Mr. Chairman, the original Bill as agreed to at Second Reading contained the original clause 20, which has now been renumbered clause 18. This clause was quite categorical in its intent. The courts were unequivocally, perfectly and unambiguously completely excluded from inquiring into or pronouncing upon the validity of any decision taken by the State President pursuant to the earlier provision in the Bill relating to “own” affairs and to “general” affairs.

There was no doubt that this clause placed beyond question the fact that the entire decision-making process was to rest in the hands of the President to the exclusion of all others. No redress of any sort was to be allowed to any party, no matter what the cause of the grievance, no matter how gross the injustice complained of. As could easily be predicted, Mr. Chairman, this somewhat autocratic provision raised a fairly sizeable storm. It raised a storm in the Press, among academics, in Opposition quarters, within the legal fraternity, and elsewhere too. When the Select Committee met it was confronted by a large body of written and verbal evidence criticizing this particular provision.

The Labour Party wanted the clause scrapped. Prof. Van der Vyver of the University of the Witwatersrand described the blanket exclusion of the courts as being “highly undesirable”. Prof. Dean of the University of Cape Town proposed a form of review procedure, as did the Cape Law Society. The Society of Advocates wrote of the creation of a climate for the abuse of power, and a team of professors writing from Unisa called for drastic amendments to the clause.

So, Mr. Chairman, in the face of all this, the majority on the Select Committee bent slightly to the wind and the clause was redrafted, and is what we see it to be today in clause 18. On the face of it, and to an untrained mind, it now appears as if the courts are accorded certain limited rights to ensure that the procedures laid down in the preceding clause are adhered to when presidential decisions of this nature are taken. However, before we hail a victory for the upholding of the independence of the judiciary, we should examine critically the import of this amended clause.

Firstly it must be noted that the jurisdiction granted to be courts in terms of clause 18(1), as it is before us, in no way empowers the courts to inquire into any decision other than a decision relating directly to a specific Bill or to an amendment to such Bill. All decisions, whether good or bad, relating to “own” or “general” affairs falling outside the scope of a particular Bill or amendment thereto, still may not in any manner be questioned by the courts. In this regard there is no change. The courts are as gagged as they ever were.

What is this new right, however, granted to the courts in terms of the amendment affected to this clause by the Select Committee? Simply stated, Mr. Chairman, it is the right, upon being petitioned, to pronounce solely upon the question as to whether the provisions of clause 17(2) of the Bill were complied with when a decision of the President relating only to a Bill or an amendment thereto was taken. That is all; absolutely no more than that.

What procedures are laid down, however, that must be complied with? They are that prior to issuing the relevant certificates evidencing the decision the President “shall consult with the Speaker of Parliament and the Chairmen of the respective Houses in such a manner as he deems fit”.

I ask this question of the hon. the Minister. Why are we bluffing ourselves that this innovation constitutes an improvement, when it clearly does not? It gives the court a narrow right, virtually incapable of being implemented, to inquire into the procedures followed by the President, procedures which the President, in his sole discretion, can lay down from time to time. It is a meaningless right, and I believe it is a right which makes a mockery of the Bench and the judiciary itself; particularly so because after painting this somewhat false picture of the availability of legal and impartial redress, in the very next subsection the real intent of the Government is firmly restated. That is that no court of law shall be competent to inquire into our pronounce upon the validity of any presidential decision relating to “own” or “general” affairs. So, we are back exactly where we started with the original Bill, and with all the evil that we found in that original draft. Not even the most limited grounds for review are available to aggrieved parties. No matter how unfair the decision, no matter how glaring the injustice, no matter how improperly the President may have construed the provisions of the constitution, his decision will always remain beyond question. And as to an appeal, Mr. Chairman, an appeal on the merits being allowed to the courts was of course not even contemplated.

So, in debating this clause, Mr. Chairman, let us see it for what it is. It is thé clause which handcuffs the judiciary. That is what it is. It is thé clause that entrenches the unfettered powers of an executive president appointed by the ruling White majority party. Because decisions by the President relating to “own” and “general” affairs are of such importance to all communities, and because those decisions will have far-reaching consequences for all communities and for Parliament itself, I truly believe that in proper circumstances a full right of appeal on the merits against decisions which offend should be allowed. Accordingly, we will vote against this clause and, if subsequently the clause is negatived, I will move that the following new clause be inserted—

1. 18. Any person or body who has a substantive interest in the decision of the President taken in terms of section 16 may, before the expiration of 14 days after such decision has been taken, lodge an appeal against such decision with the Appellate Division of the Supreme Court for decision.

Mr. Chairman, the hon. member for Sandton repeated the old story. …

The truth is always old.

… that this clause gags the courts. The hon. member went on to try to explain that the only power the courts still retain, is to inquire into, and pronounce upon the question as to whether the provisions of clause 17 were complied with as regards procedure.

Just to indicate how wrong the hon. member for Sandton is, and also to motivate the amendment I myself want to move, let me point out to the hon. member for Sandton that the words “provisions of this Act” in clause 34(2)(a) include clauses 14 and 15. These are the clauses defining own affairs and general affairs. This means that the definition of own affairs and general affairs in clauses 14 and 15 can also be tested in court in terms of clause 34(2)(a). Apparently the hon. member for Sandton never realized this.

On what grounds could they be tested?

Otherwise he would never have put forward the specious argument that the courts were being gagged and spoken such nonsense. It is only in the case of legislation on own affairs that there has to be a prior decision by the State President in accordance with clause 31—a decision on which, in terms of clause 18, the courts are not competent to pass judgment. There is therefore the possibility that a law concerning general affairs may be declared invalid by a court in terms of clause 34(2)(a) on the grounds that it deals with own affairs. The entire matter of general and own affairs can therefore be brought to court.

Precisely because this is the case, I should like to move the amendment printed on the Order Paper in the name of Mr. Z. P. le Roux, as follows—

1. 2. On page 14, after line 50, to insert:
   1. (3) For the purposes of subsection (2), the matters dealt with in any bill which, when introduced in a House, is not endorsed with or accompanied by a certificate contemplated in section 31, shall be deemed to be matters which are not own affairs of any population group by virtue of a decision of the State President.

This will prevent what I have just described, from happening. It is not the intention to give the courts wider powers than are in fact contemplated in clause 18.

The hon. member for Sandton can now wax eloquent, if he wishes, about the “mockery of the Bench and the judiciary” which this clause is supposed to signify. He can also say “this is the clause that handcuffs the judiciary”, and pass this sort of seditious remark. The fact is that it is the tradition in South Africa that the courts do not have a testing right as regards the content of legislation. Nor do the courts have a testing right as regards the content of executive action. In South Africa this is the tradition in the State structure. If the Committee had accepted the proposal of a Bill of Rights, as moved by the hon. member for Yeoville—the proposal of the hon. member for Sandton served as an extension of this—the hon. member for Sandton may have had a valid argument. However, to propose at this stage a testing right for the courts in respect of the content, the right or wrong, the substantive aspect of legislation, or in respect of the exercise of executive power, is totally absurd. In terms of which norms would the courts have had to exercise that testing right? They would have to exercise it using as a norm ethical, moral or political standards which would hardly be acceptable. This could only have the effect that the will of the majority of voters, as expressed in the legislation of Parliament, would be frustrated.

Order! I am sorry to interrupt the hon. member, but I must point out that the amendment to which the hon. member for Sandton referred, has not yet been moved. He may not move it until the clause has been negatived. I therefore cannot allow the hon. member to discuss it now.

I was under the impression the hon. member had already moved his amendment.

No. I am not allowed to move it now.

Then I shall hold my argument over until the hon. member has moved his amendment.

Mr. Chairman, the hon. member for Mossel Bay possibly misinterpreted the amendment. The hon. member for Sandton has argued that the jurisdiction of the courts is in fact taken away and that the decision as to what is own affairs rests solely with the President. The amendment which the hon. member has now proposed and which stands on the Order Paper in the name of the hon. member for Pretoria West, does not take the matter any further. The amendment which he proposes merely says that once the State President has decided what is own affairs, then what has not been decided to be own affairs will become matters which are, in terms of population groups, not deemed to be own affairs. So quite frankly, the decision is already made. What we are suggesting is that the courts should have the right to test the decision of the State President as to what is own affairs. That is clearly denied in terms of clause 18(2). The validity of the decision taken by the State President cannot be challenged in a Supreme Court. The only thing that can be challenged in a Supreme Court is whether the State President, in terms of clause 17(2) consulted with the Speaker and with the Chairman of Committees. That is the only thing he has to do.

Mr. Chairman, if my amendment does not take the matter any further, as the hon. member suggests, and if it is as innocuous as he suggests, will he then be voting for the amendment?

That we can consider. Quite frankly, however, I do not think it takes us very much further and, in any case, we are totally opposed to the whole idea of clause 17(2) where the courts have been excluded. We are opposed to this subsection because we want the courts to have jurisdiction to decide on this very important matter. It is a very important matter because clause 17(2) provides that, having made the decision, the State President must consult Mr. Speaker and the Chairmen of the various Houses. In terms of the clause we are now discussing, what does the court then have to decide? It has to decide whether or not he has consulted them in terms of clause 17(2). What do we mean by consultation? The hon. the Minister himself is a lawyer and I think that he will agree that what we need to do here is spell out what we mean by consultation because that is now what the court will have to decide in terms of the point of view of the hon. member for Mossel Bay.

The word “consult” is used in many statutes. I want to quote here from the Dictionary of Legal Words and Phrases compiled by C. J. Claassens—

In this regard the case of Rex vs. Beta, 1954 is quoted. I have the record of that case here, Sir. In this particular case the position was put very clearly. It dealt with certain sections of proclamations and it stated, inter alia—

In the actual judgment given, we find the following—

It goes on to say the following—

In this regard Fletcher’s case is quoted—

And so it goes on. It is very clear, therefore, from the case I have quoted and a host of other cases—reference is made to a case involving the Garment Workers’ Union as well—that consultation merely means giving sufficient information to the other side to enable them to react in respect of the consultation involved. When we are dealing with what the court will have to interpret in this particular case, we find that the only thing the court can interpret is whether or not Mr. Speaker and the Chairmen of the various Houses were consulted. I do not know what the Minister has in mind in regard to this consultation. Will that consultation merely mean telling Mr. Speaker and the Chairmen of the three Houses that he has decided already that a particular matter is an own affair? Does it mean sending them a letter? Could that consultation take place simply by means of a telephone call? Will such consultation perhaps take place as a procedure of Parliament? I sincerely hope that the hon. the Minister will be able to tell us exactly what such consultation means because otherwise it is going to be very difficult for the court to interpret the meaning of consultation and whether the provisions of clause 17(2) have been complied with. That is what clause 18 actually provides. That is the only right that is being given to the courts is to interpret whether the provisions of clause 17(2) have been complied with and whether consultation with Mr. Speaker and the Chairmen has taken place. It is therefore a very nebulous thing. Quite frankly, as far as I am concerned, it boils down once again to the dictatorial powers of the President. I think it is merely a sham to provide that he must consult Mr. Speaker and the Chairmen of the three Houses because he has already decided in terms of clause 14. He has already made certain decisions and it is important for the courts to be able to interpret whether or not he has made the right decision in respect of own affairs because clause 14 refers to such issues as the way of life, the culture, the traditions and the customs of people. This is a decision which should be able to be challenged in a court of law because it affects the lives of so many people and it affects the jurisdiction of the various Houses in regard to whether a Bill should be considered by a particular House or Houses or all three Houses. If, therefore, we are going to deny the court the right to inquire into the validity of such a decision, then we are going to find ourselves in very great difficulty.

The courts are not being prevented from pronouncing upon the validity of the consultation.

Not the consultation, the decision.

The second part of the argument relates to clause 18(2) in terms of which it is said that no court can challenge the validity of the decision of the State President in these matters. The State President has made up his mind and on the validity of that decision he cannot be challenged in court. We have heard a lot of arguments from the other side on this matter as to why the court should not be in a position to decide on the validity of what has been decided since it will involve the courts in politics and that will lead to the appointment of judges who will be politically involved. What is quite funny is that on this very point—hon. members should take note of this—in Rapport of yesterday Prof. Strauss said …

You should read the whole article.

The hon. member need not worry. Prof. Strauss is a supporter of the proposed constitution and he blows all the arguments. That is why we are so much against the second part of the clause that we intend voting against it. He said—

Apparently you cannot understand Afrikaans because that confirms every word I have said.

As Prof. Strauss rightly says, the court was involved in the 1952 cases. The courts were involved in cases concerning elections. The courts were involved in disputes between political parties. One is not politicizing the courts by asking the court to decide on the issue between two parties. One is not politicizing the courts because such an issue happens to be a political issue. Therefore we cannot accept the second part of the clause where it is provided that no court of law shall be competent to inquire into or pronounce upon the validity of a decision of the State President. More so than ever in deciding on the way of life, the culture, the tradition and so forth, it is necessary for us to have a safety-valve for people who feel they are wronged to be able to go to the Supreme Court and to challenge the decision. The dictatorial powers which are built into the legislation giving the State President virtually the sole right to decide on what is an own affair should be done away with. The State President should not be in the position merely to say that he has consulted. The word “consulted” is nebulous and meaningless because it does not mean that the State President has to get agreement. [Time expired.]

Mr. Chairman, we on this side have also given notice of an amendment which we are not allowed to move at this stage, but which we shall move if the impossible happens and the majority party in the Committee rejects the clause.

I listened attentively to the hon. member for Mossel Bay, but I must honestly say that I did not understand the hon. member’s argument. He referred us to the provisions of clause 34(2)(b). It is true that the clause provides that the courts may decide whether the necessary procedure has been followed. However, I want to ask the hon. member—if his argument is correct—why clause 18(2) appears in the Constitution Bill at all. What was the necessity for clause 18(2)? I shall appreciate the hon. member spelling this out to us.

What are we dealing with? In clause 14 and effort was made to define so-called own affairs and, as a result of the provisions of clause 16 and now, in particular, those of clause 18, I maintain that the provisions of clause 14 have no force in law and are at most a declaration of intent which could equally well have appeared in the preamble to the Constitution Bill. Why is it expressly provided here that the Supreme Court will only be able to go into the question as to whether the State President consulted the Speaker or the chairmen of the other Houses? Why is the court being denied its inherent right to ascertain whether or not the State President has complied with the provisions of clause 14? The courts are being explicitly denied this right. This has nothing to do with the court having to pronounce upon the content of a Bill. In our country the courts have always with regard to all legislators, not only sovereign legislators, but also subordinate legislators, to ascertain whether they had the authority to adopt the legislation which they did in fact adopt. The courts may ascertain whether they had the constitutional authority. If the provincial council makes an ordinance, the courts have the right to ascertain whether the provincial council had the authority to make that ordinance. This has nothing to do with the content, but concerns the question as to whether they had the authority. The same applies here. In future if this new dispensation comes into effect, we are going to have a Parliament which will function in two ways, namely, the State President together with three Houses for all legislation on general affairs, and a Parliament where the State President operates in conjunction with only one House. What is now at issue is when one of these institutions, namely the State President and the three House or, in the other instance, the State President together with only one of the three Houses, may deal with certain legislation. The courts must have the right to determine whether the legislation has gone through the correct channels to become law. [Interjections.] What, then, is the reason for provisions such as clause 18(2)? I maintain that clause 18(2) expressly limits the provisions of clause 34. If my argument is wrong, I would appreciate it if the hon. the Minister or the hon. member for Ermelo could tell me why clause 18(2) is necessary. It has been specially inserted and there can only be one reason for this.

On Saturday, when the hon. the Minister discussed clause 16, he chose his words very carefully.

I always do.

I grant the hon. the Minister that. What did the hon. the Minister tell us? He did not tell us that in his decisions the State President would be bound by the provisions of clause 14. He said the State President—and these were the hon. the Minister’s exact words—would take the provisions of clause 14 “into consideration”. That is precisely my argument. I do not want him only to have to take them into consideration, because then one could just as well make this a declaration of intent. I want the State President to be bound by the provisions of clause 14. The insertion of this new provision makes clause 14 pro non scripto. Clause 18(2) turns the so-called guarantee to the Whites that their own affairs will be dealt with only by them, into an absolute farce.

Mr. Chairman, if one considers the present situation in connection with any possible power the courts have to review decisions, particularly administrative and executive decisions, of the head of government and of the members of government, one finds that the courts expressly refuse to pass judgment on the substance of those decisions. In other words, they will not under any circumstances pass judgment on whether a specific decision is a good decision or a bad one. Accordingly, all they will consider is whether the Minister, the Prime Minister or the State President in the new dispensation, did in fact act in good faith and therefore did not have some ulterior motive when taking that decision, but considered the matter properly. If he did consider the matter properly; in other words, if he took all the relevant particulars into consideration and did not act in bad faith for some reason, then they do not go into the merits of his decision. This is in fact the position being recreated in clause 18 with regard to the decisions of the State President.

Now the hon. member for Barberton has asked why clause 18 should be included at all. The reason for this is only, really, to place the existing position with regard to decisions of the executive authority beyond all doubt. If one reads clause 18 in conjunction with clause 17, one finds that in point of fact clause 17 creates the procedure in terms of which the President has to take all matters into consideration. I do not think one can even incorporate good faith into a clause, but if the President has in fact complied with the prescriptions in terms of clause 17, he has, to a great extent, complied with the legal position with regard to decisions of the executive. Why, then, is clause 18 necessary? The point is that we are entering a new dispensation in which legal uncertainty could possibly arise, and we are well aware that there are a number of clever people who would very much like to sabotage the operation of this new dispensation. Then they would be able to come forward, right at the start of this dispensation, with court cases questioning avery decision of the President, and in that way bring the entire system to a standstill before we could have legal certainty, before the courts could confirm that the existing position with regard to rulings or the decisions of the executive also applied to these specific decisions of the President. That is why this is being clearly stated from the outset. However, I want to point out that this clause does not, in fact, impose any new and previously non-existent restrictions on the power of the courts. The hon. member for Barberton was in fact correct when he said that there were two procedures which the legislator will have to follow in various cases, and that in a certain sense these procedures will in fact be dependent on the decisions taken in terms of the provisions of clause 14. That is why the courts do still have a say in ascertaining whether the correct procedure has been followed with regard to a specific matter. This is not being abolished either by way of clause 18 or—clause 34. The position as it stands at present will continue. It is being transferred as it stands to the new dispensation.

I now want to return to a specific point made by the hon. member for Hillbrow. He argued at some length about the word “consult”. In the first place, he indicated to us that in terms of the existing legal situation, a specific meaning is given to the word “consult”. He said “it does not mean merely agreement but full opportunity”. However, then the hon. member went on to ask whether what this consultation which is now being embodied here amounts to is that the State President will simply tell the Speaker what he has already decided. Is he simply going to send him a note? Is he simply going to send him the decision? In terms of his own definition of “consult”, which is well established in jurisprudence, such behaviour by the President would not comply with the conditions set. In other words, the word “consult” is a word with an established meaning, with a specific content, and this binds the President so that he cannot act arbitrarily. For that reason I cannot see why the hon. member for Hillbrow tried to turn this into such a major issue. However, he has to do so to keep in line with the big story of the PFP regarding the so-called dictatorial powers of the President. But that story is already wearing a little thin. The hon. member for Sandton, too, based his argument on this point. If we consider the provisions of the first Bill, we see that it is true that in terms of that Bill the President could to a large extent have acted arbitrarily and on his own account. However, the Select Committee effected number of amendments which prescribed a procedure of consultation, so that the President is no longer able to act on his own. As I have said, the story put about by the PFP to the effect that this clause, read in conjunction with clauses 14 and 17, will vest dictatorial powers in the President, is becoming a little threadbare.

But let us assume that the courts are to be given the opportunity to pass judgment on the decisions of the President in all respects. This would place a tremendous political burden on the courts, in the sense that the courts would have to keep abreast of the political circumstances in the country to be able to judge whether or not the President had made a good decision. The courts would therefore have to give a political decision, and then we are back with politicized courts. The hon. member for Hillbrow said that the courts were not politicized merely by virtue of the topic on which they have to decide being of a political nature. For example, he referred to decisions regarding electoral matters. [Time expired.]

Order! Before I call upon the next hon. member to speak, I want to draw the attention of hon. members to the fact that the matter of the powers of the State President and the courts was debated fully when the instruction moved by the hon. member for Sandton was discussed earlier. The debate on this lasted more than four hours. I therefore appeal to hon. members not to repeat arguments unnecessarily.

Mr. Chairman, the amendment standing in my name on the Order Paper is to a large extent linked with the amendments I proposed on clause 16 and 17. The object of the printed amendment is to place clause 16 under the same power of the court as is provided in clause 18(1) for clause 17(2). But my amendments to clause 16 and 17 having been rejected I see little point in continuing with my amendment to this clause. My amendments if adopted would have brought into effect a procedure for consultation with the chairman of the Ministers’ Council or reference to the President’s Council in the event of a dispute—a clear process which could have been tested by the courts as a process of action rather than on the contents of the decision. This party does not believe that the courts should test the merits of political decisions. We believe that political issues should be determined by way of a political process, and that the arbitrator should be the voter himself and not a court of law. We do believe, however, that the courts should best processes—the way in which things are done, whether they are constitutionally correct, etc. We do not believe the courts should test whether a decision is politically good or bad.

Mr. Chairman, we are still not entirely happy with clause 18 as it stands now. It is, however, certainly a tremendous improvement on the original clause 20 as it appeared in the original Bill. It states a specific testing right. It excludes the testing of the validity on merit. I should, however, like to clarify one point with the hon. the Minister. That is that the advice given by me to the Select Committee was that the exclusion stated in clause 18(2) did not exclude the testing of mala fides or bona fides. That test remains. [Interjections.] It does not have to be stated. It is a test in common law. Therefore, although it is not specified here, a mala fide decision by the president, a decision which could be shown to be capricious, and which could clearly exceeded the normal bounds, of reason could be tested. It is the same test as is applied in any other review situation. I should like to get absolute clarity on this. I should like to get it on record that it cannot make any difference to one’s overall approach to this clause.

In the Select Committee when this was queried, the legal advice given to us was specific and clear. It was stated that mala fides or bona fides were not excluded from being tested. What is excluded, is the testing of the merit of a decision taken by the President.

Mr. Chairman, will the hon. member for Durban Point please tell us whether he has any knowledge of any case in which mala fides has been tested successfully?

No, Mr. Chairman, I am not a lawyer or an advocate. I go by what I am told by those people whose business it is to know.

What have you been told?

I know of no case myself, but that is for the lawyers to argue. I think it was the hon. member for Sandton who argued that mala fides or bona fides could not be tested.

No, he did not say that.

Did he not? Well, he referred to it. The point I want to establish, is that that is an existing right. I want to establish—and the hon. the Minister must tell us this—whether that existing right will continue. It is the existing situation in the law. It is the existing situation that the action of any Cabinet Minister, of the State President or of anybody else, is subject to review by a court of law in order to establish whether it was a bona fide action or a mala fide action.

[Inaudible.]

That is a matter for lawyers to argue. The fact is that the position remains as it is now. The status quo remains. That is the position today. That was the position under the old constitution. It will remain the position under the new constitution.

But is a new power not being given in this instance?

There is a new power being given.

It is no longer the same situation then.

There is a new power being given in that the State President will be able to determine additional matters not contained in the schedule, which could be declared to be an own affair. That decision, however, will be taken in the Cabinet and with the concurrence and the collective responsibility of the Cabinet. That is one of the changes affected to the original Bill in terms of which the President would have acted on his own right, without reference to anybody else. He will now have to consult with the Cabinet, which means that the decision taken will actually be a Cabinet decision. In other words, the decision would have to be taken with the other members of the Cabinet, and in that Cabinet there will be members of all three Houses. So, one does get accountability to the executive. One does get the right to test whether he has consulted with the Speaker and Chairmen. However, the kernel of the argument seems to be that the official Opposition and the CP want the courts to test the merit of a decision, which is a political decision. We in this party do not believe that the role of the court is to test political issues. Their task is to test laws and procedures. The electorate is the court to appeal for political decisions.

Here we have two controls. We have that of the Cabinet and we have the control through the accountability of the President to Parliament itself, which can pass a vote of no confidence in him. This clause represents a tremendous improvement on the original clause 20. I think it is important enough for me to refer to it. According to that original clause—

1. (a) a decision …; or
2. (b) any allegation that the President refused or failed to make any such decision or to consider or to take into account or to ignore any matter in connection with … or to take any step in connection therewith or for such purposes.

In other words, it was a total exclusion. That has been improved upon by this clause and under the circumstances I will not move my amendment since there would be no point in doing so in view of clause 16 as it is still worded. We shall support this clause because it is better than the original clause.

Mr. Chairman, clause 18 empowers the court to ascertain whether consultation in terms of clause 17(2) has taken place. This testing right is, in any event, very limited. The court can only pronounce on the question as to whether or not the procedure has been followed. The court investigates and pronounces upon the question as to whether the Speaker of Parliament and the Chairman have been consulted. The question still remains: What happens if the procedure has not been followed? What pronouncement would the court have to make in that case? Would the court have to pronounce the certificate invalid? [Interjections.]

Order!

I am referring to the certificate submitted to a House stating that a certain Bill deals with matters which are own affairs and that that House may dispose of that Bill. If consultation has not taken place, such certificate is invalid. If the certificate is invalid, it means that the legislation of that House is invalid as well. The court will not be able to issue an order against the State President. It will only be able to pronounce the certificate invalid.

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

I think the hon. member will learn from my speech. He should rather sit down. [Interjections.]

Order!

The court will not be able to issue an order against the State President. It will only be able to pronounce the certificate invalid. Because the certificate is invalid and consultation has not taken place, the legislation of that House will also be invalid. [Interjections.] I just want the hon. members to listen to the implications of what I am saying here.

Of what you are reading here.

Certain things flow from what I have just said. [Interjections.] It is a strange thing that when the constitution, in terms of which the hon. members are blindly signing their rights away, is being discussed, they can sit cracking jokes in this House. The absence of consultation with, for example, the Chairman of the House of Delegates, can mean that legislation of the White House in respect of own affairs is invalid. Sir, I want the hon. the Minister to consider this. [Interjections.] This is very important. In other words, the absence of consultation with, for example, the Chairman of the Coloured House means that a certificate is invalid in the White House. Moreover, it means that legislation passed by the White House in respect of own affairs …

Mr. Chairman, on a point of order: Is it permissible for the hon. member for Langlaagte to read the speech of the hon. member for Brakpan? [Interjections.]

Mr. Chairman, on a point of order: The hon. member is casting a mean reflection by suggesting that I have written the speech of the hon. member for Langlaagte, and I request you to ask him to withdraw it. It is a mean thing to say. [Interjections.]

I agree with you, you would not have written something like that.

The hon. member for Roodeplaat must withdraw that remark.

Sir, with respect, if the Chair feels that I must withdraw it, and the hon. member for Brakpan did not write the speech, then I do not know whose speech the hon. member for Langlaagte is reading. [Interjections.]

Order! The hon. member must withdraw that.

I withdraw it, Sir.

The hon. member for Langlaagte may proceed. However, I should like to point out to him that he will not be allowed to read his speech. In terms of Standing Order No. 123, hon. members are not permitted to read their speeches. The hon. member may refer to his notes, but he may not read his speech.

Sir, I thank you for your guidance. I hope other members, too, will follow it.

Order! The hon. member must not comment on a ruling by the Chair. He must continue with his speech.

It is my contention that the remark made by the hon. member for Roodeplaat was a personal reflection on me. Sir, I ask you to rule that he must withdraw it.

The hon. member for Roodeplaat has already withdrawn it, The hon. member for Langlaagte must now proceed with his speech. [Interjections.]

I trust that those hon. members will stop being ridiculous now.

I ask the hon. member for Langlaagte once again to continue with his speech.

What this also means is that legislation of the White House is being restricted by a certificate signed by the President, but when he has not consulted or when it has been impossible for him … [Interjections.]

Order! Hon. members must afford the hon. member the opportunity to make his speech.

They are a ridiculous lot.

Order! The hon. member for Kuruman must withdraw that remark.

I withdraw it, Sir.

The hon. member for Langlaagte may proceed.

If the President is unable to consult the members of the other Chambers, for example, if the chairman of the Indian council is abroad for some reason, and the President signs an Act, it will be invalid. Why are hon. members not laughing now? I go on to say that in this case there can be no such thing as an own affair. It is tantamount to legislation initiated in the relevant Chamber itself being scuttled. I just want to tell the hon. member for Roodeplaat that I, in any event, have far more experience of the legislation than he has. [Interjections.] What is the problem facing us in this regard? The court cannot test the merits of the matter. It can merely test whether consultation has taken place. [Interjections.]

Order! I want to point out to the hon. member that he himself has already used that argument. [Interjections.]

Mr. Chairman, I ask you to allow me simply to refer to exactly what is going to happen, because this is a very important matter. Here we have proof that if someone wants to institute a boycott, there is no provision enabling the State President to escape such a boycott action. As far as the other clauses are concerned, there is the provision that if a House or Houses do not want to proceed with an ordinary piece of legislation, the State President has the power to proceed with such legislation without the approval of the two other Houses. As regards the certificate provided for in clause 31, consultation must take place, and if there is a boycott action, the certificate which has been signed will be invalid. In that case a court will have to decide whether consultation has, in fact, taken place, but it will not be able to test the merits of the case. For this reason I say that it is very important for this matter to be investigated. I do not want to elaborate on this matter. I want to say, however, that there are not own affairs which a White House can initiate … [Interjections.]

Order! The hon. member may not deal with own affairs again now. I cannot at this point allow the hon. member to discuss own affairs again. [Interjections.]

The hon. member will not be able to continue without his notes. [Interjections.]

Mr. Chairman, on a point of order: I want to request you for the umpteenth time to ask the hon. members of the Government party to give us the opportunity to make our speeches as members of the CP.

Order! The hon. member for Langlaagte may proceed.

Mr. Chairman, the hon. member for Mossel Bay has his eyes on the vacant Chair … [Interjections.]

Order! That has nothing to do with the clause.

… and in the new dispensation they will simply send him to the third House. [Time expired.]

Mr. Chairman, I should like to discuss a matter that was raised by the hon. member for Durban Point when he referred to clause 18. He made the point that in his view clause 18 was a substantial improvement over the previous clause 20. I should just like to point out that if one were to scrap clause 18, the powers contained in subsection (1) thereof would still be the powers which the courts would be entitled to exercise in any event. What is happening, therefore, is that one is stating the obvious in clause 18(1). One is setting out the powers which the Supreme Court has in any event. It is therefore not a new power that he is being introduced. It is simply stating the obvious. [Interjections.]

Did not the old clause 20 exclude those powers?

Mr. chairman, I should also like to refer to the argument advanced by the hon. member for Mossel Bay in countering the argument advanced by the hon. member for Sandton. [Interjections.]

May I ask a question?

No, Sir. I only have a few minutes. The hon. member for Mossel Bay relied on the point that it was traditional for our courts not to go into the validity of any legislation passed by Parliament. [Interjections.]

No, I did not say that.

The hon. member used the following words—

The hon. member was referring, therefore, to the content of legislation. On that basis, therefore, he argued that it was traditional and that clause 18 was justified. Why was it traditional for our courts not to have that power, even if one accepts that premise? It was traditional for one reason only and that was because we were following the Westminster system. [Interjections.]

And Parliament was supreme.

And Parliament was supreme. Is Parliament supreme in the new system?

Yes.

Is Parliament the sovereign body in the new system? [Interjections.]

I did not use the word “sovereign” because …

Order! The hon. member for Mossel Bay has already made his speech.

The only reason why under a Westminster system the courts traditionally both here and in the United Kingdom have not had a testing power as far as contents is concerned, is the sovereignty of Parliament. It was seen as a negation of the will of the voter if one were to allow a testing power, but that situation does not exist any more. The hon. member will concede that the three chambers do not have sovereignty in our new system. Does he not concede that? I ask the hon. member whether it is true that the three Chambers do not have sovereignty …

But the hon. member is not permitted to reply.

The argument which he brings about the traditional position of our courts therefore does not apply any more. We are no longer in the Westminster system with the new constitution; we are moving away into a situation where several aspects of the constitution appear to have sovereignty and therefore the traditional aspect is an argument which cannot hold water.

He also mentioned that the effect of giving the court the power to test contents and validity was to negate the will of the voters. That is true under a Westminster system. I can go along with that, but here we are talking about an executive President who is divorced from the three Houses, who has executive powers and who is not elected by popular vote. A decision which the State President takes under our new constitution is therefore not a decision which he takes with the approval of the electorate. He cannot be seen as acting as the representative of the electorate which would be the case with a Parliament under the Westminster system. Therefore the fact that the State President has executive powers is the very reason why a court should be able to test them.

The hon. member for Helderkruin mentioned that no new restrictions are being imposed upon the courts in terms of clause 18. I do not think he is right. If clause 18 did not exist, the courts would have the power, I submit, to establish whether the State President did follow the norms laid down in clauses 14 and 16. I want to repeat this: If clause 18 did not exist, the courts would have the power, when testing whether the right procedure was followed, to establish whether the norms laid down in clause 14 and 16 were followed. What one is doing with clause 18 is not what the hon. member for Helderkruin suggested—he said one is not imposing a new restriction—but one is imposing a most important and critical restriction upon the court and that is to prevent it from establishing whether the State President followed the norms laid down in clause 14. Therefore one is in fact imposing severe restrictions upon the court even as far as testing the procedure is concerned because in establishing whether the norms in clause 14 were applied, the courts would in fact be testing whether the right procedure was followed. Even that power is now removed in terms of clause 18. The hon. member’s argument that this is not happening has no substance whatsoever.

We are against the clause for this very reason. What it is in fact doing, is to remove powers which the court at the moment has, that is the power to test whether the correct procedure was followed. I leave aside the power to test validity which was taken away by section 59 of our present constitution in any event. We are now asked to approve the restrictions introduced by clause 18 because, the government wants the State President to do what he likes to without any accountability to anyone. The courts will therefore not be able to investigate. For that reason we oppose clause 18.

Mr. Chairman, allow me firstly to say that we again have the interesting phenomenon of the hon. member for Barberton alleging that clause 18 is meaningless in the sense of being simply a reflection of the present situation, whilst both the hon. member for Sandton and the hon. member for Hillbrow allege this to be a tremendous incursion into the powers of the courts. Who is right? The two parties were not confronting each other at all. In no way were the two parties confronting each other and trying to convince each other of who was right. They cannot, after all, both be right. We therefore have the absurd situation of the hon. member for Barberton saying that clause 18, in particular 18(1), is actually meaningless since it is a reflection of the present situation, whilst the hon. members for Sandton and Hillbrow allege that there has been a tremendous incursion into the powers of the courts since the powers of the courts to test certain administrative actions on the part of the President have been taken away. That is incorrect, it is surely very clear that clause 18 does subject a certain procedure to the testing powers of the courts, i.e. whether the provisions of clause 17(2) have been complied with. What does clause 17(2) provide? It provides that certain functionaries of Parliament should be consulted.

May I ask you a question?

Please allow me to complete my argument. What is our aim in this connection? We are hereby giving expression to one of the most important corner-stones of administrative law, i.e. the opportunity for the other party also to be heard so that a decision is not taken in vacuo. Here I have The Law of South Africa, a book I can recommend to hon. members opposite. Under the heading “Tests for Administrative Law”, the following is said, amongst other things, under “The Rules of Natural Justice”, about the audi alteram partem rule—

What are we doing here other than presenting an opportunity for the other functionaries, whose rights are involved in the case of own affairs, to furnish an input to the State President before he takes a decision? Who now wants to tell me that this is meaningless? Is there anyone in the House that could possibly allege that this is meaningless? It is an important procedural provision, and not merely a provision which, as the hon. member for Hillbrow says, can be dealt with over the telephone. The legislator does not aim at absurdities.

May I put a question to you?

No, I am busy at the moment. The legislator does not envisage the State President phoning the chairmen of the various Houses at 5 am., asking them for their opinion and then making an announcement at 6 am.

May I ask you a question?

No, Sir, the hon. member for Langlaagte has already had an opportunity of putting forward his arguments. I shall come back, in a moment, to what the hon. member said.

I therefore want to suggest that here we have a very clear provision prescribing how the State President will have to act in finding out what the views of the chairmen of the various Houses are.

The relevant House.

Yes, the relevant House. This could affect the group rights of the relevant House, and what the provision amounts to is that the State president must consult all the chairmen.

Not in terms of his first decision about an own affair.

The hon. member for Hillbrow wants to get technical now, but he is not going to side-track me. The hon. member has missed the point completely. I just want to round off my argument on this point by saying that we have hereby given full expression to one of the most important corner-stones of administrative law.

This brings me to the hon. member for Durban Point. The hon. member for Durban Point presented us with a very exact argument and a very exact question. He asked us for an assurance about any action fo the President, which would possibly be mala fides, being subject to the administrative review powers of the courts. The hon. member said that he did not know of any court case and asked if there was such a court case. I was quickly able to put my finger on the case The Union Government vs. Fakir. This goes back to 1923. It was an Appeal Court case and reference to it is to be found on page 470, and I just want to quote a short passage—

There we have the very clear principle that no administrative action can be excluded merely by selectively excluding it in any Act. This does not exclude it from being subject to the review power of the courts.

In conclusion I just want to point out the following to the hon. member in connection with this point. Let me refer to the same work, i.e. The Law of South Africa published by Butterworths. On page 56 this question is very comprehensively dealt with, and I am going to quote a relevant passage to hon. members—

Then there is a footnote giving a further reference to some other cases and principles. I quote—

Can there still be any doubt about the fact that there is no sinister intention behind clause 18(1) or (2)? Can there still be any doubt about the fact that here it is not the intention to insert anything which would give the State President unlimited authority to act unlawfully, deceitfully or with ulterior motives? On the contrary. We are addressing the whole series of possibilities that are available to the courts for administrative review. We are not excluding this, except to place beyond all doubt—and there the hon. member for Durban Central is right, this also being what the hon. member for Helderkruin said—that the content shall not be subject to testing. Why? The hon. the Minister of Constitutional Development and Planning debated this aspect very comprehensively when he was replying to the hon. member for Sandton’s motion of instruction, i.e. that here it is a question of political decision-making activities of the President, and whether the President is competent to decide on that after having been advised by politicians.

Mr. Chairman, the hon. the Minister of Justice has not, I think, interpreted the hon. member for Barberton’s argument quite correctly. The hon. member for Barberton referred to clauses 14 and 16. The hon. the Minister was arguing about clause 18(1), saying that clause 18 provides that certain things should be done and that this could be tested under administrative law. He is quite right about that. There is no provision in clause 18(1), however, for the courts to be able to test whether the State President has adopted the procedures laid down in clause 14 and 16. In other words, clause 16 affords one a criterion, and clause 16 must be read in conjunction with clause 14. Then the hon. member for Helderkruin is wrong if he alleges—and here lies the gist of our argument—that the courts cannot test whether clauses 14 and 16 have been complied with, and that is why those two clauses are meaningless. In the light of clause 18(2) these two clauses are meaningless.

Then the hon. the Minister comes along and says that this is going to politicize the matter. Sir, we have heard that argument before, but I must react to this by pointing out that administrative-legal decisions continually land up in the political arena and can often prove to be an embarrassment to political parties. To say, therefore, that the courts would be dragged into the political arena is not a valid argument, because it does happen in any case. There is another consideration. The hon. the Minister must remember that here we are also dealing with a legislative function and not only with an administrative-legal function. The State President decides which of the four Parliaments, which of the four legislative authorities in South Africa, is going to deal with a specific matter. In other words, this is part of the legislative process. Clause 18(2) prohibits the courts from passing judgment on this. We must remember that here we are not dealing merely with individuals, but also with an entire population group. Does the hon. the Minister realize what the consequences would be if the State President were to take a decision against which a whole population group rebelled? Let us suppose the State President were to decide that a matter that group A decided was an own affair actually belonged to group B—or was a general affair—and then issued a certificate, in terms of clause 31, in regard to a matter which group A claimed for itself, but which he had given to group B. Can the hon. the Minister envisage the full extent of consequences that might ensue? That is not all, however, because we would not be in a position to rectify the matter before a period of five years had passed.

The hon. member for Sandton referred to the authorities which had all made representations to the Select Committee on this matter. I should like to quote what the Bar Council had to say about this—

Then the Bar Council continues by quoting the following passage from a report about the “International Congress of Jurists” of 1959—

The Bar Council then comes to the following conclusion—

Sir, the State President must remember, and the law must state as much, that the law is even above him.

Mr. Chairman, it is quite correct to say that the debate we are now conducting is, to a large extent, a repetition of the debate we conducted when the hon. member for Sand-ton moved his instruction. Let us, however, now analyse what is involved here in order to see if we can find some basis for agreement with one another.

The President’s power, in terms of the relevant clause, is that of being able to take an administrative decision. I think the hon. member for Sandton agrees with this. If we agree with each other about this, we must obtain clarity about the position of the country’s judicial organs vis-à-vis the executive authority. All that clause 18 wishes to do is to confirm the judicial authority’s relationship and jurisdiction vis-à-vis the executive authority. The hon. member for Sandton will also agree about that. We can argue with one another about whether this is sufficient or not, and about whether it should be changed or not, but we cannot argue with one another about this being the aim of clause 18.

Now I come to the hon. member for Hill-brow.

†The hon. member made two sweeping statements, statements which are completely unfounded. In the first place he says it takes the jurisdiction of the courts away. But I submit that the courts never had the jurisdiction he refers to. So how is it possible to take jurisdiction away from the courts which they have never had?

Under section 59(2) …

No, not section 59(2). That is still part of this Bill. The courts never had jurisdiction.

But you are creating new powers.

Allow me to continue with my argument. We are now comparing the existing legal situation with what will be the position if clause 18 is accepted. That is what we have been arguing about.

The second unfounded statement made by the hon. member is that the State President having taken a decision, consults. On what basis does the hon. member say that? The clause imposes a duty upon the State President to consult before he takes a decision. The hon. member’s argument makes an absurdity of the law. He wanted to know what consultation is. I can excuse the hon. member for his ignorance in this regard. The hon. member and his colleagues have not the foggiest idea as to how a country is governed, the ordinary run of the mill day-to-day workings of Cabinets and the executive …

Have the courts an idea?

Have the courts got an idea now?

Have they?

I am asking the hon. member. On this question the hon. member for Houghton asked the hon. member for Durban Point whether there had been a case testing the mala fides of the administrative … [Interjections.] A moment please! Well, Sir, there are cases where administrative actions have been tested for mala fides. I could in the time available only lay my hands on the case of Van Eck vs. Van Rensburg nomine officio & Etna Stores. I quote the following from this case—

In this case it was found accordingly.

The hon. member for Barberton says I choose my words carefully. So the hon. member must not attach wrong meanings to my words, or draw any wrong conclusions from those words. What are the facts? In terms of clause 14 only those criteria are applied which have to be taken into account when the President has to make a decision about where the executive powers lie when own affairs are involved.

But ought this not to be enforceable?

If the hon. member will just exercise a little more patience, I shall get round to answering his questions. At the moment, however, I am busy putting a statement to him. The hon. member argues further that clause 16, which deals with how the President must exercise his power, mollifies the provisions of clause 14. The reason why he says that clause 16 nullifies the provisions of clause 14, is because it is stated in clause 16 that when the President makes the decision, he must take into account that this decision must not affect the interests of other people. In his view clause 16 lays down a new criterion that nullifies the provisions of clause 14. The hon. member surely knows that is not true. The fact is that the substantive provisions, against which that decision has to be measured, are contained in clause 14. Clause 16 merely provides that the result must not be such as to effect the interests of the other groups. In my reply to the hon. member for Koedoespoort I have already explained what the exact implications are.

Yes, and it was wrong.

Mr. Chairman, the hon. member for Koedoespoort says my explanation was wrong. [Interjections.] I want to assure the hon. member for Koedoespoort, however, that I prefer to secure my own legal advice in this connection. I therefore do not need his advice. [Interjections.] With all due respect, Mr. Chairman, I want to allege that the hon. member for Barberton is really capable of better arguments than that. He is not, however, trying hard enough.

What I am now telling the hon. member for Barberton, Mr. Chairman, is also my reply to the hon. member for Durban Central Hon. members must surely concede that the criteria being introduced in terms of clause 14 are abstract criteria, not so? They are not, after all, amenable to measurement by exact formulas, just as one’s identity does not lend itself to measurement. In the very same way the criteria being laid down here surely cannot be subjected to measurement either. That is consequently a decision that lies in the political sphere. In the meantime the hon. member for Barberton and other hon. members wish to allege that it is a decision that must be open to testing by the courts. On what grounds do they say that? On what grounds can the courts test a decision that rests on such abstract standards and norms as those laid down in that clause. Surely that is inevitably a decision that must be taken by politicians. It is important for politicians to take this decision because the cross-linking controls to which politicians are subject are surely totally different to those applicable to the courts. In all seriousness I want to put it to hon. members that the law surely does not contain absurdities. Nor is the law a servant to absurdity. It is therefore absurd to argue along the lines that the hon. member for Langlaagte has just been arguing—and of course the hon. member for Barberton too—i.e. that the clause makes a farce of the own affairs of the Whites. That is surely not correct. The fact is again that the President will live or survive within the system, firstly on the basis of the support he gains from the group which elected him and, secondly, on the basis of the support for own affairs by the other groups that have to have his legislation passed by their Houses. To argue, therefore, that the President can simply act in an arbitrary fashion, ignoring all other people when taking decisions, decisions he takes on an absolutely discretionary basis, is surely not true. Surely no process can be served by such an argument. The President will surely never be able to get his legislation on own affairs passed if he were to do things in the haphazard way hon. members allege he will be doing them. Then, as far as that is concerned, the system simply could not function.

It will not function either.

Let me tell that hon. member that it will be a great deal more successful than the results of his convention.

That will be the day.

He does not have to worry about that, however, because it will unfortunately never be possible to test it. The most that that hon. member can therefore aspire to is to be consulted. He will never be able to react.

The hon. member for Durban Point put a question to me. He said he was not going to move his amendment because it was, to a large extent, consequential upon other amendments he had wanted to move.

†The question the hon. member put to me is whether clause 18(2) excludes the testing of mala fides by the courts. I would argue that it does not. I think that the hon. the Minister of Justice has shown that already. It is a fact that the courts do not lightly assume that their jurisdiction as far as mala fides is concerned is excluded. They only accept such exclusion when it is specifically and categorically excluded in terms of the statute itself. That is not the case in this particular regard. My reply to the question of the hon. member for Durban Point is therefore in the affirmative. I do not believe it excludes it.

*I agree with the hon. member for Durban Central that if it were not for clause 18, the criteria in clause 14 would have been subject to testing. I concede that point.

Why is subsection (1) there …

I shall come to that in a minute. I first want to deal with the other matter. As I have said, I agree with the hon. member’s argument that if clause 18 had not been there, the criteria in clause 14 would have been subject to testing by the courts. I have explained why we inserted it. There is a twofold reason. The first reason is that the norms and criteria are abstract in nature. The hon. member, I am sure, will readily concede as much. That is why clause 18 has thus been amended.

That has always been our argument. Now you are conceding the point.

I am merely saying that because this is so, a consequential step must be taken, because the decisions that are taken are political decisions and not legal decisions. The hon. member must not simply seize upon the one part and not the other.

You are quite right.

I am always right. The hon. member must just follow me. [Interjections.]

Let me just sum the debate up for hon. members. All that is envisaged in clause 18 is, firstly, to make it clear that the courts do not have the power to decide on the merits of Presidential decisions about own affairs, and consequently also about general affairs—the one is consequential upon the other—just as the courts do not now have the right to decide upon the merits of decisions of the executive authority. The present legal position—I just want to mention this again for the record, in reply to hon. members’ comment on this clause—is that in the face of administrative action the courts have powers of review and not powers of appeal. Even though hon. members have not yet moved their amendments, what their arguments amount to is that they actually want to give the courts powers of appeal in regard to the decisions the President has to take under the circumstances. For the reasons I have given, that is unacceptable. An important reason for that is that the courts ought not to interfere with executive action in that way. I want to repeat: Presidential action, in terms of the relevant clauses, is administrative or executive action that ought not to be subject to testing by the courts. In their daily actions Ministers make decisions, policy decisions of an executive nature that cannot be tested by the courts. If they were subject to testing, this would give rise to the utmost confusion and uncertainty in the country.

[Inaudible.]

I replied to the hon. member for Houghton in her absence. She must please keep quiet now. It would make a farce of the administration of the country.

Of this country,

yes.

Yes, I live here and intend remaining here. The question of whether a matter is an own affair or a general affair is decided on the basis of the criteria laid down in clause 14 of the Constitution Bill. Individual decisions would, however, be typical policy decisions of a member of the executive authority in which the circumstances surrounding each individual case would play an important role and about which, with all due respect, the courts would not be able to pass judgment. That is so, not because the courts are incapable of doing so, but because their function and responsibility are different from those of the executive authority. From our administration of justice it is clear that it is sometimes difficult to judge whether a question is a question of law or a question of fact. This can lead to great uncertainty. Consequently it is necessary for us to do something about that. It is merely in order to eliminate the uncertainty in this case—I should like to emphasize this—that we have found it necessary to insert clause 18. This confirms the position that the courts do not interfere in regard to the merits of administrative decisions. As I see it, this eliminates the uncertainty that may arise when it comes to distinguishing between legal and factual questions.

The distinction between own affairs and general affairs is a key facet of the Constitution Bill. The Government is convinced of one standpoint, and that is that in principle the decisions about this should be taken by the political organs and not by other organs. In this process the President will take the final decision, because someone has to make the decision. This does not mean, however, that he will be the only one involved. In terms of the provisions of the legislation, the Cabinet will also be involved, including the Speaker of Parliament and the chairmen of the various Houses.

That cannot be tested.

The hon. member must just give me an opportunity to finish. I am now in the middle of an argument. Being a key facet of the legislation, all legislative and executive bodies, at all levels of Government, will be giving their constant attention to this question. What I am saying is that this ought to be the case in a country inhabited by various peoples and groups, and because all are affected and all will be involved, the President’s decisions will consistently have to be tested, against constitutional criteria, in the political arena, and the President will have to act with great circumspection in this specific context.

In view of this, I want to suggest that this provision does not in any way detract from the courts’ powers of review in regard to the procedure that has to be adopted, nor does it detract from the idea of the courts also having powers of review in the case of the President, at some future date, acting with malice or malicious intent. I therefore accept the amendment moved by the hon. member for Mossel Bay.

Mr. Chairman, the hon. the Minister has been arguing that the powers of the courts as they have existed in the past have by virtue of this clause which is being introduced into this Bill, not being deleteriously affected at all. I think that was also the argument of the hon. the Minister of Justice who in fact quoted the section of the Law of South Africa relating to administrative justice. In that connection he argued that clause 18(1) in fact confirms the position as set out in that clause in that it gives the courts the right to test that proper consultation along the lines of basic standards of minimal justice, as he quoted, had in fact taken place. That was the argument of the hon. the Minister of Justice. As far as that statement of the hon. the Minister of Justice is concerned, I would like to say that that statement has never been in dispute. In the first instance, we say that if clause 18(1) had not been written into this Bill at all, the right contained therein would still exist because it exists at the present time. This particular provision does not have to be written into the Bill in order to establish that right. That right exists already.

We also say that the provisions of clause 18(2) curb the existing situation. As the law applies to the administrative decisions of the executive at the present time, there is certainly no appeal on merit against administrative decisions. This is clearly understood. We would like an appeal on the merits, and we have motivated our attitude. We hope perhaps at a later stage to move an amendment relating to such an appeal on the merits. [Interjections.]

Why do you not move it now?

It is not competent for me to move it at this point. The hon. the Minister should know that, from a procedural point of view, before that amendment can be moved, clause 18 has to be negatived. When the hon. the Minister and the hon. the Minister of Constitutional Development and Planning come back to us and tell us that there has never been an appeal against administrative decisions on their merits, we are not disputing that particular statement. We are saying that we would like an appeal. We would like an appeal because new power, hitherto … [Interjections.]

May I ask a question? Does the hon. member mean that the criteria to be applied in terms of clause 14 are abstract?

To a certain extent. Yes, I agree with that. However, they certainly do contain certain guidelines. Without clause 18(2), those guidelines could in fact be tested. However, let me continue with my argument. What we are saying … [Interjections.]

May I also ask the hon. member a question?

Am I making a speech or is this just another question session? Very well.

When he addressed the Committee in the first instance, the hon. member for Sandton argued that clause 18(1) gave a meaningless right of review to the courts. Will the hon. member please explain that?

I referred to it as a meaningless right because that right already exists whether or not that particular provision is written into this Bill. I believe that the right to test administrative procedures … [Interjections.]

So you want a testing right?

… on review would exist in any event. I do not think that by writing this into the Bill, one creates any new right to be exercised by the court which does not already exist. [Interjections.]

One restates an existing one. [Interjections.]

Order! Is the hon. member not repeating the same argument? [Interjections.]

Mr. Chairman, I am trying to respond to the questions from hon. members on that side of the House and they keep on asking the same questions.

And what about the procedural aspect?

If one looks at clause 18(2) one reads—

We are limited to the particular ground for review as contained in clause 18(1) and then only in respect of some of the decisions relating to own and general affairs and not in respect of all decisions; only in respect of decisions which relate to the introduction of a Bill or to an amendment to a Bill. All other decisions relating to the allocation of portfolios or to the allocation of administrative functions are not justiciable in any way because of the inclusion of this clause.

We must remember, as I have said, that there are new powers which are granted and therefore we believe that there should be new protections. More particularly I want to ask the hon. the Minister—with which question I shall close off—why it is necessary, accepting that the right of appeal on merit is not under consideration at the moment, to limit even further the ordinary common law grounds of review and to restrict those grounds to only one very limited one as contained in clause 18(1).

Mr. Chairman…

Mr. Chairman …

Order! I call upon the hon. member for Tygervallei to speak.

Sir, I was the first to rise.

Order! It is for the Chair to decide who will speak first. It is tradition that the senior member normally speaks first. The hon. member for Jeppe is still a back-bencher. The hon. member for Tygervallei may proceed.

Mr. Chairman, I move—

I know this is a very important matter, but as I have already indicated, it has been debated for hours now. I have already had to point out to hon. members that they were repeating arguments. There will also be a further opportunity in the Third Reading to debate this principle. In view of this I am prepared to accept the motion that the Question now be put.

Mr. Chairman, on a point of order: I should like to address you on a ruling you gave a few days ago regarding Standing Order No. 160(4).

Order! The hon. member cannot address me on that now. I am about to put the amendments and the clause. The hon. member may address me after the clause has been dealt with.

That would defeat the purpose for which I am addressing you.

The hon. member may proceed.

Standing Order No. 160(4) provides—

Last week you ruled that this subsection applied to this House and I should like to address you on this point. I want to ask you also to take note of certain aspects. The first is that the whole of Standing Order No. 160 deals with the Committee Stage or the full House. Standing Order No. 160(2) refers to “the Standing Orders of this House”. Therefore, if the hon. Government Chief Whip makes use of this Standing Order in the Committee Stage, it is also your duty, in terms of Standing Order No. 160(4), to ascertain from the hon. the Minister whether he wants to reply at this stage. I therefore think it is correct to request that you inquire from the hon. the Minister whether he wishes to reply.

Order! I want to point out to the hon. member that I shall not accept such a motion from the hon. Chief Whip immediately after the hon. the Minister has spoken, because I first want to give hon. members of the Opposition parties the opportunity to comment. Moreover, I have been advised that replies, too, are only allowed if the debate takes place in the full House. Therefore you will note that the reply allowed is limited to 30 minutes, which is a further indication that this is done during the Second Reading stage. Accordingly, that was the ruling I gave, and I stand by it. I also just want to point out to the hon. member that a debate cannot be allowed on the motion for closure. I cannot, therefore, allow the hon. member to debate this matter.

Amendment 2 agreed to.

Mr. Chairman, firstly we in the PFP want to lodge our strongest protest against the action of the Chief Government Whip in moving the guillotine on the previous clause. Quite frankly, Mr. Chairman, if this is the respect which the Government is going to show the Opposition in the old dispensation, heaven help us when we come to the new dispensation. [Interjections.]

I want to deal with clause 19 because this clause together with clause 21 and clause 22, which follow it, are perhaps as fundamental a set of clauses as can be found in the whole of this Constitution Bill. Just as clause 14 and clause 16 were fundamental in a racial sense, so this clause 19 is fundamental in, a structural constitutional sense. It defines the structure of the executive government—one of the important elements of the new constitution.

This clause determines the State President’s power. It determines the conditions under which these awesome powers are going to be exercised, and it also determines the relationship between the new President and the Minister’s Council on the one hand for houses for own affairs, and the President, the Cabinet and Parliament as a whole for general affairs. It is quite fundamental to the whole question of presidential authority, and we will argue the potential for presidential dictatorship.

In so far as clause 19(1)(a) deals with the relationship between the President and the Minister’s Council, we have in the main the same relationship between the President and the Minister’s Council as we have today between the State President and the Executive Council, which is the Cabinet of South Africa. In other words, they stand at arm’s length. So one really has, as far as own affairs are concerned, a Westminster relationship between the State President as the titular head of State and the Ministers’ Council acting as the Cabinet for the own affairs of each of the three groups. To that extent we do not have a serious problem with it, other than that we find it is going to be a very fascinating situation for the President to act as the titular head in relation to the Minister’s Council while at the same time acting as the political head in relation to his own Cabinet. One is going to have a very unusual relationship where the State President is the titular head for one purpose and the executive head for the other. Whether in fact he is going to be able to straddle that fence is another matter, but it is a traditional relationship, except for clause 31 in terms of which the State President can intervene in the legislative process in a way in which he cannot under the present Westminster system.

Coming to clause 19(1)(b), we find that this contains the real guts of the thing, because this concerns the relationship between the President and the Cabinet. This is where the President derives his real authority. There are three major problems in this area and three defects as far as we are concerned.

We are moving now from executive government based on the collective decision of a Cabinet to executive government based on the decision and the action of one person. At the moment the Prime Minister nominates his Cabinet and that Cabinet has to be responsible to the majority of Parliament. Under the new situation the Cabinet will no longer be responsible to the majority of Parliament. It can be responsible in a different way, but it is no longer a Cabinet which is responsible to the majority of Parliament. That is not only our interpretation but it is also the interpretation of the law advisers.

Let us look at the three ways in which we think the President stands extraordinarily strongly in relation to his executive powers. First of all, the President is a member of the Cabinet as the Prime Minister is today, but instead of the President having traditional rights as a result of convention, his function is written into the constitution. He is, I believe, extremely powerful to a most unwholesome extent. He is a member of the Cabinet. He presides over the Cabinet. He appoints the Cabinet. He is not subject to the same restrictions to which the Prime Minister is subject today because, as later clauses will show, there is no limit to the number of Cabinet Ministers he can appoint, there is no fixed term of office but he can appoint Ministers for a shorter or longer period or for a specific purpose, he is not required to appoint people who hold office by virtue of the fact that they head departments of State, and they are not required to be members of Parliament so that they do not have a direct electoral responsibility. So, the President is not only a member of the Cabinet; he is also in supreme authority over the Cabinet. He is in a much stronger position in relation to the Cabinet than even the Prime Minister is in relation to the Cabinet of today. While he must act in consultation with the Cabinet, he is in a position of supreme authority over the very people he has to consult. As a consequence the consultation will not be nearly as valuable as the collective advice of a Cabinet in relation to which neither the Prime Minister or State President is in as powerful a position.

Secondly, it is quite clear from this that, unlike in the case of the present Republic of South Africa Constitution Act in terms of which the titular head of State, the President, has to act on the advice of the executive council, which therefore means he acts on the collective advice of the decision of the executive council, in terms of this clause the President has to act in consultation with the Ministers, but the decision he takes, his action, is his own. It is not the action of the Cabinet. It is not the action of the executive council. It is the action of one man only. It is the action and the decision of a single person who merely has to follow certain procedures, who has to do things in consultation. Whereas at the moment it is the decision of the Cabinet which triggers off the action, in this particular case it is the decision of the State President provided he acts in consultation with the members of his Cabinet.

The third major departure which we find to be a defect in the new system is that there is no longer collective responsibility of the Cabinet. This is so because the decision of the President, taken in consultation with the Ministers of the Cabinet, does not mean that the Ministers of the Cabinet are locked into the presidential decision. They are locked into the process of consultation and they will have to be recognized as far as their views are concerned but in the end it is the decision of the President and not the collective decision of the Cabinet. When this clause is passed we will move dramatically away from the concept of executive government by Cabinet decision responsible to the majority of Parliament, to executive government by presidential decision following a process of consultation with members of a Cabinet whom he can hire and fire at will. We believe in this concept the door is wide open for autocratic and dictatorial powers being exercised by a single person in supreme power as far as the executive is concerned. In order to try to bring it back to the concept of collective Cabinet responsibility I move the amendment printed in my name on the Order Paper, as follows—

1. 1. On page 14, in lines 57 to 59, to omit paragraph (b) and to substitute:
   1. (b) in regard to general affairs is vested in the Cabinet, in terms of whose decisions the State President shall act.

This means that if my amendment is accepted clause 19(1)(b) will read—

In other words, while it is quite clear that the President is the man who acts, just as the State President at the moment is the man in whom responsibility is vested, he acts in terms of a decision of the Cabinet. That would bring it back to the position today where the Cabinet takes the decision and it is merely acted upon by the individual designated to do so.

If we are going to move away from Cabinet responsibility, from collective decision-making, from the responsibility of the Cabinet to the Parliament of South Africa, we are moving in a dramatic way away from the concept of parliamentary democracy, not only as we have known it, but as we think is suitable for the future, in the direction of a one man executive who is placed in absolute power over his Cabinet, a Cabinet which is not responsible to the majority of Parliament. It is for these reasons that I have moved the amendment.

Mr. Chairman, before I react specifically to the amendment of the hon. member for Sea Point, I should like to point out that a very important amendment to clause 19(2) was proposed by the Select Committee by way of the deletion of certain of the earlier references to certain clauses in the Constitution Bill regarding the powers and authority of the State President. In certain of the executive actions of the State President it is expressly provided that he has to act in consultation with his Cabinet or on the advice of the relevant Ministers’ Council. There is, for example, the important amendment to clauses 18 and 19 to provide for the fact that the decision on own and general affairs must also be taken in consultation with the Cabinet, in accordance with the procedure laid down in clause 19(1)(b). I think this is a very important point. The same also applies to the deletion of the earlier references to clauses 40, 41(2) and 69 in the original Bill, which provided for the determining of sessions and the proroguing of Parliament, the dissolution of Parliament and joint sittings. I think this serves to curb the arguments so frequently raised amongst other things, about the question of dictatorship or the sole authority of the State President to decide on matters of this nature. I therefore want to point out that this is a vast improvement, as regards the powers of the State President, in the sense that he has to act in consultation with the Cabinet or on the advice of the relevant Ministers’ Council with regard to these specific powers.

As regards the argument of the hon. member for Sea Point, I should like to argue that the present formulation of clause 19(1)(b) is, in fact, in line with the de facto position which prevails today and which one would like to see transferred to the new system, because this gives expression to the way in which decision-making in the Cabinet takes place and the way in which Ministers accept collective responsibility. If one considers the formulation of the amendment of the hon. member for Sea Point, it seems as if both the amendment and that which is contained in the clause boil down to the same thing. In looking at his amendment, the question that arises is how the decision is taken by the Cabinet. As the hon. member’s amendment reads at present, with regard to general affairs the executive authority is vested in the Cabinet, in accordance with whose decisions the State President must act. In the first place the State President is also a member of that Cabinet. The question therefore is how the Cabinet will take decisions. The de facto position is that they will take decisions by consensus and the chairman of the Cabinet, at present the Prime Minister and in the future the State President, will in any case formulate that decision after consultation with the Cabinet.

It seems to me as if the formulation of the hon. member for Sea Point’s amendment may not, in fact, be doing justice to what he had in mind. I think his formulation actually comes very close to what this side of the Committee would have liked to have, namely the maintenance of the de facto state of affairs in which the Cabinet holds consultations and the presiding officer formulates the decision, thus also complying with the idea of collective responsibility.

As far as this specific formulation is concerned, various possibilities were considered by the Select Committee. I should like to mention, to this Committee, the various possibilities that were raised. Consideration was given to the possibility of a President-in-Council, with Ministers who would be members of the Cabinet, a Cabinet, the President consulting the Ministers in the Cabinet, a President-in-Cabinet, a President acting with the consent of Ministers who are members of the Cabinet and a President acting on behalf of the Cabinet. After consultations on, and considerations of, these possibilities, the conclusion was reached that the present formulation in fact gives optional effect to the de facto position and comes nearest to a definition of what happens in practice. Not one of us not serving in the Cabinet can really judge how decisions are taken in the Cabinet, but according to the information we have, this takes place after consultation, the formulation of the decision eventually being done by the presiding officer and the Ministers accepting collective responsibility for that formulation. For that reason I want to argue that the present formulation, namely that it has to take place in consultation with the Ministers who are members of the Cabinet, in fact gives optimal effect and comes nearest to—if this is not the actual version—what happens in practice with regard to Cabinet decisions.

For this reason I want to say now that unless the hon. member for Sea Point were to put forward another formulation. I do in any case think that his formulation is in line with what we had in mind. I just want to say that the formulation of clause 19(1)(b) does, in fact offer a more accurate definition of the actual position.

Mr. Chairman, I agree with the argument advanced by the hon. member for Johannesburg West with regard to formulation. I think that as far as the formulation aspect and the formulation approach are concerned, one comes closest to the idea which should be conveyed here. However, I just want to say on behalf of the CP that since the Cabinet is going to take the form envisaged in clause 20, i.e. since persons from any of the Houses may serve in it, with the result that it will be a mixed Cabinet, the CP is not prepared to vote for the amendment moved by the hon. member for Sea Point.

During the discussion on previous clauses, a fairly wide-ranging debate was conducted on the whole question of the executive authority. I think it is necessary that I should now react to the criticism voiced by the hon. the Minister in respect of our approach to this executive authority. His criticism of us was based mainly on the 1979 Bill, which in actual fact did not refer specifically to the executive authority. Where one would have expected a reference to the executive authority, mention was made of a Council of Cabinets. Then a quotation was submitted to us of the remarks made by the previous Prime Minister in respect of the executive council and executive powers, remarks which had been recorded in Hansard.

I want to refer the hon. the Minister to section 20 of the present Constitution. In terms of this section, the State President must appoint no more than 20 Ministers. The approach of the previous Prime Minister in respect of the executive council, the State President, was primarily that the executive authority was vested in the Prime Minister. His approach in connection with these matters was that he did not even have to appoint a single Minister. In terms of the present Constitution, there is no obligation on the Prime Minister to appoint 20 Ministers. The only requirement is that he may not appoint more than 20. He may even perform the entire function of the executive authority. The State President acts on the advice of the Prime Minister in this connection, and the executive authority is therefore vested in the Prime Minister. This is the approach which I have on good authority from the previous Prime Minister in respect of this matter.

As I have said, the hon. the Minister of Constitutional Development and Planning quoted from a speech made by the previous Prime Minister. He said that if the present Cabinet had executive powers, then the Council of Cabinets would also have an executive nature. We have to see this against the background of the previous Prime Minister’s approach to these matters, namely that the executive authority is vested in the Prime Minister.

Where in Hansard did the previous Prime Minister say that?

He did not say that in Hansard, but I want to repeat what he said in a letter to the Rev. Mr. Boshoff. [Interjections.] If perhaps it does not appear in Hansard, does that make it untrue? I want to quote now from a letter which the previous Prime Minister wrote to the Rev. Mr. Boshoff and in respect of which he gave the hon. member for Waterberg his permission to repeat its contents in public. I think that with this we can finally put paid to the governing party’s argument about Mr. Vorster’s attitude to this matter. [Interjections.] Let us put paid to it now.

I really take no interest in extra-parliamentary letters. [Interjections,]

Is the hon. the Minister suggesting that something which happens outside Parliament is not a fact? Is it not a view? Is it not an argument? I cannot understand how the hon. the Minister can make such a statement. [Interjections.]

Order! I just wish to point out, for the benefit of the Committee, that the argument is now covering a wider field. It is dealing with what appeared in the previous draft legislation but not with the contents of this clause. Since there is to a large extent a matter of principle involved, however, I shall allow the hon. member for Brakpan, as the first speaker of the CP, to discuss it, but I shall not allow any further debate on the matter.

Thank you, Mr. Chairman. I just want to refer the hon. the Minister to col. 7248 of Hansard of 17 May 1983, from which I want to quote the letter written by Mr. Vorster to the Rev. Mr. Boshoff. He wrote—

He is referring to the present Prime Minister—

In the light of this, I think we can finally lay to rest that feeble argument advanced by the governing party in respect of this matter.

Can you read to us how the Council of Cabinets was to have been constituted?

As far as the Council of Cabinets is concerned, there would have been only 14 members. There would have been three Prime Ministers and then there would have been about four from the one group and two from the other group. That council would have served only in an advisory capacity; it would have had no executive powers.

Mr. Chairman may I ask the hon. member a question?

No, because I have only a few minutes left.

It is true that the Council of Cabinets would have initiated legislation. That is so. They would have done so on the basis of the conclusions to which they had come in the course of the consultation, but here we have proof of the fact that it was never the approach that it was to be an executive Cabinet. This was never the approach of the previous Prime Minister. I now want to quote from the minutes of an NP congress held on 2 and 4 November 1981. At that congress the hon. the Prime Minister said—

Then I want to quote from a speech made by Mr. Vorster before students of the University of Pretoria—

If the hon. the Minister refuses to accept this information as factual, one cannot argue with him. If all facts which exist in the world are only facts because they are recorded in Hansard, we cannot argue with one another.

As far as the clause itself is concerned, I want to say only this: As long as the Cabinet is constituted in accordance with the provisions contained in clause 20, the CP will never be able to agree with this clause, and we shall vote against it.

Order! Clause 19 deals with where the executive authority is vested and in what form. The clause provides that the executive authority is vested in the State President and then proceeds to say how it is vested in him in the case of own affairs and also in the case of general affairs. The composition of the Cabinet is provided for in clause 20, and therefore this has nothing to do with clause 19. The discussion must now be confined to the provisions of clause 19.

Mr. Chairman, I shall abide by your decision and I shall therefore confine myself to the executive authority as it is vested in the State President in terms of clause 19.

Mr. Chairman, the hon. member says that the executive authority is vested in the State President. Is this a deviation from the NP’s 1977 proposals?

I thought the hon. member would go back to 1979.

No, 1977.

I also want to go back to that year, but he must just give me an opportunity to develop my argument.

I want to refer to the argument of the hon. member for Brakpan and to say that in my opinion, he really did not do the previous State President a favour with the argument which he advanced.

That is what you think.

I do not think it is fair to a person who is not present in this House to speak on his behalf.

But you are so fond of quoting him.

I am now speaking for myself. I do not think it is fair to quote letters in this House which were allegedly written …

He did write it.

I am not denying it. I just do not think it is fair to quote letters in this House which were written under circumstances, against a background and in a context which are not known to us, while it is clearly recorded in Hansard what the same person said in this House under circumstances which are known to us.

Mr. Chairman, on a point of order: I know it has been ruled that we on this side of the House should not keep interrupting the hon. members of the CP. I now ask you whether the hon. member for Rissik and his two colleagues sitting next to him are allowed to keep making interjections while an hon. member is speaking.

The hon. member for Mossel Bay may proceed.

In any event, the quotation read by the hon. member for Brakpan certainly did not have the meaning which he tried to give to it. It is quite clear that the allegation contained in that quotation refers to a structure which had been proposed at one stage, in 1977, and which was to have consisted of three Parliaments, each with its own Cabinet. Surely it goes without saying that in that case, the Cabinet of the White Parliament would have consisted only of Whites. In terms of those proposals that is obvious, after all.

May I ask you a question?

Just afford me the Opportunity of completing my argument. Surely, we are dealing now with a different structure, and there is and has been no difference of opinion on this. After all, we are not dealing with three Parliaments now, but with three Houses of one Parliament.

In Waterberg you said it was the same.

Just afford me the opportunity of We are now dealing with a Constitution Bill which provides for three Houses of one Parliament. The principle contained in Mr. Vorster’s words in this House was that the Council of Cabinets, which was to have consisted of representatives of the Cabinets of the three Parliaments, was to have functioned exactly like a Cabinet. That is the essence of the argument. The fact is that that Council of Cabinets, which was to have functioned just like a Cabinet, was to have consisted of 7 Whites and 7 non-Whites. Therefore it serves no purpose to argue now that the Ministers in the White Parliament would have been White. Of course they would have been White, just as the Ministers in the Coloured Parliament would have been Coloureds and those in the Indian Parliament would have been Indians. That is self-evident. The point which we are concerned with, however, is that when those Ministers sat together in the Council of Cabinets, it would have been a Council of Cabinets consisting not only of Whites, but of Whites, Coloureds and Indians. Mr. Vorster said that that Council of Cabinets, composed in that way, would have functioned just like a Cabinet. That is the essence of the whole argument. Therefore the argument of the hon. member for Brakpan does not hold water at all.

If one wanted to use the argument advanced by the hon. member for Brakpan—that the executive authority is actually vested only in the Prime Minister, because section 20 of the present constitution provides that the Prime Minister may not appoint more than 20 Ministers—completely in abstracto in order to score debating points or to adopt a legalistic approach to the matter, it would perhaps have some merit. I can imagine that such an argument would go down quite well in a debate between second-year law students. However, there are conventions which apply in this connection. Can the hon. member for Brakpan quote any convention which operates in any Westminster-type system of government in terms of which the Prime Minister has interpreted that power to mean that he is able to exercise the executive authority alone?

Dr. Malan.

When did Dr. Malan do that? That is simply a statement without any substance. When did Dr. Malan arrogate to himself the power to act as the sole executive authority? Surely that is not true. It is a statement which reflects on the late Dr. Malan just as much as the quotation made by the hon. member for Brakpan reflects on Mr. Vorster.

I submit that the argument advanced by the hon. member for Brakpan is really nothing but a gimmick with which, as I have said, he could perhaps score a point in a debate between second-year law students. However, the hon. member must not expect us to conduct a debate on that level in this House, where we are engaged in a serious discussion on a constitution for the Republic of South Africa.

Mr. Chairman, as with all aspects of this measure, we have looked at the amendment moved by the hon. member for Sea Point on merit and believe it is an improvement that we can support. However, I cannot say the same for the arguments that he used in introducing the amendment because he described this clause as being a clause that gives awesome powers to the President. This party sees this clause as a tremendous improvement on the clause in the original Bill, namely clause 21. I looked at the amendment moved by the hon. member for Sea Point in the spirit in which we looked at it in the Select Committee, which was one of terminology. The hon. member for Johannesburg West described some of the phrases we looked at. I myself did not like the words “in consultation with the Ministers who are members”. I think I proposed the words “in Cabinet”. The hon. member for Sea Point used the term “conjointly”. We therefore looked for a term that better expressed the concept of a Cabinet in action. On legal advice, because the President is a member of the Cabinet, it was judged not to be correct to talk of the Cabinet advising him, as the original Bill did. I do not go along with it but I cannot argue with the legal fundi. I still think that the wording proposed by the hon. member for Sea Point expresses better what we have in mind. It is also clearer as far as the public is concerned, without changing the meaning of this clause. As I understand legislation, when one acts “in consultation”, one acts with consent and agreement. If one acts “after consultation” there does not have to be agreement. It is, however, a commonly accepted term. We find it in provincial ordinances where it means that the Administrator acts in consultation with the executive committee. He does, however, act indeed on the instructions or the decisions of the executive committee. Where we use the term “in consultation”, I have always taken that to mean “by agreement and consent”. I do believe, however, that the phrase used by the hon. member for Sea Point is better, and we will support it. We look upon it as a terminological improvement.

I want to turn now to another point of this clause, which, I believe, is important to note.

But then we could have kept the clause the way it was; we could have retained the term “on the advice of”. It comes to the same thing.

Well, Mr. Chairman, the legal advisers told us we could not use that.

It means exactly the same as “consent and agreement”.

Well, I should be grateful if the hon. the Minister could explain any difference in it because as far as I understand the intention it is that the President shall act with the Cabinet as a unity, with joint responsibility. The key issue is whether the Cabinet has joint responsibility with the President for the latter’s actions. This is what, I believe, is the intent, and that is also what we want to express in the legislation. If that is not the intention, and if it is the intention that he can merely consult with one or two Cabinet Ministers without joint responsibility with the Cabinet, it is simply not what I understood from the debate which we had on it.

We can argue later what “in consultation with” really implies.

Yes. That is the point. “In consultation with” implies joint responsibility.

The other feature of this clause, which, I believe, is very important, and which should be placed firmly on record, is in respect of the limitation of situations in which the President may act without the advice of or without the Cabinet. In the initial Bill there was a whole series of powers—there were 18 odd clauses—in terms of which the President was exempted from acting with the Cabinet, and in which he could act on his own without reference to the Cabinet. Those occasions were reduced in the Select Committee to cover only the appointment of Ministers, Ministers without portfolio, and members of the Ministers’ Council appointed to the Cabinet, the Chairmen of Ministers’ Councils, the transfer of powers, the appointment of deputies and the assignment of duties. It further also includes the power of assent, which is limited. The President may not refuse to assent to a Bill which has been properly passed. It also includes the summoning and dissolution of the Houses and the assigning of laws to Ministers. Those are the sole powers which the President can exercise in his own right. The traditional power of appointing Ministers and of assigning portfolios to them—with the exception of the one new concept; that in respect of Ministers without portfolio—all the remaining powers are the traditional, conventional powers which a Prime Minister or a President has now and has always had. It excludes from his sole discretion, in respect of which he can act alone as an individual, all the political issues in respect of which he will act as President. Therefore, far from being awesome, the powers here become Cabinet powers except in the conventional fields in which, in practice, the Prime Minister appoints his own Ministers, assigns them their duties, summons and dissolves Parliament and assents to laws. I repeat: Those are the only powers which the President can exercise in his own right. If one looks at the original Bill, at the list of exclusions from acting jointly with the Cabinet and at the record of the amendments to clause 21, as it was, one sees very clearly the tremendous difference in the powers the President can exercise as President in his sole discretion. This negatives many of the allegations that the President will have powers which are awesome, Draconian, etc. Those powers are powers shared with the Cabinet, a Cabinet in which there will be members from all three Houses, which members, or Ministers, will be responsible and accountable to the Houses to which they belong. I believe that in this there is a much greater accountability by the President to Parliament and to the Cabinet, whose members in turn will have to satisfy the Houses from which they come. Particularly in view of the fact that the chairman of the Ministers’ Council must enjoy the support of the majority in his particular House, the chairman of such a Ministers’ Council will have to act to the satisfaction of his own House. So, there again, there is accountability back to the elected Members of Parliament in all three Houses on own affairs and indirect accountability back to the Cabinet. I believe that this makes this a much more democratic provision, a provision which is still bound by the conventions which are incorporated into the Bill later on and which are the traditional conventions of authority. We in this Party have no problem at all in supporting this clause as it is now worded with the severe, the radical, limitations of the powers of the President to act in his sole discretion.

Mr. Chairman, towards the end of his contribution to the debate, the hon. member for Durban Point made out a good case to which I shall come back later. First I just want to refer to his support of the amendment moved by the hon. member for Sea Point. The hon. member for Durban Point says that there is no essential difference between the amendment of the hon. member for Sea Point and the present wording of the clause, but that it is a question of terminology. If this is so, then I believe that there is not much to choose between the two. Then their support strikes one as strange. Later on in his speech the hon. member also referred to the question of the joint responsibility which he said was the crucial aspect and the one which really worried him. The Cabinet cannot avoid being accountable to Parliament, in terms of the composition of the new Parliament as well, in the sense that its entire existence depends on the office of and the holding of the office by the State President. In that sense, there will be joint responsibility in any event. As regards the question of the manner of decision-making in terms of the proposed amendment, I do wish to suggest that the wording of the amendment moved by the hon. member for Sea Point implies, in the first place, that the decision should be taken by the members of the Cabinet and that the President should then give effect to it. The President is also a member of the Cabinet. If one simply said that a decision had to be taken, one would actually be saying by implication that decisions had to be taken by majority vote and not in the way in which decisions are taken at the moment. The hon. member for Sea Point shakes his head. The way the clause is worded at the moment, it is an attempt to convey the way in which decisions are formulated at Cabinet level in any event. The hon. member for Johannesburg West referred to this in depth. I honestly feel that the wording of the amendment emphasizes the conflict idea, the majority idea, rather than the idea of discussion in order to achieve consensus. This is particularly important in view of the fact that the Cabinet is to be constituted in the way provided for in clause 20 and that in that case, one would rather follow the consensus approach than run the risk of taking a decision merely by majority vote.

The hon. member for Durban Point argued that the exaggerated stories about the so-called power of the State President under the new dispensation were to a large extent contradicted by this formulation. I think the hon. member is right in that connection. The hon. member for Sea Point referred to the two opposite ways in which the State President would act under the new dispensation. I believe he said that it was an unusual position in which the State President found himself. However, there are not only two ways in which he may act. There are three ways. The hon. member for Durban Point also pointed this out.

The first way is where, with regard to own affairs, he merely acts on the advice of the Ministers’ Council concerned, where his relationship to the Cabinet is that of titular head, as we know it today. The second way is in respect of general affairs, where he comes to a decision in consultation with the Cabinet. This means that they sit together, that the decision is formulated by the President in the presence of those members. They do not necessarily have to reach “agreement” on the basis proposed by the hon. member for Durban Point, namely that they must all be unanimous in making a positive choice, but they must at least accept and go along with the formulation. The third possible course of conduct is the way set out in clause 19(2), namely the exceptions where he acts in his own right. These, too, were more than fully covered by the hon. member for Durban Point.

The hon. member for Sea Point made a few statements which are not quite correct and which are in fact much less correct than the present state of affairs. He made the statement that under the new dispensation, the State President would occupy a much stronger position vis-à-vis his Cabinet than the Prime Minister occupies today. With all due respect, in terms of the operation of the system this is devoid of all truth, in the sense that he has a Cabinet which is differently constituted anyway, from majority groups in the various Chambers. I cannot discuss the matter in detail. I shall leave that for another occasion. We shall be able to debate the matter again at Third Reading. The hon. member’s statement that the State President is in a position to hire and fire just as he likes is not correct. He is less able to hire and fire than he is at the moment.

Why do you say that?

Now, at the end of my speech, the hon. member has suddenly heard what I am saying, while he did not pay any attention earlier on. [Interjections.]

I do not want to elaborate on what the hon. member for Johannesburg West said. He made out a good case for the retention of the present wording, as against the amendment moved by the hon. member for Sea Point.

Mr. Chairman, the hon. the Minister said a very true thing in this House on Saturday when he said that clauses should not be discussed in isolation, but that all clauses should be discussed in conjunction with other clauses which have a bearing on them. This is very true, for in many ways it does not make sense to discuss a particular clause without relating it to the other clauses. This applies in particular to this clause, clause 19. This is one of ten clauses which have been incorporated into the constitution under Part V, which deals with the executive authority. Therefore it makes sense that clause 19 should not be discussed in isolation. One understands that one cannot refer in detail to clause 20, clause 21, clause 22 and the subsequent clauses. If one did that, one would be contravening the Standing Orders of the Committee and one would be in trouble. In the light of what the hon. the Minister has given us as a clear norm, however, I shall naturally be going slightly beyond the scope of clause 19 in my contribution.

I want to begin by endorsing the remarks made by my colleague, the hon. member for Brakpan, when he said that the Conservative Party could not support the executive authority as defined in clause 19, because Coloureds and Indians were being brought into the same political dispensation as the Whites. Because there will be Coloureds and Indians on the Ministers’ Councils and because persons of colour will no doubt be appointed to the Cabinet as well, we in the Conservative Party say: What we are witnessing here is what we call the destruction by the National Party of certainly the most important political policy standpoints adhered to by the National Party since it was founded so many years ago, namely that it would never be prepared to share political power with people of colour. This has been the unrelenting political standpoint of the National Party over the years.

May I ask you a question?

No, Mr. Chairman. This has been the unrelenting standpoint of the National Party. At first it was only a question of the division of power between White, Coloured and Indian, but now that clause 19 has been worded in this way…

Order! The appointment of the Cabinet is not dealt with in clause 19.

I request your permission to address you on the matter.

I regret that I cannot allow that. It involves a wider principle which can be discussed during other stages, such as the Third Reading debate, or when the relevant clause is under discussion. However, one member of the Conservative Party has already discussed the party’s approach to this matter in broad principle and I regret that I cannot deviate from my ruling now.

Mr. Chairman, I respect your standpoint. However, I just want to follow the splendid example which this hon. Minister set us on Saturday, namely that we must see matters in context. [Interjections.] Clause 19 institutes the executive authority of the Republic of South Africa. It is not merely a clause which provides that the executive authority is vested in the State President. It provides that the executive authority is vested in the State President (a) acting on the advice of the Ministers’ Council concerned as far as own affairs are concerned and (b) in consultation with a body called the Cabinet in respect of general affairs. When reference is made in clause 19 to the executive authority, therefore, we must realize that we are dealing here with three persons or bodies: (a) the State President, (b) a Minister’s Council for own affairs and (c) a Cabinet for general affairs. From this one infers that the authority of the State President will therefore be linked to two bodies, which will be defined in greater detail in subsequent clauses. In clause 19, therefore, the emphasis is mainly on one figure, namely the State President, not the State President with his ceremonial powers, but the State President with his comprehensive powers, namely his power to govern the country as wisely and as ably as a State President possibly can—a State President who can govern as a grim, arrogant, callous and cruel despot, or a State President and political head guided by firm principles. This is the picture we get of the State President that we find in clause 19. The spotlight also falls on a possibly unprincipled, short-sighted and unwise State President, and it is possible for him to be all these things. However, we know from the history of our own country and also from the history of other countries that such a State President…

Mr. Chairman, on a point of order: Is the hon. member allowed to discuss the powers of the State President while this clause deals only with the executive authority and not with the powers of the State President?

The hon. member Mr. Theunissen may proceed.

I am just saying, Sir, how the spotlight falls on that State President, and it is important that this should not be ignored. Everything in this Constitution Bill which is before us indicates that by virtue of the wide powers which are being conferred on the State President, he may indeed, and regardless of what other hon. members may say, become a supreme ruler. We know that under the new constitutional dispensation, the executive State President is going to be a powerful person. This is generally recognized throughout the country, not only by political parties, but also by constitutional lawyers who have very thoroughly investigated this matter. We know that this State President is to be elected in terms of clause 7. He is to be elected by an electoral college, the composition of which is such that the White State President will be the President for the unforeseeable future and that he will be the President chosen by the NP. [Interjections.] He will be an NP State President, therefore. He will have to perform the duties and functions of the present State President and the Prime Minister. We can therefore be reasonable certain that the first State President will be chosen by members of a House of Assembly who will not have been elected in a general election held in terms of the provisions of the new constitution, but who will be members of the House of Assembly in terms of the provision in the new constitution to the effect that the life of the present House of Assembly will automatically be extended. Because this is so, I submit that such a State President will not really be a State President who has been chosen by the people, from the people and for the people. With the election of the first State President we shall have the situation, therefore, that the State President will not be elected by the true representatives of the White section of the population. [Time expired.]

Mr. Chairman, the purpose of the amendment of my colleague, the hon. member for Sea Point, is to set out very clearly the precise function of the Cabinet system under the new constitution, viz. that, in the final instance, it is that Cabinet which has to accept responsibility for the decisions that are taken. No other formulation can bring that precise responsibility to the fore so strongly, than the amendment of the hon. member for Sea Point. [Interjections.] I am coming to that.

I want to say at the outset that in terms of the absolute powers of the State President as embodied in the original Bill, in regard to which a number of references were omitted, this Bill is indeed an improvement. The hon. members for Durban Point and Randburg said this as well, and I agree. The necessity to make this clearer could not have been better illustrated than by the hon. member for Randburg. The hon. member said that, according to the amendment of the hon. member for Sea Point, the idea being pursued is one of potential conflict—if I understood him correctly—in other words, that decisions at Cabinet level can be taken by way of majority opinion. I do not think that this necessarily follows from the amendment of the hon. member for Sea Point, but if I can take the hon. member for Randburg at his word, what he was intimating, was that decisions taken by the Cabinet could be taken by the State President with a minority of support from the Cabinet. If he was objecting to the possibility of majority decisions, the implications were, in fact, that it is not the Cabinet, but the State President who takes decisions, with the support of one or two Cabinet members, or without any support at all from any of the Ministers. Those are the implications.

What the hon. member for Sea Point wants to make clear, is that the Cabinet as a whole must accept that responsibility. I want to say at the outset that I cannot understand the statement of the hon. member for Rand-burg that the hon. member for Sea Point is guilty of making incorrect statements concerning the stronger position of the State president under this dispensation than that of the State President under the present dispensation. That is obviously not correct. The mere fact that one person occupies two posts—that of State President and Prime Minister, and other matters arising out of this for which the Constitution Bill makes provision, whereas the old Constitution does not make any provision whatsoever for them—and the role and function of the State President, places him in a much stronger position, which only goes to emphasize the necessity to dispel all doubt that it is the Cabinet that should take the responsibility.

The hon. member for Johannesburg West spoke about the alternatives to this kind of formulation considered by the Select Committee, and that they had decided on this one, viz. “the State President, acting in consultation with the Ministers who are members of the Cabinet”. As I have said, this does indeed reflect the de facto position correctly, that the presiding officer takes the decision after consultation with the members of the Cabinet and that there is a collective responsibility on the part of the Cabinet in respect of the decision articulated by the presiding officer. That de facto position to which the hon. member for Johannesburg West referred, arises out of the responsibility of the Cabinet due to the fact that the members of the Cabinet come from Parliament, and since this Bill provides—at least in theory—that the members of the Cabinet need not come from Parliament, it automatically means that the responsibility of the Cabinet to Parliament takes on a different character from the one it has under the present dispensation. That is obvious.

Mr. Chairman, could I ask the hon. member whether he would concede that at present, the fact that, all the members of the Cabinet do not necessarily have to come from Parliament, but that they nevertheless sit in the Cabinet and participate in making decisions, disproves the validity of his argument?

The present position—the hon. member for Mossel Bay knows this as well as I do—is that a member can be nominated to the Cabinet without being a member of Parliament, but only for a limited period of time.

Yes, but for that period.

Yes, for that limited period of time. The whole function lies in the fact that such a person can be nominated for a very limited period of time. [Interjections.] I do not know what the hon. member for Mossel Bay is arguing with me about, since he knows just as well as I do that in terms of the proposed new constitution, no time limit whatsoever is laid down. A Minister does not necessarily have to be a member of Parliament.

In view of the fact that two offices are being vested in one person, in view of the wider powers being granted to the State president, and the fact that members of the Cabinet are not responsible to Parliament because they need not be members of Parliament—with all due respect to the hon. member for Durban Point—the amendment the hon. member for Sea Point has moved is not merely an alteration of the terminology. It gets to the essence of the matter.

In conclusion, I want to refer to clause 19(2), and to the words “or where otherwise expressly stated or necessarily implied”, in particular. These words were taken over verbatim from the present Constitution. I want to point out, however, that we are dealing here with a completely different constitutional situation, with a State President who occupies a completely different position in relation to the Cabinet and who has different powers from those granted to either the State President or the Prime Minister in the present Constitution. In this regard, I want to tell the hon. member for Johannesburg West that it is essential that it be made clear, constitutionally speaking, what precisely the responsibility of the Cabinet is. The wording the hon. member for Sea Point has proposed is better in this sense as well. If one were to ask what the words I have just read mean, I should like to refer to the problems I am experiencing with clause 17. In terms of this clause, the President can ask for the advice of the President’s Council concerning his decision on own affairs and general affairs. Now I want to ask whether this is one of the cases meant in clause 19(2), and that the State President therefore need not consult the Cabinet…

Order! I want to point out that clause 17 has a bearing on conditions mentioned in clause 16.

You are correct, Mr. Chairman, but the fact remains that the State President can consult the President’s Council. Does this mean that he need not consult the Cabinet? This is the problem I have with the words “necessarily implied”.

If the State President issues a certificate in terms of clause 31, it is provided that before he does so, he must consult the Speaker and the Chairmen of the various Houses. The new constitution makes specific provision for the State President to consult as he sees fit and as he chooses. Does he therefore decide to consult, without consulting the Cabinet? Does the fact that he has to consult the Speaker and the Chairmen of the various Houses, exclude the necessity for him to consult the Cabinet in this regard?

Under the circumstances, it is very clear to me that with a view to clarity, constitutionally speaking, there is only one formulation we can accept, viz. the one moved by the hon. member for Sea Point.

Mr. Chairman, I move the amendment printed in my name on the Order Paper, as follows—

We are of the opinion that the State President ought to consult his Cabinet when appointing the Deputy Ministers who have to assist them.

I should like to make three points with regard to clause 19. In our opinion, this clause has three consequences. Firstly, it places the seal on the establishment of a dictatorship. As a result of the fact that elsewhere in this legislation the State President is empowered to decide what are own affairs and what are general affairs, by saying that the Supreme Court is not permitted to interfere in the exercising of his discretion, because he can appoint and dismiss Ministers as he wishes, and because there is the minimum amount of control over him, it is our contention that this clause, as it is worded at present, places the seal on his dictatorship. It places the seal on his dictatorship because, in effect, he decides, freely and unhindered, on the executive authority. To say that he must consult, is a small gesture on his part, but he need not heed that. That is our first standpoint. He has unlimited powers, and consequently this is nothing but blatant dictatorship.

The second point I want to make, is that we are placing the seal on the establishment of a politically integrated constitutional dispensation, viz. fully-fledged power-sharing, since the Ministers come from all three the Cabinets.

The final point I want to make, is that we are dealing in this clause with a drastic departure from the traditional policy of the NP. There is proof of this, and to meet your requirements, Mr. Chairman, I shall quote only one instance. I am quoting from page 3 of “Vrae en Antwoorde oor die Grondwetplan”, which reads—

That is the NP’s 1977 plan—

It seems to me that they have become the Opposition.

You are talking nonsense.

That is the truth. The hon. member is shouting “nonsense”! Due to the fact that this clause is placing the seal on a dictatorship and on political integration, it is our contention that, in the final instance, it is highlighting the lack of credibility of the NP.

Mr. Chairman, the speech of the hon. member for Jeppe was such blatant politicking, and it was so far removed from the real substance of this clause, that I shall not even deign to react to it. I rather want to discuss those aspects of the clause which really matter with the hon. member for Sea Point and the hon. member Prof. Olivier. Ultimately, what this is all about, is the question of responsibility, viz. who is responsible for executive decisions; where does the responsibility lie and to whom must one be responsible? The gist of the amendment of the hon. member for Sea Point is that he is attempting to place the responsibility for the decision on the Cabinet as a whole, whilst it is his contention that, in fact, it rests primarily with the President, as is stated in the legislation at present. I think that was also the gist of the contribution of the hon. member Prof. Olivier.

I just want to raise a small point, and that is that the hon. member Prof. Olivier misunderstood the hon. member for Randburg. He misunderstood him in the sense that the hon. member for Randburg argued that if one accepted the amendment of the hon. member for Sea Point, the emphasis would be on a majority decision by a body consisting of a certain number of members. This would lead to the tendency to take majority decisions there, whereas what the hon. member for Randburg, in fact, meant was that the existing formulation would lead to less emphasis being placed on majority decisions, with more emphasis on consultation and discussions with one another in order to achieve consensus. That, in fact, is what the hon. member meant.

I did say that.

That is correct. The hon. member for Randburg did say that. However, where does the responsibility really lie, and to whom must one be responsible? When one looks at where the responsibility lies, one must also consider who, in fact, takes that decision. If one wants to know to whom one is responsible, one must see who the body is that can confront that person about his decision. If we look at who is empowered to confront the person about his decision, that power lies with the three Houses of Parliament.

The first person who is going to be confronted, is the President himself, since the President is elected by an electoral college constituted by the three Houses. In turn, he appoints the Ministers. Of course, he can dismiss those Ministers as well. Therefore, the primary responsibility of those Ministers is to the President himself. Of course, this is the case in the present system as well. Whether or not members of the Cabinet are members of Parliament at present, has really got nothing to do with this argument. However, we shall get to that when we discuss that particular clause. What is important, is that the President can appoint or dismiss members of the Cabinet. Therefore, if one considers how a decision functions, it appears that when a member of the Cabinet does not agree with a decision, the President can omit him from the Cabinet. He can therefore dismiss him from the Cabinet, thereby getting rid of him. Therefore it is, in fact, the President who determines what the consensus in that Cabinet is going to be. Consequently, I believe it is fitting that the President be seen as the primus inter pares in this sense. He is therefore the person who carries the primary responsibility.

This compels us to take note of the structure of the idea of joint responsibility, particularly as far as the Cabinet is concerned. There are two meanings one could attach to the joint responsibility of the Cabinet. One of these is the situation in which a decision is taken to which someone objects. Because he knows that he can be omitted from the Cabinet, the person objecting remains silent, so that, apparently, there is consensus in the Cabinet. He complains afterwards, however.

That sounds a lot like Andries Treurnicht.

That is how the joint responsibility of the Cabinet is often interpreted, whilst true joint responsibility functions differently, in the sense that a person would say when he disagrees with a decision. However, because it is a decision made by the body of which he is also a member, he nevertheless declares himself willing to accept joint responsibility for that decision, to accept, bear and defend the consequences as well. This is how true joint responsibility works.

Since we have a Cabinet consisting of the members of one political party in the present system, one finds that it tends to degenerate somewhat in the direction of the former model, the model in which the objector concerned says nothing, although he disagrees. However, he complains afterwards. In contrast, in the new dispensation we are advocating, there will undoubtedly be Ministers in the Cabinet who will not all be members of the same party. The second model will therefore most definitely have to come to the fore. That is the model in which people will disagree with one another and adopt standpoints against one another in the Cabinet, but in which they will ultimately find a way in which matters can be resolved because the spirit of the discussions, as well as of the proceedings will be of such a nature that, although he does not necessarily agree with the decisions, a Minister will nevertheless be prepared to accept responsibility for them. One will then have resolved the whole problem of joint responsibility. Therefore, I maintain that under the new dispensation, the responsibility of the Cabinet will probably come into its own much better than is the case in the present dispensation.

For that reason, as well as that the President is really the key figure in the Cabinet, I believe we should retain the clause as it is worded at present, and not accept the amendment of the hon. member for Sea Point.

Mr. Chairman, I should like to make one or two points arising out of the speeches of hon. members, including that of the hon. member for Durban Point. I have made it quite clear that my amendment is not just a question of terminology. The reason for it is that I want to put beyond all doubt that we are still dealing with a Cabinet system of Government and that we are not dealing with a one-man-President system of government. I believe that there is serious doubt about this aspect. In the clause as it stands there is no doubt that the decision is the decision of the President. All it lays down is that the procedure which he must follow in arriving at his decision must include consultation. Nevertheless it is his decision and not the decision of the Cabinet.

Let us look at the present situation. I do not want to argue or cross swords about the issue of the dominance of the Prime Minister within the Executive Council, within the Cabinet. Various Prime Ministers are more or less dominant. I am looking at the legal position. The legal position is that executive authority lies with the State President, the titular Head of State, acting on the advice of the Executive Council. The Executive Council is defined in section 17 of Act 32 of 1961 as follows—

In other words, our present constitution makes it quite clear that responsibility rests with the Cabinet as a whole. Conventions may come and go. Within the Cabinet structure the Prime Minister may play a leading role or a less important role. He may formulate decisions, but that is a matter of convention and procedure. What is quite clear in law, however, is that the Cabinet is collectively responsible for the advice it gives the State President. We in the PFP do not want to depart from that. We want to have a situation where we still have Cabinet Government and we do not have one-man rule.

Hon. members say that we will still have Cabinet Government because that is the way it will work. An opinion was given on this by the hon. the Minister’s department.

*It could be suggested that the power be vested “in the President on behalf of the Cabinet”. The explanation of the department is as follows: “This expression has the advantage of avoiding any description of what takes place in the Cabinet, but the objection can be raised that it may create the impression that the President acts as an agent of the Cabinet.” They reject that. They say that if one were to use the word “Cabinet”, it might wrongly create the impression that the President acts as an agent of the Cabinet. At the moment that is the case. The Prime Minister may occupy an important position in the Cabinet, but he acts on behalf of the Cabinet. He acts on behalf of the Executive Council. There is no such thing as a Prime Minister advising the President off his own bat. That is Cabinet responsibility. The way a decision is reached, is another matter. It depends on the composition of the Cabinet.

Is that not what the amendment is all about?

We say that the executive authority is vested in the Cabinet. We accept that the State President will play a leading role in the Cabinet. It is, however, the collective responsibility of the Cabinet. The department itself says that this is not the intention of the Bill. They say that that phrase cannot be used because it would create the impression that the President was acting as an agent of the Cabinet. For our part we want to say that in these particular circumstances the President should act as an agent of the Cabinet. The department, however, says that this is not the intention of the new dispensation. So it is not merely a question of the use of words.

But is the State President not part of the Cabinet?

The Bill now says it is the decision of the President. He will act in consultation, but it is his action and his decision. The Cabinet is merely involved in the procedure. The other situation is that the executive acts with the Prime Minister being an important part of the executive. We see in this a fundamental departure from collective Cabinet responsibility in decision-making in favour of the one-man President who merely acts in consultation with people over whom he can exert tremendous influence. That is our first objection.

I want to touch on one or two points raised by the hon. member for Johannesburg West. I want to point out the problems which occur when one tries to roll the function of Head of State and Head of Government into one, as is done in this clause. He said it was a good thing that in clause 19(2) the reference to clauses 16 and 17 was deleted, namely that the President could act on his own when it comes to the determination of own affairs. The effect of removing that is that he is now locked into making a decision in consultation with the Cabinet and not with the Ministers’ Council. What would be preferable would be to have a person who can act and get advice from everybody, but in this instance in determining own affairs the President cannot go to the Ministers’ Council. In terms of this clause this man now has to take the advice of the mixed Cabinet and not the Cabinet which would deal with own affairs. That is a problem.

The second point he mentioned was that some of the powers of the President have been taken away in respect of proroguing, dates of sittings and the dissolution of Parliament. Again this presents a problem. In many ways one does not want the executive President to have those powers because it could be used in a reverse situation. One can well have an executive who tells the President not to summons Parliament because if it is done they might get a vote of no confidence, or Parliament could be told not to have a general election because they could be out of office. Therefore it cuts both ways. If one had an independent President who was not a member of the Executive the very reason for him being there was that he could exercise his mind in an independent way to determine whether the Executive is merely using the procedure of Parliament, or dissolution, in order to bolster their own fortunes or whether they are doing it in the interests of the country. The problem now is that the President is locked into the executive and he is unable to take objective decisions in the interests of the country. He is going to have to take subjective decisions in the interests of the party that has nominated him. This is the problem of trying to roll a traditional Head of State’s position into one of Head of Government. It will run right through this system. By locking these two people into one, one puts more and more power in the hands of the executive and within that executive more and more power is put in the hands of one man, the State President.

Mr. Chairman, I shall avail myself of this opportunity to support my previous argument further. I said earlier that in electing the first State President, we now have the situation that he is not being elected by the true representatives of the White section of our population. Therefore, there will be a stigma attached to the State President, with whom the executive authority lies, in that he was elected in a way in which the most democratic right of the White voter was ignored. [Interjections.] In other words, because a general election will not have been called for, the most democratic right of the White voter will have been ignored. Because this is the case, this will also narrowly affect the other bodies which, together with the State President, constitute the executive authority of the Republic of South Africa. Consequently, the same stigma will be attached to the White members of the Cabinet and the Whites in the White Minister’s Council, due to the fact that the first House of Assembly in the new dispensation will not have obtained a mandate to govern and establish a mixed executive council in a general election, in which the NP will have fought the election on the basis of its new policy of power-sharing. [Interjections.] Therefore we believe that the NP has a serious responsibility not only to hold a referendum …

Order! I want to point out to the hon. member that that argument does not have a bearing on this clause.

With respect, Sir, we are dealing here with the three bodies which constitute the executive authority.

The method of appointing the President and the Cabinet does not have a bearing on this clause.

Sir, may I address you on my standpoint? I am saying that there is a stigma attached to those three bodies. It is correct to say that we are dealing with the executive authority; I have a right to argue that there are defects in the executive authority, in all three those bodies. What better place to say this more specifically than under this clause? In conclusion, I just want to say that the Government also has a responsibility to obtain the necessary mandate by way of a general election after the referendum, so that the composition of this first executive authority will truly be representative of the representatives of the people.

Mr. Chairman, it seems to me as though the hon. members of the CP have found a volume of speeches and they are seeking an opportunity to make use of them. [Interjections.] Yes, I think the hon. member for Mossel Bay hit the nail on the head the other day when he asked where those speeches came from. [Interjections.] The hon. member Mr. Theunissen and the hon. member for Langlaagte made use of them this afternoon. The hon. member for Jeppe made use of them the other day. [Interjections.] I assume that they come from Prof. Booysen.

I should like to make two remarks as regards the arguments of the hon. member for Sea Point. Firstly, I should just like the hon. member for Sea Point to make it clear whether, in fact, he wants to move away from the existing system and the way in which the Cabinet reaches decisions. I should like him to clarify this, since if he says that he does, in fact, want to give the existing system preference, then I would argue that we are still using the correct formulation in clause 19(1)(b).

The hon. member referred to the department’s comment on the possible wording “The President on behalf of the Cabinet.” However, he could also have referred to another alternative the department proposed, viz. the wording as it now stands in clause 19(1)(b), viz.—

The department said that this was a relatively true reflection of the process that takes place in the Cabinet at present. In other words, what we are saying, is that the department itself is making this pronouncement, as it did in respect of the other alternative, viz. that this is the best definition of the existing procedure pursued by the Cabinet. [Interjections.]

However, the question is whether the hon. member for Sea Point should not go back to the previous wording in the original clause, which read “On the advice of the Cabinet”. Is this not closer to what he really wants to say, viz, that the State President should be bound to the decision of the Cabinet and that he should stand apart from the Cabinet? To me, the State President is part of the Cabinet, and, in terms of the existing procedure, he takes decisions in consultation with the Cabinet. The best way to word this clause is as it is worded at present.

Mr. Chairman, I think my colleague effectively dealt with our objection clause 19(1)(a) and (b) and the excessive power that they give the executive President. I want to refer, and I am sorry that the hon. the Minister is not here now, to the second part of this clause, one aspect of this clause which also gives rise to alarm when it comes to dealing with the powers of the executive President. Clause 19(2) is, I think, significant because it does set out some of the exceptions in terms of which the executive President would be free to act on his own and without any of the constraints imposed by clause 19(1). Some of these, as has been indicated by the hon. member for Durban Point, are comparatively innocuous. They relate to the appointment of Ministers and Deputy Ministers and matters of that kind. However, one of these I think touches on a very vital sphere indeed. I certainly would not be able to follow the hon. member for Durban Point where he said that the only matters referred to were those which were set out in clause 19(2). One of these falls into a most important sphere indeed because it touches very directly upon the President’s powers as far as the provincial system in South Africa is concerned. We in these benches see the threat to the provincial system and the powers of provincial councils in South Africa as very much a danger point in these entire constitutional proposals. In clause 19(2) one finds that exceptions are set out—the circumstances in which the State President may act on his own. This includes giving effect to the provisions of clause 98(3)(b). When one refers to clause 98(3)(b) in passing one sees that this in fact is the clause that enables the State President to assign powers that can include provincial ordinances. Clause 98(2) refers to the fact that any ordinance of a province, any power and so forth will remain except when it is assigned to a Minister under subsection (3)(b). Clause 98(3)(b) states—

Therefore, when we look at the exception contained in clause 19(2) we see that it does include the power given to the President to assign matters relating to provincial ordinances and powers presently exercised by the provincial authorities. We believe that this is totally contrary to the interests of the provinces. We believe that this poses the threat of a further emasculation of provincial powers which, of course, is inherent in this entire Constitution Bill and the constitutional proposals. We believe that this is certainly not a power which an executive President should have. We believe that the entire provincial system in South Africa is at stake because of it and thus is a further reason why we will oppose this clause and most certainly clause 19(2).

Mr. Chairman, in the first place I want to refer to the arguments of the hon. member for Brakpan and the hon. member for Jeppe. The hon. member for Brakpan tried, on the basis of a certain correspondence between the former Prime Minister and Rev. Bos-Hoff, to explain the statements which the former Prime Minister made in 1978. I want to say at once that that correspondence explains nothing in respect of what happened in the House of Assembly on 3 April 1978.

If we consider the 1979 legislation there are a few important statements I want to make in that connection. The first statement I want to make—and this also applies to the guidelines as they were explained in 1977—is that there was no difference in the status or the power of the three Prime Ministers. The second statement I want to make is that there was no difference between the status and the power of the respective Ministers of the three groups. In fact, the heading to the relevant chapter in the draft legislation of 1979, namely “Executive Authority”, was removed at the suggestion of the hon. member for Barberton. The third statement I want to make is that no provision existed in the draft legislation of 1979 which provided that Whites should accept sole responsibility for matters of common interest—that White Ministers were therefore responsible for matters of common interest. There was no such provision in that legislation.

That goes without saying.

Why does that go without saying?

The powers were being excluded from the Council of Cabinets.

No, that is not correct. Let us now deal with this statement once and for all. What are the relevant provisions in this connection? I am dealing in the first place with clause 16.

Clause 16?

Yes, clause 16.

But why with clause 16? Come to the clause under discussion instead. After all, I am stopped if I discuss another clause.

The hon. member really does not know what this is all about. [Interjections.]

Order! The hon. the Minister may proceed.

Clause 16 states that there shall be a Council of Cabinets. The clause provides how it is to be constituted. The White Prime Minister and six White Ministers were to serve on that Council of Cabinets. There would also have been a Coloured Prime Minister and three Coloured Ministers serving on the Council of Cabinets. In addition there would have been an Indian Prime Minister and two Indian Ministers serving on it. The Ministers would have been designated by the Prime Ministers of the respective groups. The clause went on to provide that everyone had to make an oath of office. I am now quoting clause 18—

This is extremely interesting. The countersigning is not done by members of the individual Cabinets concerned; the countersigning is done by members of the Council of Cabinets. This is not my legislation nor the legislation of the present hon. Prime Minister; it is legislation under the previous Prime Minister, and let us settle this matter once and for all now.

Was it approved by the caucus?

I shall quote a letter which confirms that in a moment, but then the hon. member for Kuruman must please keep quiet.

Order! I request hon. members to give the hon. the Minister an opportunity to reply.

I come now to clause 19 which empowered the State President to appoint Ministers. I quote—

No mention is made here of State departments for groups, but for the Republic.

It is integration, watch out!

I do not care what it is; these are the facts. If the hon. member for Greytown could keep out of the debate, it would be possible for a meaningful discussion to take place.

It is interesting to take note of clause 19(2)-

The functions are set out in clause 20. Nowhere in this draft Bill is there a provision specifying who should deal with general affairs and who should deal with own affairs on the executive level. On what grounds are hon. members now able to argue that the proposals now before us advocate mixed government while the 1979 Constitution Bill did not? I want to take it further. With reference to the 1977 election and the mapping out of the guidelines in respect of that election for the various functions which the legislative institutions and the executive institutions would have, Mr. Vorster held himself accountable as Prime Minister. I find it deplorable that while we are conducting a debate among ourselves, we constantly find a situation that hon. members ostensibly held conversations with the then Prime Minister without stating now what he said. In that way we are doing the former Prime Minister an injustice.

You know very well what he said.

I know what he said. I maintain the hon. member for Brakpan is trying to circumvent the point by referring to the letter which Mr. Vorster supposedly wrote to Rev. Boshoff.

Not “supposedly”.

I do not have the letter with me, do I? The fact is that the former Prime Minister defined the functions of the Council of Cabinets. He did not do so at the insistence of this side of the House, but at the insistence of the official Opposition.

I asked him.

Yes. The Leader of the Opposition put questions to him.

I was not the leader at the time.

Perhaps the hon. the Leader of the Opposition became leader as a result of those questions.

As far as this matter is concerned, I should like to set the record straight. The former Prime Minister said that the Council of Cabinets would function in the same way as the existing Cabinet. He indicated in detail what those functions would be. He said that they would initiate legislation on matters of common interest. In respect of the implementation of the functions after the laws had been passed, he said that the Council of Cabinets would have that executive function if the existing Cabinet had it. Did the existing Cabinet have executive functions? I put this question to the hon. member for Brakpan: Did the existing Cabinet have executive functions?

The executive function and the executive authority are two different things.

The hon. member has just made an interesting remark. He said that executive authority and executive function were two different things. In other words, he is saying that there is an authority for the executive function, although it is not the executive authority. Then he must describe it to me. Either he must say there is an executive authority, which does not have executive functions, because somewhere one now has a body which has functions, but which is not the executive authority.

In whom is the executive authority vested?

What kind of lunacy are we engaged in now? What other executive authority besides this is contained in the 1979 Bill? I challenge the hon. member for Brakpan to tell me. What executive authority other than this is contained in the 1979 proposals? There is no such thing, and I challenge the hon. member for Brakpan to find a provision in the 1979 legislation which provides that White Ministers will assume responsibility for matters of common interest. I challenge him further to prove to me that they would have had exclusive power in connection with general affairs. That is not stated there.

What did Mr. Vorster say in his letter? I should now like to quote from the speech the hon. member for Brakpan made on 17 May 1983. Let us see whether or not Mr. Vorster’s statements of 3 April are denied in this letter. I maintain that they were not denied. Mr. Vorster said (Hansard, col. 7248)—

Parliament has nothing to do with the Council of Cabinets. We are dealing here with the executive authority as opposed to a legislative authority. [Interjections.] That is a fact. I quote further—

No one argued that. However, it was a pretty mixed-up Council of Cabinets! Let us see what is happening now. In reply to questions of the Opposition on what the implications of the constitutional proposals were, a categorical reply had been given which equated the Council of Cabinets in respect of functions and powers with the existing Cabinet. The hon. the Leader of the Opposition will agree that there is no deviation whatsoever. That is the first point. Point number two is that there is nothing in that legislation which follows on the assurances or the answers given to the hon. the Leader of the Opposition. There is nothing in the legislation which expresses or embodies them. There is no provision whatsoever that Whites alone will be responsible for general affairs. That is not stated in the Bill.

Read “Bangmaakpraatjie No. 5” to us. [Interjections.]

Order! I request hon. members to give the hon. the Minister an opportunity to furnish his reply to their questions.

With leave I shall quote from a letter of the then Minister of the Interior and Immigration. I shall quote the relative paragraphs. First there is a long account of what had happened and then the letter reads as follows—

The motion was introduced on 30 March 1979. It is contained in Hansard, column 3666, of 30 March 1979. In column 3667 the then Minister of the Interior and Immigration said inter alia the following—

This is stated in Hansard. I shall now quote further from the letter—

Which is this one, Mr. Chairman—

You know that it is untrue.

Let us see whether it is untrue.

It is absolutely untrue.

Let us see whether it is untrue.

It is untrue.

Order!

Let us see whether it is untrue.

Just ask the people behind you. [Interjections.]

I do not want to ask anyone behind me; I want to ask someone in front of me.

In front of you and behind you.

No, I only want to ask people in front of me. After all, the hon. members of the CP insist on doubting the word of hon. members on this side of the House.

Yes, of course.

But surely they will not doubt the word of the hon. member for Waterberg; at least I do not think they will. [Interjections.]

They ought not to do so.

What did the hon. member for Waterberg say on February 1982? I think hon. members will find this tremendously interesting.

Oh please, I have already replied to that as well.

No, the hon. member has not already replied to me on that at all. What the hon. member said stands once again in Hansard, and the hon. member can simply go and read for himself what he said. He would be well advised to go and read his own Hansard.

[Inaudible.]

The hon. member for Yeoville must not put questions to the hon. member for Waterberg now. He can also listen for a change. What did the hon. member for Waterberg say? He said the Government’s proposals were sent to the Select Committee through the chief leader of the party in the form of the draft constitution of 1979. What was he therefore saying? If that is not true, he misled the hon. member for Yeoville.

Oh please, Chris, do not talk nonsense. [Interjections.]

No, I am not talking nonsense. In any event, it will not help the hon. member for Waterberg to sit there making interjections now. It would be far better if he participated in these debates himself occasionally; then we could perhaps discover what his standpoints are. [Interjections.] The fact of the matter is that the hon. member for Waterberg said—and it is stated in black and white—that those proposals were the NP’s proposals, the same NP of which he was still a Cabinet Minister in 1982.

Oh no, please, you are doing very badly now. You are talking absolute nonsense.

But then the hon. member ought to understand me. After all, nonsense is all he can understand. [Interjections.]

Mr. Chairman, the hon. members of the CP must not think they can make a noise as a substitute for valid arguments. The hon. member for Waterberg ought to rise to his feet now—that is, if words still have any meaning to him—and tell us what he meant when he said on 3 February 1982 that the proposals of the NP, for which he stood, had been referred by the chief leader of the party to the investigating teams. Surely he did say that.

I have already risen to speak on two occasions, but you did not listen to me.

Mr. Chairman, the problem of the hon. member for Waterberg is precisely what the hon. member for Innesdal stated it to be here. He never says what he means and he never means what he says. [Interjections.] The fact of the matter is that the hon. member for Waterberg, the hon. the Leader of the CP, committed himself on 3 February 1982 to the Constitution Bill of 1979, while it was a reflection—as he in fact himself accepted—of the standpoints of the NP in regard to the 1979 proposals. [Interjections.] Then hon. members of the CP must stop involving other people outside this House in correspondence in order … [Interjections.]

Order! I request hon. members to make no further interjections now until business is suspended for supper. The hon. the Minister may proceed.

I now want to turn to the hon. member for Jeppe. Just listen to what he had to say, Mr. Chairman. He said his objection—and I assume he was speaking on behalf of his party—was fundamentally concerned with the fact that there was now going to be a mixed Government and that it would also be a mixed Cabinet which would function in terms of the relevant clause. Surely this was always the case in regard to the Council of Cabinets. Surely that was always the case since 1977 in regard to the implementation of functions, and if hon. members of the CP …

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

No, I do not want to hear the hon. member’s question. I am replying to his earlier questions. He simply keeps on putting questions, but he does not seem to be interested in my answers. [Interjections.] Mr. Chairman, I am replying to the arguments of the hon. member for Jeppe. I wish he would display a little patience. He said in his objection that the President was going to have unlimited power. I want to know from him on what basis he makes that allegation, particularly after he accepted the Constitution Bill of 1979.

He did not accept it.

Oh, he did not accept it? I am so pleased to hear that, Mr. Chairman. What the hon. member for Lichtenburg is now saying is that the hon. member for Jeppe did not accept the Constitution Bill of 1979. I think that is in fact true.

You do not know what is true.

I think it is true.

No one accepted it.

Order!

Mr. Chairman, I think it is true. However, the hon. member for Lichtenburg lived with that lie until he walked out in 1982. [Interjections.]

Order!

I believe it is true.

What about power-sharing?

Order! I am warning hon. members for the last time now.

Mr. Chairman, let us take note of what the hon. member Mr. Theunissen said, who is shouting so loudly now from the back there. Just look at the untruth he told when he made a contribution a moment ago in this House. He said that in 1977 already there was talk about a division of power among South African Whites, Coloureds and Indians. Surely that is not true. Surely the hon. member knows what the facts were. Surely he knows—forget about the terminology which we used or did not use—that there would be co-responsibility in respect of matters of common interest. Surely the hon. member Mr. Theunissen knows, if he wishes to be conversant with the truth, that this found expression in the proposals which were contained in this Bill. And I am asking the hon. member to do is to at least adhere to what applied at the time. Surely he cannot deny that his leader affixed his signature to the division of power and co-responsibility in the 1981 document. If not his signature was. Then he must stand up and say that that is what happened. What the hon. member Mr. Theunissen was saying was not true. It is not true that the 1977 proposals made provision only for a division of power. I want to tell him that it is not necessary for him to use an untrue argument in order to defend his case today. It is unworthy of him. I can understand other hon. members being able to give an incorrect interpretation, but not that hon. member. He is after all a lawyer. He is therefore better qualified to understand what the meaning of words is.

Nor will it help hon. members to say that the argument has been ridden to death. The fact of the matter is that it is true that the hon. member Mr. Theunissen was in favour of co-responsibility on matters of common interest. He was, Sir. All that he must tell me is why he is no longer in favour of it. Then we understand one another. He has stopped making noises now. [Interjections.] Sir, I am certain you will lift the restriction on him so that he can reply.

Order! I really think the hon. the Minister should also be fair. [Interjections.]

Sir, in view of the restrictions to which the hon. member is subject and which you imposed upon him, may I just ask whether they could be temporarily lifted? Then I am being fair to the hon. member. The fact of the matter is that the hon. member can rise to his feet just now and tell me that he has changed his standpoint in respect of this matter. Let him stand up and say that he has changed his standpoint. The hon. member will receive an opportunity to do so just now. If he tells me that he has not changed his standpoint, then I want to ask him what he was doing under the banner of the NP until February of last year. Then hon. members must not be so sensitive if their loyalty within a party context is questioned because then their actions contradict what they profess.

That is why the debate which we are conducting with hon. members of the CP here is not conducive to improving the legislation. That is not the debate we are conducting with one another. What hon. members of the CP are trying to do is to cloak and disguise their previous standpoints with a lot of words that have no meaning. All the hon. members were guilty of this.

Business suspended at 18h30 and resumed at 20h00.

Evening Sitting

On Friday I promised to give further consideration to the use of the expression “back-stabber”. At the time the expression was used, bearing in mind the circumstances, I was of the opinion that the word was not unparliamentary. After further consideration of the interpretation of the word and after discussions with Mr. Speaker I have, however, come to the conclusion that it is in fact unparliamentary. According to the rule that a matter must be dealt with the moment it arises—I refer hon. members to May, page 441, to Kilpin, page 91, and other authorities in this regard—the relevant matter is however considered closed.

Mr. Chairman, on a point of order: The relevant matter was brought to your attention on the specific day and you gave me and this House an undertaking to give it further attention. In consequence of a prior request that we debate this matter in such a way that we do not make personal attacks on each other, I brought the relevant matter to your attention. I then pointed out to you for a second time that according to my information the word was, in fact, unparliamentary. This is quite clear from the list of unparliamentary expressions, because it has previously been used in a debate, in fact in 1970. It was brought to my attention at that stage that the word was unparliamentary, and I therefore addressed you on this. Since this word was used by the hon. the Prime Minister, who as the leader of the Government must, in a certain sense, set us an example, and since the relevant reference was to the hon. the leader of the CP, I should like to have your ruling on the matter.

Order! I just want to point out to the hon. member that in the ruling I have just given I made it clear that at that stage, with due regard to the circumstances, I was of the opinion that the word was not unparliamentary. I subsequently fully motivated the course of events and gave my ruling, which I consider to be final.

Mr. Chairman, on a point of order: The reason why I address you is because this particular aspect has related to my own behaviour in this House in the past where on a given occasion the Speaker or the Chairman at the time—I cannot remember who it was—had not ruled anything I said to have been unparliamentary. However, two days later—and this has happened on two occasions over the past several years—I was called in and told that something which I had said was in fact unparliamentary and that I had to make a statement in the House to rectify it. I say all members in this House are equal and I believe if anybody has uttered an unparliamentary remark, he should be asked by the Chairman or the Speaker to be allowed to have an opportunity to address the House and to withdraw that remark. I am not in any way trying to cut across party lines, but I believe this is a matter which relates to all hon. members who are equal in this House. Sir, if you have ruled that something is unparliamentary, you have a duty to follow the matter up in the correct manner.

I have listened to the hon. member. My ruling is final.

Mr. Chairman, on a further point of order: May I just ascertain, for the sake of the debates we are still have to conduct, what exactly you meant when you said that you gave that ruling with due regard to the circumstances? [Interjections.]

Order!

Mr. Chairman, on a point of order: You are responsible for the order in this House. I respectfully want to suggest that it is in your discretion to rule that a certain word is unparliamentary in certain circumstances, but not unparliamentary in other circumstances. So much depends on the circumstances and the spirit of the debate at that stage. Sir, you are the person who is responsible for maintaining order, and you maintain it at your discretion. In your discretion you can therefore consider certain words to be unparliamentary under certain circumstances, and parliamentary under different circumstances. You must only ensure that order is maintained, and the same words can be inciting or disruptive to order under certain circumstances, whereas they can have a calming effect under other circumstances.

Order! The hon. member is correct. As I have said, I obtained further information on the matter and also consulted Mr. Speaker before reaching a decision.

Mr. Chairman, on a further point of order: I want to know from you whether the ruling you gave was decided on before we resumed the Committee Stage this evening, or whether you decided on it after having been addressed on the subject a moment ago?

Order! I cannot see what that has to do with this matter.

Mr. Chairman, I shall tell you what it has to do with the matter.

Order! After the hon. member for Rissik had asked me on Friday evening whether I would go into the matter, I undertook to do so. I have now done so. I have now given the Committee my final ruling, and that is what it is, my final ruling. I consider this matter closed.

Mr. Chairman, are you not going to allow a further point of order?

No.

Mr. Chairman, I accept your ruling, but I should just like to ask a question.

No. The matter is closed.

So we cannot even clarify it?

No. The matter is closed. I put the clause.

Mr. Chairman, our major criticism when it comes to the clauses dealing with the executive and the President, is that the Government is making provision here for a dictatorial President. This particular clause is one of the key clauses in our motivation for accusing the Government of setting up a dictatorial Presidency. This constitution is like a house of cards. If you pull out one card the entire house of cards tumbles down. This house of cards is built on, among others, one key principle and that is a dictatorial President. This clause merely highlights this principle once again. In supporting the amendment of the hon. member for Sea Point, I want to concede readily that the hon. the Minister and that side of the House find themselves in a dilemma where even if they agree with our motivation of this particular amendment, they could not accept it because they are locked into this central principle of a dictatorial Presidency. Once you are locked into that principle, you are actually stuck with the wording as presented in the Bill in its present form. It is a critical departure which the Government has embarked upon and which in this clause it embarks upon once again. The critical departure has to be highlighted by comparing the proposed system with the existing system. The hon. member for Randburg and other hon. members on that side of the House suggested that our accusation of a dictatorial Presidency does not stand up. However, we must examine it in the light of this clause. We must examine the powers that are being assigned to this President compared with the powers exercised by the present Prime Minister and in the context of the present system. In the present system everything is synchronized. The power which flows from the people, the electorate, is synchronized all the way through to the Presidency. The people assign power to Parliament, Parliament throws up the executive, the Cabinet, in which executive government is vested, the Prime Minister is a creature of the Cabinet and the President in his turn is merely a creature of the rest of the system. He has no independent discretion. In the present system, as one of the hon. members argued, the Prime Minister can hire and fire as this President can.

The hon. member for Sea Point said so. [Interjections.]

Order!

Mr. Chairman, my argument is that this executive President is going to be more powerful; in fact, he is going to have dictatorial powers. The argument that I discerned from the hon. member for Randburg was that the difference in the exercise of the power was almost insignificant. I argue that it is very significant. The present Prime Minister can hire and fire Cabinet Ministers. [Interjections.]

Hear, hear!

However, there is a critical difference. [Interjections.] Sir, he can also hire and fire Cabinet Ministers on motorbikes! [Interjections.] The difference is that the present Prime Minister is bound by majority support in Parliament. He must assemble a Cabinet that has support in this House and, if he wishes to fire a Cabinet Minister, he must take account of that Cabinet Minister’s power base. He is a man with a seat in this House. He is a man with a following to a greater or lesser extent in this House. He cannot simply hire and fire completely at his own discretion. He has to take account of the realities of political power. [Interjections.] Mr. Chairman, the hon. the Minister is trying not to understand this point. The fact is that when it comes to assembling his Cabinet, the new President will have enormously wider powers. When it comes to exercising the executive government of the country, he is in a very much different position. He becomes the executive authority on the day he is elected President while the Prime Minister only has authority assigned to him for the life of a Parliament. The present Prime Minister has the power assigned to him from day to day in the sense that each day he must command the majority in Parliament. The new President will be released from that obligation. He will be able to appoint Ministers from outside this House. He can appoint Ministers with no power base at all, answerable to nobody but himself. That is a major departure from the present system. In the present system the Presidency, the Prime Minister and the Cabinet all adjust automatically in relation to a change in the political mood. At the moment the Prime Minister is not an independent individual with an independent discretion. Of course he exercises wide influence. [Interjections.]

Order! I am afraid I cannot allow the hon. member to discuss the President and his powers at this stage. That relates to clause 6 and we are now discussing clause 19.

Mr. Chairman, I am focusing on the question of where the executive authority lies. It was argued by the hon. member for Randburg that in respect of the three ways in which the President can exercise his powers, there is no real difference between the present system and the proposed system. I am arguing, however, that there is a very big difference. Let us look at the three categories suggested by the hon. member for Randburg. In the first place, the new President will have entirely independent powers as specified in subsection (3). In the second place, he will be able to take decisions as an individual. Power is being transferred to him as an individual. It is not being transferred to the Cabinet as in terms of our present Constitution. As an individual, he only has to consult some of his colleagues—as many as he sees fit to consult. He does not have to consult the whole Cabinet, which is the case at present. I know that the minutes of Cabinet meetings are not released but it must be a proposition that there have been occasions—it certainly could happen—on which the majority in the Cabinet felt differently from the Prime Minister of the day. That difference of opinion flowing upwards from the caucus of the ruling party and Parliament must make itself felt upon the Prime Minister. He does not have an independent discretion. That whole body as a unit arrives at a consensus. This is an interesting point. The present system creates consensus within the Cabinet because either Ministers go along as a body with the decision, articulated by the Prime Minister or, if the Prime Minister loses their confidence, he must resign. Similarly, if a minority of the Cabinet cannot go along with the decision of the Prime Minister, then they too must resign. There is a forced mechanism for adjustment and consensus within the present system. Whereas the proposed system does not vest that authority in a council or committee in which other people can exercise their minds and their influence, it vests it in a man and that man can consult however many of his colleagues he chooses but he does not even have to take their opinion and he does not have to abide by their views. He can simply take his own decision. Although there is a burden on him to consult and although practicalities would often guide him in the direction of the views that are expressed by the people he consults, there is no obligation on him actually to take that advice.

The methods to get rid of him if one does not like the fact that he is not taking the advice, are very limited as the hon. members know. In this sense there is a profound distinction between government by Cabinet as at present and government by executive presidency as proposed. [Time expired.]

Mr. Chairman, the hon. Minister took up 35 minutes of the Committee’s time to react to what had been said—and he digressed a great deal in doing so.

Are you objecting to that?

I gained the impression that the hon. the Minister was actually addressing himself to his own people in order to convince them of his standpoint, rather than to convince us, because he did not even touch on the questions I put to him and the allegations I made. I told him that the clause, as it reads at present, embodies the creation of a blatant dictatorship, and that is mixed government. He did not reply to that.

The hon. the Minister based his arguments on two premises. The first, which is going to be yanked out from under him, is the following: He harped on the 1979 draft Bill, which everyone who was there knows was not approved by the NP caucus; in other words, the arguments he based on that premise have been yanked out from under him because the 1979 draft Bill was not approved. For that reason it is not a source from which he dare quote authoritatively. What is more: I was one of the members of that caucus, and I subsequently had to say, when people asked me what the NP’s proposals were, that our proposals were along the lines of the 1979 draft Bill, but that we had the undertaking from the NP that we would again discuss that draft Bill in detail, and everyone knows that. To come along now and say this is not the case is merely another link in the long line of broken promises on the part of the NP’s leaders. [Interjections.]

Order!

The second aspect raised by the hon. the Minister concerned the Council of Cabinets. I want to react briefly to this. The hon. the Minister, quaveringly tried to explain to hon. members on his side how Mr. Vorster was alleged to have said this or that. Let us forget for the moment what Mr. Vorster said. [Interjections.] I shall tell you why we should forget for the moment what Mr. Vorster said. I discussed the matter personally with Mr. Vorster … [Interjections.] Now one again hears the clamour one hears from the Third World at the UN.

Order!

Let us, for the purposes of the argument, forget about Mr. Vorster for the moment. Let us forget our reliance on him. Now let me ask the following question: What has more value—the decision of a Prime Minister or what is endorsed by the people at an election? There was a mandate on 30 November 1977. A number of documents were also issued to the electorate by the NP, and what is in those documents is the mandate, and not what Mr. Vorster or anyone else said. What was in those documents? In those documents was stated—and I shall spell this out—that the White Parliament would retain all its powers and authority. I shall quote out. Secondly, a Council of Cabinets containing Coloureds and Indians would not become a super-Cabinet and would not take over the functions of the Cabinet from the Government. The hon. member for Helderkruin said this himself. He said as much in a newspaper article, and I shall quote it if I have the time. He knows that he said that neither a Coloured nor an Indian would ever become a Minister in respect of any general affair.

The hon. the Minister of Internal Affairs “Bangmaakpraatjie No. 5”—said they would never become members of the Cabinet. The hon. the Minister surely knows that. I have it here with me. [Interjections.] I shall read it out. I am reading “Bangmaakpraatjie No. 5” written by the Minister of Internal Affairs—

Order! There is no mention in clause 19 of “bangmaakpraatjies”. In order to be fair, I have allowed the hon. member for Jeppe to react to what the hon. the Minister said, but I think the hon. member should now get back to the clause. I also think that after what the hon. member has just said, we shall consider that part of the debate closed.

Sir, I have said what I wanted to say in this connection.

I now want to discuss the executive authority. Under the present dispensation the executive authority is not vested in an individual, but in Parliament. Mr. Vorster said so. In terms of the 1977 proposals of the NP, the White Parliament would remain the sovereign authority.

I would also like to have had 35 minutes at my disposal to discuss everything I have here with the hon. the Minister and to prove to him, step by step, what the real situation is. It is no use he’s shaking his head. I have the facts, and the hon. the Minister knows it. They are in these election manifestoes. We cannot argue away the fact that the hon. the Prime Minister said that it was not NP policy that there should be a tricameral Parliament.

Order! The hon. member must get back to the clause.

The hon. the Minister has said that there has always been a mixed government. I now want to ask him—he need only nod or shake his head—whether this Bill before us is tantamount to mixed government. The hon. the Minister knows why he does not want to reply. If he replies, he will be in trouble with his opponent for the leadership, the hon. the Minister of Internal Affairs, because he has said that there is no mixed government.

The sooner the NP stops trying to mislead the country and its people by scoring debating points like this, the sooner they will regain a little of their credibility, which in my opinion has been totally destroyed in any case.

Mr. Chairman, I hope you will allow me to refute the untruths the hon. member for Jeppe has again told now about the handling of the 1977 Bill…

Mr. Chairman, on a point of order: May the hon. the Minister of Constitutional Development and Planning tell the hon. member for Brakpan he is lying?

Did the hon. the Minister say that?

Yes, Sir. I withdraw it.

I hope you will allow me to expose the untruths the hon. member for Jeppe has again told now about the handling of the 1977 Bill.

I have already dealt with this matter in full on a previous occasion in the House, and here I am referring to Hansard, 28 April 1982, col. 5524 et seq.

Order! The hon. member must leave it to hon. members to go and look it up.

Mr. Chairman, I am of the opinion that it is in fact relevant because the Committee is now discussing the executive authority in the hands of the State President. When this matter was discussed by the Interior study group at the time …

Order! I cannot allow the hon. member to pursue that argument any further. I have ruled that the hon. member for Jeppe may not pursue the matter further. I am of the opinion that the debate is becoming too general.

Mr. Chairman, with all due respect, what we are discussing here is the powers of the State President. The matter I am now dealing with is specifically concerned with this, and in particular I am referring to the doubts the hon. member for Barberton had at that stage.

Mr. Chairman, on a point of order: I want to suggest in all seriousness that we could save a great deal of this Committee’s time if we were to table the NP’s pamphlets for the past 25 years.

Order! That is not a point of order.

At that stage the hon. member for Barberton had objections …

So far I have not even spoken.

The hon. member for Barberton is sitting there so piously now. Before business was suspended he shouted at me across the floor of this House: “What do you say to that?” I am now replying to that remark. Then the hon. member sits there with a pious face and says he has not spoken.

Order! I think hon. members are digressing far too widely now. We are discussing clause 19 and it deals with the executive authority.

Mr. Chairman, before the CP and their angry opponents talk the clause into another closure motion, I want to come back to a serious point which I believe it is necessary to clarify in this debate, i.e. whether the terminology used in this clause, namely “in consultation with the Ministers who are members of the Cabinet” implies, as the hon. the Minister indicated by way of interjection, joint Cabinet responsibility. I think it is important that that be put on record because of the counter arguments that have been advanced by the official Opposition, namely that there is a different intention in the wording of this clause to that in the wording of the amendment which we believe is a neater and more specific amendment. I should like to know what objection there is to the wording of the amendment which puts it beyond any doubt that the intention is joint responsibility. I would be grateful if the hon. the Minister would clarify that.

Mr. Chairman, I wish to react at once to just two statements by the hon. member for Jeppe. He says that in terms of the 1977 proposals, the executive authority rests with Parliament. [Interjections.] Of course he said that. He keeps contradicting himself. In the second place, he said that this clause would mean that we would have a dictatorship in the country. Just after that he said that it was mixed government. How one can have a dictatorship on the one hand and mixed government on the other, is something only the hon. member for Jeppe would understand. Perhaps he should give us a lecture about it one day.

Now, when we come to the way the hon. member for Sea Point worded his amendment—and I should be obliged if I could have his attention now—it appears that he said that with regard to general affairs, the decision rested with the Cabinet, and the President had to act in accordance with its decisions. What he really wants to say, therefore, is that the President has to act on the advice of his Cabinet. Those words have no other meaning whatsoever. Let us just take another brief look at this.

[Inaudible.]

No, wait a moment. Let us just be serious for a moment. If the amendment of the hon. member for Sea Point were to be accepted, the President would have to abide by the decision of the majority in the Cabinet. That is a necessary inference.

That was the original wording.

Yes, precisely. Therefore, the hon. member for Sea Point is now trying to have the wording that we argued against, re-inserted in the clause by way of his amendment. [Interjections.]

Order! Did the hon. member for Langlaagte say that an hon. member on the Government side was a “vis-kop” (fishhead)?

Yes, Mr. Chairman.

Order! The hon. member must withdraw that word.

But, Mr. Chairman, he was opening and closing his mouth just like a fish out of water. [Interjections.]

Order! The hon. member must withdraw the word unconditionally.

I withdraw it, Mr. Chairman.

The hon. the Minister may proceed.

Mr. Chairman, you will no doubt permit me to make the remark that I am not prepared to insult a fish by comparing it to the hon. member for Langlaagte. [Interjections.]

Order!

Rather forget about the fishes, Chris. That is John Wiley’s indaba.

Mr. Chairman, the wording of the amendment of the hon. member for Sea Point, as correctly defined, means only one thing, and that is that the clause as originally worded could have remained unaltered and that the President would therefore have to act on the advice of the rest of his Cabinet. Therefore I believe that the hon. member for Sea Point would concede that the argument of the hon. member for Durban Point is a reasonable one. We all agreed in the Select Committee as to what we wanted to achieve and at that stage, as the hon. member for Durban Point rightly remarked, we searched for the best wording or terminology to express it. Now, however, the hon. member for Sea Point is arguing that this is no longer a question of terminology but one of principle. In passing, the hon. member for Sea Point makes some important statements.

In the first place, he says that in fact this wording is the wording—and in this he is supported by the hon. member for Berea—whereby the dictatorship is created; whereby these so-called wide-ranging powers of the President are in fact laid down. I should like to enter into a debate with the hon. member in this regard. He states that in terms of this clause, we are now going to have this powerful President who, in fact, will have absolute and—to use his words—unhealthy powers. Those are the words he used.

[Inaudible]

I am now replying to the arguments advanced by the hon. member for Sea Point. The hon. member for Constantia would do well to listen sometimes when other people are speaking. [Interjections.]

Order!

Then the hon. member for Sea Point goes on to argue—this is part from the exclusive dictatorial powers that according to him the President will obtain—that the wording of the clause still detracts from the collective responsibility of the members of the Cabinet. I believe the hon. member will agree with me when I say that my inference is, I think, a correct one. I should like to argue with him about that. I contend that his argument is invalid. The fact remains that in my opinion the hon. member’s argument is invalid, because his perception of collective responsibility and of how decision-making takes place in order to create and ensure that collective responsibility, is quite wrong. For that reason, too, I should like to discuss this with him.

Then, too, the hon. member goes on to speak about the absolute powers of the President. Therefore, the hon. member for Sea Point is contending that in terms of this clause the powers of the President in the future dispensation will be wider than those of the President in the existing dispensation. That was his first statement. I want to say at once that in terms of this Bill, the President in the new dispensation will have more powers than the present President. We need not argue with one another about that. Secondly, I think that the hon. member will concede that we cannot compare the powers of the President in the new dispensation for which this Bill makes provision, with the powers of the President under the present dispensation.

[Inaudible]

The hon. member must just give me a chance. The hon. member uttered certain words and all I am doing is arguing on the basis of his precise words. If he meant it differently, then his intention was not expressed in his words. In all fairness, I am attempting to state this matter clearly for the sake of the record.

The hon. member for Sea Point knows that the position of the existing President is not comparable with that of the President under the new dispensation in terms of this Bill. With that, too, he will agree. In the new dispensation the posts are being combined and united in the same office. It would be a more correct comparison to weigh up the position of the President and the Prime Minister under the present dispensation as against the position of the President under the new dispensation. Under the proposed dispensation the President also acquires the powers of the Prime Minister under the present dispensation. Surely this is clear, because the posts are being combined. The hon. member and his party still have to indicate in what respect the powers of the new State President extend further than the powers of the two existing offices or posts which are being united in one post. In fact, that is all that is relevant when we argue with one another about this.

The hon. member ascribes the stronger position of the new President to the fact that, firstly, he can appoint Ministers without portfolio—that was one of his arguments—secondly, there is no limitation on the number of Ministers he may appoint and, thirdly, Ministers need not be members of Parliament. Basically, these are the three statements to which the hon. member for Sea Point links his inferences.

Nor is there a responsibility towards the majority in Parliament.

I am still coming to that. The hon. member must just give me a chance. I am just following up the hon. member’s argument.

Just like other hon. members, the hon. member argues that it will be the rule that Ministers need not be members of the Houses, whereas it is quite clear that the Government has adopted the standpoint that the rule will be that Ministers ought indeed to be members of Houses, although this does not exclude the possibility that there may also be Ministers from outside. I think the hon. member will concede that there is a fundamental difference in approach in this regard. I contend that these arguments advanced by the hon. member are totally lacking in clarity. How this altered arrangement gives the President far more substantive powers is something I simply cannot understand. Here I am referring again to the powers that are combined in the same post.

The hon. member goes on to allege that in contrast to the previous situation, the President will now be able to act alone; he can now hire and fire at will. Let me say here and now that I do not believe that it is the idea—nor does the Bill reflect this—that the State President will act differently in the Cabinet to the present hon. Prime Minister. I should like to repeat that: There is nothing in the Bill to indicate that the State President in the new dispensation will act in a different way to the Prime Minister in the present dispensation. Nor do the words “in consultation with” do not mean that. As the hon. member for Johannesburg West said in the course of the debate today, we sought an ideal formulation to describe the existing position—there the hon. member for Durban Point was correct. If the hon. member thinks that these words mean that the State President will act alone, it also means that the Prime Minister acts alone at present. Surely that is not true. Does the hon. member contend that the Prime Minister acts alone at present? Honestly, that is not the case. I want to go further. I content that the hon. member’s amendment is in fact meaningless, because the State President himself formulates the Cabinet’s decisions, as is the case now. The moment the Cabinet takes decisions the Prime Minister formulates the Cabinet’s decisions. My problem—I admit here and now that it is a real problem—is that hon. members opposite, and particularly hon. members of the PFP, do not know how a Cabinet functions.

That is because at present the Cabinet consists of only one party.

That hon. member does not even know how his own party functions. How would he know how a Cabinet functions? And the hon. member’s prospects of ever finding out are meagre.

I am a great deal younger than you are; do not worry

That is true. I had thought that an hon. member who was younger than I would be prepared to learn, as I did when I was as young as the hon. member. The hon. member is not even prepared to do that.

In the second instance, what this amounts to is that the State President has to act on the advice of the other members of the Cabinet. There are no other differences. Either he formulates, or he acts on their advice. That is the present position. That, in all humility, is what is also intended by the proposals as contained in the Bill.

The hon. member goes on, in this particular regard, to argue about collective responsibility. What is the position at present? I think it would be as well to argue from that point of view. The hon. member contends that at present the wording in the clause excludes the joint or collective responsibility of members of the Cabinet. The present position is that every member of the Cabinet is responsible for, firstly, the decisions of the Cabinet. In this regard I am referring to when they sit together as a Cabinet. Secondly, each one is responsible for the decisions of every other individual member of the Cabinet taken with regard to matters falling with his jurisdiction, as well as the ultra vires actions of another member of the Cabinet of which the Cabinet member concerned was aware. That is the present position.

What is the new position in terms of the clause we are now discussing? No changes whatsoever are being effected to this concept of collective responsibility. The Ministers who are members of the Cabinet are closer to the actual position in regard to collective responsibility than in terms of the wording of the existing constitution. That wording specifies that the collective responsibility also applies to decisions taken by the State President in consultation with each Minister, as long as it falls within his jurisdiction. With all due respect, how the hon. member can argue that this provision does violence to the concept of collective responsibility, only he would know. I contend that the basic error of logic committed by the hon. member for Sea Point in this regard is that he thinks that all decisions made by the executive in the Cabinet are made at a Cabinet meeting. The fact is that is what his motion amounts to. If the hon. member wants to propose that he himself must make his decisions, then he must listen and consider his own wording. He said: “the Cabinet, in terms of whose decisions …”. Surely words have meaning. All those words imply is that all decisions are taken in the Cabinet itself. Surely that is not the situation today. Every Minister takes dozens of decisions every day in terms of the powers vested in him and for which every other Minister accepts responsibility, although they never come to their notice. Only those decisions which, in his opinion, ought to be taken by the Cabinet itself are placed by a Minister on the Cabinet agenda. That is how matters are arranged in practice. The Minister is no less collectively responsible for these decisions than for the others. However, there is the qualification that they fall within their area of jurisdiction. I should like to conclude if I can. The words “in consultation with” do not change this situation in the slightest. They merely put into words the relationship which exists at present between the Prime Minister and the other Ministers. Therefore the collective responsibility of the State President and his Ministers remains exactly the same as that of the Prime Minister and his Ministers at present. Accordingly I wish to state here and now that I am unable to accept the amendment of the hon. member.

I want to go further in this particular regard. Further to the standpoint I have expressed, viz. that the decisions of a single Minister bind the other Ministers as well, I wish to say the following: At present, an individual Minister can advise the State President, in regard to a matter that falls within his jurisdiction, to sign executive minutes. The Minister does so on his own. The rest of the Cabinet are not even aware of it. In spite of this, collective responsibility continues to apply. On the other hand, the hon. member for Sea Point argues that it can only apply if the Cabinet acts as a unit, and that I am therefore arguing on a completely incorrect basis. It is for that reason that this motion is unacceptable. I have now at the same time replied to the hon. members for Berea and Constantia.

Mr. Chairman, I stand up simply to ask the hon. the Minister a question, because he has not answered my question. What he has said is that if one takes the powers given to the State President in the new dispensation these are no greater than the powers or combination of powers of the Prime Minister and the President in the existing dispensation. I want to ask the hon. the Minister, in relation to the point I raised earlier this afternoon, whether there is any individual at the present time who has the authority to take over powers and rights or to assign powers of a provincial council such as are given in this Bill in terms of clause 98(3) which is referred to in this amendment. Is there anybody in the existing dispensation who has that single power, who can take over provincial powers and assign them to somebody else?

Mr. Chairman, I listened very attentively to the hon. the Minister’s reply. I should like to know from the hon. the Minister whether he does not perhaps want to regale this House with his standpoint on and view of collective responsibility of the Cabinet as we had it in the old system in South Africa. I should like to know whether it will be more or less the same and whether a different interpretation can be attached to the collective responsibility of the Cabinet in the new system.

Mr. Chairman, just before the hon. the Minister rises I wish to ask one question with reference to the argument he has just advanced in the course of his speech. In his discourse on joint Cabinet responsibility and the method of Cabinet decision-making, is the hon. the Minister intimating that in accordance with the present usage and convention which is, to a degree, embodied in the present constitutional situation, the State President acts on the advice of the Executive Council and that in those circumstances the advice of the Executive Council can amount to anything other than a joint Cabinet decision? Will the hon. the Minister please just make this clear to us? For example, will this amount to the decision of an individual Minister or is it necessarily, in those circumstances, the joint decision of the Cabinet?

Mr. Chairman, I accept the argument of the hon. the Minister that not all decisions will be made at formal Cabinet meetings. I also realize that to make this obligatory, as proposed in the amendment moved by the hon. member for Sea Point, may create unnecessary problems. What I am actually getting at is the principle. I want to ask the hon. the Minister whether he would not be prepared to accept an alternative amendment which would place the purport of the provision beyond all doubt. That is what I should like to have. I want the purport to be placed beyond all doubt so as to prevent the idea being touted that the President is going to act as a dictator in that he would intimate that he has met his obligations by means of a telephone call or an instruction to an individual Minister.

Perhaps the hon. the Minister would consider an amendment to insert the words “with collective responsibility” after the word “acting”. This would place the matter beyond all doubt. It would meet the definition which the hon. the Minister himself gave to the effect that there were different types of collective responsibility. I say that this would meet the definition of the hon. the Minister and it would place the position beyond all doubt. I also believe that it would eliminate any possible mispresentations of the provisions of this clause that is in effect taking place at the moment. [Interjections.]

By other Opposition parties.

Yes, by other Opposition parties. I want therefore at this stage to move the amendment, as follows—

As I have said, I think that this amendment will solve the problem and put the matter beyond all doubt.

Mr. Chairman, the hon. member for Durban Berea has repeatedly made the point he made earlier this afternoon, and I should like to reply to him on that. The hon. member has difficulties with clause 98(3)(b). It refers to a case in which the State President need not act in consultation with the Cabinet. I think that is the point he really wanted to make. He sees in this, in the first instance, a threat to the provinces and their powers. I should be obliged if the hon. member would just look at the clause while I am replying to his question. He will see that clause 98(3)(a) deals with decisions relating to how own and general affairs will be dealt with at provincial level. This is done in consultation with the Cabinet. In the first instance, therefore, as far as those decisions are concerned, there is collective responsibility with members of the Cabinet in terms of clause 98(3)(a). Now the hon. member for Sea Point is sitting there shaking his head like a fish lying in shallow water. [Interjections.] In all fairness, I ask hon. members to give me the opportunity now to state my case. I want to repeat that. In terms of clause 98(3)(a) …

Mr. Chairman, on a point of order: Is the hon. the Minister entitled to refer to the hon. member for Sea Point as “’n vis in vlakwater” (“a fish in shallow water”)?

I really did not say that the hon. member for Sea Point was a fish. I said he was like one, but if you are of opinion that I should not say that…

The hon. the Minister should rather not say that.

Then, Sir, I do not say it.

I want to repeat…

But what about 98(3)(b)?

I am dealing with 98(3)(a) first and after that I shall deal with 98(3)(b).

Order! I am permitting the hon. the Minister to discuss clause 98 while clause 19 is under consideration. However, the hon. member asked a question and I hope that the hon. the Minister will reply to it as briefly as possible.

Sir, I shall do so, but reference is made to clause 98 in clause 19. That is why the hon. member for Berea asked a question and I am now assisting him.

The hon. the Minister may proceed.

I shall start again. In terms of clause 98(3)(a)—which deals with how own and general affairs will be dealt with at provincial level. Does the hon. member agree with that? This must be done in consultation with the Cabinet.

I now come to the other paragraph which the hon. member is so eager for me to deal with. Clause 98(3)(b) merely makes provision—the hon. member must please listen—for those matters, after it has been decided that certain matters are to be transferred to the central level—this decision, too, will be made in consultation with the Cabinet in accordance with clause 98(2)(b)—to be, in the nature of the matter, assigned to a specific Minister.

But that is clause 98(3)(b).

Yes, that is clause 98(3)(b). It was merely a slip of the tongue. The assignment of a matter to a specific Minister in terms of clauses 24, 25 and 26 are also singled out in terms of clause 19(2) as cases in regard to which the State President need not act in consultation with the Cabinet. Moreover, I wish to say that I intend, in any event, to move an amendment in regard to the making of decisions by the State President in respect of functions in this regard and with a view to implementation of clause 98, which will make consultation with the administrators of the provinces necessary. That would bring that clause into line with the guidelines announced by the Government in this regard.

However, this still does not detract from the point I am trying to make, viz. that as far as the powers are concerned, and as far as the responsibility is concerned, there is no difference between the existing situation and the future situation.

Who has this power now?

At present there is no such power. The powers reserved for the President in clause 98 …

That is a greater power than exists at present.

It is not a greater power; it is a new power. With all due respect, there is no such power at the moment. [Interjections.] I am prepared to debate that clause with the hon. member when we get to it, but the clause does not give the State President legislative powers. The State President cannot make new laws. He can only make certain laws applicable to a specific person who performs a new function. The hon. member knows that. I shall debate that provisions with the hon. member when we get to that. I should very much like to do so. The hon. member for Rissik may now put his question.

Mr. Chairman, I should very much like to know what the hon. the Minister’s view is in regard to collective responsibility under the existing system within the Cabinet and, arising out of that, how he sees collective responsibility in the new dispensation proposed by the Government in comparison with the existing situation.

The concept of collective responsibility in the new dispensation is absolutely identical to the present situation. I said that a moment ago, but I want to repeat it because I should like to reply in detail to the question by the hon. member for Rissik. When does collective responsibility exist—that is, in fact, what he is asking—and to what extent will it be analogous in to the situation the new dispensation? The existing position with regard to collective responsibility is the following: It means that every member of the Cabinet is, firstly, responsible for the decision taken at a Cabinet meeting. The hon. member agrees with that. In the second place he is responsible for every decision taken by another member of the Cabinet that falls within the area of jurisdiction of the specific Cabinet member. Those powers are often specified by Statute. In the third place he is responsible—the hon. member must listen carefully now—for the ultra vires action of another member of the Cabinet of which he was aware. In other words, he is responsible, together with his colleagues, for the decisions they make together. He is also responsible for the decisions taken by colleagues within the limits of their powers. Then, too, he is responsible for the decisions taken by a colleague that exceed the limits of his area of jurisdiction and of which he was aware. In the new dispensation that situation does not change at all.

Mr. Chairman, gradually we are managing to squeeze, like one squeezes toothpaste from a tube, from the hon. the Minister what we want to know about the total powers which the State President is going to exercise. The hon. the Minister says that it is not going to be as it was before. He says that what is going to happen is that he will have the powers of the Prime Minister and the State President rolled into one. That is an understatement. The hon. member for Randburg says that he is going to have three powers, namely powers in relation to the Ministers’ Council, powers in relation to the Cabinet and powers in relation to prerogative which he always had before.

I do not disagree with that.

The hon. the Minister also told the hon. member for Berea that he is now going to have powers in relation to provincial councils which he did not have before. He is going to have powers in relation to determining own affairs which he did not have before. He is going to have power to certify Bills which he did not have before. He is going to have power to veto Bills which he did not have before. He is going to have powers to refer matters to the President’s Council which he did not have before. He is going to have almost unlimited powers in respect of the appointment of Cabinet Ministers which he did not have before. He is going to have the power not to be responsible to Parliament as a whole. He can continue to govern as long as he has about 30% of the votes and they are correctly distributed. Even if 70% of the members of Parliament vote him down, he can continue to govern. When one puts all the clauses together one can see that this man is going to be almost crudely powerful. I think it is a frightening situation.

The hon. the Minister says that he is only going to be the State President and the Prime Minister rolled into one. He would like it, would he not, if the hon. member for Waterberg was the State President, fighting for the CP in an election but carrying on to be the head of State during the election period. Would the hon. the Minister love to pay respects to the head of the State while he was fighting an election? There is an aggregation of power around the State President which is unhealthy for any society, let alone our South African society. It is not the kind of aggregation that is going to lead to consensus. It is going to lead to the abuse of power. The hon. the Minister must concede this.

I want to come back to the key element of this matter. I do not know why the hon. the Minister does not say that it is different even in respect of the Cabinet. He says it is merely a matter of terminology. It is not.

I did not say that.

It was the hon. member for Durban Point who said it.

Well, the hon. member for Durban Point is on your side. How can I tell the difference on a matter like this? I am glad to hear that the hon. the Minister is now saying by way of interjection that the new Cabinet relationship of power will not be the same as the old one.

I did not say that.

I thought you said it was the hon. member for Durban Point who said it and not you. [Interjections.] I want to make it quite clear that in terms of the present legal position in South Africa the executive power is vested in the State President acting on the advice of the Executive Council, and the executive Council is defined as the members who head departments of State, not exceeding 20 in number; in other words, there is a collective responsibility on the Cabinet Ministers to advise somebody to act. It is a collective responsibility. Within that framework let me concede that conventions may determine how decisions are made. Conventions may determine the relative importance of the Prime Minister vis-à-vis his Cabinet Ministers, but in a judicial sense it is the Cabinet that is responsible. That is the law of South Africa today. It is the Executive Council which is responsible.

When you refer to the law of South Africa is it statutory law?

Yes, the Executive Council shall consist of the Ministers appointed under section 20 for the time being holding office. The executive government in regard to any aspect of domestic or foreign policy is vested in the State President acting on the advice of the Executive Council. One cannot act other than on the advice of the Executive Council. The hon. the Prime Minister may be the “woordvoerder”, but in fact he is the agent for the Executive Council. That is the statutory position in South Africa today. What is the new situation going to be? The decision and the action is in the hands of the State President. All he is required to do—he makes the decision—is that he must make it in consultation with the Ministers of the Cabinet. I want to ask what “consultation” means. The hon. the Minister says that it is the same as collective decision-making.

It is not true.

Is it so?

No.

It cannot be.

If it is, why raise all the problems as to how one comes to decisions? There have always been problems as to how one comes to decisions. In fact convention determines how one comes to a decision in circumstances like this. We have checked this. Consultation does not mean collective responsibility. Various learned people have expressed themselves on this. Mr. John B. Saunders, in his second edition of Words and Phrases Legally Defined states—

In this case to the local authority—

In other words, the Prime Minister must give his members sufficient information so that they can tender advice and they must be given sufficient time to tender advice. However, in the end it is not they; it is the President who makes the decision. This is what we are getting at. It is one man who makes the decision. Let me take another example. A Dictionary of Legal Words and Phrases, compiled by C. J. Claassen, under the heading of “consultation” states—

This is not the PFP stating this. These are learned people who have analysed the meaning of the word consultation. It means to state your case and to give the opportunity to other people to state their case. However, in the end the decision rests with the President. This is our complaint. We are moving away from collective Cabinet responsibility towards rule by one man. To the extent that he has to adopt a procedure of obtaining advice, he is getting advice from people whom he can hire and fire. What is the value of that advice? He does not have to get advice from people who are responsible to Parliament. We say this time and time again. The memorandum from the department made it quite clear that we are departing from the convention that the Cabinet is responsible to the majority of Parliament to a situation where the Cabinet is appointed on merit and is not responsible to the majority of Parliament. We are departing from the convention that the Prime Minister is the agent of the Cabinet to a situation where he is not the agent of the Cabinet. The hon. the Minister raises his eyebrows. The memorandum states that if one uses the words “die President names die Kabinet”, then “dit kan as ’n beswaar geopper word of moontlik die indruk skep dat die President as die agent van die Kabinet sal optree”. We hold that the President should act as the agent of the Cabinet. The hon. the Minister says the President must act in his own right, but must take the advice of the members of the Cabinet and consult with them. This is a totally new departure from the present system. It would be bad enough if he were to take that responsibility together with his colleagues, and if they in turn were responsible to the majority party in Parliament. In this new constitutional system, however, they will not be responsible to the majority party in Parliament. That means that we have here a situation in which the new State President, apart from the seven or eight other powers, which I mentioned at the beginning of my speech, will be the sole decision maker. It is justiciable in respect of whether or not he has acted in terms of this constitution. In his Cabinet he may not have only members belonging to the NP. He may also have there a member of the Coloured majority party, or the Indian majority party.

I want to point out too that the hon. the Minister is going to run into trouble from a legal point of view. This clause states the President must act in consultation with the Cabinet, and I should like to know what happens when he takes a decision which is not taken in consultation with the Cabinet or which does not have the agreement of all the members of his Cabinet. I believe the hon. the Minister should admit that we are departing from the tried and tested system of government by a Cabinet responsible to the Parliament of South Africa. We are moving into the field of government by a one-man President responsible only to one minority party in South Africa.

Mr. Chairman, it was very interesting to note that the hon. member for Sea Point did not address the Government side. He was addressing hon. members to his left. It must really have felt very strange to him to address people to the left of him, because normally he stands to the left of everyone else. [Interjections.]

[Inaudible.]

No, wait a minute. Mr. Chairman, let us take note of the words used by the hon. member for Sea Point. I just wish to refer to them very briefly; having done so, I shall be finished with him for the rest of this debate. He says that the Prime Minister must be an agent of the Cabinet. An agent, Mr. Chairman. Surely an agent and his principle have a specific relationship. If, therefore, the agent carries out the instructions of his principle, then he does not have joint responsibility together with his principle. On the one hand the hon. member is therefore arguing in favour of joint responsibility. However, immediately after that he says that the relationship he is seeking is not a relationship of collective responsibility, not a relationship of joint responsibility, but a relationship in which one person issues instructions to someone else, who is thus the agent of the former. Surely, then he is making nonsense of his own argument.

[Inaudible.]

No, the hon. member must not try to interrupt me. After all, I listened to him. The hon. member must please choose his words with care, and then come and tell us what he wants. Either he wants the concept of collective responsibility in which the President makes decisions together with the rest of the Cabinet, or he wants a … [Interjections.]

Order!

But he himself is also a member of the Cabinet.

Order! The hon. member for Sea Point must now please give the hon. the Minister the opportunity to reply to his arguments.

Mr. Chairman, the hon. member for Sea Point has just spoken. Why did he sit down if he still has so much to say? On the one hand the hon. member may want the President to be the agent of the Cabinet in the new dispensation, but he cannot want both. If he wants the latter, and that is how he puts it in his amendment—and I believe that in fact, that is what he really wants to say—then he is totally destroying the aspect of collective responsibility. [Interjections.]

Order! Hon. members must now please give the hon. the Minister the opportunity to reply to their arguments. The hon. member for Greytown must please comply with my request.

In fact, the hon. member for Sea Point has now told us what his true purpose is in moving his amendment. What he really has in mind in moving his amendment, is to restore the President as nominal head. That is what he wants. He does not want an executive President. That is really what he does not want. In veiled fashion he is trying to bring about that result by way of this amendment. If the President occupies an executive post and is also a member of the Cabinet, then either he bears the responsibility together with the rest of the Cabinet, or else he is an agent of the Cabinet and does not bear joint responsibility, but merely carries out instructions he receives from the Cabinet. That is not acceptable to us in the new dispensation.

I also wish to put it to the hon. member that as he ought to know, it is really extremely unfair to argue about what the concept “in consultation with” means, and to advance that argument in isolation. Surely the term “in consultation with” has a meaning within the context of a specific wording such as this.

[Inaudible.]

Oh really, Mr. Chairman, the hon. member for Green Point really must not expect me to conduct a debate with him on legal implications. That he really must not do. [Interjections.] No, I am simply not going to do so. The fact is—and this is my final answer in this regard—that the hon. member for Sea Point was mistaken in his inference that there is no joint responsibility. He is mistaken in his inference that we are dealing here with a one-man dictatorship, that rules. In answer to his general statement I wish to react by saying that the cross-checks on the President in this concept are far more extensive than is the position at the moment with regard to both the President and the Prime Minister.

Mr. Chairman, the hon. the Minister sounds more plaintive and unsure of his case on this clause than on most of the other clauses to which he has replied. The hon. the Minister has not replied to the hon. member for Sea Point who pointed out a series of tremendous new powers which have been allocated to the President and which support the case that the President will be a man with dictatorial powers. The hon. the Minister simply has not met those points.

The point I want to focus on is that one of the new powers which have been assigned to the executive President is a critical one which has far-reaching implications. It is set out in the Bill that the President will be able to act on his own authority entirely, without consultation with anyone …

Order! I have the impression that the hon. member is repeating an argument that has already been advanced.

No, Sir, I want to ask the hon. the Minister a very important question.

I shall allow the hon. member to ask his question, but he must please not take that argument any further.

Mr. Chairman, what I should like to know from the hon. the Minister—this refers to clause 98(3)(b), which, if I understand it correctly … [interjections.]

Order!

As I understand it, in terms of the power that is given to the President in clause 98(3)(b), he could take a provincial matter and declare it an own affair. Let us take a specific example. As I understand it, he can say that the beaches of Natal are an own affair and he can then assign certain sections of the beaches of Natal to the Indian House, other sections to the White House and other sections again to the Coloured House. That would be a brand new and major power in terms of this Bill. One can go through a variety of provincial matters in this way as I understand it. He could look at the roads of the province.

But there is a law that controls that.

He could declare the roads which fall under the provincial roads department to be own affairs for different population groups and have portions reallocated. He could look at hospitals. He could say certain provincial hospitals are own affairs. In terms of this clause they could then be assigned to a particular House. In this way one can go through the entire provincial spectrum of authority. In terms of this clause the new President can, entirely on his own initiative and without any consultation with anybody, dismantle provincial government and re-apportion it to other departments of State.

Order! That argument has been used again and again.

Mr. Chairman, there is a point I should like to meet. The party of the hon. member for Durban Point in the last election used the slogan “Stay free, Vote NRP”.

Order! The hon. member must now come back to the clause and introduce new arguments.

Sir, the hon. members of the NRP have tried to suggest that the extra powers the President is getting are minimal and that there is nothing to worry about. I suggest that in terms of the power this clause gives the President he will be able to dismantle provincial government. The last power base of the NRP is the Natal Provincial Administration. That party fought an election with that slogan and they are now lying down and allowing this new constitution to take away the last power base available to them. They are absolutely craven.

Order! The hon.

member must abide by my ruling and come back to the clause.

I should like to direct a question to the hon. the Minister. Can he mention any existing power of provincial government which, in terms of this clause, the President cannot take over and declare to be an own affair? If the hon. the Minister would clear that up, we will know where we stand as regards the question of the relationship between the President and provincial government.

Mr. Chairman, perhaps I owe the hon. the Minister an apology in respect of something which happened earlier this evening. I saw him talking to the hon. Chief Whip of the NP and I was under the impression that he was instructing him to close the debate. I accept his explanation and I apologize to him.

Now that the dust has settled a little, however, we ought to extract a few admissions from one another. The first admission we ought to make to one another is that in terms of clause 19 we shall be dealing with a coalition Cabinet. When the question of collective accountability is consequently being argued, the fact that one is dealing with a coalition Cabinet should always be taken into account. That is why it is very important also to take into account that in such a circumstance the State President has an even greater responsibility.

What precisely do you mean by a coalition Cabinet?

In the first place, one has a normal coalition Cabinet as in a case where we cannot reach an agreement in this House of Assembly and a coalition Cabinet is formed to take over the Government. In the new dispensation, however, we have a coalition Cabinet comprising various ethnic groups. One must constantly accommodate the various ethnic groups, and this is a tremendous burden which is placed on the State President. It is also a burden which he can use incorrectly. That is why I think it is correct to say that there should be as much control as possible over the State President.

The hon. the Minister criticized my hon. colleague from Jeppe by way of a debating point because he said that the executive authority was vested in the House of Assembly. It was very clear that what he meant was that the sovereign power was normally vested in the House of Assembly and that the executive authority was derived from the legislative authority and that the executive authority was accountable to the people. Consequently members of the House of Assembly and members of the Cabinet are accountable to the people for their actions.

Could we not rather use the word “voter”?

Very well, we can use the word “voter”.

Since we are debating in a calmer atmosphere now, I think it is desirable that we should come back to one point. I should like the hon. the Minister to admit that when this Bill was referred to the Select Committee in 1979, there was no finality in respect of the measure in the NP caucus.

Order! I have already ruled that that matter has been disposed of. Therefore I cannot allow the hon. member to debate this matter any further.

Arising out of the argument that we have a coalition Cabinet comprising various ethnic groups here, I wish to make the final point that one should also take into account that the Prohibition of Political Interference Act is still there and that it is going to complicate even further the problems which the State President has in connection with these powers of his.

Mr. Chairman, I want to say at once that the amendment of the hon. member for Sea Point is not acceptable. The amendment of the hon. member for Jeppe is not acceptable either. I shall come to the hon. member for Durban Point in a moment.

First I want to reply very quickly to the hon. member for Brakpan. He said we now have a coalition Cabinet.

It is no longer an argument now.

I am not dealing with the hon. member for Lichtenburg now. The responsibility of the hon. member for Lichtenburg is greater than the responsibility of the hon. member for Brakpan, because the hon. member for Lichtenburg was a member of the Cabinet at the time, which the hon. member for Brakpan was not, and the punishment of those who were in the know is usually heavier than that of those who were not. [Interjections.] The hon. member for Lichtenburg should rather not enter this debate, except when he rises to speak, for then we can debate matters with one another.

Do not make threats.

I am not threatening anyone. [Interjections.]

Yes, you are.

Order!

Mr. Chairman, the face of the hon. member for Jeppe is more descriptive of what it looks like than any words I can find to describe it.

Koos Boks! [Interjections.]

Order! The hon. member for Jeppe must not indicate his dissatisfaction in this House with gestures. I am asking for his co-operation.

No, but the hon. the Minister …

Order! The hon. member for Jeppe made certain gestures. I saw them, and I reprimanded him for doing so in a courteous way; nothing more.

Mr. Chairman, on a point of order: The hon. member Mr. Vermeulen referred quite audibly, precisely as he did the day before yesterday, to the hon. member for Jeppe as “Koos Boks”. You have already reprimanded him on one occasion. [Interjections.]

Order! The hon. member Mr. Vermeulen must withdraw that.

Mr. Chairman, I withdraw it. [Interjections.]

Order! The hon. the Minister may proceed.

Mr. Chairman, I really did not refer in any way to the hon. member for Jeppe. I was dealing with the hon. members for Brakpan and Lichtenburg. I should now like to come to the hon. member for Brakpan. He says a normal coalition is when parties within the same institution get together as a result of points on which they identify. Then he says there is another form of coalition as well, viz. the one which is contained in this specific clause of the Bill, and that is when members of the various population groups enter the Cabinet set-up. When the hon. member says that it brings us back immediately to the debate which we had with one another earlier on. Now I want to ask the hon. member again whether the Council of Cabinets was a coalition Cabinet?

I wanted to reply to that, but I was called to order. [Interjections.]

Order! I asked the hon. member for Brakpan not to take that debate any further and I am asking the hon. the Minister, although he may refer to this in passing, not to debate it.

Mr. Chairman, I shall not do so, but then you must help me in that specific respect. The hon. member for Brakpan is arguing here that, in terms of this specific clause, a coalition Cabinet is now being formed consisting of members of various population groups.

Yes.

Mr. Chairman, surely you will allow me to make my point with reference to that interjection from the hon. member for Barberton. He has just confirmed my point, and I would be pleased if you would allow me to argue that particular point with the hon. member for Brakpan. The point is that if this were to be a coalition in the executive authority, then the hon. members opposite were just as much involved in it as my party and I were. I make no apology whatsoever for the fact that I accepted, as did hon. members of the CP, that there would be joint responsibility and that it would exist on the executive level. [Interjections.] I want to repeat this. I accepted, just as the hon. members of the CP accepted, that there shall be co-responsibility for matters of common interest on the executive level.

The hon. member for Waterberg as well.

Yes, the hon. member for Waterberg as well. I accepted, just as those hon. members accepted, that there would be joint responsibility in respect of matters of common interest on the legislative level and that it would also exist on the administrative level. I make no apology for that, but it is in contrast to what the hon. members of the CP accepted at the time.

No, we did not accept it.

Mr. Chairman, it seems to me the hon. member for Waterberg is fond of monologues. He is not fond of intelligent company; he only talks to himself. [Interjections.] That is why I say that in the final instance this clause entails nothing more than what those hon. members all accepted and I have no intention of debating the matter any further.

Mr. Chairman, we come now to another important clause, dealing with the constitution of the Cabinet. One sees from paragraph (a) that the State President shall preside over the Cabinet. We have spoken about the State President and his powers and how he functions in an executive capacity with the Cabinet. Whereas many powers are given to the President in terms of clause 19(2), other decisions have to be taken by him in consultation with or on the advice of the Cabinet. The Cabinet now has to perform the function of being the legislative and executive authority which it now controls. It is responsible for the legislative programme and also for the administration. It also decides upon the allocation of public funds and the taxes as well. Normally in a democratic system it is the function of Parliament to keep a very close and critical eye on the way in which the Cabinet behaves.

I wish now to move the amendment printed in my name on the Order Paper, as follows—

1. 1. On page 16, in lines 8 to 14, to omit paragraphs (c) and (d) and to substitute:
   1. (c) the Chairmen of the Ministers’ Councils.

The clause as it stands presents us with a series of difficulties and objections. In fact we have something like six objections to the clause as it stands. I shall now proceed to enumerate them.

Firstly, we object to the clause in that the number of Cabinet members is unlimited; in other words, the State President can appoint any number of Cabinet Ministers. I think experience has shown over the many years of Government in this country that the Cabinet has been limited.

Very limited.

In fact, the present constitution provides for a limit of 20. We do not appreciate why the number should be unlimited at this stage.

Are you talking about numbers or quality?

Once the number is unlimited, then the State President can simply appoint any number of Cabinet Ministers. It is not good for the efficiency of the Cabinet if there is going to be too unwieldy Cabinet consisting of people in the Cabinet who are not fulfilling the functions for which they have been appointed. It is not a new Government. I think we have a fair idea of what the portfolios should be and for that reason we object to it.

Secondly, the Cabinet Ministers should be elected members, elected by the electorate. They must be accountable to Parliament and responsible to Parliament at all times.

Thirdly, the Cabinet Minister himself must be an elected member of this House. One cannot expect a person who is appointed from outside of Parliament to be able to perform this function. If he expects to receive the appreciation and respect of members of this Parliament he must be an elected member and not someone appointed from outside of Parliament.

Our fourth objection is that clause 20 provides for Cabinet Ministers to be appointed without portfolio. We do not agree that Cabinet Ministers should be appointed without portfolio. Every Cabinet Minister must have a portfolio to attend to. We do not want a loaded Cabinet of Cabinet Ministers without portfolio. In the interests of the cost structure, in the interests of good government and in the interests of speedy administration we do not believe that there should be fifth wheels on the Cabinet vehicle. Therefore the Cabinet should be streamlined and in the interests of good administration there should be people who fulfil a function. We must also bear in mind the question of costs with regard to Cabinet Ministers themselves.

Fithly, as far as we are concerned, a person appointed to the Cabinet should not be appointed to the Cabinet for a definite or indefinite period. In terms of clause of clause 20 a person can be appointed for a definite or indefinite period but we oppose the fact that he can be appointed for a specific or indefinite period. He should be a Cabinet minister who is going to be appointed to the Cabinet and play a full role in the Cabinet but not for a definite or indefinite period. How can one take a person and appoint him to the Cabinet for a definite or indefinite period. Quite frankly, this does not make sense.

Our sixth objection is that we oppose the Cabinet member being appointed for a particular purpose. On the one hand he is being appointed for a definite or indefinite period and on the other hand he is being appointed for a particular purpose. That is how it is stated in clause 20(d) which states that a Minister may be appointed for a definite or an indefinite period or for a particular purpose. We object to the definite or indefinite period and we also object to the particular purpose. In other words, one can play musical chairs with a person who can be brought into a Cabinet for an indefinite period or for a particular purpose. It is a convention of Parliament that the Cabinet meets behind closed doors so that there is confidentiality. If a person is going to be appointed on an ad hoc temporary basis, as can now be done, can one expect to get from him respect and confidentiality?

We have also referred to the question of joint responsibility. The hon. the Minister argues that there is joint responsibility. If people can now be appointed for nebulous reasons in that they can be appointed for an indefinite period or for a particular purpose, I am afraid we cannot go along with that. It certainly does not make for good government.

For those reasons we reject the clause as it stands. We want to replace the offending paragraphs (c) and (d) in terms of our amendment. We are suggesting that the chairman of the Ministers’ Councils be appointed instead. The Cabinet would then consist of the President, who will preside, the Ministers appointed to administer departments of State and the three chairmen of the Ministers’ Councils. I think the hon. members will agree that it makes good sense. If one wants to establish a proper liaison in a Cabinet between the White, the Asian and the Coloured Houses, it makes sense that the views of those three Houses should at all times be known to the Cabinet.

Mr. Chairman on a point of order: Is it permissible for the hon. member for Johannesburg North to read a newspaper in the House? [Interjections.]

Order! The hon. member may proceed.

Thank you, Sir. There are two reasons why the chairmen of the three Houses should be appointed to the Cabinet as of right. In the first instance that will make it possible to maintain liaison between the Cabinet and the three Houses. Whenever necessary, the chairmen of a Ministers’ Council can then convey the views of his House to the Cabinet. There will then be direct liaison. Secondly, he can transmit the views of the Cabinet to his Ministers’ Council because he is present at their discussions at all times. Therefore, there will be a direct liaison between the Ministers’ Councils of the three Houses and the Cabinet itself. The State President is in any event entitled, in terms of clause 24, to appoint any member to be elected to the Ministers’ Council; he has plenty of room to appoint other people as well. The important thing, as far as we are concerned, is that the three chairmen should be appointed, particularly in view of the fact that we are setting up a tricameral Parliament for the first time, including a Coloured and an Asian House. If they are to be given a square deal and there is to be proper liaison, it is absolutely vital for the Coloured chairman and the Asian chairman of the respective Ministers’ Councils to serve on that body.

There is also the question of cost. [Time expired.]

Mr. Chairman, it seems to me that the objections raised by the hon. member for Hillbrow centred mainly on paragraphs (c) and (d) of clause 20, which provide for the appointment of Ministers without portfolio, so-called, and for the appointment of Ministers for a definite period or for a particular purpose. It seems to me that this is the aspect on which the six points raised by the hon. member actually centre. If I understood him correctly, he does not object to the fact that the President will be a member of the Cabinet, nor does he object to the fact that Ministers who have been appointed to accept responsibility for certain departments will be members of the Cabinet. It seems that his objection only concerns clause 20(c) and (d).

In the first place, the hon. member objects to the fact that the number of Cabinet members is not being limited. What is interesting in this connection, however, is that the hon. member has not made any particular suggestion either. He has not said what the maximum number of members of the Cabinet ought to be. It is true that a specific number is laid down in the present constitution, and that a similar provision does not appear in the Bill. Although the hon. member for Hill-brow raises this objection, he does not put forward any definite proposal about the number of members to which the Cabinet should in his opinion be limited.

Furthermore, with regard to the same aspect, I want to advance, in the first place, the following argument. I do not think it is necessarily a good thing that a specific number should be written into the legislation, because this would mean that every time a real need arose for the State organization to be expanded, necessitating an increase in the number of Cabinet members, the constitution would have to be amended in order to provide for this. Indeed, we have already experienced the fact that this has had to be done every few years in the past. In recent years, the constitution has had to be amended repeatedly when it became necessary to add a Minister or two to the Cabinet. For this important reason alone, I submit, it is not necessary to write a specific number in this connection into the constitution itself. Therefore, in my opinion, it is not necessary to limit the number of members of the Cabinet by way of a provision in the constitution.

The real aspect which is relevant here, in my opinion, is the number of State departments existing at a given moment. This is in fact very clearly defined in clause 20(b). It appears, therefore, that the so-called unspecified number of Cabinet members is in fact not as unspecified as the hon. member for Hillbrow tried to suggest, because it is to a large extent linked to the number of State departments which are in existence. The unspecified element relates to clause 20(c) and (d), therefore, and in this respect I should like to argue that this is naturally not a power which the President would exercise to an unlimited extent. I believe that the provision which is being made in clause 20(c) and (d) for the appointment of Ministers without portfolio, for a definite period or for particular purposes, involves a prerogative which I believe the President will exercise very selectively, and only in order to provide for certain circumstances.

One could conceive of circumstances, for example, in which he could appoint a Minister to perform a certain function of liaison or consultation among the respective Houses. An additional member of the Cabinet could in fact be necessary for this. Of course, this appointment does not necessarily have to be for a definite period; not even for a particular defined purpose. I believe, therefore, that the latitude which is being created here by the way in which subsections (c) and (d) of clause 20 are formulated, will allow the President enough freedom to exercise his discretion in this respect. However, I want to argue that it does not seem that the State President will be able to exercise this power without any restrictions, because in the long run this could create the impression of poor administration if he does use these powers of his too widely.

With regard to the amendment moved by the hon. member for Hillbrow, I just want to make one or two brief remarks. He proposed that clause 20(c) and (d) be deleted and replaced by provisions with a different wording, which would, among other things, contain a reference to the Chairmen of the Minister’s Councils. This would mean, I believe, that we would indeed be imposing an obligation on the State President in this respect to include certain people in his Cabinet, although this would apparently not be the general idea with regard to the appointment of members of the Cabinet. The general idea with regard to the appointment of members of the Cabinet—as it is at the moment, and as it is likely to be in future as well—is, after all, to consider the whole matter on merit, and certainly not to include certain people in the Cabinet ex officio—that is to say, by virtue of the specific positions which they occupy. If we were to accept these amendments which the hon. member for Hillbrow has moved, therefore, it would seem that the President would in fact be obliged to include certain people in the Cabinet. This would therefore amount to a departure from the existing custom—I might almost say the existing convention—to appoint people as members of the Cabinet on merit alone. In the light of the fact that this is indeed the approach in the Constitution Bill, I want to argue, therefore, that we should retain this specific provision unchanged; that we should retain this whole approach just as it is by not imposing on the State President a statutory obligation to follow a direction of the kind which the hon. member for Hillbrow is now trying to impose on him.

Mr. Chairman, clause 20, like most of the other clauses in the legislation, is a clause about which the CP very strongly and fundamentally disagrees with the governing party. Let me tell the hon. the Minister that the grounds for the differences that have come to the fore in the recent debate, about aspects such as the Cabinet and the executive authority, will be debated here and also at a later stage, attention being focused on the interpretation that prevailed in the ranks of the NP very soon after the proposals for this new dispensation took shape. If one merely looks objectively at the debates of the two parties, it is clear that within the NP caucus, at the time, there were people who placed different emphases on—I am now putting it very mildly—and attached various interpretations to what the 1977 proposals actually embodied. It is a pity that this kind of debate could not have been conducted a long time ago, so that the lines of demarcation could have been drawn very clearly even at that stage. I find it a pity that this did not happen. I would very much like—perhaps in other circumstances—to have had an in-depth discussion with the hon. the Minister about this.

As evidence to the prelude to our debate, let me say that in those years I was chairman of the NP study group on Internal Affairs, and the debate that took place in that group, took place under my chairmanship. I want to state categorically to the hon. the Minister that the discussions within the study group at the time …

Mr. Chairman, on a point of order: The discussion of that matter was ruled out of order at an earlier stage. I request your ruling in this connection.

Order! Let me point out to the hon. member for Rissik that this clause deals with the composition of the Cabinet. In the discussion of the previous clause, the first clause of the chapter “The Executive Authority”, slightly more elbow-room was allowed for the discussion of matters of principle. I therefore now request the hon. member to confine his attention to the discussion of the clause.

Sir, I would very much like your ruling in this connection, because this is the first time I am speaking about this aspect. I think it is essential to the political debate for one just to lay down certain guidelines. I can understand why the hon. member for Mossel Bay is so uneasy when I speak about these matters.

I want to conclude by saying that I am very specifically a witness to the discussions that took place in the inner circles. We cannot, however, have an in-depth debate about this if we do not put our standpoints on the matter to one another. In talking about these things, the hon. member for Mossel Bay puts me in mind of the doctor who told his patient that the medicine he was taking was actually poison and that he should stop taking it because it would make him ill, to which the patient replied that he had discovered that the doctor had prescribed it as far back as 1977 and that he would simply go on taking it.

Nonsense!

The hon. member must not take it so seriously.

I also want to focus the Committee’s attention on the fact that the reference to “President” in clause 20(a) does not only mean a member of the White population group. This is a very important aspect. We as Whites make laws here and frequently create the impression—this is the impression I gain from the Government side—that in this connection “President” always refers solely to a White person. Mr. Chairman, I must point out to you that here “State President” also includes the possibility of his being a member of the White Chamber, a member of the House of Representatives or a member of the House of Delegates. During the discussion of the previous clause, we spoke a great deal about a coalition, and some of my colleagues adopted the standpoint that this Cabinet embodied certain characteristics of a coalition. A coalition in a heterogeneous society, a society in which the population groups differ from one another on the basis of both ideological and historical considerations, is not actually the type of Government that one often finds in the history of such a Parliament. The lifespan of such a Cabinet is frequently a very brief one, specifically because people with differing standpoints find themselves in such a Cabinet. When, at a later stage, we come to the actual functioning of this Cabinet, I shall indicate to the hon. the Minister why I personally feel that it is going to be extremely difficult, if not altogether impossible, for such a Cabinet—even if it is possible to have it constituted—to function in practice. As they say: I have my doubts.

You people adopted that standpoint as far back as 1977 …

I leave the hon. the Minister of Law and Order at that. I just wanted to talk briefly about those aspects. That was one of the problems I pointed out in 1977, and the hon. the Minister is aware of that fact.

As far as I am concerned, there is also another question that comes to the fore in regard to the Cabinet. The Cabinet will consist of the State President and Ministers, and these Ministers will be appointed to administer departments of State for general affairs. The hon. member who spoke before I did, pointed out that there is no minimum or maximum number of Cabinet members designated. A point I would very much like the hon. the Minister to discuss is the following: This Cabinet, in functioning, will have to deal with the general affairs of the three population groups. These three population groups are represented in the three Houses on the basis of their population figures. Although this is probably something one could discuss under clause 24, I do want to ask the hon. the Minister: If one has to obtain consensus about the composition of the Cabinet, bearing in mind the fact that population figures have been the moral basis for determining the number of members of the Chambers, will it be inserted in the legislation that when the Cabinet is constituted, the 4:2:1 ratio will have to be reflected in the Cabinet as well? That applies not only to the regulation of general affairs, but also when a Minister without portfolio has to be appointed in terms of clause 20(c) or when a Minister has to be appointed for an unlimited period of time for a specific purpose.

That is just an old gimmick.

The hon. the Minister might think so, but I want to assure him that if the NP succeeds in this, it is going to be one of the stallions that that hon. Minister—perhaps he will no longer be there—and the future State Presidents will not be able to tame. I therefore want to assure him that it is no easy matter to tame a coalition Cabinet in a homogeneous society. [Interjections.] With those words I leave the hon. the Minister at that.

Mr. Chairman, I should like to turn to the hon. member for Rissik. The hon. member is quite right. He was chairman of the Interior group when I was Minister of the Interior. He was therefore my chairman. I participated in that caucus group under his guidance.

With difficulty.

No, I had no difficulty. [Interjections.] I am not trying to be devious here, yet I want to ask the hon. member whether I said anything in that caucus group which differs from what I am saying now. The hon. member must be fair now. [Interjections.] Then I want to make this statement. When he was chairman of the Interior group, did the hon. member ever come to see me about something I had said in the caucus. I am saying this to him directly because it is a fact. [Interjections.] I am talking to the hon. member for Rissik now and not to the “laagtes” (depths).

Mr. Chairman, I just want to tell the hon. member that he should weigh his words.

Order! The hon. the Minister is speaking. The hon. member did not state a point of order.

Mr. Chairman, I am indeed rising on a point of order. The hon. the Minister has just said that he was not speaking to the lowest (laagstes). [Interjections.]

Order! The hon. the Minister may proceed.

The hon. member for Rissik adopted a fair standpoint which I should like to debate with him. The hon. member referred to accents. I want to tell the hon. member for Rissik directly now that while he was chairman of the Interior group of my party and I was the Minister concerned, he never came to see me about anything I had said in that group, not once. [Interjections.] I am now talking to the hon. member for Rissik with reference to what he said. He made a fine statement. I am not fighting with the hon. member now. The hon. member said that there personal accents within the NP. I am now debating the hon. member’s statement. For the purposes of my argument I want to accept what the hon. member said. Furthermore, I also want to accept that since the hon. member never came to tell me that he differed with me in connection with my accents, there was no difference between our accents. Surely this is a reasonable and a fair inference to make.

I want to speak earnestly to the hon. member for Rissik and before all the other hon. members in this Committee I want to say this to him: As far as I know, that hon. member is the only member who is now happy where he is. [Interjections.] It is true. The hon. member admits it and I agree with him.

We are all happy where we are. [Interjections.]

I am not talking to the hon. member for Brakpan. I am talking to the hon. member for Rissik now. If the hon. member would just give me a chance, I shall get round to him later. I want to tell the hon. member for Rissik an extremely interesting story, and it has to do with the 1977 prescription. The hon. member for Rissik does not use words purposelessly and uselessly, as the hon. member sitting in front of him does. When the hon. member for Rissik talks, his words have meaning. What the hon. member actually said was that he had discovered that the 1977 prescription was not a good one. He said it was deadly. [Interjections.] With that the hon. member told a profound truth about himself, because he said that he had discovered that the 1977 prescription was deadly. I think the hon. member has always thought so. That is why he never used that prescription. I tell him again that I have respect for him for that, for the hon. member said it. One will never find that the hon. member made statements over the years such as those which the hon. member for Waterberg made. One can go back and read the speeches made by the hon. member and one will find that he never committed himself to the 1977 prescription. The reasonable deduction I make is that the hon. member chose his words carefully in this specific connection. For the third time, I want to compliment him on that.

I also want to say something else. Since you, Sir, have allowed this matter to be debated here, I should like to close this debate with a few remarks concerning the hon. member for Rissik. I think the various leaders of the NP in the Transvaal after Mr. Vorster did not take the hon. member along with them, because they did not discuss matters with him. The hon. member must not shake his head; he knows what we are talking about. He and I are now talking directly to one another. The hon. member had a need—I can understand this—to be able to understand what things were all about, but he never had an opportunity to discuss these things with his leaders. I know that what I am saying is true, because he and I discussed this and I appreciated that conversation. I want to tell him directly that I appreciated it. I wish I had had more time, for then we could have taken that conversation further. He referred to it himself.

There is a second point. The hon. member wants to know whether we realize that the State President, who may appoint Ministers in terms of the provisions of these clauses, can be a White, Coloured or Asian person. The 1977 prescription which the hon. member referred to offered the same alternatives. The hon. members—they did so again tonight—use or misuse or leave the former Prime Minister in disuse whenever it suits them. I have chosen those three statements deliberately. They use him, they misuse him and they leave him in disuse whenever it suits them.

Oh, come now.

Look, I am not dealing with the hon. member for Rissik now. If the hon. member for Brakpan wishes to enter the debate, I shall give him a hearing.

You are talking to the hon. members of the CP.

I am first talking to the hon. member for Rissik now—he addressed me—but this is also intended for the ears of that hon. member. [Interjections.]

But I am opposed to this.

Of course the hon. member opposed to this. Who would not be opposed to this with such a past?

But what you said was not true.

Let us consider it. Did Mr. Vorster say, or did he not say, that the Bill which would be introduced in the House of Assembly to make provision for the 1977 proposals would not contain a provision to the effect that the State President should be a White, Coloured or Asiatic person? Did he say that or not?

Yes.

Of course he says yes. Why then did the hon. member for Rissik accuse us by telling the general public that the State President could in terms of this Bill be a White, Coloured or Asian person? [Interjections.] No, the hon. members must have a little patience; I have not finished yet. Mr. Vorster went further and said that there was only one guarantee that he would be white, and that was the NP.

Order! I should like to point out that we are not debating a principle now. Hon. members must confine themselves to the details of the clause.

Mr. Chairman, I accept your ruling, but if I am incorrectly quoted, you must give me an opportunity to rectify the matter. I shall leave it at that.

The hon. member for Hillbrow’s objection was that no number was mentioned. I think that could be a valid objection, but if it is a defect in the clause, there is nothing to prevent hon. members from moving an amendment to the effect that it should be a fixed number. However there is no such amendment on the Order Paper.

There is, on clause 24.

But we are now dealing with clause 20. Why do we not debate the matter when we come to clause 24?

We shall never get that far. That is why we are doing it now.

I do not think hon. members want to get that far. The hon. member for Hillbrow told me that he had six objections to this clause, but in actual fact he only had three, because three of those which he raised were precisely the same. One of the hon. member’s objections was to be unlimited number of Ministers. When I taxed him about this a moment ago, he said that he wanted to move an amendment to clause 24. Then it is still not a valid objection to this clause, but a valid objection to clause 24.

†In all fairness, if it is a legitimate objection to this clause, the hon. member should be able to move an amendment to the clause. Can the hon. member do that?

Read the two together.

If the hon. member cannot do that, he has no legitimate objection to the clause. The hon. member must then argue that point in relation to clause 24.

It should have been limited here.

If it should have been limited here, move an amendment to limit it.

It fits better in clause 24.

Then this discussion will also fit in better with the other clause.

*The hon. member’s objection is to the fact that it is an unlimited number, but nevertheless he proposes that the three Chairmen of the Ministers Councils should serve on it. Surely the hon. member’s arguments are contradictory now. He was trying to be too clever. First he said that too many people were serving on it, but did not move an amendment to reduce or peg the number. Having said that, however, he moved that a further three persons should serve on it, namely the Chairmen of the Ministers Councils. I want to tell the hon. member at once that I do not think we need add this to the clause. I think it will quite probably be the case that they will be included without one having to specify it here.

The hon. member went further and argued that the Cabinet should consist of elected members of Parliament. The hon. member knows that the recommendation of the president’s Council was that there should be an extra-parliamentary executive authority. The hon. member is equally aware of the fact that the Government did not accept that recommendation and said that it endorsed the standpoint that the general rule ought to be that members of the Cabinet shall be members of the respective Houses of Parliament. That is what the Government said. However the Government made provision to the effect that there could be exceptions for specific circumstances. I think the hon. member will concede the point that I need not argue the merits of those exceptions at the moment. I think he knows precisely why it was necessary to make allowance for specific circumstances. I do not want to take it any further. I think the hon. member knows precisely what I said.

The hon. member went on to say, however: “Ministers must be held accountable to this House.”

†But Ministers are accountable to this House. Whether they have been elected as members of this House or either of the other two Houses they are accountable to this House.

Yes, if they are elected to the Cabinet.

Even if they are appointed to the Cabinet they are still accountable to this House.

Why?

I shall explain that to the hon. member. It is because they are dependent upon the Houses of Parliament to get approval of their legislation. There is no other way that they can get it approved. They have no authority whatsoever to pass their own legislation. They have to come to the Houses to approve their budget and their Votes. Whether a member of the Cabinet is elected or not, the normal way to disapprove of the activities of a member of the Cabinet is to move for a reduction in his salary. Is that not so? Is that not the attested procedure? However, he need not be a member of a particular House to have that motion moved against him. He is still accountable to this House and to Parliament. He is accountable to this House if he is a Minister of the council and he is accountable to Parliament if he is a Cabinet Minister dealing with general affairs. I submit therefore that the accountability does not depend on the fact that he has been elected as a member or not. I think the hon. member will concede that point. I think he will concede it in all fairness because he is a fair man.

The hon. member then said that he objected to the fact that a Minister can be appointed to the Cabinet for a specific purpose. Firstly, as a general statement all Ministers are appointed to the Cabinet for specific purposes because they have a special job to do.

These are not members of the Cabinet.

I am coming to that. The hon. member will concede that it may well be necessary that a member of the Ministers’ Council be called into the Cabinet to discuss a specific task or objective with him. Therefore he must become a member of the Cabinet for that purpose. Otherwise he cannot come to the Cabinet.

Why cannot he be consulted?

I shall explain that again to the hon. member. It is not a question of consulting him. One wants him to be part and parcel of that decision and consultation in that way does not bring that about. For instance, the State President might want to call in some Ministers of the Ministers’ Councils into the Cabinet, to co-opt them, as it were, into the Cabinet for a specific purpose. I shall try to give an example of circumstances that would require that. For instance, the Minister of Education of the respective Ministers’ Councils, when at specific times the general facets of education are to be discussed, is co-opted into the Cabinet. Then he is there for a specific purpose and for a specific time. I think that is a laudable provision of this Bill.

*The same can apply in respect of welfare, health or even agriculture. In my opinion there are circumstances in which the State President can decide that it is important that Ministers who have specific tasks in Ministers Councils, such as education, welfare or health, can be co-opted to the Cabinet when general aspects of these matters are being discussed for that specific time and for that specific purpose. The clause says nothing else.

Business interrupted in accordance with Standing Order No. 22.

House Resumed:

Progress reported and leave granted to sit again.