and as a result there are many unifying factors present; the maximum we can envisage.

You lot will never be able to reach consensus with any reasonable people. [Interjections.]

The Whites present there all spoke each other’s language, Afrikaans or English, and probably 95% of the group present were Christians. They shared the same historic background and a common culture. They met in the peaceful atmosphere of a Select Committee to discuss the most important legislation in the country—the Constitution Bill. It was an ideal opportunity for the hon. the Minister, as the chairman of that committee, to bring about consensus. But what happened? After all, I believe the hon. the Minister is sincere in his search for consensus.

What has that got to do with the instruction under discussion?

Mr. Speaker, I shall tell the hon. the Minister that in due course. I am now referring to the conflict style, which will have to be resolved by a judiciary.

I should now like to say a few words about the hon. the Minister’s conflict style. In the Select Committee the hon. the Minister had an ideal opportunity to prove how consensus could be brought about. After all, he was the chairman of the committee. The atmosphere there was peaceful and calm. Mr. Speaker, do you know what happened? Where is the consensus which the hon. the Minister spoke about on that Select Committee? In its deliberations on a Bill with a preamble, 102 clauses and two schedules, that committee voted 200 times. [Interjections.] Now the hon. the Minister must not come along and tell me that for him a Standing Committee embodies the reaching bringing about of consensus. [Interjections.] If such tremendous conflict arose on that Select Committee, one shudders to think of the conflict which will arise in the absence of consensus, when, under the new dispensation, we meet on a Standing Committee with the other population groups. Then we are going to be dealing with people of different races, different peoples, different nations, people with different languages and cultural backgrounds. If the hon. the Minister thinks he will be able to reach consensus more easily than now, I fear he is indulging in a pipe dream. For that reason I maintain that the carrot of consensus is in fact nothing but a constitutional figment of the hon. the Minister’s imagination. I consider it to be a constitutional caper. What is basically going to prevail in the new dispensation therefore is conflict. That is my standpoint. [Interjections.]

I am going to give another example to indicate why there is going to be conflict. It is not only because we are not moving in the direction of consensus, but in the direction of conflict, but the motives of the people the hon. the Minister wants to bring in here also serve as an example of what I have just said.

The Rev. Alan Hendrickse has said that he was Black and that he was entering the new dispensation with the purpose of bringing his Black brothers in, too. [Interjections.] I hear there is almost a competition between the Rev. Hendrickse and Mr. Rajbansi over all the things they want to abolish once they are here. [Interjections.] What do they want to abolish? They want to abolish the Group Areas Act. They want to abolish the Prohibition of Mixed Marriages Act. They want to abolish the Immorality Act. They want to abolish the Population Registration Act. [Interjections.] This is the motive with which these people are coming here. And the hon. the Minister wants to bring about consensus. Conflict is written all over this in large letters.

[Inaudible.]

Mr. Speaker, I hear the “Brentwood roller” has just opened his mouth. [Interjections.] He should rather go back to his constituency and see if he can still find a single NP supporter there. If he does succeed in doing so, he can put him in a glass case and write “The Roller” on it. [Interjections.] Sir, conflict is written in large letters on the Government’s constitutional “goggomobile”. [Interjections.] Take the basis of the new dispensation as an example. Today we have one legislative system in South Africa for one geographical area. In the new dispensation there will be four legislative systems, yet still for the same piece of land. There will be the White, Coloured and Indian legislative systems, and Parliament itself. There will be four legislative systems. Nowhere in the world has this ever worked. This experiment will not work here either. [Interjections.] I want to tell the hon. member for Innesdal that he knew how many people in Innesdal have telephoned to ask me whether Albert Nothnagel’s pension affairs have been straightened out yet, he would be surprised. There will be so much arguing about which one of the four legislative systems has jurisdiction over a specific matter that it will be almost impossible to govern. The Government has admitted this. The Government has admitted this in advance because it is making provision for malfunction.

Sir, do you know what these four legislative systems remind me of? There are four legislative systems competing for one geographical area. These are like four men courting the same girl. All four want her and she is only going to accept one of them. They are therefore going to beat each other up.

This means that the right to self-determination of the Whites, Coloureds and Indians is a political fraud. The Government is promising trusting NP members that they will retain their right to self-determination. I want to say that if the NP tell their voters that they will retain their right to self-determination, it is a lie. If one has the right to self-determination, let us test it. [Interjections.] Sir, the hon. member for Ermelo has such a big mouth. Recently he had to attend a meeting but he never turned up. His MPC was there though. A motion of no confidence in his MPC, in him and in the NP was adopted without a single dissenting vote. Even the chairman voted in favour of the motion. The hon. member has such a big mouth, but his majority was a mere 469.

Let us test the right to self-determination which the Government will offer the public of South Africa by objective criteria. If I do not have the right to draft my own Constitution unhindered, no one must tell me that I have the right to self-determination. If a people does not have the right to deal unhindered with its own finances, it does not have the right to self-determination. If a people does not have the right to defend its own right to self-determination with its own defence force, its own police force and its own methods, it does not have the right to self-determination. If a people does not have its own territory, it does not have the right to self-determination.

Reference has been made to own affairs. I want to ask: I my foreign policy, my Defence Force and my Police Force not my own affair as a White? But I do not have a sole say over this. That is why I say we are moving into a conflict style. My standpoint is that we have to consider the legal system with a view to that conflict situation. Let us see which proposal, that of the PFP, that of the NP or our proposal, will best resolve the conflict situation.

In this connection I should like to refer, in passing, to the 19 academics who issued a statement. It was like rain in the drought. I do not know whether the NP actually want rain, for then we have to hold a referendum.

Disgraceful!

What is a disgrace? [Interjections.] The NP was afraid of the referendum and ran away from it and that was why they blamed it on the rain.

It is disgraceful to make such an allegation.

We must not begin discussing disgraceful things. I am quite prepared to discuss disgraceful things with the Government. I want to ask the hon. the Leader of the NP in the Transvaal if what he did in Tzaneen and told the voters there—I heard it on tape—was not more disgraceful. An old man asked him what the difference was between the Parliament planned in 1977 and the White Chamber. In 1977 that hon. Minister compiled a document in which he said that the powers of the White Parliament would remain unchanged. He knows very well that the Chamber the Whites are now going to get will have been stripped of its sovereignty. The hon. the Minister’s reply to that old man was this: “There is no difference between the two.” That is the most disgraceful untruth and deception of the public I have ever come across in my life. There are many other scandals. If I were them I would rather keep my mouth shut about disgraceful things. [Interjections.]

Business suspended at 18h30 and resumed at 20h00.

Evening Sitting

Mr. Speaker, when we adjourned for supper I was discussing the instruction of the hon. member for Sandton and the legal solution which can be offered for the chaos in which the new dispensation will plunge this country. I identified the conflict which would result from the new dispensation and suggested three possible ways to avoid it.

You are a conflict yourself.

That hon. member should keep his mouth shut. I want to remind him that he made allegations against me here regarding the border. He knows what happened to him as a result. He will get a lot more of the same medicine.

Before I conclude I should like to refer to the 19 academics who issued a statement. They apparently approached the Constitution Bill academically and scientifically and made a scientific finding.

[Inaudible.]

Sir, those 19 academics make me laugh in exactly the same way as the hon. member for Springs makes me laugh. They arrived at the following finding—

Which part of the instruction are you dealing with now?

That hon. member should rather worry about what he said in Jeppe, namely that the Group Areas Act is no longer a principle of the NP. He must keep his mouth shut now. He is still going to find himself in serious trouble.

These 19 academics made a statement which was in conflict with the history of this country. They apparently do not know that Transkei, Ciskei, Bophuthatswana and Venda have become independent. Surely this is wonderful proof of parliamentary rights which were given to groups other than Whites. Surely the erstwhile Coloured Persons Representative Council, the S.A. Indian Council and the self-governing Black States are all examples of parliamentary rights given to groups other than the Whites. In the Louis Nel idiom, there were really a series of academic capers.

I have sketched the conflict nature of the new dispensation. The question now is whether the instruction of the hon. member for Sandton will be able to accommodate that conflict nature. I do not believe it can because the sovereignty of Parliament is being made subservient to the courts. According to paragraph (2) the court must have the power to pronounce on the validity of certain presidential decisions. This encroaches upon the sovereignty of Parliament and is therefore unacceptable to us. It means that the judicial authority is venturing into the domain of the executive and is deposing the executive from its sovereign throne.

The governing party is now giving the President uncontrolled powers to decide which are own and which are general affairs. The exercising of the President’s discretion may not be questioned by the courts. He and the persons he appoints, the people he has eating out of his hand, the people dependent on his favour, will decide which are own and which are general affairs. In the new dispensation my White self-determination will depend on the favour of one man, namely the President, and his bunch of lackeys. This is unacceptable to us.

Koos, we will protect you.

That hon. member should rather concern himself with his pension. Sir, this means that the President as executive is now venturing into the domain of the legislative authority.

Are you receiving a pension yet?

No, I have no pension yet. When I walked out on 24 February last year, it was not a consideration for me as it was for a number of renegades (“hanskakies”). [Interjections.]

Mr. Speaker, may the hon. member refer to other hon. members in this House as renegades (“hanskakies”)?

Order! The hon. member must withdraw that.

Sir, I withdraw it. Sir, I say it means that the President as executive is now venturing into the domain of the legislative authority because he will decide what each of the four legislative systems will draft laws on. We have the absurd position that the legislature we have now, which is sovereign, will now be made subservient to the President, and that the President, who appoints his own people, will in effect manipulate the legislature in the new dispensation. No law will be drafted unless it has the approval of the President. That is why I maintain that he will not only be the executive but that he will in actual fact also be the legislative authority.

In addition the role of the Appeal Court has been removed from the President, because his actions cannot be reviewed. This also means that he can review himself. What this amounts to is that we have the absurd situation that the President will not only be the executive but he will also be the legislature and the judicial authority in the new dispensation.

We are not prepared to accept a position where the position of the judicial authority is restricted and what we therefore propose—and this is not the proposal of the PFP or the NP—is a system of a free, independent and sovereign Parliament, with legal powers as incorporated in Act 32 of 1961.

Mr. Speaker, I want to begin by making the general observation that the discussion of the motion of the hon. member for Sandton is a prelude to the debate which we shall conduct at a later stage on the constitutional proposals themselves. I should also like to observe that the level, the contents of, the discussion of this motion are to a great extent an indication of how we are going to conduct the remainder of the debate. Mr. Speaker, possibly you will afford me an opportunity of also making the observation that regardless of whether or not we pass the Committee Stage of Bill, it remains an historic occasion in which we are all participating here. I should like to give hon. members the assurance, on behalf of my side of the House, that during the discussion which will follow we shall try to be worthy of the occasion. When all is said and done we are, even during this discussion of the motion of the hon. member for Sandton, engaged in a revelation of attitudes. Without being aware of it, the hon. member for Jeppe placed his finger on one of the greatest problems which exists in our society and in the White society as well. It is our inability to agree on important matters. When I say this hon. members must not draw an erroneous inference from it. Historically we are the group most exposed to these procedures and our ability to reach agreement should really be greater than that of the other groups. I often wonder what the outcome will be when we are put to the test. This applies to all of us.

That is a good question.

Yes, I often ask good question. My problem is that I do not receive good replies.

But the answer is a difficult one.

Of course it is a difficult one. But, please, I am not trying to score points off anyone.

The hon. member for Hillbrow said that the instruction was a serious matter, and I should like to assess it in terms of our experiences in that connection. In the first place, this instruction came after the acceptance of the principle of the Bill at the Second Reading. That is why the hon. member for Sandton had to make use of this special procedure to hold a discussion of the subject in this House. Frequently an element for testing the seriousness of one’s actions is implicit in the timing of one’s actions. The hon. member, who is a lawyer, will grant me this, because he was once engaged in the practice of law himself.

I still am.

He says he still is. He is more fortunate than I am. Frequently this question crops up: When did a person react in specific circumstances or when did a person complain? Then the seriousness of one’s approach in respect of one’s complaint would be revealed by whether one made every effort at the first available opportunity to have matters rectified. Is that not true? The hon. member says it is true. I maintain that the hon. member for Sandton and the other hon. members could have discussed the contents of the instruction prior to the Second Reading of the Bill because the rules of this House allow him to move as an amendment the conditions for passing the Second Reading, as they are stated in the instruction. The hon. member did not do that. He did it post facto the passing of the Second Reading. The hon. member for Sandton must not become too angry with me now because I did not mean it in a malicious way. After all, we are discussing an instruction which he requested, and according to the rules or the conventions which he is supposedly so keen to see preserved, one would have expected that apart from the normal needs which one has to meet, the hon. member would have been present while his instruction was being discussed.

He was only absent for 20 minutes.

No, Sir, that is not true.

That was in a period of six hours.

No. Sir, that is not true. I do not wish to argue with the hon. Chief Whip about this.

He was here much longer than you were. [Interjections.]

That is not true. However, let us assume that the hon. Chief Whip is telling the truth, although he is being very reckless with it at present. The fact remains that this is an instruction from that side.

He just wanted to see whether he could catch a helicopter to Kamieskroon. [Interjections.]

I shall give him one but he must make sure he comes back; and the hon. member for Bryanston as well. This shows the seriousness with which the motion for the instruction is being treated.

I know wish to come to the substantive part of the instruction. The hon. member for Sandton will concede with the instruction of the hon. member for Yeoville which we dealt with yesterday, was related to a great extent to the instruction which we are now discussing. The hon. member concedes that. If the instruction of the hon. member for Yeoville had been accepted, then there would have been criteria against which the constitutional court would have been able to test the legislation of Parliament. I think the hon. member will readily concede that point too. With the non-acceptance of the Bill of Rights, however, the criteria which the court would have had to apply in terms of the instruction for assessing the actions of the legislature, fell away. In any terms this means that the court then has arbitrary rights in assessing the legislation of the legislature.

That cannot be.

Of course it ought not to be. Against what would the constitutional court test the legal validity of the substance, the contents of legislation, if the legislature itself has not laid down the criteria in its laws? Against what would the court test it? None of the hon. members, on any side of the House, advanced arguments indicating what it should be tested against. In my opinion, therefore, there is no connection between the situation in countries that have a Bill of Rights and a constitutional court and the situation as it applies at present in the House, because the one important component which is normally connected with a testing right of the courts as to the merits of legislation has fallen away. It does not exist.

How, with all due respect to the hon. member for Sandton and other hon. members, should the court be placed in a position to exercise a testing right without guidelines being laid down for it against which it should determine its testing procedure?

But you should have supported the Bill of Rights.

The hon. member for Sandton must tell me …

I am going to tell you nothing further.

Is the hon. member going to tell me nothing further?

I am not going to, because I have finished speaking.

Mr. Speaker, may I put a question to the hon. the Minister?

No, I am advancing my argument now.

What precisely does the hon. member want in his instruction? Let us read it. His instruction has three subdivisions. I think it is important for us to consider for a moment precisely what the hon. member is asking for. We must see whether we can deduce from that what he would like to have. If we cannot, we must try to establish what he wants from his speech.

I gave you a copy.

I thank the hon. member for that. He was so kind as to do that.

You say that if a person does not have a mug, he should not ask for water. [Interjections.]

No, he can simply use a hat or hold his hand under the tap. I want to recommend that to the hon. member for Bryanston.

†Finally the constitutional court should act as the final authority for interpreting and enforcing the constitution and its conventions.

*It is limiting in the respect that the function of the constitutional court should be limited—this is important—to interpreting and enforcing only the constitution and its conventions; not the other laws of Parliament, but only this one. If I have to keep the hon. member literally to what is stated here, it means that he does not subject the other laws passed by Parliament to the testing, interpreting or enforcing function of this court; only this one and its conventions.

The other cases can be left to the Appellate Division’s ordinary jurisdiction.

The hon. member must give me an opportunity to proceed. The court must be able to pronounce upon the validity of certain Presidential decisions. This is very interesting because words have meaning. In respect of the Constitution and its conventions, the hon. member requests only one function for the court—an interpreting and enforcing function. That is what is stated here. In respect of presidential decisions, he asks for more. He asks for a testing of the validity of the decisions. In other words, he is asking not only for an interpretation, but a decision on the substance of a presidential decision.

The hon. member then goes further with the third part, which, in point of act, now falls away.

Does that shock you?

It does not shock me, I am just trying to assess what you want. Give me a fair chance.

Let us now look at the arguments of hon. members in the official Opposition to substantiate the instruction. If I have to draw one general conclusion, it is that they do not want what the instruction calls for. They want to superimpose a constitutional court in the place of legislation. That is what they want to do. That applies to all the arguments of the official Opposition, except once again, for those of the hon. member for Sandton. I will come back to that later.

The hon. member for Durban Central argued persuasively about the role of judges, as did the hon. member for Hillbrow. They tried to convince this House that judges, unlike politicians, are able to divorce themselves completely from the other issues and to apply their minds only …

To disabuse their minds.

Yes, to disabuse their minds. Let me be quite frank. I would have been inclined to take hon. members in this regard seriously if I did not know about their record in reacting to the recommendations of judges to this House. What are the facts? Very recently an appellate judge was chairman of a commission of inquiry into security legislation. No hon. member can deny the high esteem in which this judge was held and is still being held by all hon. members in this House. When we discussed legislation in this House flowing from the report of the commission led by that judge, he was already the Chief Justice designate. Now it is history what the attitude of the official Opposition was to a report by a judge who is able to divorce himself from all the side issues and to apply his mind only to the issues at hand.

He was not acting as a judge anyway.

I think that remark by the Chief Whip is a very important remark. So often hon. members opposite plead for commissions to be led by judges. They then argue quite persuasively that judges are better qualified.

Provided they agree with them.

The trouble is, however, that strange as it may seem, the esteem in which judges are held by the Opposition depends on their recommendations. The House will therefore understand my natural reaction that I have no reason in terms of past experience to take these pious words very seriously when it comes to judges.

What about Mostert?

May I ask you a question?

No, I do not want to take any questions now.

*I do not intend to spend a long time reacting to hon. members’ speeches. However, the hon. member for Jeppe made a statement which I think deserves attention. It was a statement which he made right at the outset of his speech when he reacted, I think, to an interjection from another hon. member. He said he still adhered to the same principles and policy which he subscribed to in 1977 and 1981.

Surely that is not true.

I should just like to test the truth of his statement. Depending on the outcome of the test, the House will have to determine whether it is necessary to take much notice of the contribution by the hon. member. In all fairness to the hon. member, I wish to refer to a document to which the signature appended is not his but that of his leader.

That is as old as the hills.

That may be, but the truth remains true. After all, the hon. member for Koedoespoort once interpreted and preached from the Bible, and I have never yet heard him say that the truths of the Bible are wrong because they are old. I was under the impression that the truth is eternal. Now I am being told that the fact that it is old makes it less true. I want to tell the hon. member that if he stands by what was said in 1977 and 1981, then he must also stand by his leader’s statements in that specific connection.

I do.

Hon. members must bear in mind what it is we are dealing with here. It is the credibility of an hon. member’s word. All I am doing now is to ask this House to pass judgment as to what extent we can take cognizance of this hon. member’s concept of truth. I ask the hon. member whether he still stands by the principle that institutions should be brought into existence in which each population group shall be able to decide certain matters and in addition that institutions or systems should be developed in which people accept co-responsibility for matters of common interest. It was on that basis that the hon. member was returned to this House in 1977 and 1981.

Is that what is stated in the Bill?

That is not what we are dealing with now. The hon. member for Brakpan cannot get away with it. I am testing the credibility of the hon. member for Jeppe. [Interjections.] The hon. member for Brakpan and I know one another. I do not intend evading anything which stands in the Constitution Bill. I am prepared to discuss every detail with him.

Confine yourself to it then.

I am now dealing with the hon. member for Jeppe who made a statement and I want to recommend to the hon. member for Brakpan … The hon. member is, after all, a resourceful person. In fact, he has always acted in this House as a champion for what is right and true or for what he thought was right and true. Consequently the hon. member for Brakpan will understand the reasonableness of my standpoint. All I am arguing now is the question of whether or not I can accept the statement which the hon. member for Jeppe made. That is all I am dealing with now. After all, we have to judge the rest of his behaviour on that basis. [Interjections.] If hon. members would only give me a chance to continue my argument! [Interjections.]

Order!

Mr. Speaker, no one can advance the argument now that this is merely a P. W. Botha business, or that someone has tried to lead someone else up the garden path. [Interjections.]

Mr. Speaker, on a point of order: Is the hon. member for Langlaagte …

Order! The hon. member for Langlaagte may not leave the Chamber now. He must return to his seat. A point of order concerning him is being raised.

Mr. Speaker, is the hon. member for Langlaagte, while he is leaving the Chamber, entitled to say to the hon. member for Kroonstad: “Kom, jou meid” (Come outside, you sissie)? [Interjections.]

Order! Did the hon. member for Langlaagte use those words?

Yes, Mr. Speaker, I said that.

The hon. member must withdraw them unconditionally.

I withdraw them, Mr. Speaker. [Interjections.]

Order! The hon. the Minister may proceed.

Thank you, Mr. Speaker. What did the hon. member for Jeppe say? He said that because the Whites, the Coloureds and the Indians historically shared the same geographical area, the concept of each separate group having its own State was not feasible.

And that is what Koos still adheres to now?

Yes, that is what the hon. member for Jeppe still adheres to, not according to my own inference, but according to his own positive statement, Mr. Speaker. [Interjections.] If what he said is true, surely it cannot…

Oh please, Chris, come to the point now! [Interjections.]

Order! The Chair will decide when an hon. member is wasting the time of this House. That is not for the hon. member for Bryanston to decide.

Mr. Speaker, I now wish to come to the hon. member for Barberton.

What has happened to me then?

Man, you went to become kicker for the Dallas Cowboys. [Interjections.]

I am talking to the hon. member for Barberton now. [Interjections.] The hon. member for Barberton is a person for whose juridical abilities I have great respect and regard. [Interjections.]

Order!

I would like to believe that the hon. member has in truth changed his political views, but that his approach to the administration of justice and to juridical principles has not changed. I believe the hon. member will grant me that. The one approach is, after all, professional, while the other can be determined by his relationship to the political party to which he happens to belong. If I understood the hon. member correctly, however, one of the great doubts in the hon. member’s mind was in fact the following. He said that the function of the President in regard to the application of the provisions of clause 18 was a legislative function. I hope I understood the hon. member correctly.

I was referring to clause 16.

Very well, then. It is in fact concerned with clause 16 as well; the whole matter in this connection; everything dealing with own and other affairs. This is the old section 18, which is now clause 16.

Yes.

The hon. member says “yes”. Without conceding the point that the interpretation of the hon. member is correct, namely that it is a legislative function, I wish to argue with him for a moment on the basis of his interpretation. It means that he is opposed to the principle of their President having legislative functions. Is that correct? [Interjections.] The hon. member says “no”. Then I do not know what he is opposed to, because that is what he said to me. I made a note of it. The fact of the matter is that the hon. member himself was a member of this House when legislation was passed here in 1977 which gave the President legislative functions in respect of South West Africa, Walvis Bay and Caprivi. Then he did not have any objection from a juridical point of view to the fact that the President had legislative functions.

That is not the whole truth. [Interjections.]

It is the whole truth. I have not finished either. The fact of the matter is that legislation gives the President a legislative function. It is true that the proclamations which he uses in carrying out his legislative functions have to be tabled here and that they may be debated and rejected by the House. Yet the fact remains that the hon. member voted in favour of this.

The hon. member for Barberton was also a member of the Commission for Co-operation and Development. Now I want to ask him in all fairness whether the 1927 legislation in respect of the handling of Black affairs is not legislation which empowers the President to promulgate legislative provisions concerning Black peoples by way of proclamation.

Chris, you can do better than that. [Interjections.]

I am asking the hon. member for Barberton, because he and I understand one another. Today the hon. member advanced a purely juridical argument relating to the philosophy of the State, but did he ever say while he was on that commission: “I object to the President having legislative powers over Black peoples”?

Never!

Of course he did not. I now ask the hon. member for Barberton what value I should then attach to his standpoint.

Mr. Speaker, may I put a question to the hon. the Minister?

No, Sir, my time is limited. [Interjections.] Surely the hon. member also knows …

Do I have leave to disclose things that were said on the commission? [Interjections.]

Sir, I do not think the hon. member requires leave. [Interjections.]

But a special Act was passed …

The hon. member supported that Act. [Interjections.] Surely the hon. member knows that in terms of the clause in question the President has no legislative functions but determines who the legislature is that should deal with a specific function. Surely he knows that. Now I am asking him as a lawyer, and not as a member of the CP, why he is so flagrantly violating this principle which he was taught.

†I come to the hon. member for Sandton. I think will agree with me that, in view of the rejection of the instruction of the hon. member for Yeoville, the instruction of the hon. member for Sandton has a different meaning. Regarding the constitutional court the hon. member declares as follows—

That is his interpretation of his own instruction—

This is very important—

That is completely in contrast to what has been postulated by hon. members of the official Opposition, more particularly by the hon. member for Durban Central. His argument was completely different. Let me say—I mean this sincerely—that if a motion in this House ever amounted to much ado about nothing, it was yesterday. For what is the position under the present constitution and what will be the position if the constitutional proposals embodied in this Bill are implemented? Under the present constitution as well as under the proposed Constitution the Appellate Division of the Supreme Court may decide whether the powers vested in the executive and the legislature have been exercised in accordance with the general prescriptions which are laid down in the constitution and other Acts of Parliament. In other words, there will be no difference in the functions and powers of the courts before or after the implementation of the new constitutional dispensation.

There does not appear to be any valid reason whatsoever—I submit that the hon. member for Sandton had not persuaded us that there is—to reconstitute the Appellate Division as a constitutional court when it is to give judgment in this particular regard. The court has this power in any event under the present constitution and will have it also in terms of the proposed constitution.

Not in terms of clause 18(2).

Yes, in terms of that too. There will be no restriction on the powers of the courts in the new dispensation, no restriction of the powers they held before.

You have excluded that in clause 18(2).

No, I have not. Give me a chance to argue the point. This is very interesting. In order to demonstrate the effectiveness of judicial control to protect the rights of subjects or citizens, the hon. member for Sandton referred to a number of very important and significant cases and judgments, for instance the Harris case, the Ingwavuma case, the 1982 decision with regard to Bophuthatswana’s Bill of Rights and the recent Rikhoto case. The point is that the court has given these decisions without being a constitutional court and notwithstanding the provisions of section 59(2) of the present constitution. The hon. member knows that.

I used that as an example.

No, the hon. member used that to motivate his case for the instruction; otherwise he was wasting our time.

The court was sitting to test executive actions, not legislative actions.

The hon. member for Groote Schuur probably has more time to speak than anybody else. Yet he never makes a speech. [Interjections.] In the Harris case the court did not base its decision on the merits of the substance of the Acts in question. It ruled that the entrenched procedure prescribed by the South Africa Act had been ignored and that therefore there had been no Act of Parliament. It did not adjudicate on the “validity” of the substance of the Act.

There can be no doubt whatsoever that in terms of clause 34 as proposed by the Select Committee, the jurisdiction of the courts in this regard will remain exactly the same. The clause states this clearly. In the first Ingwavuma case, the court did not express itself on the contents of the proclamation of the State President. It ruled that the prescribed procedure had not been followed. This Bill does not detract from those rights of the courts. So, in all fairness, why argue that it does? In the second Ingwavuma case both the Supreme Court in Natal and the Appellate Division ruled that the State President had acted ultra vires—he had not been authorized by statute to issue such a proclamation. Again it did not adjudicate on the merits of the substance of the proclamation.

The hon. member for Sandton quoted examples which substantiate the fact that the present position is satisfactory. The position he argues in terms of his references to be satisfactory, is being maintained in this Bill after its implementation.

In all these cases the court did exactly what the hon. member, in terms of his arguments, wishes to achieve in his instruction.

*The hon. member for Brakpan raised serious objections in particular to the limitation of the courts’ power to pronounce on the validity of …

May I ask you a question?

I am busy now. [Interjections.] The hon. member raised serious objections to the limitation of the courts’ power to pronounce on the validity of decisions of the President on the own or general nature of a matter. I want to refer the hon. member to the 1977 legislation which he supported.

What legislation? Was it passed by Parliament?

The hon. member must not waste my time. [Interjections.] If the hon. member were to read what his hon. leader said in the House of Assembly on 3 February 1982—and I know it was an historic occasion—when he said our evidence before the President’s Council was in the form of the legislation … [Interjections.] Do not waste my time. In section 26 it is stated that the council of Cabinets—and this the hon. member will recall—was a mixed council and this council would decide which own functions should go to the Parliament for Coloureds and which to the Parliament for Indians. That is not all. In clause 55 it is stated that there will be no testing power in that regard.

May I ask you a question?

No … [Interjections.] All that happens in regard to the clause objected to … [Interjections.]

This is not like you at all. You are in a corner. [Interjections.]

Order! I think there are hon. members here who do not know the meaning of the word “order” at all. I do not want to put a damper on the debate, but if things carry on like this I shall prohibit all hon. members from making any further remarks. We need order in this debate.

All that is envisaged in clause 18 is to make it clear that the courts do not have the power to assess the merits of a decision. Any reasonable person will understand it if he is not looking for ulterior motives in it. However, that does not detract from the fact that the courts can adjudicate upon whether the process which was adopted is in accordance with the prescribed procedure. The present legal position is that the court has a power of review in respect of an administrative action, but no competence to hear an appeal. What those hon. members want to give the court is the competence to hear an appeal.

Hon. members furnished many reasons as to why courts should not interfere with executive actions in this way. Minister and executive officials have to make policy decisions every day. The question of whether these are of a general or an own nature are decided on the basis of the criteria in the constitution and not, as the hon. member says, according to the incidental opinion of any person, but individual decisions will be typical decisions of a member of the executive authority under the circumstances which ought to be assessed in each individual case. I should like to go further because my time is running out.

†The hon. member for Sandton devoted a major part of his speech to an argument that the President’s Council as an arbitrating institution should, in the case of conflict between the Houses or in the event of disagreement, be replaced by the constitutional court.

It was an idea.

Yes, that is the hon. member’s argument. Let us just debate this for a moment.

Try not to be personal.

I shall not be personal, it was not part of the instruction but it was part of his motivation. In the first instance, Sir, I want to suggest that the hon. member completely misunderstands or misinterprets, not wilfully, the functions and the role of the institution that will have to exercise this function. Firstly, this is not a judicial function. I think we are all agreed that it is closely related to a legislative function. Two Houses disagree on the content or the substance of a particular Bill and, if the Bill is not withdrawn, somebody has to decide as to which view will prevail.

Is that on a political or judicial basis?

Mr. Speaker, I thought the hon. member for Groote Schuur would understand that when we discuss legislation we do so on a political basis. That is part of Parliament. Apparently, however, that hon. member is here in a judicial capacity! [Interjections.]

Mr. Justice Bamford.

I should like to point something out to those hon. members and I should like then to listen because it is very important. This goes to the root of the problem of the official Opposition. Once again, the hon. member for Sandton is arguing against amendments his party proposed in the Select Committee and which have been placed on the Order Paper under the name of the hon. member for Sea Point to be moved during the Committee Stage. This is very important. We must bear in mind that the gravamen of the argument of the hon. member for Sandton was that the constitutional court should be the institution the could resolve conflict between the Houses.

Not the gravamen. That was one of the ideas.

Very well, that was one of the ideas, let us put it as mildly as possible, it was one of the ideas. However, the hon. member did devote a major part of his speech to what he refers to now as one of his minor ideas. I submit that fact makes it rather important. What happened was that the hon. member did not really consider seriously what he was asking for. If he had done so—and he is a very serious member—I do not think that he would have been so flippant in advancing these arguments. I think that they were considered and I think that they were considered irrespective of the fact that there is another amendment on the Order Paper under the name of the hon. member for Sea Point that does not want the arbitration role to be exercised by a constitutional court.

A House of Review.

Not even by a House of Review.

What is the purport of the amendment of the hon. member for Sea Point? He is going to move that amendment during the Committee Stage. He says Parliament itself should resolve conflicts between Houses; not an outside body. We must realize that the instruction of the hon. member for Sandton takes precedence over the Committee Stage of the Bill because the House must express an opinion on that instruction before we go into Committee. This is very important. If the hon. member’s instruction is carried, then the hon. member for Sea Point is in trouble. If the hon. member for Sea Point is right in the sense that it should not be an outside body and that we should guard the functions and the role of Parliament and its Houses with meticulous care—I think he wants this to be done—then we must avoid, according to the hon. member for Sea Point, this outside body and Parliament should retain the role of legislature in all circumstances. I have a problem. [Interjections.]

I have a request to hon. members of the official Opposition in this regard. They should settle their differences of opinion before they propose amendments or move motions for consideration by the House, because surely this House is not there to solve inter-party problems.

Let us assume for a moment that the hon. member for Sandton represents PFP opinion on this matter. Then I want to turn to the merit of that argument. It is part and parcel of our constitutional tradition from both England and the Netherlands that the courts of law have no power of review relating to the substantive content of legislative matters.

But we are moving away from Westminster.

It is the case now and it will be the case when the Bill is implemented. I should like to restate this argument because of the importance of this point.

Why are you so pro-British all of a sudden?

If the position is changed, our courts will actively participate in authentic legislative processes. Surely we must understand that if this new functional role is allocated to the courts, the nature of the courts, their composition and their functions will have to reassessed.

Almost like the High Court of Parliament.

But those hon. members did not agree with that.

Did you? [Interjections.]

This matter has been extensively argued by the hon. member Mr. Schutte and the hon. members for Durban Point and Roodepoort. At the moment our courts enjoy respect and admiration which I think they deserve because they do not in any way participate in the practical day to day political processes.

Did the hon. member for Hillbrow realize what he said? I could hardly believe my ears. He said that when the court sits on cases during elections, they are involved in political affairs. [Interjections.] Yes, that is what he said.

No, I did not.

All they did was to assess whether the law had been complied with and nothing else.

Let me conclude. The system that has been held out to us, is the American one. The hon. member for Groote Schuur put questions to other speakers on this issue. Let me quote to him what an eminent American expert on the American constitution, Archibald Cox, who is known to everybody, has to say about the role of the Supreme Court in America—

The heading to this is “Judicial Activism”. He concludes—

Cox was quite happy to work under that system.

But he is commenting on the results of the system. That is what I am trying to indicate to the hon. member, but he does not follow what I am saying.

Finally, in considering this proposal, we should again keep in mind that we are a heterogeneous society, something which the PFP obstinately refuses to acknowledge. In this regard I want to quote another authority who is known to all members. I refer to Carl Friedrich and what he says on page 264 of his book Constitutional Government and Democracy. He says—

This is important—

We all agree they exist—

Is the President’s Council not such an institution? I quote further—

To sum up: Our courts fulfil a vital and valuable function in protecting individuals and groups against arbitrary State action and they shall continue to play this role should this constitution come into operation. At the same time we do not regard it as appropriate to involve them directly in matters which primarily should be sorted out by the political organs of State. Such involvement, I submit, will detract from the high esteem in which they are generally held by everybody. Therefore we cannot accept the instruction.

Question put,

Order! Before putting clause 1, I am first going to permit hon. members to move and discuss amendments 1, 3, 4 and 5, printed as amendments to precede clause 1. Because amendments 1 and 3 have, basically, the same object, I shall permit them to be discussed simultaneously.

Mr. Chairman, I placed on the Order Paper the same amendment I had moved in the Select Committee. I did that as a matter of principle because I believe that the present wording as it appears in the Bill does violence to the English usage. I therefore want to place on record my protest, and also the protest of others who felt that the use of the term “own affairs” had no meaning whatsoever in the English language. It is indeed contrary to any accepted English usage, and can be regarded as a slap in the face of speakers of the English tongue. That is why I also moved that amendment in the Select Committee. This was my second choice, because my first choice had already been moved by the hon. member for Sea Point and appeared on the Order Paper but has now been withdrawn by the hon. member for Sea Point. Since the hon. member for Sea Point does not intend to proceed with the amendment he moved in the Select Committee, I do not intend to move my printed amendment but now move an amendment as follows—

1. 1. To omit the expression “own affairs” wherever it occurs and to substitute “group affairs”.

In other words, I agree with the hon. member for Sea Point that this is a better word than “specific”. I used “specific” because that is the correct antonym for “general”. The opposite of “general” is “specific” and so I used the correct English word, but the most descriptive word for what is meant by the so-called “own affairs” is “group affairs”. Since the hon. member for Sea Point has apparently shied off from his own amendment, I am now moving it. It will be very interesting to see whether he and the PFP will now vote for the amendment he put in the Select Committee.

You are playing games, Vause.

Mr. Chairman, I do not want to deal at length with the hon. member’s amendment. We do not like “own”, “group”, “specific” or “agency” …

Then why did you move it?

I really do not want to waste my time on that. If the hon. member, in order to reflect his racial prejudice, wants “group”, he can have “group”. That is all I am saying. We do not as a party want to get involved across the floor of the House in asking for the specific change of a name in respect of a concept we find objectionable. That is where it stands.

Mr. Chairman, I think that by agreement and with your leave, Sir, it is appropriate that hon. members of each of the parties should define their attitude and the position in which they find themselves as we enter this stage of the debate following the long debate we had in the Select Committee. Prior to doing that, however, I should very briefly like to say that it would be remiss of me if I did not at the outset pay a tribute to both the staff of the hon. the Minister’s department and the staff of Parliament for the way in which they assisted the members of the Select Committee. Their efforts were absolutely outstanding, from the point of view of diligence, competence and dedication.

In regard to the amended Bill and the amendments we have placed on the Order Paper, I want to make it quite clear that in spite of the efforts of the members of this party, and our continuing efforts, we are unable to alter certain provisions of the Bill. There are seven key principles which, do what we may, we are unable to amend because they are principles of the Bill. These have emerged in the rulings in the debates in the Select Committee and here. I think they should be tabulated. We are unable to change the principle that the President, the nominee of a single White party in Parliament, will also be the head of State and the head of the Government. We cannot change that. Secondly, we cannot change the fact that the President will be elected by an electoral college in which the majority party of this White House will have an absolute and entrenched majority and in which the Opposition will have no say whatsoever. Thirdly, we cannot alter the fact that all legislation and all the administration has to be segregated into own and general affairs. We cannot alter the fact that the division into own and general affairs will not be undertaken by the group concerned but by a President elected and nominated by a White political party on the basis of a schedule which will be entrenched and written into the constitution by the Nationalist-dominated White Parliament of today. That we cannot change. We cannot change the fact that Parliament is to be segregated into three separate Houses determined on the basis of race classification and the population register. We cannot change the fact that no court of law can pronounce upon the validity of the decision of either the President or Parliament. Finally, we cannot change the principle that Black South Africans who comprise 70% of our population may not participate in the sovereign legislature or the executive Government of South Africa. These obstacles which we encountered are based on the immutable principles written into this Bill. We moved instructions to try to change them, but they were ruled out of order. We moved other instructions dealing with a Bill of Rights and a constitutional court, where we tried to remove the racial sting and the threat of despotism in this Bill, but they were voted down by the majority in this House.

It is important for hon. members to realize, that the amendments and instructions which we have moved, and the amendments which we will continue to move, not only represent our opposition to the principle of the Bill but are also an attempt to reflect our alternative to the Bill before us. The amendments which we attempted to move and which were ruled out of order include the separation of power between the legislature, the executive and the judiciary, as opposed to the concentration of power in the hands of a President nominated by one party and responsible to only one group in South Africa.

Secondly, our alternative, as we tried to move it, is the limitation of Government power and the protection of rights by a Bill of Rights, as opposed to placing these basic human rights of individual citizens in the hands and at the mercy of the politicians of the day.

Thirdly, what we have tried to do, and will continue to do, is to strive for the decentralization of power through a genuine federal system, as opposed to the centralization of power in a so-called sovereign Parliament.

Fourthly, we have tried to achieve the dismantling of the winner take all majoritarian system in favour of proportional representation, as opposed to the system embodied in this Bill which involved the domination by one party of all parties in a winner take all system.

Fifthly, we are fighting for the right of voluntary association in contrast to the enforced association based on race classification and the Population Registration Act, which is inherent in this Bill.

Sixthly, we have tried, and we will continue to try, to have the restoration of the rule of law, with independent courts in South Africa playing their full role as the custodians of individual liberty and as the guardians over our constitution, as opposed to the subordination of the role of the courts to the decision of the executive President and a Parliament dominated by a single group.

Finally, we have fought and will continue to fight as a matter of principle for the rights of all citizens to participate in the constitutional processes of government in South Africa without the domination by one group of another, as opposed, as in this Bill, to the principle that the majority of South Africans will be excluded from participation in the national legislature or the executive government and the subjugation of all groups to the will of one minority group in South Africa.

This is where we find ourselves. We have fought against these principles. We find ourselves locked into the situation at this stage. We have worked hard. I want to say to the hon. the Minister that had it not been for his skill in understanding this constitution, perhaps the work of that Select Committee would have been even more difficult. I say this to him across the floor of the House. We will continue to try to amend this Bill, but this House and the voters outside must realize that there are limits to what we can do. Had we been free to do so we would have introduced amendments of a fundamental nature. However, as the hon. the Minister and this House know, after the Second Reading and after the Select Committee stage we are limited. We are limited, but we will continue to put forward amendments in the vain hope of trying to improve this Bill. However, we can only improve this Bill in a limited way if we are able to do so. Even if our amendments are successful, those amendments have to be seen within the framework of the principles of the Bill, which we believe are a threat to racial peace and democratic government in South Africa.

So we will continue to move our amendments, but let nobody be under any misapprehension. We find that the seven principles are repugnant and we believe that the alternatives which we have presented so far, and will continue to present, are the real alternatives for the future of South Africa.

Mr. Chairman, we in the CP should like to associate ourselves in this regard with the hon. member for Sea Point and convey our appreciation … [Interjections.]

Order!

Mr. Chairman, this reminds one of the “sherry gang”. It is only the “sherry gang” that can do that.

Order!

I withdraw it, Mr. Chairman. However you will understand that we are being subjected to extreme provocation by people who are unable to control themselves. [Interjections.] With all respect, and in all sincerity towards the hon. the Minister I should like to associate myself with what the hon. member for Sea Point had to say and express my appreciation for the able way in which the hon. the Minister conducted affairs in the Select Committee. Mention has already been made of the patience displayed by the hon. the Minister, and we who know him know how difficult it is for him to display patience. Therefore, if I could move an amendment, the amendment would have read that we had special appreciation for the way in which the hon. the Minister succeeded magnificently in keeping his natural impatience under control! [Interjections.]

If it was difficult for the PFP to take part in the discussions of this Select Committee, it was far more difficult for us, in particular. We are far further removed in principle from the standpoints adopted by the NP in this regard at this stage than is the PFP. It is obvious that in this regard the NP is taking a step closer to the PFP. They are taking a step past the NRP towards the PFP. We took part in those discussions. On the first occasion we attempted to table a document in which we sought to place on record once again our extreme objection to the principle of the Bill. That document was ruled out of order. We approached those discussions on the very clear assumption and understanding that we are fundamentally opposed to the whole concept of the Bill and that it is in conflict with what we professed over the years in the NP. We are oppose the concept of power-sharing; we oppose the concept of a mixed Government and we oppose the concept that a Government which is not accountable to me and my people should govern me and my people. [Interjections.] We are opposed to governing, together with other peoples, a geographic territory that we are all supposed to share. That there are going to be four Governments governing one territory is in conflict with the policy in which we always believed. [Interjections.] However, we have a profound respect for this Parliament and for all the institutions that derive from it, and for that reason we took part in these discussions and tried to the best of our ability, as hon. members of the PFP said, to see whether we could improve this monstrosity. Alas, our old hon. friends in the NP, that fine party, have moved further away from the policy and principles in which we basically believed, that we professed and propagated on the same platforms. [Interjections.] If it had not been so terribly pathetic, it would have been laughable. Those good friends of mine, as they sit there—many of them are still good friends of mine—and the hon. the Minister who is dealing with these matters, know how close we are to one another as friends. Therefore it still causes me great pain and unhappiness that the new NP which we loved so much has taken these steps. [Interjections.]

We took part in this struggle with our hands tied behind our backs and for that reason it is in fact even more of a pity that we did not go to Select Committee before the Second Reading. Perhaps then we could have succeeded in doing better than the product at present before the Committee. Alas, it was not within our power to submit drastic amendments to the Select Committee. We entered the struggle with our hands tied behind our backs.

In this instance the umpire did at least stay in the ring. It was not like the other day when the umpire was knocked over. Here the umpire stayed in the fight.

Mr. Chairman, may I ask the hon. member what the score was in both instances?

Order! That is completely out of order.

The score was 28 to 6. Unfortunately not even a Heunis was able to save us. [Interjections.] Actually the score, as the hon. member for Jeppe said, was about 202 to 2. I think my first amendment was accepted at about clause 93.

I should like to close on a more serious note. Particularly as regards the essential dispute, we should have liked to have reached a decision satisfactory to the parties in this case. It is, firstly the whole distinction between own affairs and general affairs we have just been debating. This is not a satisfactory solution. That solution is faulty in principle, and it will never be possible to doctor it right by any amendment of clause 14 nor by having a criterion in clause 16 nor by depriving the courts of the testing right in terms of clause 18. That will not work. The hon. the Minister’s reaction to this argument is not convincing, and I take it amiss of him for trying to put us in our place by bringing up the 1979 Bill that never came before Parliament and about which we never ad idem. I have correspondence in my possession, and it is also stated in my Hansard, that I pointed out to the then Minister of Internal Affairs that we still had major problems with regard to the matter. In due course this was referred to the Select Committee.

We should have liked to see the testing right of the courts restored in the Bill. We should have liked more details about the conventions. We should have liked to hear further evidence. I think there were several people who offered to submit evidence and who were not afforded that opportunity. That is a pity. It is a pity that we do not have more information about cardinal aspects. We are not satisfied that the President’s Council should be the final conflict-regulating body, a President’s Council that will consist only of the stooges of the President, because 25 members are appointed by him and the entire White chamber only appoints 20 members. In the President’s Council the voice of the Opposition is stilled.

We oppose in principle the wide-ranging powers of the President. Whereas he is now supposed to act in consultation with the rest of the Cabinet, what we are particularly aware of is that he is simply going to pick some of them up the streets, and since he is not accountable to this House or to any of the other chambers, we say that in circumstances such as these this is not in accord with basic principles of democracy.

It is in these circumstances and against this background that we have taken part in these discussions. We recognize that this is an historic occasion but we also say that it is a particularly sad occasion, because what the people, the NP, are doing—perhaps not deliberately—is giving away their birthright. [Time expired.]

Mr. Chairman, I should like to begin by adding a few words of appreciation to those that have already been conveyed to the hon. the Minister as chairman of the Select Committee. It was hard work. However, I do not want to repeat what has been said by other speakers, and I shall only add that I do not believe anyone of us will ever forget the way in which the hon. the Minister drove us on in the Select Committee with the hours and the tempo at which we had to work! For a party with one representative it was not always easy to keep up with the hon. the Minister, but we survived.

†Mr. Chairman, in the short time available to me, I want to say that, like the official Opposition and the CP, we had objections to the original Bill just as we have to the Bill that is before us in its final form. He have objections in principle to certain aspects of the Bill. We have placed them on record in Hansard. We believe that the non-homeland Black must be accommodated after negotiations. Our policy is that this accommodation should have taken the form of a fourth House or Chamber. We believe that after the joint committee processes, final decision-making in regard to general affairs should be effected jointly and not separately—by means of a joint sitting or in some other single forum. In relation to both of these matters we were able to make no progress at all. However, the difference in approach between the NRP and the PFP was that they then adopted an attitude of blind confrontation by rejecting the entire Bill whereas we said that we should judge it on balance. We believed and we still believe that this is a starting point for reform—for change. It is a starting point that brings into the decision-making process at the highest level of Government elected representatives of the Coloured and Indian people. We therefore approached the Select Committee with the object of trying to remove those objections that we had with which it was permissible to deal.

In some cases our objections were met to some limited extent and in others fairly fully. For instance, there was the question of Opposition participation in the Joint Select Committees. Despite the play on the word “may” that I have read about in the Press it has now been established that the Opposition will in fact participate in the Joint Select Committee process. In relation to Opposition participation in the election of the President or the Speaker we were unsuccessful in our efforts because it was ruled as being a principle. However, we shall continue to press our point of view in this regard.

One point in respect of which our efforts failed but in regard to which we still feel particularly strongly is the exclusion of Opposition participation in the President’s Council. We shall continue to press for it during this debate and we will continue to make the point that this at least could form an essential element of credibility as far as the President’s Council is concerned. We shall continue to work towards these objectives. We will continue to move amendments where the powers of the provincial councils … [Interjections.]

Order!

… can be transferred to the central Government … [Interjections.]

Order! Is there anything wrong with the hon. member for Bryanston’s hearing? I have called the Committee to order, but the hon. member simply goes on talking to someone on the opposite side of the Committee. The hon. member must please heed the Chair’s call for order. The hon. member for Durban Point may proceed.

We will continue to strive for an amendment which will limit any change in provincial councils to “only after consultation and negotiation” as undertaken by the Government, and such an amendment is on the Order Paper.

In regard to the President’s powers, there has been a major and significant limitation of and change in the position as it was in the original Bill. I do not have time to deal with it now, but I will show, when we come to the relevant clauses, that blatant lies are being told and being published and a blatant distortion of the facts is being presented to the public. We accept that there have been significant changes in and limitations of the President’s powers.

I am not going to repeat what I said about the courts. We have just had a debate on that. Again, the position of the courts has been clearly and specifically stated and incorporated into the constitution. One of the lies is that there is a new provision entitling the President just to declare anything he wishes to declare as an own affair. Of course, the people who claim that did not read the original Bill. All that happened has that the phrase was transferred from the old clause 18 into a new clause, which is the old clause 16, but the wording remains the same. This is now claimed as being a “vicious extension of apartheid.”

I do not have time to deal with the other amendments now, but I want to say again that we will strive, in the spirit in which we have approached this whole measure, to continue to have amendments effected in respect of those matters to which we have objection. We hope to be able to persuade the Government, if possible, to accept some of the amendments in this debate. If not, we will continue to press for them. However, I can say at this stage that the acceptability level that faces us as far as this measure is concerned in deciding our attitude to the Third Reading has been improved by the Select Committee. I believe it has shown the correctness of a responsible approach which seeks to achieve improvements, which seeks to achieve consensus and which seeks to make a contribution, rather than blind confrontation. I hope that further amendments will strengthen this position because I would like to be able to see South Africa move onto a new road where Coloureds and Indians at least will be brought into the political decision-making process. I would like to see a start made, even if it is imperfect, even if it is incomplete, even if it has basic flaws, even if it possesses elements which I do not like, because if we do not start somewhere we will never reach our destination. A start is the first step towards a destination and I cannot go along with the official Opposition that wants an instantaneous destination but is not prepared to take a first step.

I want to conclude by saying that if this constitution is rejected, we go back to what exists now, namely exclusive and sole White political power. That is the choice: Exclusively White power, domination by the NP as it now exists, or a new system where that power is shared. As a party we hope sincerely that when this Bill emerges at the end of this debate it will be such that we can support it as that first step towards what we wish to see.

Mr. Chairman, allow me to associate myself at once with the hon. members who have taken part in the debate thus far by conveying my thanks and appreciation, too, to the officials, particularly Mr. Douglas, who acted as secretary of the committee; and the chief law adviser, Mr. Fölscher, who assisted our committee at all times, and also the officials of my department. I do not think there are any officials who have worked with more dedication over the past months than this particular division of my department. I should like to thank them all most sincerely for that.

Mr. Chairman, I am also pleased that you gave the speakers of all the parties the opportunity to go beyond the provisions of the clause in their first speeches. I think it is important that just for the sake of the record, we should say a few things to one another, and I want to repeat what I said just now: A difficult and wearying time lies ahead for all hon. members of this House, a time during which we shall differ profoundly from one another on points of departure and on standpoints. Nevertheless, in the final instance, the issue will not be who won the debate, but how we conducted the debate. I want to say to hon. members that this is the spirit in which I should very much like to conduct the debate, in spite of the provocation to which the hon. member for Brakpan referred and that we all have to endure. I therefore make the earnest request that hon. members must consider what I am now going to say against the background of the sentiments I have just expressed. I have only appreciation for all the members of the Select Committee for the way in which they participated in the proceedings of that committee, and I should like to place that on record. In spite of the derogatory statements made by the hon. member for Jeppe as regards the proceedings of the committee, I wish that we could display the same attitude in our debating here despite the fact that we did not agree. That would enhance the dignity of this House. I know that I am often guilty—indeed, I think we are all guilty—of adopting different attitudes, because this is a cruel place and, as the hon. member for Brakpan said, the provocation is often extreme. In this regard allow me to refer to something else as well. It is not only we who have a responsibility in this House with regard to the subject we are debating now. It is also the media—all of them—who have to report to the outside world what we do here, that have a specific responsibility. I want to discuss that because I think I need have no hesitation in saying that I have never conducted public agitation against the media per se in my public life, and this has not detracted from the fact that, like others, I …

What about that Press Bill that you introduced?

I did that, in all fairness, in consultation with the media. [Interjections.]

So, the media have a role to play. They have a responsible role to play. I should like to emphasize that there is not a single hon. member in this House who does not understand the emotional limitations of broadening the scope of democracy in this country. There is not a single hon. member who does not understand that. Our perceptions may differ in respect of what is possible but we cannot deny that many of the impediments that put the widening of the scope of democracy in this country under restraint do not consist of rational arguments but of emotive reactions.

Hear, hear!

This, however, is not only true in the case of South Africa. It also applies in the case of every other comparable country elsewhere in the world. I tried to argue this point yesterday too.

Mr. Chairman, allow me to refer now to a leader that appeared in one of the Cape Town newspapers on 12 August.

*I definitely have a few things to say about this, Mr. Chairman. This newspaper editorial of 12 August drips with naked racism against the Afrikaner.

It can only be The Cape Times.

This editorial drips, like an irrational beast, with racism against the Afrikaner; It is deliberately calculated to achieve one thing and one thing only; to sow suspicion among English-speaking people with regard to the Afrikaner and his motives. I do not believe that there is a single member in this House who ought not to condemn in the strongest possible language conduct of this nature, particularly since all hon. members who spoke in this House today are struggling with the same issues that the general public are struggling with. However, I shall leave it at that.

Is it not true that the basic point of departure that is expressed, and that we are trying to give effect to, in this constitution Bill, is an expansion of democracy? Is that not true? Is it not true, too, that the proposals—inadequate and imperfect as the hon. member for Sea Point maintains they are, and hopelessly extreme, as the hon. member for Brakpan contends—constitute an effort to expand participation in democracy in this country? There is not a single hon. member present here who can deny the fact that is so. There is not a single hon. member who can deny that if this is put in operation, this effort will strike a blow for good ethnic relations in this country. No one can dispute that. Indeed, there is not a single hon. member who can deny that the acceptance of this Bill by use in this House as well as, I hope, the people at large, will mean that more people than before will have participation in the decision-making authority of South Africa. We can, if we wish, adopt the standpoint that we do not want them to participate. We can seek our security by spinning ourselves into a cocoon of self-satisfaction and rejection of everyone who does not belong to our group. We can do that. There are people who advocate that we should do just that. We do have that choice. But no one who is prepared to accept—leaving aside the Black peoples for a moment—no one who wants to argue that it is wrong that only Whites dominate the parliamentary scene, can honestly say that he cannot support an effort to extend participation in it.

I make the earnest plea that in view of the urgency of the issues of our country we support progress even if we believe that it is inadequate. There is nothing in these constitutional proposals that excludes further constitutional development, if the people within the system wish it. You must forgive me, but I want to emphasize that. A few moments ago we were debating with one another about instruments with which to protect civil rights in the widest definition of the concept of those rights. I want to ask the hon. the Leader of the Opposition—I do so in all earnest, and not al all in a spirit of recrimination—whether, after their acceptance, these proposals will not enable more people to exercise their civil rights or a part of them. The hon. the Leader of the Opposition knows that the answer must inevitably be in the affirmative. I now ask all the hon. members: If my interpretation of the matter is correct, let us become part of that occasion, not because we all agree about the solutions, but because we have all committed ourselves to the concept of reform. There is not one of us who does not wish to do so.

I have said that the proposals embody an extension of participation in the legislative and executive process, if accepted. Let us argue from the point of view that the hon. the Leader of the Opposition succeeds in having it rejected. Let us argue from a moment from the point of view that the hon. the Leader of the CP, for a different reason, helps the hon. the Leader of the Opposition to succeed. Where would we stand then?

Back at the drawing board.

That is an interesting remark. While we are back at the drawing board, Whites will dominate the political scene. [Interjections.] The hon. member cannot get away from that.

I have great appreciation for the hon. member for Sea Point and for his contribution in the Select Committee. He made a good contribution. I should like to say that to him. I say if for no other reason than that I should like to mention the fact. In his introductory speech the hon. member said that he tried to state his alternatives. Surely that is not correct. Surely he and his party did not put forward alternatives.

[Inaudible.]

I am coming to that. The instruction did not imply an alternative constitutional model. The hon. member wanted to incorporate other elements in the Bill, but he did not say to us how this was to occur. [Interjections.] Please give me a chance now. After all, I have not fought with anyone.

The hon. member added that in the Select Committee he worked within the restrictions imposed upon him due to the acceptance of the Second Reading of the Bill. That is true, but surely the hon. member had the opportunity, before the Second Reading was passed, to tell the House that he was not prepared to vote in favour of the House going into committee on the Bill before the House had complied with certain conditions. Those conditions could have been the conditions contained in the instructions that were put forward after the Second Reading had been passed. Surely that is true.

It is a matter of style.

It is a fact, and the hon. member knows it. The hon. member and his party could have participated—once again, I do not say this in a spirit of recrimination—in the formulation of points of departure. However, they elected not to participate. The hon. member for Sea Point—once again, I do not wish to do him an injustice—did not adopt that approach during the Second Reading. He allowed the Second Reading to be passed before they came forward with the instruction. Let us leave it at that for a moment.

The fact is—if I am wrong the hon. member must correct me; I do not want to do him an injustice—that it is the standpoint of the hon. the Leader of the Opposition that before he has achieved consensus on a constitutional dispensation by way of a national convention, the existing one must remain unchanged.

Only the socio-economic status quo.

Yes, that is so.

[Inaudible.]

This is taking place at an increased tempo. Indeed, I want to say—I do not apologize for this—that in my opinion the changes in the socio-economic sphere are taking place more rapidly than in the constitutional sphere. Let us agree to differ on that. However, the fact is that the hon. the Leader of the Opposition has now confirmed that until such time as agreement is reached at a national convention on a new constitutional dispensation for the country, the status quo will remain. What becomes relevant now. [Interjections.] This is what the hon. member said to me in respect of politics.

Have you not read this?

Yes, I have read it.

But it does not say that.

Sir, now you must come to my assistance.

I shall give you another copy.

No, I do not need a copy.

You are not quoting correctly.

I am not quoting anything. The fact of the matter is that the hon. Leader of the Opposition has devised constitutional proposals which he will submit to a national convention on behalf of his party. He has indicated that is so. However, until such time as consensus has been attained at the convention those proposals cannot be implemented.

But you want to do it without consensus.

But you agree that is the right conclusion.

[Inaudible.]

He says it is correct.

But you said “no change”. That is very different.

I said that the status quo would then remain.

But that is exactly what you are saying. There is no change if the status quo remains.

Let us start again.

One cannot argue with children.

Let us at least try to establish … [Interjections.] Please, I am addressing the hon. the Leader of the Opposition.

You are addressing the Committee.

At the moment I am addressing myself to the hon. the Leader of the Opposition through you, Mr. Chairman. All I am trying to say—and if I am wrong, I should like to be corrected …

That is what we are trying to do!

Is my conclusion incorrect that until such time as consensus is attained at a national convention the political status quo remains?

In regard to constitutional matters.

Yes, constitutional matters. That is all I am trying to say. The constitution will then remain as it is. I do not want to argue about this any further. The hon. the Leader of the Opposition has now confirmed this. [Interjections.] I am just trying to argue on certain premises.

Now something else becomes relevant in view of the confirmation given by the hon. the Leader of the Opposition of what his attitude is. What becomes, I believe, relevant is the perception of the urgency for constitutional change in other fields, something of which the hon. the Leader of the Opposition is a protagonist. I think he is right in this regard. He also thinks that changes in the constitution are of the essence to avoid other methods of change. He agrees with that. Accepting that premise of the hon. the Leader of the Opposition, the composition of that convention is most relevant. It is relevant in many respects. I shall try to identify two fields, although there are more. It is relevant as to whether the convention, in terms of its composition, is representative of all political groups. He agrees with that. However, it is relevant also in another sense and that is that, depending on the composition, the chances for consensus are also determined. He agrees with that as well. Just to start off I want to give him an example.

May I ask the hon. Minister a question? It is suggested that if there is a “no” to this constitution we will be back in a disastrous status quo situation and that therefore those people who say “no” to it are in fact being negative and destructive. [Interjections.] I want to put this question to the hon. the Minister. In 1977 the NP produced a new constitution. It was passed by the caucus and all the congresses and it was endorsed by the voters. It was hailed as a breakthrough. However, at some stage or other, Mr. Vorster decided not to proceed with that constitution because in balance it was not in the interests of South Africa. What is the difference between Mr. Vorster deciding that constitution, in spite of the Government being committed to it, should not be implemented because it was going to harm South Africa, and other people who argue that in spite of the fact that the Government is committed to this constitution, it should not be proceeded with because it is going to harm South Africa?

That is a very fair question and I should like to reply to it. The difference is this, and I think the hon. member for Sea Point will acknowledge the fact. If the constitution is to be changed, the people sitting here will have to change it. This House will have to change it. What Dr. Vorster did—and I laud him for it because I was part and parcel of that decision—was to refer his proposals of 1977 in the form of the Bill that had been drafted on those guidelines to a Select Committee of this House.

And for six years the status quo remained.

I should just like to say this to the hon. member for Bryanston. When I pay the hon. member for Sea Point the courtesy of replying to his question, I think the hon. member owes it to his hon. colleague to keep quiet. I was explaining the difference. The Bill was referred to an extension of Parliament namely a Select Committee to see whether consensus could not be found among ourselves. As the hon. member for Sea Point indicated in his opening remarks, that process was not very successful.

After the Second Reading.

It was not after the Second Reading. It was before any reading.

The constitution was not considered by a Select Committee until after the Second Reading.

Please! The Schlebusch Commission on which you served started off as a Select Committee of Parliament and anybody reading the Hansard will see quite clearly that the Bill embodying those proposals was referred to that Select Committee as evidence by this party. [Interjections.] The point is that this happened in 1979 and we among ourselves here have made no progress whatsoever in regard to a constitution. I ask the hon. member in all fairness, having explained the difference but still learning from history and experience: What chance have you got with your convention?

I want to say this. We have debated the principles of this Bill extensively and we have not been able to meet each other. I want to say in all sincerity: Let us not, after this, go out and reject a dispensation that can also satisfy the hopes of other people.

I want to turn now to the hon. member for Brakpan. He accused me of not having given him the correct information as to what the attitude of the NP was in 1979. He said that I had accused his leader wrongly. If I did, I would like to apologize because I do not want to accuse people wrongly. However, I should like to refer the hon. member for Brakpan to the Hansard of 3 February 1982, col. 205. The hon. leader of the CP was speaking and had this to say to the hon. member for Yeoville—

*The hon. member for Waterberg then went on to give the hon. member for Yeoville the answer—

Why do you quote that?

The hon. the leader of the CP was not present when the hon. member for Jeppe spoke.

I was present.

Oh, was he present?

I was definitely present.

Then he knows what I am dealing with. All I ask the hon. member is whether he agrees with what was before the President’s Council on behalf of the NP. What was before the President’s Council was the draft Bill of 1979.

Plus the objections.

All that was submitted, was the 1979 draft Bill.

Plus the objections.

What objection?

The objections of the study group.

And I have the correspondence to prove it. [Interjections.]

Order!

Will the hon. member for Brakpan agree: With or without objections, the proposals were that a President would be elected by an electoral college of White, Brown and Asian? Is that correct?

Yes.

Is it also correct that the legislative authority of the country would have consisted of three Parliaments …

Yes.

… that would have jurisdiction over the whole of South Africa?

No, that is not so … [Interjections.]

Order!

Does the hon. member also agree with me …

I do not agree with what you have just said.

But does the hon. member agree with the following statement I want to make, and that is that in those proposals the hon. member rejected a homeland.

That is not so. [Interjections.]

Order!

Integration was rejected in principle.

I should like to have clarity in this regard. I want to know whether the Brown Parliament would have had jurisdiction over an independent Brown homeland.

Go and read about that…

I am not speaking to the hon. member for Waterberg; I am speaking to the hon. member for Brakpan.

There has never been an acceptable definition for own affairs and general affairs.

That is quite correct.

We discussed that entire matter in the caucus and you know it. You also know what the correspondence was.

Order! No, the proceedings cannot be conducted in this way.

I just want to say to the hon. member for Waterberg that I do not need his advice. I am asking the hon. member for Brakpan whether the election manifesto on the basis of which he came to Parliament in 1981—I do not mind if he has changed his standpoint—represents his standpoint of an independent homeland.

It was not specifically stated as such. [Interjections.]

Thank you very much. The hon. member is correct. It was not specifically stated as such. Precisely the opposite was stated therein.

Was it stated in the manifesto that the NP accepted power-sharing?

Yes.

That will be the day!

The other day someone said that the hon. member for Waterberg either does not mean what he says or does not say what he means. He says he has joint responsibility where matters of common concern are at issue. Now I want to ask him …

Since when is that power-sharing? [Interjections.]

Since 22 February 1982.

Any student of politics says that if I take joint responsibility, then I take joint responsibility for the decisions, and if I take joint responsibility for decisions, then I share the authority to make the decisions, the power to make them.

Nonsense.

I had really wanted to spare the hon. member this, but let me proceed. I happen to know that there was a special relationship between the hon. member for Brakpan and the former Prime Minister. As far as I am concerned, I want to say that I too appreciate the hon. member’s friendship. Is it not true that there was to have been a Council of Cabinets? [Interjections.] Sir, when the hon. member for Bryanston opens his mouth, his mind closes.

Order!

I am trying to the best of my ability to reply to the questions of the hon. member for Brakpan. Is it not true that there was to have been a Council of Cabinets that would have consisted of seven Whites, four Coloureds and three Asians? Is it not also true that our joint leader, whom he and I owed loyalty to—and many of us were in fact loyal, but not all—defined that Council of Cabinets? [Interjections.] Wait a moment. [Interjections.]

Order! The hon. the Minister of Constitutional Development and Planning is making his speech.

Mr. Chairman, on a point of order: The hon. member for Ermelo made a remark and he … [Interjections.]

Order! That is not a point of order. The hon. the Minister may proceed.

As I say, the then Prime Minister defined that Council of Cabinets in terms of its functions, and he did so on 12 April 1978. [Interjections.]

Order!

He said that as regards matters of common concern the Council of Cabinets would take the initial steps. He also said that as regards the implementation of laws concerning matters of common concern the Council of Cabinets would be an executive body like the present Cabinet. I now wish to ask the hon. member, in all fairness: Do we not share power with one another when we sit in the Cabinet? After all, the hon. member himself says that we have a joint responsibility in regard to Cabinet decisions.

It would not have been a super-Cabinet.

The hon. member can change his standpoint—he is fully entitled to do that—but the fact is that Council of Cabinets, which would have been mixed, would have functioned in the same way as this Cabinet, that the hon. member calls a super-Cabinet, in regard to initiating legislation on matters of common concern and subsequently in regard to the implementation of such legislation.

That is not true.

Then the hon. member must go and say to Mr. Vorster that he told an untruth. [Interjections.]

Just read the letter he wrote to ds. Boshoff. [Interjections.]

Order!

I am not interested in an extra-parliamentary campaign. I am only interested in the value of Parliament as a …

You are not interested in the truth. [Interjections.]

I am interested in the records of Parliament. [Interjections.]

You misled the caucus in 1977. [Interjections.]

Order!

That is interesting. The hon. member says that I misled the caucus in 1977. [Interjections.]

Order!

Mr. Chairman, may I be permitted to conclude? [Interjections.] I now wish to ask the hon. member for Brakpan, and also the hon. member for Rissik, who has been so insulting, a question. [Interjections.] That hon. member who is being so insulting, was a member of a Select Committee and of a commission.

Business interrupted in accordance with Standing Order No. 22.

House Resumed:

Progress reported and leave granted to sit again.