Mr Speaker, I move:

Agreed to.

Mr Chairman, this is a real Committee Stage Bill. I think it would be better if we were to deal with each clause in detail. I can already tell the hon the Minister that we shall oppose some of the clauses and that as far as other clauses are concerned, we shall decide on our attitude in the light of the replies of the hon the Minister to our questions.

Clause agreed to.

Clause 4:

Mr Chairman, clause 4 simply reads as follows:

This is a very short clause. I think in Committee we should have a look at what we are repealing here. One finds that subsection (2A) goes to the root of the problem on which we have tried to focus attention in the House. That is why we moved initially that the matter should be referred to a Select Committee for inquiry and report. Subsection (2A) deals with the right of the Medical and Dental Council to appoint various committees, and reads as follows:

1. (i) shall in respect of any determination of fees, or any amendment thereof, under section 53A, and which relates to the profession of medical practitioner or dentist; and
2. (ii) may in respect of any determination of fees, or any amendment thereof, under section 53A and which relates to the profession of psychologist or any supplementary health service profession,

Clause 4 of the Bill now repeals this. Our problem in this regard is that, firstly, the repeal of this provision is premature in the sense that the Browne Committee is investigating this matter and its report with regard to tariffs, medical schemes, etc, has not yet been laid upon the Table. Our second objection, which has been lodged very clearly, relates to the fact that the way in which disputes between the medical schemes association and the various professions should be resolved has been left in the air. We have made it very clear that no solution has been found in regard to arbitration and the settlement of the matter. We also made it clear— and I repeat it now—that this could well lead to the downfall of medical aid schemes and, furthermore, if it does not lead to the downfall of medical aid schemes then on the road to their downfall the gap between the fees scheduled by the medical schemes association on the one side and the fees charged by the various professions on the other side, will widen and widen. The only person who is going to suffer is the patient who will have to dig into his pocket and pay in the difference. In these circumstances we will oppose this clause.

Mr Chairman, basically I have nothing more to say about the arguments of the hon member because during the discussion of previous legislation the House has already decided that the tariffs must be determined in a different way. Therefore this clause is merely the result of a decision taken previously by the House.

Clause put and the Committee divided:

Mr Chairman, this clause deals with the disciplinary powers the council has with regard to doctors. What we are doing here is to delete completely the existing section in the 1974 Act concerning the disciplinary powers of the council, and substituting a brand new provision. The principal Act merely provided for the fact that if there is a complaint by a member of the public the council would then investigate the complaint. If they had any doubt in their minds about the complaint they could go and talk to the person against whom the complaint was made and make certain inquiries to ascertain whether in fact an official investigation could be instituted against such a person. I take it that this system has worked very well, but something must have happened to have made the hon the Minister decide to come now with a completely new provision, which is, for all intents and purposes, rather strict. I think the hon member Dr Vilonel expressed a certain reservation in regard to these disciplinary powers, which now entitles the registrar of the council to obtain the assistance of an outside person, probably a legal person, to conduct such an investigation and to give that person rather wide powers. He will be able to go a doctor’s surgery, or consulting rooms as the case may be, and to seize any books, documents and papers and to obtain statements from the doctor. Not only does he act in accordance with a complaint received from a member of the public, but can also do so on his own. In other words, if the registrar, in consultation with the president, feels that an investigation should take place, the registrar need not wait for an official complaint, but may institute such an investigation. Because these powers are much wider one does not want to cast any reflection on such a highly regarded profession as the medical profession. It is not only highly regarded in South Africa but throughout the world. I think we can be very proud of the achievements and the proficiency of the medical profession in South Africa. I assume, then, that the hon the Minister must have very good reasons for wanting these strong disciplinary powers to be used against the doctors concerned. I should like the hon the Minister to assure the House, firstly, of the necessity for these added powers and, secondly, that the clause as it stands is supported 100% by the Medical Association of South Africa.

When it comes to the actual mechanics of these provisions, you will recall, Sir, that I made the point that, while the doctor or pharmacist involved has to furnish such explanation as may be required, in law no person can be compelled to make a statement that will incriminate himself. I should like an assurance that the law of evidence will operate here as well in the case of a person who is incriminated.

Then I have a small difficulty with the proposed section 41A(9)(b) which reads:

I do not quite know how the mechanics of this will work. I assume that a complaint against a doctor is going to involve the patient. How is one going to investigate a complaint involving a patient if the personal particulars regarding that patient are not to be disclosed? I just do not see how the thing gels. Perhaps the hon the Minister can explain that to us. One must bear in mind, too, that the doctor cannot refuse to make a statement. If he then makes a statement, it could involve the personal particulars of the patient concerned. There is a conflict here between two contradictory tenets operating against each other. On the one hand the doctor is compelled to make a statement and on the other hand the particulars regarding the patient cannot be disclosed. Perhaps the hon the Minister can in fact iron that problem out for us and convince us of the necessity for this provision as worded.

One point in favour of this clause is that, in terms of subsection (10), if the complaint against a member of the Medical and Dental Council is found to be frivolous and, in other words, there are no reasonable grounds for an investigation, the person concerned can be made to pay the costs involved in the entire investigation. I hope that will keep away a lot of unnecessary and frivolous complaints requiring investigations.

In the light of the further steps being taken here, I do think the hon the Minister owes us an explanation. We should like to give him the opportunity of convincing us of the necessity for these measures.

Mr Chairman, I am very pleased to see the hon member for Brits here again today. He is chairman of the health group in the Government side. If he reads Hansard he will find that there is a considerable difference of opinion among the members of his study group concerning these matters. The hon member Dr Vilonel said very clearly here that he had reservations about the provisions, which almost call to mind the provisions of security legislation, that are embodied in clause 5 merely to enable an ethical infringement by a medical practitioner who may unlawfully trade in medicine, to be clamped down on. In his speech the hon member pointed out that section 29 of the Criminal Procedure Act, No 51 of 1977, provides inter alia that a search must be conducted in a decent and orderly manner. In this Bill it is provided in clause 5 that any premises may be entered upon, whether or not there is a warrant, and that this can be done by a person who is not a medical practitioner in order to investigate the affairs of a medical practitioner in his consulting rooms.

We indicated that we would not vote against this clause because we are very much in favour of there being very stringent measures to clamp down on those who trade in medicine unethically. For that reason we shall not vote against it. Accordingly I actually want to reach an agreement with the hon member Dr Vilonel. We shall not vote against this clause, but then, in the next two clauses, which concern the right to dispense medicine, he ought to vote with us. [Interjections.]

What we are in fact asking for, therefore, is that good judgment and decency should perhaps be shown in the implementation of this clause. Furthermore we ask whether it would not be possible for the hon the Minister to introduce into this clause a cross-reference to section 29 of the Criminal Procedure Act of 1977. I therefore agree wholeheartedly with the hon member Dr Vilonel— although we shall not vote against this clause —in respect of our reservations concerning the absolute stringency of the provision in this clause.

Mr Chairman, I am grateful to have the assurance of the hon member for Pietersburg that he and his party will not vote against this clause. It is for the hon the Minister himself to decide whether or not he wants to introduce the cross-reference that has been requested. He is fully capable of dealing with this aspect himself.

However, I should very much like to point out to the hon member for Hillbrow and the hon member for Pietersburg that, basically, two very important matters are at issue here. If we were to overlook this then the essence of the clause would also escape us. Briefly, the issue is, in the first place, that a situation must be brought about in the health services of South Africa in terms of which the majority of people making use of those services must comply with certain requirements. The first is that the arrangements that apply here to the majority of people in those professions ought to be accepted. In addition, these health services must not be aiming at a process of socialization. We have already reached consensus on this point in the past. However, what is of the utmost importance in this whole issue is the fact that these services must be available to the ordinary man in the street. Therefore he must be able to afford to make use of the health services that are put at his disposal. When I refer to these few aspects it is evident that in clause 5 we are indeed dealing with a new provision. The hon member for Hillbrow also referred to this. I contend that this measure is necessary, that it is the SA Medical Council that determines why it is necessary, and in addition, that certain people in these professions who have been guilty of offences must be brought to book. It is not aimed at casting suspicion on the medical profession as a whole. It is only aimed at controlling people who abuse the situation. This is a principle that we must state very clearly.

Moreover, we must not forget that it is the SA Medical Council that appoints these people to carry out inspections. I do not believe there is a better method or a better measure that could be recommended by the hon the Minister than that the SA Medical Council should appoint these people to carry out the inspections to which reference is made here. I believe that we should emphasize very clearly once again that the objectives of the council include inter alia the following: The council must assist in the promotion of the health of the population of the Republic. Moreover, the council must furnish the Minister with advice in respect of every matter that falls within the scope of the legislation, and apart from that, the council must convey to the Minister information relating to matters of public interest that it gathers in the course of its activities in terms of the law. These basic principles in accordance with which the council operates do not create any problems as far as we are concerned.

I do wish to point out that it is very clear—that it has become very clear over the past number of years—that it is the intention of the legislator to clamp down on certain malpractices that may exist in the medical and dental professions. The proposed section 41A is, therefore, as far as we are concerned, a positive effort to create an instrument whereby the Medical Council may investigate certain alleged malpractices which may give rise to disciplinary steps. I do not think the hon member has problems in that regard.

In the second place, the measure is a step in the right direction as regards clamping down on certain medical practitioners who may be abusing the statutory right in connection with the dispensing of medicines. There is no dispute on that score either. The abuse of any statutory right cannot be in the public interest, and therefore it is appropriate that steps are being taken by Parliament which can only benefit the public if certain medical practitioners are guilty of exploitation. Evidence has been submitted by the Pharmacy Board and Association to the hon the Minister, from which it is evident that a certain percentage of medical practitioners are, in fact, abusing that statutory right. We cannot get away from that either.

In terms of the proposed section 41A it is now being provided that certain persons may be appointed by the Medical Council to carry out an in-depth investigation or have such an investigation instituted to determine whether a medical practitioner may be guilty of improper conduct. This can only be in the interests of the health service of South Africa as a whole. The provision to the effect that any book, record or thing which may afford evidence of any alleged contravention of or failure to comply with any provisions of the Act, may be seized, was not heretofore incorporated in the legislation. Therefore this is a new provision that is being introduced into the legislation, and I personally have no problems in this regard.

In my opinion, there should be high praise for the fact that there is in addition a right of entry into the consulting rooms of any medical practitioner in order to determine whether an infringement of the Act has in fact taken place. [Interjection.] I think the hon member will agree wholeheartedly with me that it is indeed essential that when malpractices are suspected, such malpractices ought to be investigated, and the appropriate body to carry out that investigation or have it carried out is the Medical Council whose task it is to appoint the people who handle that investigation to the satisfaction of the Medical Council. [Interjection.]

Mr Chairman, I shall reply to the hon member for Pietersburg as regards dispensing as such when that specific clause comes up for discussion. Some of my friends have said to me in the Lobby in a spirit of banter that I am now clashing with the hon the Minister. I want to say that there is no clash between the hon the Minister and myself. What there is, is a difference of opinion as far as emphasis is concerned.

I should just like to make a clear statement of my standpoint with regard to this specific clause. I have reservations about it because in my opinion the provisions have been too widely framed. The hon the Minister made certain statements that have made it easier for me to understand the position, for example his statement in connection with the Medical Council. The Medical Council is a body which enjoys considerable prestige, and they are the people involved here. This probably makes the matter more acceptable, but that does not derogate from the fact that in my opinion the powers granted in this regard are indeed too wide.

Perhaps the hon the Minister and I did not understand one another fully. I did not ask the hon the Minister to protect me against the Medical Council. What I did ask the hon the Minister was to protect the interests of the general practitioner and the family doctor. While I was a member of this House in the past I always did so unashamedly and I shall continue to do so unashamedly. I was in private practice for many years, after which I entered politics for four years and subsequently, for a period of five years until a few days before the start of this Parliamentary session, I was again in private practice, in the course of which, among other things, I dispensed medicine. Therefore I am not speaking about something that I have only heard about. I am speaking about a matter which I feel strongly about.

Why do I adopt this standpoint? I have contacted senior officials of the department whose interpretation of the legislation does not differ from mine. They say that those powers are necessary. Therefore I am not arguing with the lawyers as to what is stated in the Bill. I agree with the principle. The lawyers tell me that it is not the intention behind the Bill that anyone should do anything ridiculous. Therefore I am not arguing with the lawyers as to what is stated in the legislation.

I did not interpret the legislation on my own. In fact, I contacted a lawyer who is regarded as the man who knows most about medical legislation in South Africa and asked him for his opinion. I also obtained the opinion of friends of mine who are lawyers and members of this House. Therefore I did not simply interpret the legislation on my own. I must say that if only lawyers may express opinions on legislation, that would bode ill for the other hon members of this House. I think that those who are not lawyers may also express opinions.

I believe that we are making these powers somewhat too wide. The hon the Minister spoke about another group hostile to the Medical Association. I had not been aware of the representations submitted by that group when I spoke in the House, but I know that the Medical Association of South Africa is one of the few associations in South Africa that also belongs to the world body. We have been readmitted as members of the world body. I feel that we must be extremely careful as far as our legislation is concerned.

I also contacted senior members of the Medical Association. I am an active member of the Medical Association. I repeat that I have served on the Federal Council of the Medical Association. Up to January this year I served on the management of one of the 20 branches in South Africa. I am directly involved with the Medical Association. I contacted various other members of the Medical Association in regard to this clause. They are probably belonging to the National Group of General Practitioners. The specific subject that is defined in this clause was discussed in the course of the discussions of the National Group of General Practitioners last year just after the conclusion of the Parliamentary session, and I was present. The “Akademie vir Huisartspraktyk” had between 400 to 500 members at a congress the previous year and I was present at that as well. I feel that those members of the Medical Association are not in favour of the wide interpretation given in the clause.

The hon the Minister cannot ask every doctor what his opinion is. The hon the Minister acts on the basis of what the Medical Association has said to him, but I have reservations about the members of the management of the Medical Association and I shall take the matter up with them. The hon the Minister of Agriculture is a maize farmer, and if maize prices come up for discussion he will undoubtedly listen to the Agricultural Union, but he can also know what is going on in his capacity as a maize farmer. In the same way, I have reservations as a member of the Medical Association, and I am certainly going to take to task those members of the Medical Association who told the hon the Minister that they wholeheartedly supported this Bill, so that they may explain.

I am afraid that if we go too far with this legislation, then it will be possible for it to be misused by the very people to whom the hon the Minister referred and who are hostile to us. I have no argument with the department as regards what is stated in the Bill and how one should interpret it. A senior member of the department told me that it was necessary for it to be there. However, I do not think that it is necessary for it to be there. Therefore it is not a question of my interpretation of what is stated there; the issue is the factual situation.

I reiterate that the fact that there must be secrecy, the fact that the Medical Council is involved, makes it more acceptable. I shall not vote against it because I am in favour of this principle and I know that an effort will be made to implement it correctly, but I am honestly convinced that this is too widely framed. One does not need all these tremendous powers. In my opinion the treatment is worse than the disease in this regard.

Mr Chairman, I find myself in a somewhat difficult position this afternoon when I listen to the arguments of the hon members of the Opposition and my hon colleague who has just resumed his seat. I should like to repeat what I said in the course of the Second Reading debate. The hon member for Parktown mentioned on a number of occasions that we should look after the interests of the patient. In my opinion, that is the issue.

You have hit the nail on the head.

The hon member says that he agrees with me. Hon members, including the hon member Dr Vilonel are now objecting. He says that he does not object to our giving teeth to the Medical Council. What he is objecting to is that we are making the teeth too sharp. In the first place, we must ascertain to whom we are giving these powers. The Medical Council bears a considerable responsibility and will not approach the Minister unnecessarily to request these powers. In his speech in the Second Reading the hon member for Pietersburg gave us an indication …

Order! The hon member must not repeat the Second Reading debate.

As far as I am concerned, the issue here is the protection of the patient. It has already been said that a medical pratitioner can purchase a certain remedy for 89 cents, whereas the pharmacist pays R14,40 for it, and the patient R23. I should like to motivate my statement that we must give teeth to the Medical Council.

Order! Clause 5 concerns the instituting of investigations. Is the hon member discussing that now?

Sir, I should like to motivate my statement that it is essential that it be possible for an investigation to take place. Unless we authorize an investigating official to peruse documents, etc, as described here, the Medical Council will not obtain all the information. I have before me documents that prove to my satisfaction that it is essential to provide that an investigation may be carried out. I have before me an account sent to a patient by a doctor practising in a town close to mine, Middelburg, for the supply of medicine, in comparison with what a pharmacist would have asked. Unless an investigation is carried out, information of this nature will not come to light. In this instance the medical practitioner made a profit of 400% on the provision of a certain capsule. Therefore I support this clause wholeheartedly, because if we do not give the Medical Council the power to enter the consulting rooms of a doctor and seize documents, we shall never be able to fight this kind of thing.

Mr Chairman, I move as an amendment:

1. 1. In the Afrikaans text, on page 6, in line 18, omit “dokument” and to substitute “stuk”.

Ordinarily I should never have replaced the word “dokument” by the word “stuk” but the law adviser tells met that this in a “stuk” and not a “dokument”. I accept it as such.

I move as a further amendment:

1. 2. On page 5, in line 45, after “time” to insert:

One of the members objected to the fact that it was possible to do this at such an unreasonable time. I am therefore changing it to “reasonable”. This makes no difference whatsoever to the legislation itself.

I am not going to attempt to reply to individual speeches. Some hon members only spoke in order to justify themselves.

In the first instance I think that the Medical Council is not seeking more teeth. The fact remains that the Medical Council has all the necessary powers at its disposal and can permanently strike off the roll any doctor who is found to be guilty of an offence. Therefore the Medical Council has the right to examine a registered doctor and to demand from him certain documents which he is then obliged to submit. The Medical Council also has the power to ask people to submit evidence in this regard. However, the Medical Council has no right to help improve its administration of justice by carrying out an investigation. Accordingly this section is being inserted at the request of the Medical Council. The original section 41 remains unaltered, and section 41A is now being inserted. The aim is to afford the Medical Council the opportunity to improve its administration of justice. That is all that is at issue here, and nothing else. The hon member for Hillbrow asked me whether this was necessary. As I said, this is being done at the special request of the Medical Council, because they deem it necessary.

I want to eliminate one possible misunderstanding. It has never been the intention of the Government to put doctors in their place. Indeed, the Government does not need to put doctors in their place, since they fall under the discipline of the Medical and Dental Council as far as their profession is concerned. For the rest they are ordinary people like anyone else. I would not recommend to the hon member Dr Vilonel to provoke a policeman and then think that he would have to obtain a warrant if he wanted to arrest him. He grabs you there and then. Therefore the information they gave the hon member is incorrect. Basically, therefore, this clause is being inserted at the request of the Medical Council.

The hon member also asked a question about the envisaged new section 41A(9)(b), which provides that information relating to patients may not be disclosed. What is the investigation about? In the first instance it concerns a patient, and in the second instance it concerns a medical practitioner, dentist or a person in one of the related professions who has not treated a patient properly. In the process, information has to be obtained, and the information acquired by way of inspections must be made known to someone. The aim of this clause is basically that information may be provided to those people who issued the certificate and directed that an investigation should be carried out; in other words, the Medical Council. The whole tenor of the provision is that an inspector cannot act without being appointed by the Medical Council and receiving a certificate from the Medical Council. Therefore his task is to obtain specific information for the Medical Council. He can also make that information known to the court, if the court should so decide. If he acts extra vires and makes the information public, a very severe punishment may be imposed. Therefore confidentiality is not at issue. The issue is to enable the Medical Council, at its own request, to improve its administration of justice; there is no other aim in this regard.

People are objecting to an inspector having the right to carry out his investigation at any place. But surely it is ridiculous to say that he may only do so at the doctor’s consulting rooms. In the first instance, people object to the time when the inspector will be able to carry out an investigation and they want him to warn the doctor in advance. In the second instance they say that he may take home those very things that he may inspect. He may not look any further Surely one cannot carry out an inspection in that way! In such circumstances one is not carrying out an inspection. For that reason we agreed to comply with the request of the Medical Council. To seek to maintain now that it is something exceptional to want to institute an investigation into dispensing doctors is, quite honestly, a case of blowing the matter up out of all proportion to the significance of the clause. This is a general clause that the Medical Council wants in the legislation because it will improve their administration of justice.

Mr Chairman, the hon member dr Vilonel is, as he has said, an active member of the Medical Association. I want to agree whole-heartedly with what he said in connection with the association. I am also an active member of the association and was in private practice until a few days before I came here. I agree whole-heartedly with the hon member’s interpretation of the views of practising medical practitioners. I think the hon the Minister has been out of the practice for too long to be able to make a sound assessment of this matter. This clause will definitely cause a problem, particularly in the case of a general practice. A person who is possibly not even a medical practitioner may come and investigate matters there. The hon member for Rustenburg has not yet discussed this legislation. He is also a professional colleague. But I definitely share the misgivings expressed by the hon member Dr Vilonel particularly with regard to this clause and its practical effect. The general view is that the Medical Council will exercise this power. However, the Medical Council does not consist of a majority of elected medical practitioners. That misapprehension sometimes exists. As a matter of fact there are a minority of elected professional persons serving on the council. There will therefore very definitely be objections if this clause, as it is at present worded, were to be applied literally, particularly with regard to general practices.

Mr Chairman, the hon member for Pietersburg said that he hoped that in the application of the legislation sound judgment and propriety would be manifested. I maintain that when it was necessary to undertake an investigation of this kind in the past, it was always done with decency and propriety. The hon member must tell us how much confidence he has in the Medical Council. The Medical Council appoints an investigating officer and that person acts according to the directions and on the instructions of the Medical Council. Whether or not that person is a doctor, what is important is that he is acting on the instructions of the Medical Council.

Mr Chairman, can the hon member tell me whether the official to whom he is referring will of necessity be a medical practitioner? I should also like to know whether he agreed with the misgivings which the hon member Dr Vilonel had on this aspect.

The investigating officer appointed by the Medical Council to undertake the specific investigation need not be a doctor, but could be someone else, depending on the nature of the complaint which has to be investigated. As I said earlier, I have no misgivings about this. In the same way that an investigation has never been a threat to a doctor in the past, it will not be a threat to a doctor in future because only cases where there is good reason for this will come to the attention of the Medical Council for investigation.

The second part of my question is Whether you agree with the hon member Dr Vilonel.

I do not agree with the hon member Dr Vilonel in the sense that in my opinion he sees too much coercion in this statutory amendment. What counts with me is the confidence I have in the Medical Council and in the investigating officer they will appoint. He will have to act according to the directions of that council.

Mr Chairman, I thank the hon the Minister for the explanation he has given. He has given us an assurance that this is fully supported by the Medical and Dental Council on the one hand and by the Medical Association on the other hand. However, it is clear to all of us that members of the Medical Association of South Africa have reservations about this, and I am now wondering whether the directions given to the hon the Minister have been agreed to by all the members of the Medical Association, whether there has been complete agreement on giving the hon the Minister this mandate. Not being a member of the Medical Association, I find myself betwixt and between, and am therefore obliged to accept the hon the Minister’s assurances that this is fully supported by the Medical Association of South Africa.

I want to compliment the hon member Dr Vilonel for standing up and being frank about his reservations. I am not trying to gain any political point because in this instance we cannot gain anything. We are dealing with the lives of patients and the medical profession, and it is not my intention at all to make political gain out of this. I sincerely trust that the hon member Dr Vilonel will go back to the Medical Association and once and for all clear up this matter in regard to their attitude, and report back to the House in due course.

Did you not consult the Medical Association?

That hon member must rather go back to Durban and start worrying about the Durban City Council.

In regard to the explanation given by the hon the Minister, we must remember that subparagraph (a) is not being excluded, and that deals with secrecy. That is fine. It also states that no personal particulars regarding a patient shall be disclosed. The hon the Minister says that it is not to be disclosed by the person conducting the investigation, but with great respect, the clause is worded so as to mean that it cannot be disclosed without a court order. I have difficulty in interpreting the clause the same as the hon the Minister does. Perhaps that is the intention, and I am not saying that it is not the intention, but the wording of the clause does not bear it out. That is why I asked at the beginning how it is possible to conduct an investigation concerning a patient if the personal details of that patient is not disclosed. Obviously it must be disclosed, but I imagine that such details may not be disclosed to any other person than the inspector.

Lastly, I would like to have a clear and unequivocal answer from the hon the Minister on the question of whether a doctor is going to be obliged to make a statement which will incriminate him.

Mr Chairman, no doubt there may be members of the Medical Association in their individual capacities who may feel different about this particular clause and the ostensibly fairly wide powers which are being given by the registrar to an inspector. I would just like to ask the hon member for Hillbrow whether he personally consulted the Medical Association and established their official point of view on this before he started talking about this particular clause. We did go to the trouble to speak to the representatives of the Medical Association, including their legal advisers, who advised us that they were totally satisfied with the provisions of this clause.

Did you not hear what Dr Vilonel said?

I did. What the hon member Dr Vilonel said, was that there are individuals, doctors and members of the association, who may disagree with this. However, I did not hear the hon member Dr Vilonel say that the Medical Association disagrees with this clause. The opinion we got from the legal advisers was in fact that the Medical Association officially supported the provisions of this clause. That is what it is about.

I do not need you to tell me what it is about. I know very well what it is about.

I am sure the hon member knows what it is about in terms of content, but the question is whether he knows what the official opinion of the Medical Association is. It is obvious to me that he does not know, because what he is saying is in direct conflict with the official opinion expressed by the Medical Association. I am sure that the hon member, as a lawyer, would believe in and support the principle of self-regulation by the profession. What is being done here, is that the profession itself, namely the Registrar of the Medical Council, will appoint the inspector and officially grant him these powers. That is being done by the profession in the control of the profession. That principle is very important to us and that is why we are supporting the clause in its present form. I think the hon member will agree that the legal fraternity also has the right of self-control of that profession and that the powers asked for by that profession should be granted by an Act of Parliament in order to allow them to regulate themselves. The question I ask the hon member again is whether he is speaking here with full knowledge of the official opinion of the Medical Association.

Mr Chairman, I can reassure the hon member for Durban North immediately. We did talk to the Medical Association I talked to them myself, not to their legal adviser but to one of the most senior members. I then discussed the matter with the hon member for Hillbrow. I do not think he is expressing an adverse opinion on the Medical Association. The hon member referred to a small group who represent the region from which the hon member Dr Vilonel comes. The hon member is therefore making a mistake if he is trying to score a political point in this regard.

I want to tell the hon the Minister that I supported the Second Reading of this clause, and now that I have listened attentively to hon member’s arguments, I support it more than ever before. We have to consider the people we are talking about here. We are talking about the South African Medical and Dental Council. They are not just any people, but are very special people. The hon member said that there was not a majority of elected members. Is the hon member opposed to the actions of the council because the majority of members are not elected? Is he so opposed to it that the tariff committee they had …

I think there are certain matters on which only medical practitioners should decide.

We cannot discuss it now. I am confident that this council will not investigate just any matter. They will not send just anyone either. They will send a person who is an expert on the matter which has to be investigated.

In the second place, no one need be afraid. Outside persons who are guilty, are the persons that this Bill …

That supports our point of view.

We have always supported that point of view. We were just referring to your argument about the Medical Association.

*The discipline, standards and ethical norms of my profession are sacred to me as a practitioner, and I believe that this clause makes it possible to protect these high standards of the doctor and the idea the patient has of the doctor and his work, against irregularities which could even cost the patient his life. For that reason I cannot do otherwise than support it. I want to make it quite clear that this Bill is basically concerned with better medical treatment and ethical standards. For that reason this side of the House will support it.

Mr Chairman, if a person wants to score political debating points he can always do so. The hon member for Pietersburg pretended to agree with the hon member Dr Vilonel. The hon member for Hillbrow also fell in with this. But I can make out that the hon member for Parktown and I agree.

I also agree with him.

Yes, that hon member also agrees with him. Must we now sit and deride each other about this? Surely this is nonsense. The facts are basically as the hon member for Parktown spelt them out. I have said so repeatedly. One cannot find fault with this.

This is only one matter I have to rectify. The hon member for Pietersburg made an insinuation about the Medical Council, an insinuation which I did not like. He said by way of interjection: “Yes, but they are not all elected members”. That is a severe reflection on the members of the council who were not elected, implying that they would not be able to make an impartial judgment.

How is the Medical Council constituted? It consists of 33 members. Of those members only two are laymen.

Who are they?

One is Daan de Villiers and the other is a Mr Davidson. All the others are professional people. Approximately 21 of them are medical practitioners; there are four to six dentists and the others are the chairmen of the various professional councils. These are the people who have to take decisions. Now I cannot understand why hon members who are medical practitioners are concerned about the decisions of a council in which medical practitioners have a two-thirds majority. It seems to me as if some people whistle too loudly when they walk through a church-yard.

Amendments 1 and 2 agreed to.

Clause, as amended, agreed to.

Clause 6:

Mr Chairman, clause 6 is the clause on which we had extensive discussions during Second Reading. In terms of this clause doctors are permitted to dispense medicines. Section 52 of the principal Act grants doctors a right—which, I should say, is an inherent right—to dispense medicines and to make up prescriptions. The amendment effected by clause 6 brings about a substantial change to that inherent right in the sense that medical practitioners now lose that right. Instead doctors now have to apply for the right to dispense medicine and their names must be placed on a register. Before their names are placed on a register doctors have to submit applications accompanied by proof to satisfy the requirements of the register to the effect that their right personally to dispense medicine is in the public interest. This constitutes a substantial change to the existing stipulation in the Act. When I raised this point during Second Reading I was quite disappointed by the reaction of the hon the Minister, who saw fit to state that because I had brought to the notice of this House certain arguments raised by the National Medical and Dental Association …

[Inaudible]

The memorandum of the association, together with one submitted by the Natal Guild of Doctors, was incorporated into the memorandum submitted by a committee of dispensing doctors. The hon the Minister has a copy of that memorandum, I am sure.

I certainly have a copy of it. I also had a copy of your speech before you even delivered it.

Well, I had a copy of the hon the Minister’s speech too. He did not, however, deliver that speech. [Interjections.]

If the hon the Minister had said here in the House that he could not on merit agree with their submissions, I would have accepted that without any hesitation. It would have been his right to do so. To dismiss their contentions, however, purely because there is something about that association which the hon the Minister does not like, I am sure, is simply not good enough. The hon the Minister stated indeed that the Association was responsible for the SA Medical Association being kicked out of every world medical body. Is that correct? [Interjections.] Well, Mr Chairman, I do not believe that is true. I believe there were other reasons for this as well. I do not, however, want to trigger off a protracted debate on this aspect at this stage. The hon the Minister, however, knows very well…

I never expected that from you.

The hon the Minister knows very well what goes on in my mind. I am certainly not going to draw that aspect into this debate at the present moment. The hon the Minister, however, should not disagree with people simply because he does not like their faces. He can disagree with people on the merits of their submissions but not otherwise. [Interjections.]

We are conducting an argument now in respect of clause 6 because there is some measure of dispute in relation to the right doctors will now have to be registered to dispense medicine, while the inherent right they have enjoyed until now is being taken away from them. Again, Mr Chairman, as we also did at Second Reading, we want to ask the hon the Minister to give to this Committee a satisfactory reason why this change is necessary. The hon the Minister should in particular explain to us how the new provision contained in the proposed section 52(2)(b) will be executed. The said paragraph (b) reads as follows:

The hon the Minister should please explain to us what sort of proof would be necessary for a doctor to satisfy the requirements of the register in so far as they refer to the public interest. We also want to know what “in the public interest” really means in this instance, particularly if we bear in mind certain definitions given by legal dictionaries and certain interpretations by courts of law in connection with this aspect. I am looking forward to hearing the hon the Minister explain this to us.

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

1. 1. On page 11, from line 13, to omit paragraph (b) and to substitute:
   • (b) who informs the registrar in the prescribed manner of his intention to compound or dispense medicine in the practice of his profession as contemplated in subsection (1)(a).

This amendment, Mr Chairman, answers fully the question just put to me by the hon member for Hillbrow.

Mr Chairman, this clause is the clause to which this side of the House really has serious objections. In this regard we also agree wholeheartedly with the hon member Dr Vilonel, since as a practising medical practitioner, he raised very strong objections to the fact that, as he put it, the almost inalienable right, the almost age-old right of medical practitioners to dispense, is now being threatened.

This clause amends section 52 of the principal Act, and if one reads subsection (1) of the proposed new section 52, it would seem that a medical practitioner can still dispense under certain circumstances, as long as he does not keep an open shop or pharmacy. The proposed new section 52(1)(b), however, provides that whilst the council, on conditions that it may determine, may exempt a medical practitioner or a dentist from the requirement of registration—in other words, to register as a dispensing medical practitioner—it can withdraw that exemption after an investigation. I reject the statement the hon the Minister made, to the effect that I made an insinuation with regard to the Medical Council. Two-thirds of the Medical Council consists of medical practitioners—that is correct—but they are not practising medical practitioners, the people who have to contend with the problems of dispensing in practice, particularly in isolated areas, but even in our cities, the medical practitioners who want to supply medicines to the less privileged, the people who want to provide an umbrella service for the patient from the first consultation and diagnosis, right through the treatment phase, who want to do this work.

In terms of the proposed new section 52(2), all medical practitioners must provide proof within a period of three months to the South African Medical and Dental Council that at commencement of the Act they were, in fact, dispensing in the practice of their profession. It also provides that the registrar has to enter into a register the name and other particulars of a medical practitioner or dentists who, to the satisfaction of the council, submits proof that the compounding or dispensing of medicine by himself in the practice of his profession is in the public interest. He now has to furnish proof that the dispensing he undertakes in the practice of his profession is in the public interest. One asks oneself: What is the public interest? From the point of view of the patient, I say that it is in his interest, that it is therefore in the public interest, and that a medical practitioner should in any case retain the right to dispense. As far as I am concerned, the proposed new subsection (2)(b) denies completely the inalienable right of a medical practitioner to dispense, and that right is, as it were, being given over to the judgment of the Medical Council which, although two-thirds of it consists of medical practitioners, by no means consists of a majority of practising medical practitioners. It is therefore also in the interests of the patient that this right should be retained absolutely unconditionally.

The council must introduce a new register in which the details of medical practitioners should be kept, a register in regard to which the council can determine fees, in terms of the proposed new subsection (4), which have to be recovered from the medical practitioner in order to be registered in that register.

My standpoint is that when we consider this amendment, we think that it infringes upon the inalienable right of a medical practitioner to dispense, and that is why this side of the House will be voting against this clause.

Mr Chairman, you will understand that it is impossible for me not to reply to this discussion. By way of commencement, I just want to say that regarding the Medical Association and the Medical Council and the standpoints that have been stated on their behalf, I have with me an account for R90 from the Medical Council for what I owe them for the work they are doing and because I am registered as a member of that organization. I also have an account for R142, which I have to pay to the Medical Association.

Order! This has nothing to do with the clause under discussion.

With respect, Mr Chairman, it is being claimed that the Medical Association and the Medical Council support these provisions. I maintain that as a registered member of both thosed organizations, and since I have to pay this amount of R232, I have the right to put questions to the Medical Council, as well to the Medical Association.

Order! That may be so, but the clause under discussion at present has nothing to do with that. The hon member must confine himself to clause 6.

Sir, I am discussing the clause. Inter alia, it is about dispensing. The clause provides that a medical practitioner must register in order to be able to dispense.

My information, directly from the Medical Association, is that the association is in favour of a medical practitioner having to register in order to be able to dispense so that control can be exercised in order to determine how many medical practitioners there are who dispense, to reply to questions that may be asked and to identify the people who dispense. The Medical Association therefore has no objections to the fact that they have to register, as provided in the proposed section 52(1)(a).

I expressed reservations about registration because I was concerned that the age-old right of the medical practitioner to dispense, would be infringed upon. In reply to the speech of the hon member for Pietersburg, the hon the Minister said:

That assurance by the hon the Minister that the right of the medical practitioner to dispense will not be done away with, and the assurance by the Medical Association that they have no objections to people having to register, makes me feel better. The change which the hon the Minister has proposed, does away with the provision “in the public interest”. We therefore do not have to debate this any further, since the hon the Minister is now replacing it with another provision. This is how I interpret it.

As regards the right of the medical practitioner to dispense, I should like to present my own case as an example to the Committee, and it will then be clear why I say that I am concerned that it could be used to take away that right. I served in a practice in the city, and not in the distant rural areas where there are no pharmacies. There are numerous pharmacies in that city. The Black hospital is situated 16 km from the nearest pharmacy, however. A group of doctors, which included Whites, Indians, and so on, treat injury cases whilst on duty. One gives the Black patient a prescription at that hospital. As I have said, the hospital is situated 16 km from the nearest pharmacy. In the first instance, it is very difficult for the Black patient to get to the pharmacy, and if he gets there, the pharmacy does not want to give him the medicine because the pharmacy is not assured of getting its money. The issue here is money, and nothing else.

We were therefore saddled with this problem. A certain English-language daily newspaper became aware of the fact that the Black people were not getting the medicine prescribed for them. They wanted to write an article about it, and they contacted me. I told the newspaper that they should give the matter a chance; it is not a political matter. Similarly, the argument we are engaged in is not a political matter either.

I negotiated with the office of the Workmen’s Compensation Commissioner. What did the Workmen’s Compensation Commissioner say? He said: Man, give the people the medicine; we will pay you. That is precisely what that practice is still doing. The people are given the medicine and the money is claimed from the Workmen’s Compensation Commissioner.

The pharmacists have serious objections to a doctor who supplies medicine cheaper than the pharmacists. They say it is unfair competition. The doctors are “compelled” by the pharmacists to impose certain tariffs. I recall very specifically that the association of the pharmacists has serious objections to a doctor supplying medicine more cheaply. I wish to add that there are pharmacists—they are distinguished people—who say that they have no objection to a doctor giving that medicine to the Blacks. What I am saying here is on record. Therefore, the principle is that when he gives it to the Blacks who have no money, it is in order, but if he gives it to a White person who does have money, it is not in order, because money is at issue then. That is why I had reservations.

I am satisfied with what the hon the Minister told me. He said that the right of the doctor to dispense is not being infringed upon. He can find no fault with that, and I am quite happy with that, since that is what I was concerned about. The person who dispenses is the general practitioner, and not the professors at the universities. It is not the members of the Medical Council. The person who dispenses is the general practitioner in the field, as I was. Just as the hon the Minister of Agriculture is a maize farmer, I am a dispensing medical practitioner as I stand here. I am declaring my interests in that regard. One can find no fault with the hon the Minister of Agriculture acting on behalf of the maize farmers, just as I am pleading for the dispensing medical practitioner. There is the feeling that the medical practitioner is the devil with the forked tail, and the pharmacists are the angels. That is not true, however. The standpoint I am adopting now is the one I have always adopted. I wrote about it in articles when I was the editor of a medical publication on the West Rand, and I also adopted this standpoint at medical congresses. I have not suddenly decided to adopt this standpoint now. This is a standpoint I have adhered to over the years. I have no reason to change my mind. I would be a jellyfish if I were to do that.

I support this clause as a result of the assurances I was given by the hon the Minister and the Medical Association. However, I still have questions I want to put to the Medical Association.

This is not a political matter. I cleared up the matter with the hon the Minister beforehand. In the sensible and humorous way that is typical of him, he told me that I could say what I wish, as long as I allow him to say what he wishes, and I agreed with that. The hon the Minister is making a great success of his portfolio. The other day I mentioned the example of the clash between two parties and that their decision was to leave it to the hon the Minister to decide. I do not want this provision with regard to the dispensing doctors to boomerang, and the Minister to be attacked for this at a later stage. That is why I have adopted the standpoint that this legislation should not be abused, and that the rights of the medical practitioner to dispense should not be restricted.

Mr Chairman, I can understand that members argue amongst themselves and say how many years they have been in practice, that they think a legal person should be appointed as an inspector, etcetera. However, there are a few matters that have to be cleared up.

Firstly, I want to clear up a matter with the hon member Dr Fontanelle, no, Dr Vilonel. [Interjections.] I had a colleague by the name of Dr Fontanelle who practised with me in Bloemfontein for many years. He is a prominent orthopaedic surgeon.

This one is a horse-doctor.

If he is a horse-doctor and he wants to dispense, this legislation has nothing to do with him.

There is one matter that has to be cleared up once again. It is no use people saying that they are a member of the Medical Association and that they can do one thing and another. I am also a member of the Medical Association. The fact of the matter is that if the Medical Association makes representations to me, I have to listen to someone. For example, the chairman and the Secretary-General visit me at my office and tell me that the federal council has reached a certain decision. Must I tell them that they are talking nonsense? Must I ask them whether they have asked all the members whether they agree with the decision? There is only one official body that can speak on behalf of the Medical Association.

I want to repeat the history to hon members once again. The federal council of the Medical Association took a decision. The request was addressed to two organizations. Firstly, it was addressed to the Medical Council, which was asked to make representations to me to alter the Act by inserting the proposed new clause 41A. Thereafter, they visited me and the Director-General personally and repeated the request. Why was this request repeated? In the first instance, the request was made because they acknowledged that a doctor has a right to dispense and, secondly, because they are being accused by other professions of not doing this in an ethical way. It is said that there are more than 860 dispensing doctors at present. The request has been made that they should be registered as that we will know what the position is. Thirdly, the Medical Council has an ethical rule which determines that a doctor is not permitted to make a profit from the sale of medicine. All hon members are aware of this. The fact of the matter is that this enables the Medical Council to determine whether or not its ethical rule, which has been in its code of ethics for many years, is being implemented.

There is another major advantage linked to this. It sometimes happens that after medicine has been used for a certain period of time it is ascertained that it has the incorrect effect or that it was labelled incorrectly. The provision now contains the immediate advantage that those who distribute medicine can be notified immediately to stop the distribution of the medicine concerned. It is not necessary to notify the other people, because they do not use it. That is why this provision in the legislation is worded in that way. I repeat: It was inserted at the specific request of the Medical Association of South Africa, the representative association. The Medical Association of South Africa represents 90% of all doctors in South Africa.

What is being provided here? In the proposed new section 52(1)(a), as contained in clause 6, it is provided that doctors may dispense, but the Medical Council may decide to introduce a register for certain groups. In paragraph (b) it is provided that the Medical Council can exempt certain groups if it wishes. In other words, the Medical Council can decide whether or not to introduce a register. The proposed new subsection (2) provides that if a register is introduced, those people who are dispensing at present must be placed on the register.

The question of what the public interest is, was raised. The hon member for Pietersburg explained what public interest is when he indicated how it is in the interest of the patient that this should be done. That is the position as far as the public interest is concerned— nothing else. However, I have made it easier in the legislation. All I am doing is to propose that those who still want to dispense in the future must notify the registrar in the prescribed manner, as determined by the Council. That is what the legislation will provide in future.

Of course, the Bill also further provides that the council can refuse to accept such a person. It can do so if it finds that the person is not practising according to the code of ethics. In terms of the present wording of the Bill such a person’s name can be removed from the register, or his application can be refused. Someone who makes money from medicine can also be removed from the register by the council, since the council’s code of ethics provides that a doctor may not supply medicine at a profit. Why? Because a doctor is paid for a professional service. That is why he is registered. That is what is stated in the Bill. The Medical Association requested this. If someone were to tell me that I should not listen to the chairman of the federal council and to the Secretary-General, Dr Viljoen, then I ask: To whom must I listen? To whom must I listen when I speak to the doctors of South Africa? People are fond of saying that the Minister of Agriculture can make pleas on behalf of the farmers, but if he does not listen to Mr Jaap Wilkens, the President of the South African Agricultural Union, to whom must he listen? [Interjections.]

Mr Chairman, I am pleased to learn that the hon the Minister now recognizes the difference between the meaning of the word “may” and the meaning of the word “shall”.

†The amendment which the hon the Minister has now moved removes the root of the difficulty which we raised in the Second Reading debate and we therefore welcome the amendment because this puts a completely different light on the clause. Previously one had to obtain proof that a doctor had been registered and in that way satisfy the public interest. According to the amendment moved by the hon the Minister, the medical practitioner or dentist now merely has to inform the Registrar in the prescribed manner of his intention to compound or dispense medicine in the practice of his profession as contemplated in subsection (1)(a). In other words, if the council does decide to open a register, all the doctor who wants to dispense medicine has to do is to inform them of that fact, and it now becomes a mere formality. If the rights given to doctors are not taken away, it will remove the difficulties which we raised in regard to the dispensing of medicine to the poorer section of the population who very often cannot afford to pay the high costs that pharmacists charge. These people will also receive the personal attention of the doctor and particularly in the Coloured and Black townships the doctors’ services will include the dispensing of medicine as well.

I should, however, like to ask the hon the Minister one other question. I think that in the past we had by law given the right to nurses to dispense and compound medicine, and I should like to know whether this clause will in any way affect that right.

Not as far as this clause is concerned. This will not affect that right of nurses. However, it is being dealt with in the next clause.

Mr Chairman, in my opinion, the hon the Minister provided the proof in his speech that it is unnecessary to amend this clause, although he advanced a few reasons as to why this was necessary. Firstly, he said that the right of a doctor to dispense is now being recognized in the clause. However, I maintain that that is not the case. Secondly, the hon the Minister mentioned this absurd example: If it is found that a kind of medicine could have side effects or ill effects, the people on the register could be notified to stop its distribution. If it is found that a medicine has side effects or ill effects, all medical practitioners, and not only those who are on the register, should be notified, Since it is prescribed by all medical practitioners, and the dangers must therefore be pointed out.

The hon member Dr Vilonel is satisfied because the hon the Minister has given certain assurances. However, I want to warn him to be careful of assurances given by hon Ministers on that side. Sometime in the future he may be practising again, and there may be reasons for the Medical Council prohibiting him as a medical practitioner practising in an urban area from dispensing, regardless of the reason. In terms of this clause the Medical Council can decide that the hon member is no longer entitled to be registered. He is then removed from the register and he may no longer dispense. I want to warn the hon member that if the amendment is accepted, he may encounter this problem.

Mr Chairman, I wish to associate myself briefly with what the hon the Minister said earlier, and I also wish to refer to a reference made by the chief secretary of the Medical Association to the high cost of medicine. On occasion the hon the Minister said that South Africa could not afford to have such high medical costs. I should like to dwell on this aspect for a moment and ask why it is necessary for a difference in the purchase price of medicine when, for example, the Defence Force makes its purchases …

Order! I regret having to interrupt the hon member, but I wish to point out to him that the issue here is the right of medical practitioners and dentists to prepare and dispense medicine. I cannot see what the cost of medicine has to do with that.

Mr Chairman, I respect what you say, but basically, this is about the large differences in the prices of medicine that is dispensed at the various outlets. The prices of medicine is so high that we have practically landed in a socialized situation. Our country cannot afford something of this nature. I have seen how the health services in various overseas countries have collapsed because the price of medicine was too high for the ordinary person. We must see to it that the purchasing of medicine, whether it is by a dispensing doctor, a pharmacist, Transmed, the Defence Force, or the province, takes place on an equal basis pricewise, so that this evil can be eliminated successfully. It is really becoming impossible for the ordinary person to obtain medicine at a price he can afford.

Mr Chairman, I wish to express my genuine appreciation for the standpoint the hon the Minister is adopting, viz that the Medical Council should be protected in the whole process. They are the people who are requesting this right.

The battle between the medical practitioner and the pharmacist is an age-old battle. The hon member Dr Vilonel said during the Second Reading debate that this struggle has been in progress in South Africa since 1850. To me, the issue is the medical profession. As far as the question of dispensing is concerned, hon members opposite referred to an umbrella service. They tried to create the impression that by taking away that right to dispense from the medical practitioner, would not contribute to the cheaper supply of medicine to patients. I do not think that we should see this matter in that light. I have proof which shows that the dispensing medical practitioner makes a far larger profit on medicine than the pharmacist.

Oh no.

I could give the hon member the details, but I do not want to take up the time of the Committee by doing so. We must refrain from creating the impression that if the medical practitioner is granted the right to dispense, it will necessarily give rise to cheaper medicine. I can furnish proof that it may even be more expensive for the patient. However, I have every confidence in the Medical Council. The hon the Minister said that he was not infringing upon the right of a medical practitioner who is dispensing at present.

The measure before this House is a step in the right direction, in my opinion. However, I do not think it goes far enough. I have full confidence in the Medical Council, however, and I believe that they will solve the problem. If one looks at the prices at which medicine is purchased from manufacturers and if one looks at the price at which the patient has to purchase it, it is clear that something is wrong. I appreciate the way in which the Minister is acting, that he is taking the bull by the horns and saying that this matter must be solved.

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

Sir, I am not prepared to reply to a question put by the hon member, since it concerns his personal interests.

Order! The hon member is not permitted to accuse another hon member of putting a question which concerns his personal interests. The hon member must withdraw that.

I withdraw it, Sir. I just want to make it very clear that I am not prepared to answer a question put by the hon member.

I think the only way in which one can go about this—and I think the Medical Association will do so—is to get the manufacturer, the pharmacists’ association, as well as the medical practitioner around a table to settle the dispute that has been going on for centuries, since it is the patient who ultimately has to pay the price.

Amendment 1 agreed to.

Clause, as amended, agreed to (Conservative Party dissenting).

Clause 7:

Mr Chairman, I have already raised the question of “a reasonable distance”. The proposed section 52A reads:

I accept that, as the hon the Minister told me in his reply to the Second Reading debate, that has just been brought over from the present Act, but we have just heard the argument between the hon member for Pietersburg and the hon member for Witbank about the controversy between the pharmacist and the dispensing doctor. Let me quote what the hon member for Parktown said in his Second Reading speech (Hansard, 28 March 1984, col 3994):

I think it is generally accepted that the pharmacist is an integral part of primary health care. I do not think we can gainsay that. I would, however, like to submit that “a reasonable distance” is very loose phraseology. I should like to ask the hon the Minister to consider whether or not we should tie it down to a definite distance to make it easier for everybody and so prevent any confrontation occurring. I should just like to hear the hon-the Minister’s comments on that, because a reasonable distance to me may not be a reasonable distance to him.

If one looks at the position of the doctor and the dentist, one sees that a doctor may not practise dentistry if there is a dentist within 50 miles. I think I am correct in saying that. So, to the doctor and the dentist “a reasonable distance” means 50 miles. I would not like to suggest that figure, but I would like to suggest that the hon the Minister could consider specifying the distance involved here. I am not now referring to the doctor dispensing at present, but to any new doctor who wants to be registered as a dispensing doctor. I would say that a distance of three km or five km would not be unreasonable. I would ask the hon the Minister to consider that and I should like to hear his comments on it.

Mr Chairman, the hon member for South Coast has made out a case for the Minister to specify how far a pharmacy shall be situated from the consulting rooms. I want to tell the hon member that I know many medical practitioners in rural towns who practise in the same building in which the pharmacy is situated but for whom it is still necessary to dispense medicine to a certain category of patients, while there is no ill-feeling between them and the pharmacists concerned because the pharmacists know that these are poor patients who are unable to pay them. These pharmacists have no objection to that.

I want to make it very clear that we on this side of the House have no quarrel whatsoever with the pharmacists. We do not think that a few dispensing doctors are a problem to the pharmacist. The problem the pharmacist has is an entirely different problem. The pharmacist’s real problem is the State tender system.

The clause under discussion refers to a nurse who may dispense medicine in the consulting rooms of a medical practitioner. Those consulting rooms, as far as I am concerned, may even be situated within the same building in which there is a pharmacy. This is the case in Pietersburg, in Middelburg and in many other country towns. The pharmacists there carry on business and operate their pharmacies, and they do so on very good terms with the medical practitioners, even those in the same building in which they operate their pharmacies.

That is why I think that this provision is going to restrict such medical practitioners completely. I do not think it is in the best interest of certain categories of lesser privileged patients. For that reason we, too, shall vote against the clause.

Mr Chairman, what is this clause concerned with? It is not concerned with the question of whether or not a doctor may dispense. Nor is it concerned with whether he should be situated 5 kilometres, 10 kilometres or whatever distance it may be from the nearest pharmacist. He may even be inside the same building in which there is a pharmacy. The clause is concerned with one thing—and one thing only—and that is that the medical practitioner in question has the right to give a nurse permission to dispense medicine on his behalf. That is all it is concerned with and that is what is provided in the existing Act. It is being provided in the new proposal. The only difference is that in terms of the existing legislation the medical practitioner requires the consent of the Director General to give a nurse that right. In terms of the present proposal the medical practitioner will have to acquire that right from the SA Medical Council because that council will now keep the register. That is basically all that is involved here.

Clause agreed to (Conservative Party dissenting).

Clause 8:

Mr Chairman, clause 8 repeals section 53A of the principal Act. We have already debated this aspect to such an extent in the case of the previous legislation that I do not think it would help us much to discuss our differences in this regard with the hon the Minister again. I should just like to say to the hon the Minister that in this Bill we oppose the amendment concerned, just as we opposed it in similar cases in the past.

We think that the tariffs committee or another similar committee is necessary to act as arbiter when differences arise that have to be resolved. We have explained in detail what we think is going to happen and for that reason we shall once again vote against this provision, as contained in the clause under discussion.

Mr Chairman, the hon member for Parktown is right. A previous decision on this situation was taken in this House. This was done in regard to similar legislation in the past. Therefore this is merely a consequential amendment.

Mr Chairman, you will now allow me to refer to the previous clause again. However, I want to point out to the hon member for Pietersburg that he should understand very clearly what he was actually voting against.

Clause agreed to (Official Opposition dissenting).

Clause 9:

Mr Chairman, in terms of clause 9 section 61 of the principal Act is being amended in that subsection (2A) is being deleted. This is the clause which I should like to call the Pontius Pilate clause. This is a case in which the hon the Minister now, in all earnest, washes his hands of this entire matter. The hon Minister will no longer have the final say as far as the determination of the tariff is concerned. I therefore call it the Pontius Pilate clause.

I am very pleased that the hon member for Brits is here, and I should like him to listen to me. I want to remind him, as well as the hon member for Rustenburg, of the previous debate when they said that it was imperative for the Minister to have this final say. The hon member for Durban North acted very consistently because he was also opposed to it at the time. The hon member for Pietersburg, who was then the main speaker on the Government side, was in favour of it, and I think that he is still in favour of it, or at least has little objection to it.

We on this side of the House said at the time that we recognized the right of the Minister to act as final arbiter in this connection, but that we would keep a watchful eye on the situation to ensure that he carried out that task carefully and correctly. Despite all the problems which cropped up in this connection and the fact that this task was not always carried out satisfactorily, we still think that that final say of the Minister maintained orderly control over the matter and that the interests of the patient definitely benefited as a result.

I just want to point out that as far as this discussion is concerned, the previous Minister of Health and Welfare did not even put in an appearance in the House. He does not even want to put in an appearance here.

Nor does the hon the Leader of the Opposition.

Mr Chairman, the difference between the hon the Leader of the Opposition and the previous Minister of Health and Welfare is that our leader was not Minister of Health and Welfare. He did not ask in 1980 to have the final say in connection with this matter. That is the difference.

Since that was the position in 1980, I want to ask the hon member for Brits and the hon member for Rustenburg what has changed now. Since it was then necessary for the Minister to protect the interests of the patients in order to prevent chaos, how has the position changed now? We are being consistent, the NRP is being consistent and the hon member for Pietersburg is being consistent. Consequently I want to ask the hon member for Brits and the hon member for Rustenburg to justify their standpoint in this connection, We think that there should be a final arbiter in these disputes—and there are going to be disputes. There has to be a person who is able to give a final reply in the patient’s interests. For that reason we are still opposed to this clause.

Mr Chairman, the hon member for Parktown wanted to know what has changed since we debated the previous statutory amendment. I just want to ask the hon member whether the plan which we suggested at the time, by way of that statutory amendment, worked.

Yes.

It did not work. It is very clear that it did not work and that is why we are now coming forward with a new plan with which we hope everyone will be satisfied. The hon the Minister himself said that if consensus was ever reached then it was in fact reached in this connection because the vast majority of all the people involved in this matter were satisfied with this measure.

The hon member for Parktown himself said that the system had not worked satisfactorily, but he overemphasized the interests of the patient. That is where he makes his basic mistake. We are not dealing solely with the interests of the patient here. We are concerned here with the interests of all the various groups involved in the rendering of this service. The hon member cannot see it merely from the point of view of the patient. For that reason we have now produced a new plan, and we believe that that plan is going to work.

Mr Chairman, if hon members are looking for a conversation, you are of course at liberty to call upon them to speak, but may I point out that a decision has already been reached in regard to this clause in terms of previous legislation.

Clause agreed to (Official Opposition dissenting).

House Resumed:

Bill as amended, reported.

Third Reading

Mr Speaker, I move, subject to Standing Order No 56:

Mr Speaker, I should like to give the hon the Minister the assurance that although we have problems with this Bill, we shall not vote against the Third Reading, because I do not think we will benefit in any way by doing so.

We are very plesed that a thorough discussion could take place on the provisions dealing with dispensing and discipline so that we could clarify these matters. When I say that it was possible to clarify the matter, I do not mean by that clarification only for us as members of this House, but also clarification for the people involved in the matter. There are doctors who are possibly members of associations with whom the hon the Minister does not agree, but who nevertheless play a valuable part as medical pratitioners in their communities, in spite of the fact that they dispense. I think they experienced problems, just as we on this side experienced problems. I think that everyone has the right to have these problems cleared up. I think we succeeded in doing so and I believe that those people are also pleased that this matter has now been cleared up for them.

I think that the clause dealing with discipline is a good one. I think the hon the Minister knows how I feel about this matter as far as my profession is concerned. Sometimes I do not think it is sufficient. Perhaps there should have been more, so that the medical pracititioners can be kept up to scratch as far as their standards are concerned.

I think the hon the Minister will concede that he and I differ on the provisions dealing with tariffs. I regret that this should be the case, but I shall have more to say about this matter during the Third Reading of the Medical Schemes Amendment Bill.

Mr Speaker, I should like to congratulate the hon the Minister sincerely on the Bill which he introduced. It is my considered opinion that in future we shall be dealing with a far better situation. I think the secret of this improved situation lies in the fact that the hon the Minister consulted over a wide front with all the interest groups involved and as a result it was possible to obtain a large measure of consensus throughout the entire spectrum. I think that as a result we shall also be able to rely on the support of the various professions involved in future. For us on this side it is a privilege to give our sincere support to the Third Reading of the Bill.

Mr Speaker, since we have now come to the Third Reading of this Bill, there is one remark I should like to make to the hon member for Brits. Previously I was the chairman of the study group on that side of the House, and I now want to tell the hon member that it seems to me that strange things have been happening in that study group since I left that party. From the discussion of this Bill it seemed that there had almost been a palace revolution and that certain hon members were unable to reach a consensus in their caucus. They adopted differing standpoints here on this legislation.

It has nothing to do with politics.

That is correct, it has nothing yo do with politics, but what I meant was that when I was still in that party, we first talked things out in the caucus and then came to this House. Obviously that is no longer the case. The hon member for Rustenburg stated categorically that he did not agree with the hon member Dr Vilonel. That is something which never happened while I was still the chairman of that study group. [Interjections.]

This side of the House will not vote against the Third Reading of this Bill, since we, too, are very alive to the need for measures for dealing with medical practitioners who make illegal profits out of medicine. Therefore we are not opposed to that at all. We voted against two clauses during the Committee Stage, because in the Second Reading speech made by the hon the Minister he stated very clearly, and I quote:

This gives one the impression that there is a move towards a medical practitioner eventually being allowed to keep only emergency medicines. The hon member for Witbank referred to this. He is not satisfied with the present legislation and he would like to see the legislation go even further. I wonder how far. Until the profession is buried?

We on this side of the House—in the spirit of the point of view of the Medical Association—will support this legislation. Once again I want to associate myself with what the hon member Dr Vilonel said when he categorically stated the standpoint of the West Rand branch of the Medical Association. As President of the Soutpansberg branch of the Medical Association in my time, I want to tell him that he was quite correct and that I am in complete agreement with the West Rand branch when they adopted the following resolution:

I agree with this standpoint, and in this legislation I see the danger that the right of medical practitioners to dispense can be curtailed. I repeat that medical practitioners in general maintain sound relations with pharmacists—particularly in rural towns—and that the dispensing done by the medical practitioners there is not in competition with the pharmacists at all. Consequently, at this Third Reading, I wish to express the misgiving that this legislation might give rise to a movement in a direction where the umbrella service which private practitioners should render to their patients is definitely being endangered.

Mr Speaker, I want to refer to the comments made by the hon member for Parktown, arising from the comment made by the hon member for Pietersburg that there seems to be a difference between the viewpoints of the hon member Dr Vilonel and the hon member for Rustenburg. The same difference of opinion seems to exist between the hon member for Park-town and the hon member for Hillbrow. It is general knowledge that doctors as well as laymen may disagree.

The hon member for Parktown said during the Second Reading debate, and I quote from Hansard, 28 March, Col 4000:

I think we all concur with those remarks, and having listened to it, I believe that one can only assume that the Medical Council has found it necessary to come to the hon the Minister to amend the Act. The hon the Minister has made it patently clear that that is the position.

It is also a case of a few who give any profession a bad name. One has to accept that. We believe this Bill now allows the profession a greater measure of powers to protect their hard-earned image, which they are entitled to and must be seen to protect. It is only obvious to us in these benches that the profession must have the necessary powers they require under those circumstances, and therefore we support the Third Reading of the Bill.

Mr Speaker, I should like to thank hon members for their support, although they do not all agree. However, most hon members supported the Bill and I thank them for it.

*I do not find it strange that medical practitioners disagree among themselves. It took me 18 months to reach consensus with the federal council of the Medical Association. Therefore, I do not find it strange that hon members who are members of that association do not know about it yet. For this reason I am grateful that in spite of differences I was able to obtain the support of this House for the Third Reading of this legislation, and also for the high level on which the discussion took place.

Question agreed to.

Bill read a Third Time.

Mr Speaker, I move:

Mr Speaker, I want to tell the hon the Minister at once—I do not think he will be surprised at this— that we shall not be supporting this Bill. It was very interesting listening to the debate on the Second Reading and also discussing the Bill clause for clause in the Committee Stage. It was equally interesting being able to observe the hon the Minister’s style. During the Second Reading and initially in the Committee Stage he was fairly brimming with confidence, but as the debate progressed he began to realize he was wrong. Of that I am absolutely convinced. Subsequently he changed his tactics. He unfortunately then became a little personal in his references to me and to the hon member for Hillbrow. He does, of course, have every right to do so; he can do so. In referring, for example, to my practice, he alleged that I had “half a practice”. That is where the hon the Minister made his first mistake. There is no such thing as half a practice. A practice implies seeing one patient at a time, and there is consequently no such thing as half a practice. If he has complaints about my ability as a doctor, however, that is something he is, of course, entitled to. Let me tell him, however, that I do not think my patients are complaining.

Secondly, the hon the Minister referred to my problems as a member of Parliament. I acknowledge that I still have a great deal to learn, particularly as far as the legal aspects of Bills are concerned. There is one thing the Minister will not be teaching me, however, and that is what the aim of a Bill is, what we are trying to achieve.

The hon the Minister indicated that he had consulted the various associations for a period of 18 months. I accept that. I also telephoned the various associations and tried to discuss the whole matter with them. It seemed to me—I think the hon the Minister also made the same mistake, which he is now aware of—that the representatives of the various associations saw the Bill, in the first instance, as being applicable to themselves. The end result of this Bill, ie its effect on the patient, was not always taken into consideration. I shall not specifically mention any names, but there are those who say that they represent the medical practitioners, the dentists, the pharmacists, medical schemes and private hospitals. I know that to be the case, because I spoke to all of them. I said earlier that if we were to allocate marks to the winners, as far as this legislation is concerned, I would give the medical schemes nine out of ten, because in my view this Bill best suits their requirements. I am not one who champions the medical associations because I am a medical practitioner. In fact, I think they have made a mistake in looking firstly to their own interests, and to them I would therefore give five out of ten. The private hospitals made the same mistake in determining what benefit they could derive from this legislation; I therefore also give them five out of ten. The hon the Minister, who had the opportunity of talking to all the interested parties and, eventually, to refer the legislation to a select committee, I give nought out of nought. [Interjections.

That is 100%.

I mean nought out of ten. [Interjections.]

Mr Speaker, may I ask the hon member if there was a select committee to investigate this, from whom would he have taken evidence? [interjections.]

I think that is a very fair question. In fact, I think that is the best question the hon member has ever asked in this House, and I want to congratulate him.

First of all, I will get evidence from all the groups from whom the hon the Minister received evidence. I will ask employers’ associations, who pay most of the R900 million, to give evidence, and I will also get information from the public. The hon the Minister made a mistake when he said that the medical schemes represent the patient. That is not so. The Medical Council that the hon the Minister appoints represent the patient. Above all, we in this House represent the patient.

I asked the hon the Minister repeatedly whether patients had lodged complaints about the Act as it stood. Can I ask the hon member for Rustenburg whether his patients complained about the Act? They did not. [Interjections.]

At Third Reading we have to discuss what the effect of this Bill will be, and I want to quote the hon the Minister because he summarized the effects of this Bill. [Interjections.] The Chief Whip told me that he was going to talk about the importance of private hospitals but up to now he has not said a word. [Interjections.] Mr Speaker, I do not think the hon Chief Whip suffers from insomnia. The hon the Minister said that where there was a difference between the charges of the doctor and the benefits offered by the medical schemes, the patient will have to pay that difference. The effect of this Bill is to increase the liabilities of the patient, of the public. I want everybody to be quite clear about the fact that the hon the Minister introduced a Bill in this House which will result in the patient having to pay the difference in the end.

Must it be the right of the medical profession to fix their own tariffs?

Does the hon the Minister mean every individual doctor as it is going to be now, or does he mean the Medical Association …

Must doctors have the right to determine their own tariffs?

Yes, of course.

So why do you want to appoint an arbitrator to exercise control over them? [Interjections.]

Mr Speaker, that is simply the tactics members of the NP employ. They do not know what it is all about, but they all laugh. The hon member for Turffontein is a fine example of this. If an hon Minister makes a remark, he laughs. He could just as well not do so, because he is not going to get promotion.

May I ask you a question?

No. [Interjections.] Let it be known that the hon the Minister has piloted the Bill through the House which he acknowledges will result in patients eventually having to pay in the difference, whether they can afford it or not. Let us be certain about that. I want to predict that the hon the Minister will soon have to come along with another Bill to amend this legislation.

Mr Speaker, I do not want to be personal, but the hon member for Parktown asked here very arrogantly whether there was anyone who wanted to ask him a question. The hon the Minister then stood up and asked him a question that rendered him speechless. I do not think he should be that arrogant here.

The hon member did a bit of arithmetic and started dishing out marks, clearly revealing his whole method to us in the process. In judging this matter, he had a fragmentary look at the various interest groups. First he only looked to the interests of the patient. Now he has also looked to the other interests and allocated them marks in a fragmentary way. When the hon the Minister looks at this matter, however, he has a great deal more to look at than mere individuals. He must allocate marks across the entire spectrum, which causes problems. The hon member for Parktown said that he accepted that the hon the Minister had consulted all the parties involved. The hon the Minister has repeatedly told him what the opinions were of those representative bodies he consulted. The hon the Minister also told him repeatedly that he could not take into consideration the opinions of individuals whose views differed from those of their representative bodies when it came to arriving at a final decision. The hon member for Parktown also said that the hon the Minister had stated that the medical schemes represented the patient. The hon the Minister, however, never said that. The Minister said that the medical schemes worked with the patients’ money, and that is after all, what happens. That is then why we could not accept the hon member for Pietersburg’s amendment relating to a scale of remuneration rather than a scale of benefits. What is involved here is a medical scheme that works with its members’ money and tries to do the best for them with those resources. I want to contend that as far as this Bill is concerned, doctors will stay in the market if they do not price themselves out of the market. They will definitely not price themselves out of the market, and consequently there will be no problem in regard to the widening of the gap, about which the hon member for Hillbrow spoke, ie the gap between the tariff determined by doctors and the tariff determined by the medical schemes. Doctors will not price themselves out of the market, and therefore there will never to any question of socialization from the point of view of private practice. I think we can accept, with the fullest confidence, that the people who are now the happiest are specifically the doctors, because they are now for the first time going to decide about their own tariffs. I think the people who are in future going to decide on the tariffs in terms of this legislation will do so, with a great sense of responsibility, in the interests of the people who are really the focal point of this issue, ie the patients.

Mr Speaker, the most important aspect of this legislation is that of making provision for the scale of benefits for the Representative Association of Medical Schemes. In my view this is the most important principle in this legislation, and it is specifically the principle we are the most strongly opposed to, And that is why we shall be voting against the Third Reading of the Bill. The reason is because we are convinced that the system that is now being introduced is not going to work. To the great amusement of hon members opposite, the hon the Minister asked the hon member for Parktown whether doctors should determine their own tariffs. Of course no one is opposed to that. They do, after all, determine their own tariffs today. The legislation does not, however, concern the tariffs of doctors, but rather statutory tariffs. Our standpoint is that if a difference of opinion were to arise, there must be some method by which to reach agreement. Otherwise we are going to have a situation in which the gap between the professional association guidelines and the statutory tariffs grows increasingly wider, with the patient in any event being responsible for the payment of that difference. Eventually that difference could be so great that the poor patient would not be able to afford it, and then the whole system of medical schemes would collapse.

It became very clear to me, in the course of this debate, that hon members opposite are not completely au fait with what is contained in the Bill. The hon member Dr Vilonel, for example, said in his Second Reading speech (Hansard, 28 March 1984, col 3964):

That is not what is contained in the Bill. Nowhere is there a provision indicating that this will be done in consultation with the Medical Association. It is only stated that after consultation the RAMS, which is a statutory body, will simply unilaterally go ahead and promulgate those tariffs in the Gazette. That is where the eventual problem will be. In his contribution the hon member for Rustenburg also said, amongst other things (Hansard, 28 March 1984, col 3944):

In this Bill there is no question of negotiation between doctors and medical schemes. We specifically object to the fact that in this case the profession is not going to be able to negotiate at all.

I just want to point out that the SA Medical Association itself felt strongly about this at one stage—and we on this side of the House also felt very strongly about it— although they subsequently adopted a different decision. Their initial comment on this legislation was, for example, that there ought to be an average national tariff and that such a tariff should be determined by the Medical Association of South Africa. The idea is therefore that the medical practioners themselves ought to decide—as in the case of every other profession—on the tariffs they have. Then there is a further very important matter that the SA Medical Association broached here and that I want to raise during this Third Reading stage, because I would like to see it adopted in the implementation of the legislation under discussion. I am referring to the following recommendation:

The itemization, of which there is a great deal today, can give rise to unnecessarily increased medical costs. That much we have to concede. Prof Louw, President of the Medical Association, said on occasion, for example, and I quote:

With that, Mr Speaker, we are in agreement. The Medical Association also proposed exactly what we have now proposed, ie that there should be a form of arbitration. They proposed:

At a later stage, however, they deviated from this modus operandi, although I am personally of the opinion, as the hon member Dr Vilonel also said, that if this system were to create problems we would, in any event, eventually have to come round to some system of arbitration. At a later stage, after they had agreed to accept a unilateral promulgation of a RAMS tariff, the Medical Association made it very clear that negotiations would be conducted in consultation with the Medical Association of South Africa. That is the very aspect not embodied in this legislation. That “in consultation with” has disappeared.

It is therefore our standpoint that it is not in the interests of the patients of South Africa, nor in the interests of the medical practitioners of South Africa, that a unilateral determination of tariffs be done by a statutory body. And for that reason we shall be voting against the Third Reading of this legislation.

Mr Speaker, in his argument the hon member for Pietersburg touched upon a few important aspects. I believe it is essential, however, for us not to lose sight of the reason for the Bill under discussion, which specifically lies in the fact that a year ago both the image of the medical practitioner and that of medical schemes were severely tarnished in the minds of members of the general public because conditions prevailed that were neither in the interests of the medical practitioners nor in the interests of the medical schemes or the patients.

After consultations—and several hon members have referred to that—between all the interested groups, the hon the Minister introduced the measure under discussion here. It is therefore necessary—because the hon member for Pietersburg referred to it—for me to respond briefly to it. We ought therefore to take note of certain principles that served as points of departure for, amongst others, the medical schemes. It is, after all, a question of their position. It is also a question of the role the Medical Association itself played—the inputs that were consequently forthcoming from the medical practitioners themselves—and the role of the third party in this whole setup, the patient himself. It affects the contract negotiated between the medical practitioner and the patient in relation to the medical scheme.

Consultations between the Medical Association of South Africa and the Representative Asssociation of Medical Schemes, in consultation with the Medical Council, led to very definite and positive results.

On the basis of these discussions certain important premises were accepted, ie that there ought to be an average national tariff and that that tariff ought to be determined by the Medical Association of South Africa. The hon member for Pietersburg concedes that this was a very positive outcome of those discussions. The Medical Council would also act as monitor as far as the reasonableness of the tariffs were concerned. It has been said here today that we have confidence in both the integrity of the Medical Council and the way in which it looks after the interests of the doctors—it is also the case as far as the Medical Association is concerned—but that the interests of the patient should also be emphasized in this respect.

As far as I am concerned it is also important to emphasize that this embodies a built-in safety factor, ie the fact that tariffs that are to be imposed will also be reviewed periodically in order to keep pace with rising costs. Whether hon members agree with that or not, it is a better arrangement to have doctors decide, in future, on the tariffs that are going to be imposed, rather than the old arrangement of having the Medical Council, Medical Association and medical schemes grinding the Minister to dust. If conflict situations arise, the hon the Minister must intervene. He must take the final decision, he must be the final arbitrator, and that is why there was that continual turmoil that could never be stilled. We already have the support of all the interest groups involved, and that is why the hon the Minister introduced this legislation.

Another very important principle resulting from the discussions was the fact that a scale of benefits was introduced by the RAMS in consultation with the MASA, one which would not be lower than the statutory scale of benefits.

From this principle, which was the products of the discussions between all these bodies, certain results ensued. Here I am referring briefly to the medical schemes. The decisive reason for the dissatisfaction that arose was the prevailing methods by which the tariffs were determined. There are five different methods. As far as tariffs are concerned, increases were arrived at on an ad hoc basis, which made it impossible for the medical schemes to do reasonable time-scale planning, say on the basis of a 12-month period. The number of existing groups that had to be dealt with also made it virtually impossible for proper tariff negotiations to take place, and that is why this has been an ever-present problem. It also frustrated the medical schemes because they did not have a direct say in the determination of the tariffs, with their submissions, in any event, being ignored for the most part. The present system in terms of which tariffs are determined definitely does not promote a saving of costs for the patient or the supplier of the service. The image of medical schemes was also tarnished as far as the supplier of services are concerned, in the sense that they were regarded as interlopers in the doctor-patient relationship.

I do not want to go into the new arrangements that have been made any further, except to highlight a very interesting point. A question that was specifically asked was about what say the patient would have in this matter. The patient concludes a contract with the medical scheme in regard to the services the relevant scheme is going to furnish him with. Let us suppose that the scheme cannot agree with the doctor on the applicable fees. A private arrangement would then be made between the doctor and the patient. The procedure to be adopted in future, that of doctors reaching agreement with medical schemes by way of their association, and vice versa, is in my view the best arrangement that can be made because, as I have said, arbitrary arrangements were never successful in the past.

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

I shall give the hon member an opportunity to put a question at a later stage.

There are two further points I want to make. A few interesting facts come to the fore. Doctors who are contracted in charge less for their services than the standard rate that is charged, whilst doctors who are contracted out have tariffs higher than those of their colleagues. From that I want to draw the following conclusion in support of the Bill: Medical funds are very positively orientated and contend that the market trend—ie the average of the group as a whole—should be determined. Experience has also taught us that more than 80% of all the medical practitioners would be satisfied with such an average rate. Nor must we forget that the medical schemes are a very, very strong component in our market set-up, with a turnover of R1 000 million per year, and that the tariffs, as I have just indicated, would then be reviewed on an annual basis. In my view this arrangement would simply lead to greater order and greater satisfaction across the whole spectrum.

With these few remarks, let me say that I very gladly support the Bill. The hon member for Pietersburg may now put a question to me.

Sir, the hon member said that the Bill makes provision for the fact that the Medical Association and the medical schemes must reach agreement. Where is there a provision in the Bill that compels them to reach agreement?

Mr Speaker, I pointed out that three parties are involved in this: the doctor, the medical scheme and the patient. Earlier tariffs were determined on a basis that resulted in the Minister eventually having to act as arbitrator, and that was an unsatisfactory arrangement. In consultation with all interest groups, we have now reached the stage where the Medical Association must consult with the medical schemes to decide on a tariff acceptable to both.

Mr Speaker, unlike the other Opposition parties we in the NRP have supported the Bill. We have done so because our point of view has been consistent since 1980. We have always believed that the profession should have the right to determine their own fees in the same way as all the other professional bodies have that right. The implementation of the Bill is going to place further responsibility upon the profession and the schemes. Until this moment the profession has always had to be subservient to some other body when it came to determining the fees and tariffs. We have heard the argument about arbitration and the argument about a judge as the chairman. We have been right through the whole affair. It has been a very tortuous procedure but it has not succeeded.

The position is now going to change and agreement will be reached. I use the word “will” because we believe that the profession and the schemes have now the added responsibility not only to themselves but to the third party too, and that third party is the scheme member; in other words, the patient. In fact, in reality it is going to be a tripartite agreement and that agreement which is going to be reached has been ignored by and large by those who oppose the Bill. Both the profession and the schemes will now be in the direct firing line of the member who is also the patient.

This is a new departure insofar as the medical profession is concerned as well as the schemes. We have the confidence in both bodies that from the profession a just and fair reward for services rendered will be maintained and from the schemes a realistic and equitable scale of benefits will apply. Some people fear that the profession will go “bananas” insofar as tariffs are concerned. I do not believe that it is in their own interests to do so. Equally, one must accept that the professional man is entitled to a fair return for the service which he renders considering the responsibility he has when it comes to one’s health and that it is sometimes a matter of life and death. There is of course a further factor which one must bear in mind. I believe that if people are given more responsibility, they will tend to act in a more responsible way.

There is one last point which I would like to mention. Should the situation merit further attention—as was suggested by the hon member for Parktown—the hon the Minister can always come back to this House with legislation to counter any irresponsible practice. I believe that because this is a new departure, we should show a little more confidence in the professional bodies, the medical associations and the medical schemes. There seems to be a complete lack of confidence in the ability of these people to be able to determine a fee and a scale of benefits.

We will therefore be supporting the Third Reading.

Mr Speaker, the hon member for Parktown alleged that I had accused him of having half a practice. I have never in my life told him or anyone else that he had half a practice. I did tell him that he had a limited practice in the sense that he had no experience of medical funds, but only of private hospitals. Then the hon member began dishing out marks, and he gave me nought. He was then asked nought out of how much, and he said nought out of ten, as if it would matter if it were nought out of a hundred. I accept that, however, because I know the hon member’s arithmetic is not very good.

I want to clear up one misunderstanding, and I now want all hon members to listen. If a tariff is imposed by a medical practitioner, hospital or whomever the case may be, the person who pays that tariff is the patient. Whether he does so through a medical fund, does so himself or pays in the difference, it is still the patient who pays. There is no other way out. Certain hon members are concerned that if there were a difference between the tariff levied by the doctors and the tariff imposed by the medical fund, in other words the tariff structure as against the scale of benefits, the patient would have to pay. The patient has to pay in any event. If the two tariffs were the same, and medical practitioners increased their tariffs, the patient would have to pay more to the medical fund. Surely that is quite simple. There is no one else who takes out insurance for the patient and then pays for it. After all, one pays for one’s own insurance, and what one is paid out depends on how much one pays in. Here it works in the same way.

I therefore think—and I agree with the hon member for Rustenburg—that this scheme will work because two independent groups, ie medical schemes on the one hand and the suppliers on the other, are to be given an opportunity to negotiate with each other without any interference. It may be said that here we have conflicting interests. That may be so, but both sides have a particular interest in reaching agreement. It is not in the interests of any one of the groups not to reach agreement. I therefore find it quite strange that the official Opposition, which is continually accusing us of subverting the private sector and the free-market system, seriously objects when I go out of my way to give people an opportunity of participating in the free market system. I can only suppose that there are political reasons for this. The hon member for Parktown said that I was responsible for patients being placed in a position of not being able to pay their accounts. I shall accept that responsibility. As I have previously indicated, the patient pays in any event, whether he pays his medical fund or whether he makes an additional payment on his account. Hon members, however, say there will be chaos. There can be no chaos. Over the next year or so the various bodies will begin with the basis on which tariffs have already been determined and then go on from there. If they cannot reach agreement on what the various tariffs should be, there is still the tariff structure of the doctors and the scale of benefits of the medical schemes. The doctor submits his account, and if it is less than or the same as the scale of remuneration, he is paid. If the account is more, the patient must pay the additional amount. That is exactly the same position as that of a doctor who has contracted out. A doctor who has contracted out can also submit an account which is paid if it falls within the tariff structure, or he can submit an account which is more than the tariff that has been determined, and then the patient must pay the difference.

The hon member says patients did not complain. So why would there be chaos if there is no chaos now? There cannot be any-chaos. If one were to include in the legislation, as the hon member for Pietersburg wants us to do, that a decision should be reached “in consultation”, in other words that an obligation rests on those people to reach agreement, one would really be brewing up a concoction. What, then, if they cannot agree?

The same applies to your new dispensation.

The hon member for Sunnyside knows nothing about this matter. He must rather leave well alone and let adults discuss this matter. [Interjections.] Then one would not have achieved anything. That is the situation and that is what is going to happen.

The hon member for Pietersburg referred to itemization and said he hoped that it would be implemented in such a way as to reduce the volume of such itemization. Miracle of miracles, I agree wholeheartedly with him about that. So it is possible for the two of us to agree about something, even though we normally put matters differently. We always agreed about these specific matters when he was still on this side of the House. Now he is compelled to disagree with me. He is now beginning to adopt the HNP’s example by coming to light with a hundred and one documents about what various people were supposed to have said at various times.

Mr Speaker, I want to ask the hon the Minister whether it is not true that the Medical Association of South Africa, in its final comments to the hon the Minister, made it very clear that this determination should take place “in consultation with” the Medical Association through the Representative Association of Medical Schemes?

They made a subsequent request, raising the same objection that the hon member has raised. They asked, among other things, why this association was a statutory body. I then pointed to them that if the Representative Association of Medical Schemes were not a statutory body, there would be no control over the tariff that was determined and the Medical Association would therefore not be able to depend on payment being made. They immediately grasped this and accepted it as such. Subsequently they said they wanted arbitration. Their chairman said they wanted arbitration. I refused, and was told: “I presupposed that you would not agree to this. Thank you. Let us proceed.” My impression was that he had probably been told to ask for arbitration, even though he himself did not agree with it. I do not, however, want to put words into his mouth. I was not in favour of arbitration, and as far back as 1967 I gave them my reasons for it. The hon member for Brits also referred to that.

In 1967 a specific arbitrator was appointed after the Central Council of Medical Schemes, with its committee, had failed. Hon members know the history of this. Subsequently another arbitrator was appointed in the form of a representative of the medical schemes and one representative of the Medical Association, with a judge as chairman. That did not work either. Hon members, however, know about that too. Subsequently they decided to ask for another arbitrator, ie the Medical Council. No one, however, was satisfied with that. Then they decided to appoint a final arbitrator, the Minister, but no one was satisfied with that either. Must I now again try something that has failed four times? Do you know, Sir, what would happen then? They would then begin to argue with one another about the composition of the arbitration board. They suggested a representative of the Medical Association, a representative of the medical schemes and an impartial chairman. But then, however, we are back to the judge we had before.

You believe in consensus politics, do you not?

Yes, I believe in consensus politics. People must agree with one another at a round-table conference. That hon member’s politics, on the other hand, involves bashing them on the head with a hammer so that they co-operate. [Interjections.]

I do not blame the hon member for being opposed to this legislation, because that is in line with his way of thinking. I personally think differently, because this did not work in the past.

But that is how you must govern the country.

Yes, I shall also govern the country by way of consensus. There is nothing that hon members of the CP accept. Two thirds of the South African electorate voted “yes”, but those hon members did not accept that. In fact, some of them still believe they won the referendum. [Interjections.] I accept the fact that the other third were opposed to the new dispensation, but in a democratic country one pays heed to the majority, or am I wrong? Those hon members always have a tendency to quote the history of the NP, but they must quote it in full, because that history contains proof of the fact that each and every splinter group that broke away from the NP has always, in its collision course with the NP, dashed itself to smithereens. [Interjections.]

Questions put,

Upon which the House divided:

Mr Speaker, I should like to start off by complimenting Mr Justice Hoexter and his fellow commissioners, the hon the Minister of Justice, the Director-General of the Department of Justice and his staff and particularly the legal draftsmen responsible on the conception, the acceptance, the formulation and the presentation of this Bill. There is no doubt but that we will support this legislation.

With annually escalating legal costs and with the cyclical problems being experienced in the Public Service in regard to the recruitment and the retention of both professional and administrative staff in the courts, justice in the area of civil disputes has in the past years been available increasingly only to the very rich on the one hand and to the very poor on the other side of the scale. The wealthy have had the money to pay for their right to litigation and the poor, with exceptions, have had some access to legal aid. Yet even those who have the financial wherewithal are today very often thwarted, for it takes longer for justice in South Africa to be obtained. In most metropolitan courts the time taken between the issue of summons and the delivery of judgment most frequently exceeds a full year and often it exceeds 18 months or more. For the individual, for the man in the street, the wage earner, a man not of any great means, an unresolved dispute involving, say, an amount of R1 000 or perhaps even less can be crucial to his frame of mind, to his productivity and sometimes even to his livelihood. Yet, in relation to these problems no easy solutions present themselves, for every new innovation brings with it its own difficulties and side-effects.

All the same, the demand for a people’s court is becoming irresistible. That is what this Bill produces. It produces a court which is accessible and which is easy to approach. It produces a court in which disputes should be resolved speedily, without delay, without red tape; in which legal costs are kept firmly within the reach of every South African, whether he be Black, White or Brown; a court in which the procedures are simplified to the essential basics, thus ensuring that even the layman with little or no experience of legal matters will have almost no difficulty understanding and following them; a court in which formal legal representation is precluded, thus fractionalizing costs and personalizing the argumentation of disputes; a court in which the adjudicating officers are appointed from the ranks of practising attorneys, lawyers and advocates, and even from academic circles, thus avoiding otherwise necessary increases in the public service staff. Finally, it is a court which acts promptly and efficiently, cutting through the myriad complex procedures and rules of evidence and other technical requirements.

I confidently predict that as time progresses this new court will achieve wide acceptance and recognition, and will play an important role in the administration of justice in South Africa. The Hoexter Commission reports at length on the history in South Africa of the methods utilized and the efficacy of those methods in the resolution of small claims. And a dismal history it is. It fills several pages of some of the evidence given, both orally and in writing, by an impressive array of experts and of legal luminaries, all of whom—or the overwhelming majority of whom—are completely in favour of and in support of the creation of a special court to handle minor claims.

Furthermore—and this is a tribute to the diligence and the thoroughness of the commission—the commissioners reviewed, analytically and critically, procedures, formats and forums created in Australia, in England, in Wales, as also in the USA, to settle disputes between individuals in an effective manner, all of which makes illuminating and even educational reading. Then, on page 174 of the report, we read the main finding of the commission, which is couched in strong language, and I quote:

So, we have this Bill before us, a Bill which in itself incorporates many fascinating and innovative concepts and procedures. For instance, in clause 3 it is provided that a small claims court shall not be a court of record. This means that except for recording the essential details—that is, the names of the litigants, the basic statements of claims and of defence, as also the decisions of the court— no other record will be made or kept.

One of the intrinsic elements necessary to make this new court a success from the viewpoint of both the litigant and the State is the inexpensiveness of its workings. This provision, namely that the court shall not be a court of record, ensures that a minimum of paper work and extraneous staff are in fact required.

Clause 7 of the Bill provides that only a natural person can sue in these courts. No companies, no partnerships, no institutions, will have access to these courts at this time; particularly access to these courts as plaintiffs.

That is absolutely correct because this court is being introduced primarily to bring relief to the ordinary citizen in the settlement of disputes and is not intended to become yet another mechanism for the collection of corporate or business debts. One of the matters that must be guarded against as these courts are introduced, perhaps on a pilot scheme basis initially, is that they must not be allowed to become mere mechanisms for further debt collecting in undisputed claims.

One of the most important features of the court is that it affords the legal profession, both the Bar and Side Bar, a unique opportunity to serve the country and the local community in the field ot its own experience and expertise. Commissioners of these courts will not be members of the Public Service or the Department of Justice but will be drawn on a voluntary basis from the ranks of those lawyers willing to serve.

Clause 9 deals with the appointment of commissioners, and it is interesting to note that no provision is made for the remuneration of these officers. In an earlier debate a few days ago on the remuneration of judges it was pointed out that many advocates earn in excess of some R200 000 per annum. I hope that some of these people with high incomes will spare just a little time for these courts. I hope that the legal profession as a whole will play a major role in ensuring the success of this new venture.

Clause 7 of the Bill provides that the litigants must appear personally and may not be represented by attorneys or by counsel in the presentation of their cases. At first glance this may seem to be undesirable. On the other hand, one of the purposes of setting up this type of forum is to save costs and retain simplicity, and that is what this provision sets out to do. In the resolution of small claims the rich corporation which is a defendant and which is legally represented will hold a clear advantage over a less affluent plaintiff who is not so wealthy and who has no lawyer representing him. Also, Sir, the very essence of these courts—this is another innovative aspect of this legislation—revolves around what I would term the inquisitorial role of the commissioner himself, a new concept in legal procedures in South Africa. It will be the task of the commissioner to hear both sides, to question both parties and, thereafter, having heard both sides and having asked questions of both parties, to decide upon the issues. If lawyers were permitted to represent parties before these courts and were allowed to lead evidence and cross-examine witnesses, this very inquisitorial function of the commissioner would lapse and that most vital essence would be destroyed. It must also be remembered that no single member of the public will be forced to use this forum in which to institute and prosecute a claim.

By the passing of this legislation, ordinary magistrates’ courts are not in any way deprived of their jurisdiction. They will retain that jurisdiction and where, for instance, complicated issues of law or of fact are involved, the more conventional courts will always be available.

Chapter III of the Bill—clauses 12 to 24— sets out all the aspects relating to the jurisdiction of the court and largely follows the recommendation of the commissioners. Jurisdiction as to person, as to area, as to courses of action, as to counter-claims and the like are fully dealt with in the chapter.

I was in agreement with the terms of the published Bill, as the hon the Minister well knows, in varying the recommendation of the Hoexter Commission by raising the monetary jurisdiction to the level of R1 500. In my view this is a realistic figure in today’s times. However, I understand the hon the Minister’s difficulties. We appreciate in particular that for this new project to succeed, it must enjoy the fullest and the most enthusiastic co-operation from the legal profession. We shall therefore not oppose the announced amendment which the hon the Minister made known during his Second Reading speech and in terms of which the monetary jurisdiction will be reduced to the sum of R1 000.

I am glad, however, that the jurisdictional level will in fact be subject to review on an annual basis. I would support that as something which should apply to all the lower courts and not just to this particular court.

An interesting and a welcome feature is that this court will have no racial restrictions of any sort placed upon it. Actions exclusively between Blacks may be heard provided that the other aspects or requirements of jurisdiction are met as well. This is a happy development, particularly if it is fully appreciated that these courts are specifically designed to ease the lot of the less wealthy in our society.

Chapters IV, V, VI and VII of the Bill deal specifically and respectively with the rules of court, with procedures and evidence, with judgment and costs and with the execution of justice. When I say “the execution of justice” I mean the factual recovery of any amounts awarded to any successful party.

While there are a few minor issues relating to these chapters which I and my colleagues should like to debate during the Committee Stage of the Bill, suffice it to say at this stage that we are during the Second Reading debate of the opinion that the provisions therein are broadly acceptable and that they seem eminently fair and easily understandable.

I should like to discuss briefly the terms of chapter VIII of the Bill which relate to the question of appeal and to the question of review. Clause 45 of the Bill provides that a judgment delivered in a small claims court shall be final and that no appeal shall lie from it. Clause 46, however, does grant a right of review to an aggrieved party based on previously tried and tested criteria. Normally I and my party would not support a clause in any Bill denying the right of appeal from the decision of a lower court, but in this instance, and only in this particular instance, the stipulation that there shall be no appeal but only a right of review is consistent with the whole concept of this new institution. To paraphrase Mr Justice Hoexter on page 189, it is essential that these courts should have a strong element of finality in their decisions. I quote the learned judge further:

I believe the hon the judge is correct, because the right of appeal would destroy the very purpose for which these courts are being created.

We must also remember that small claims courts are not to be courts of record. Appeals in the normal and ordinary sense of the word revolve around the re-examination of the evidence recorded in the initial trial. Where no evidence has been recorded, no proper appeal can really be dealt with. Therefore we support that particular provision.

We note with pleasure that cases of gross injustice or gross inequity are, however, not overlooked. The grounds for review are and they include (a) an absence of jurisdiction, (b) the presence of malice or bias on the part of the commissioner and (c) gross irregularity with regard to the proceedings.

Taken as a whole, in my humble view, this Bill represents a noteworthy modernization in the field of justice administration in the Republic. This people’s court will bring justice to the ordinary citizen. It should to some extent relieve the congestion being experienced in our larger magistrate’s courts. It will cut down on delays and it will save millions of rand for persons who would otherwise not be able to afford to approach a court at all for relief.

I want to end where I started by congratulating all concerned in bringing to light this concept, and in doing so we will be supporting this Bill through all its stages.

Mr Speaker, I want to thank the hon member for Sandton for his support. He adopted a very balanced approach to the matter and also expressed support for the fourth interim report of the Hoexter Commission. He said that there were no simple solutions to the problem of high legal costs and the accessibility of our courts, and I want to agree with him on that score.

This measure makes legal history in South Africa, and I should like to single out two aspects of it. In the first place, a new court is being created, a forum accessible to all natural persons where legal costs and procedural measures will be cut to the minimum and where everything will be geared to settling disputes as expeditiously as possible without records or extensive questioning and cross questioning. The fact that such a court is being established certainly means that this is a redletter day for our administration of justice. I contend that after this court has been introduced, no one will be able to say that financial considerations have precluded him from obtaining a fair and just hearing as far as small claims are concerned. Another aspect in regard to which legal history is being made as a result of the introduction of this measure is that the inquisitorial system is being introduced in courts where small claims will be settled. Thus far this system has been alien to our legal system, but it is necessary for this system to be introduced to comply with the requirements set for small claims courts. I want to refer to the requirements that appear in the fourth interim report of the Hoexter Commission relating to small claims. On page 17 reference is made to the American researchers Ruhnka, Weller and Martin, and the following is said:

• — Accessibility
• — Speed
• — Low cost
• — Simplicity
• — Self-representation
• — Fairness
• — Effectiveness”

Hon members will agree that if these are the requirements, they can only be met by the inquisitorial system; the existing adversary system is simply too cumbersome and does not comply with the requirements of speed. This is in particular the case when clients have no legal representatives. In such instances the rule of relevance would be thrown overboard entirely, and this would result in longwindedness.

It is true that we do not have the background for the inquisitorial system, that we have no experience of it. The success achieved will to a large extent depend on how it is carried out. As far as this aspect is concerned, too, I wish to refer to the report of the Hoexter Commission, specifically to finding 13.7 on page 179, and I quote:

In other words, the way in which this person handles cases will determine whether this court is successful or not. In the light of this, I also wish to ask that the department will provide every commissioner with detailed guidelines as to how he is to act and will also provide guidance as regards his attitude.

It has already been pointed out that we are breaking new ground with this court, although we lack the background in this regard. It could be said that there is doubt as to whether this court will work in practice. However, I have not the slightest doubt in this regard. Several examples are mentioned in the Hoexter report of similar courts in other countries that have worked very well in similar circumstances and I am convinced that we are combining all the best facets of all these courts in this measure.

I should also like to congratulate the legal draftsmen on this Bill. I refer in particular to Advocate Botha, the law adviser in question, and also to Mr Thinus Ferreira of the department. The Bill has been drawn up in simple language and has been set out absolutely clearly and systematically. That is as it should be. The legislation must be such that the ordinary man may, by reading it, know how to bring his case before this new court. In this regard the Bill meets the requirements very well.

I also wish to express my gratitude that there is an absolute prohibition on parties being assisted by other persons. In other words, a party may not be assisted by legal representatives or anyone else. Therefore, no opportunity is being created here for the entry on the scene of a kind of agent who assists parties, a phenomenon that has occurred in many other forums. This is simply not in the interests of the parties, particularly as far as cost is concerned.

The introduction of this measure coincides with the amendment of the Magistrates’ Courts Act and is the first of several measures aimed at reducing the cost of litigation and making our courts more accessible to the ordinary man. I also want to predict that this legislation and the procedures laid down in it will result in the procedures of the Supreme Court in particular being made simpler and more effective. I am convinced that the inquisitorial system as set out here will be the ideal system that should be introduced in respect of pre-trial procedure at the Supreme Court. As far as this is concerned, I also believe that this measure will help us to improve procedure in the Supreme Court and other civil forums. Accordingly I wholeheartedly support the measure.

Mr Speaker, I should like to associate myself with the hon member for Sandton and the hon nominated member Mr Schutte and say that we on this side also take pleasure in supporting the legislation. It reminded me involuntarily of the day I appeared for my oral examination for admission as an attorney before three venerable gentlemen from the Side Bar in Pretoria and an advocate and they asked me what I would ask a husband and wife who consulted me about their marriage problems with a view to a possible divorce. In those days I was fairly clever and remembered everything my professors had taught me. I rattled off everything I would ask them and when I was finished one venerable gentleman said to me: “Mr Uys, is that all you are going to ask them?” I then said I could not think of anything else. He said to me: “My boy, you have it all wrong. Please remember the first question you must ask is: Who is going to pay?” [Interjections.] That is some of the best advice I have ever received in my career, as practical experience subsequently demonstrated to me.

I should like to associate myself with the two hon members who have just spoken. Sir, legal experts have a unique ability of drafting a law in such a way that it is extremely difficult for any intelligent person to understand its contents. However, I think that this legislation is an exception to the rule. I should therefore like to congratulate the draftsmen of this legislation on the simple, direct language used in it. It even enables legal experts to understand the contents. Before we get to the Committee Stage I should like to refer in passing to the fact that reference is made in clause 7(2) to subsections (2) and (3). This should read subsections (3) and (4).

There is an amendment in that connection.

I hear there is an amendment.

If I may go into details, I have a problem in connection with the position of the juristic person as a defendant. We understand that this legislation is primarily intended for natural persons, but in clause 7 the possibility is being created for a juristic person to become a party to an action as a defendant. If we read this clause in conjunction with clause 14 in which it is provided over which persons this court shall have jurisdiction, I feel that there is a deficiency in the sense that no provision is made for a juristic person in the form of a company to be summoned as a defendant. In other words, I do not see in clause 14 that this court will have jurisdiction in the case of companies. In clause 14(1)(b) reference is made to a partnership, but no reference is made to a company in this clause.

Perhaps you should take a look at the Interpretation Act.

I feel there is a deficiency here and perhaps we could consider this matter before we get to the Committee Stage. [Interjections.] Let me make myself clear. Clause 14 provides that subject to the provisions of subsection (2) a court shall have jurisdiction in respect of any person residing within the area of jurisdiction of that court. It also provides that it shall have jurisdiction over a person who is a member of a partnership in that area, who carries on business within that area, or who owns immovable property within that area. However, it is not stated in what cases this court shall have jurisdiction in respect of a company. Perhaps there is a deficiency we should look at in this regard.

Actually, Mr Speaker, I only have one problem with this legislation and unfortunately I do not have a solution to it, in the same way that I do not have a solution to many of my problems. Clause 24 provides that no person shall be bound to make use of this new forum. The plaintiff therefore has a choice; he may decide to approach the small claims court, and if he were to decide to do so the defendant would have no choice. My problem is that if the plaintiff decides not to approach this court in regard of a matter which would normally fall under the jurisdiction of this court, the defendant does not have a choice either.

Then the old Roman principle of dominus litis applies.

That is so, but now the law of equity is also at issue. The plaintiff is given the right to exercise a choice, and in order to save expenses he may approached the small claims court. By exercising his choice he is denying the defendant the right to legal representation. However, if the plaintiff can afford to approach the ordinary Magistrate’s Court and the defendant is a poor man, the defendant has no choice. He is therefore at the mercy of the free choice of the plaintiff and the plaintiff only I believe that in this connection time will also have to provide us with a solution, for in my opinion the law of equity requires that, in the same way that a poor plaintiff should not be forced to approach a court which would cause him to incur unnecessary expenses, the same argument should also apply with regard to a poor defendant. Experience teaches one that there are vexatious plaintiffs as well. I do not think that it is quite right for the defendant to have no choice in the matter.

I am mentioning this problem but at this stage I do not have a solution to it either. We are engaged in pioneering work here, and we hope that this new system will work. One is proud to be a member of a profession which by means of this legislation and the offer made by the legal profession is again prepared to render a service to society without compensation. I feel that we can be justly proud of the profession.

Because a totally new and in fact alien system of adjudication is being introduced here, it is my opinion that its success will it be determined so much by the rules and regulations which will be drawn up by the men and women who will be the presiding officers in those courts because they will be required not only to have legal knowledge but also a knowledge of human nature. In addition, they will also have to have wisdom. Many of us have acquired a great deal of knowledge, but fewer of us have received the gift of wisdom. I believe that people with a legal background who are prepared to perform this free public service will also be the wise people among us. In this regard the court will enter the arena as it were. One found, particularly in the civil court that the presiding officer would sit back, especially in cases where both parties had legal representation. The legal representation was not always equally competent and as a result justice was not always done, particularly because the presiding officer was inclined to sit back and allow the game between the opposing parties to proceed. However, in this case the court will be required to enter the arena to ensure that justice is done. This is a completely new approach.

In passing I should like to mention something which has bothered me for many years now, even while I was still in practice. This is something we find not only in our country but throughout the world. I am referring to the practice that when a person gives evidence in court he has to subscribe to an oath in which he swears to speak the truth, the whole truth and nothing but the truth. This has a long tradition and there are historic reasons for it. However, it has been my experience that nowhere else are more untruths spoken, particularly by some people, than when they are under oath in court. I do not want to make two much of this, but I have often wondered whether a witness subscribing to an oath really has the significance which is attached to it. Has the time not perhaps come for us to do away with the oath and simply expect of each witness to make a statement that he will tell the truth and that a new offence is created in the place of perjury? It is my experience that when a person is standing in the witness box, he is expected to subscribe to an oath, but that he frequently has not he slightest conception of what the oath means. I have always wondered what purpose this really serves.

With these few words we take pleasure in supporting the Bill. We are breaking new ground and time will show whether these courts are going to be as successful as we all hope they will be.

It gives me pleasure to follow the hon member for Barberton and to be able to tell him that we appreciate the support he has given this Bill on behalf of the CP. The hon member also mentioned certain problems, mainly the problem of the defendant who is not going to have a choice regarding the court in which the claim is going to be instituted. I think he is right That may be a problem. However, we are dealing with a new system and I think this will mean that there will be teething problems. However, I am convinced that the department will keep a close watch on the matter and if necessary make certain adjustments from time to time and come back to this House with proposals for amending the legislation.

I should also like to draw attention to the fact that the hon member for Sandton expressed his party’s support and foresaw no problems with the Bill. He also said that the Bill had been very well drafted, and I think in this connection, too, he hit the nail on the head.

I consider the establishment of a small claims court to be another positive development in our administration of justice in South Africa. For that reason it is also a great privilege for me to participate in this debate. Nor can I do otherwise than to convey congratulations in the first place to the Minister and his department on the Bill now before this House. Since we now have the reports of the Hoexter Commission available, particularly the fourth interim report which gave rise to this legislation, we cannot but make specific mention of the excellent work and driving force of the Director-General of Justice in this connection. We know that he is the man who considered innovations in this sphere to be a very important task for himself and that he was the driving force behind many of these things. I think we are greatly indebted to him. We are also indebted to an official of the department, Mr Noeth, who was involved in the research work done by the commission and who also accompanied Mr Justice Hoexter abroad to see how these courts work in practice. I should also like to convey our sincere thanks to him. I should also like to convey my thanks to the secretary of the commission, Mr Allers, who had to keep a record of all the proceedings and who ensured that we received the reports.

This commission identified a serious problem in our administration of justice in South Africa, and they did not simply leave it at that. They were not afraid to come up with new ideas and to make the proposals we are discussing here today. I think that we should take cognizance of this and make mention of this because it deserves to be pointed out.

As the hon the Minister informed us in his Second Reading speech, the main problem was the exceptionally high legal costs in South Africa today. It is a fact that legal costs became so high that in many cases the man in the street was no longer able to litigate in our ordinary courts. There is an abundance of evidence available that in many cases the legal costs exceeded the claims themselves. This state of affairs was undesirable. It could not be allowed to continue. It was of course a state of affairs that affected everyone. Not only the poor man, but also the wealthy man was affected by it. High legal costs affect everyone who goes to court. Because this state of affairs could not simply be allowed to continue, the Government appointed the Hoexter Commission and the commission made its recommendations and the hon the Minister produced this Bill.

This solution, the establishment of a small claims court, is a departure from the normal civil legal procedure we have in South Africa today. This is a fact and we should not try to get away from it. But if we want to combat this evil and put a stop to it, we have to be prepared to think and act innovatively. I want to point out that we have to realize that there will always be legal costs. Setting the processes of law in motion will always cost money. It cannot be done for nothing.

Business suspended at 18h30 and resumed at 20h00.

Evening Sitting

Mr Speaker, just before business was interrupted, I was saying that one could not have a legal system without legal costs also being involved. I think one must accept this as inevitable. However, we can make it our objective to ensure that those costs are kept as low as possible, and are within reach not only of the rich man, but also—and in particular—within reach of the poor man, who should be able to afford them, because he can also be wronged in the sphere of civil law. In addition to this objective of low costs there are also the equally important objectives that the new system has to function quickly and effectively, without any prejudice to justice. Such a system, I feel, is to be found in the proposed small claims court. To be able to do this we have to be prepared to relinquish certain fundamental concepts we adhere to in the civil law system in our country today. These are namely that in this court, as the hon member Mr Schutte also indicated, we shall have to relinquish the adversary system and adopt the inquisitorial system. Such a system in these small claims courts has for some time now been working quite satisfactorily and with varying degrees of success in some overseas countries. Favourable evidence of this can be found in the Hoexter Commission report. I myself had the opportunity to visit some of these courts in America and I can therefore attest to the fact that it works quite satisfactorily in practice.

In the case of the new inquisitorial system in this court the adjudicating officer actually plays the role of a legal representative. That is why we can get by without legal representation in this court, and in addition without running the risk of justice not being done. The impartial adjudicating officer balances the scale between the parties involved.

Let us also point out in this connection that without the aid of our legal experts, particularly our attorneys and advocates outside the Public Service, the system cannot be put into operation in South Africa. These people will have to work without remuneration. I therefore believe that we as members of this House have to laud them for the fact that they have declared themselves willing to do so, to sacrifice their time after hours to work in these courts so that we can make a success of this system.

Without remuneration?

Yes, without remuneration. The attorneys are going to work without remuneration. That was the offer they made and we must praise and thank them sincerely for it. People in the legal profession also want to contribute their share. [Interjections.]

As a result of the features I have referred to—its cheapness, speed and efficiency—we can expect this court to develop into a real consumers court; a court for the ordinary man, the ordinary member of the public. For that reason the exclusion of all juristic persons as plaintiffs and all legal representatives is justified. In this way we are going to eliminate all forms of inequality which may possibly exist in the present system between the financially weaker consumer and the financially more powerful, so-called, “big business” and their learned legal representatives in this court. The ordinary man is afraid of a court. He is afraid of cross-examination by a learned legal representative. This is going to vanish completely in this court. The parties can peacefully give their evidence in this court, tell their story, hand in their exhibits, and the adjudicating official will review everything, consider it and then give his verdict.

I want to draw attention in particular to the fact that this court is accessible to members of all population groups. In our society it is the Coloureds and in particular the Blacks who urgently need this inexpensive but effective administration of justice to rectify financial injustices done to them. I therefore want to ask those people make large-scale use of this court when it comes into operation.

Today South Africa has an almost perfect system of civil administration of justice. It works very well. In theory the system is available and accessible to everyone, but in practice it has become too expensive and too time-consuming. The man in the street can no longer afford it and he does not have the time to go and sit in court and become involved in long-drawn-out lawsuits. With the proposed small claims court a system of civil administration of justice is now accessible in practice to more people who really need it. For that reason I also want to appeal to our news media to publicize this system for and wide once it has been introduced, when the department has launched the pilot projects.

The news media must provide information about this court to every household in South Africa so that every ordinary citizen who feels aggrieved and who is angry at our legal system because he feels he is being cheated, will know there is a remedy at his disposal for inexpensive and quick adjudication which will also satisfy him.

This is a positive innovation. It is an improvement in our legal system and is to the advantage of all the people in South Africa. For those reasons it gives me great pleasure to support the Second Reading of this measure.

Mr Speaker, the hon member for Verwoerdburg made a very valid point in respect of the Press in the closing stages of his speech. He was referring to the publicity that this new system should receive and the approach of the public towards the utilization of the system. In passing, I cannot help but mention that in this forum or court in which we stand tonight, he received a certain amount of attention from hon members. There were very few interjections and the decorum of this court is something of the nature that we hope will be transmitted to these small claims courts in the future.

I should like to join hon members of other parties in congratulating the hon the Minister and his law advisers on the framing of this legislation and, of course, Mr Justice Hoexter on his very fine contribution to the legislation that we are discussing this evening. It has already been said that this is quite the most readable piece of legislation that the ordinary man in the street is likely to find that, as a man in the street, I should like to say that the outset that the legal fraternity may have a small problem in interpreting such ordinary layman’s language in the way it has been couched in this Bill. I want to say that we feel that this is not merely an historic occasion. It is indeed a most exciting occasion which heralds a new era in the annals of the judicial system in this country and is also one which merits a certain amount of discussion in retrospect.

I should like to do just that by referring to Chapter 2 of the Fourth Interim Report of the Hoexter Commission which starts the whole thing off by referring to the nature of the problem. This legislation has emanated from this chapter of the Hoexter Commission’s Report as well as from the need for this type of court in our society. Whilst other hon members have dwelt extensively on the mechanics of the whole matter and the possible gains to be made in this regard, I think it behoves us to investigate the need for courts such as these. In this regard I can do no better than quote from page 12 of the abovementioned report, paragraph 2.2, which states:

It may be as well for some politicians to keep this in mind:

I think this is terribly important and there is a considerable amount said about this which I believe should be published in Hansard and should be recorded on what I consider not only a historic occasion but also an exciting one because on the eve of the debate on the Final Report of the Hoexter Commission we are dealing with an element of the report. Tomorrow will no doubt be an eloquent one for the hon member for Sandton and other hon members and I believe we are ushering in reform in a judicial sense and that these publications will become very much part of the curriculum for law students of the future, because of these words in the Hoexter Report and its attitudes towards justice and the sort of South Africa that we seek in the judicial sphere. Therefore on this occasion I make no apologies for quoting from such an eloquent report as the Fourth Interim Report of the Hoexter Commission. This is what I read on page 13:

I think this is terribly important:

I trust the hon member Mr Theunissen is listening to this.

Perhaps you should repeat that quotation for his benefit.

Since I am requested to repeat that quotation, I shall read it again:

It then goes on:

The feelings of the bewildered litigant are summed up by Professor Mauro Cappelletti and Bryant Garth in the following expressive sentence:

We have read the report.

One or two members suggest that they have read the report. I should not like to doubt their word, but just in case they have not, I want to quote the last paragraph on page 15.

From what report are you quoting?

From the fourth interim report and there is more to come tomorrow. [Interjections.] Paragraph 2.7 on page 15 reads:

[Interjections.] When one quotes such great commissioners as Mr Justice Hoexter and one is told to talke sense, one wonders where one goes for better sense than this:

I agree with the points raised by the hon member for Barberton regarding the success of this legislation which depends entirely on whether the appointed commissioners, unpaid members of the legal profession, can introduce into these courts an atmosphere of accessibility to justice combined with wisdom, and will have the ability to make the public feel and see that justice is within their reach. A tremendous burden, duty and responsibility rests upon the commissioners who are to be appointed to these courts.

Unlike the hon member for Barberton who said that time would tell whether this would be a success, I believe that we must make it a success. We cannot fail, and if we need to amend, change and bend, we should do so in order to ensure that for the reasons stated in the report we do not fail in bringing justice closer to the man in the street and making it more accessible to him. The decorum, wisdom and atmosphere of these courts is critical to their success, and the voluntary use of these courts by the public will also play an important role in this regard. Access to magistrates’ courts still exists. The fact that the public still have the right to choose between a small claims court or a magistrate’s court is an extremely important factor in favour of these courts.

However, I would like to refer to one final point which I will also raise in the Committee Stage. We in these benches believe that the hon the Minister and his department made the right decision in setting the claims jurisdiction of these courts at R1 500. We believe that it would not be a positive step to reduce this amount. Without sounding a sour note to members of the legal fraternity who will preside over these courts, it makes one wonder whether the reason for reducing this amount is not in fact that the legal fraternity feel that more than slight inroads are being made into cases which would be slightly more lucrative…

That is unfair comment.

I am sure that one would not have that reaction if it was an unfair comment. I believe this is a point which should be considered. If the legal fraternity feel that their income is endangered by these courts, are we not moving into a situation where the claims jurisdiction which will in future be discussed with the commissioners of the courts who are all members of the legal fraternity, will be pegged by members of that fraternity? This will not assist the problem of bringing justice closer to the man in the street but will in fact be benefitting the legal fraternity in providing them with what I may term bread and butter cases. They may feel that they are better equipped to deal with these cases for reasons other than those stated in the report.

I would therefore say that one should look very carefully at the limitations of this court. We in these benches have discussed this and with the vast legal knowledge at our disposal we have decided that we will stick to the previous decision by the hon the Minister, which was a very fine one.

We think he was right.

Yes, we think he was quite right.

And now he is wrong.

Yes, now he is quite wrong. It is very definitely a possibility that we have a lobby here of the legal fraternity who would like to control the limits of the small claims court in future, maybe to the detriment of the purposes for which this court is being established, which I indicated at the commencement of my address by quoting from the Hoexter report. Therefore we on these benches will be supporting with great enthusiasm—I want to emphasize that—this reform measure in the judicial system of South Africa. I add these words to those of hon members who have already spoken this evening, but I do want to warn that we should not allow the original purpose of this court to be taken up and controlled for reasons other than already stated.

Mr Speaker, I want to begin by thanking the hon member for King William’s Town for his and his party’s support of the legislation. Further to what previous hon members has said, I also wish to convey my thanks and congratulations to the people who drafted this legislation. [Interjections.] In the past, I have sometimes been critical of the language used in legislation, but in this case, the legislation has been drafted in clear, simple and flowing language. Indeed, I believe that we have a model here with regard to the use of language in legislation. Furthermore, I wish to join previous hon speakers in welcoming the legislation.

Unlike previous hon speakers, however, I want to refer to the report produced by Mr Justice Galgut in the course of his investigation of the functioning of the Supreme Court in South Africa in civil litigation. In the introductory paragraphs of his report, the judge points out that the need to simplifiy and expedite legal proceedings is not unique to South Africa, but that attempts are indeed being made to achieve this objective throughout the civilized world. He also points out that the best legal brains in those countries are being used to achieve that very ideal of cutting down on time and expense in litigation. He points out that in England, the chief justice, senior advocates and senior attorneys have to study the legal rules every year and to produce a report, precisely in order to achieve that objective. There are recurring fears that saving time and simplifying legal rules may mean that justice may not be done to the litigants. After all, this is certainly the highest task and aim of the administration of justice.

Looking at the legislation against that background, there are certain aspects about which I have certain misgivings. Having said that, I hasten to make it clear once again that I welcome the legislation and that it is essential that it be introduced in this House today. I believe that this legislation will meet an urgent need in our country. We must remember that the cost structure of the attorney, too, is such that he simply cannot offer his services at low rates anymore. On the other hand, it must be clear to all that one cannot simply abandon procedures which have been built up over the centuries and for the existence of which there is a good reason.

In clause 3, we find the first cost-saving provision, and that is that no record will be kept of the proceedings, except that the verdict of the court will be recorded. When one reads that, one immediately realizes that if no records is kept, there cannot be any appeal, but in terms of clause 46, there will in fact be a review procedure. The fact that no record will be kept will impose a restriction even on a review procedure. When one examines the grounds upon which the proceedings may be taken on review, one is struck by the fact that if there is no record of the proceedings, it will actually be difficult to be successful in review procedures, and this may result in injustice to litigants. Like the hon member for Barberton, I am unable to suggest any solution to this problem.

Clause 7 also contains crucial provisions, namely that a party to an action shall appear in person before the court and that he shall not be assisted by anyone, except in the case of a minor. I have some reservations in this regard and I want to ask the hon the Minister whether we should not ask ourselves whether the rights of a minor, ie a person who cannot put his own case, should also be brought within the jurisdiction of this court, a court which departs drastically in many ways from our accepted procedure, a procedure which gives us the certainty that justice will be done within the context of our legal proceedings.

In this connection, the hon member for King William’s Town argued that the limit of the court’s jurisdiction should be raised to R1 500, as was originally provided in the Bill. I want to say at once that I am in favour of the reduction of that amount. There have been repeated references in the Course of the debate to the fact that the procedure is being created for the poor man and that R1 000 is a considerable amount to him. One wants to guard against the possibility that an injustice might be done if the amount were to be increased, because one of the fundamental principles of the legislation is that since the jurisdiction of the court is limited, if any injustice is in fact done, it will not be too great.

Hon members have already pointed out the importance of the role of the presiding officer, and I should like to endorse their remarks. If the presiding officer is not properly trained and does not show the necessary discretion, these courts are doomed to failure. That is why I consider it so important that the Bill should provide that the presiding officer must have at least seven years’ experience, over and above his legal training. I believe that such experience will enable the presiding officer to show the necessary discretion and wisdom to allow justice to be done. I also believe that the hon the Minister will find the right people.

I should also like to draw the hon the Minister’s attention to the provisions of clause 15(a) and clause 16(d)(ii). Clause 15(a) provides that the court will have jurisdiction in actions for the delivery of any property, movable or immovable, while clause 16(d)(ii) provides that the court shall have no jurisdiction in matters in which is sought specific performance without an alternative claim for payment of damages, except in the case of the delivery of movable property. On the face of it, these two provisions seem to be contradictory. Since the court has the jurisdiction, in the first place, to decide about the delivery of immovable property one may just as well give that discretion to the court without linking to it the alternative claim for payment of damages, as the legislation reads at the moment.

I support the provisions in clause 24, in terms of which the plaintiff is not bound to institute an action in this court. An hon member has pointed out that this may mean that a wealthy plaintiff may institute his action against a less wealthy defendant in a magistrate’s court and that the less wealthy defendant may not be able to afford his defence in the magistrate’s court. The hon member for Barberton said that he could not suggest any solution to that problem, but in my opinion, the solution in that case is obvious. All that should happen is that the plaintiff should be deprived of his costs, as is the case at the moment. The plaintiff is able to bring his claim in the Supreme Court for an amount which falls within the jurisdiction of the magistrate’s court, but unless there are other additional factors, he will have to recover his costs according to the scale of the magistrate’s court and not according to the scale of the Supreme Court.

I wish to point out that clause 26 places the responsibility for ascertaining the facts squarely on the shoulders of the presiding officer. This is an enormous responsibility, especially in the context of our court procedure up to date. Up to now, the presiding officer has had the help of professional people who have cross-questioned witnesses and have then addressed the court with regard to the legal position. This all helps to make it easier for the presiding officer to give a fair judgment. The responsibility of the legal representative of the defendant, the legal representative of the plaintiff and the study made of each case by such legal representatives will now rest on the shoulders of the presiding officer alone. No provision is made for a plea in clause 29(3). This could be done by way of proclamation, of course, and the hon the Minister is authorized to make regulations, but it seems only fair to me that when the plaintiff has set forth his claim, the defendant should also set forth his plea concisely in writing, and not necessarily in the form of pleadings as we know them today, so that the presiding officer may at least ascertain in advance what the points at issue in the case are.

Clause 36 concerns the rescission or variation of a judgment. This can be done upon application by any party affected thereby. It seems only fair to me, and once again this can be done by way of regulation, that the applicant should notify the opposing party of such an application.

Finally, I want to draw the hon the Minister’s attention to a single word, especially since I have commended the language used in this Bill. In clause 45, the word “afdoende” is used in the Afrikaans text with reference to the judgment of the court. In the English text, the word “final” is used. I respectfully suggest that the word “finaal” would be a better translation and would also express more accurately the intention behind this provision. I have looked up the word “afdoende” in the Woordeboek van dié Afrikaanse Taal, and there it is described as “beslissend” and “doeltreffend”. These are two meanings of the word. We may talk about a “beslissende” battle which may not be the final battle. We may also speak of “doeltreffende” litigation, which may not be the final litigation. I think that the word “finaal” would be a more accurate expression of what the clause seeks to achieve.

Mr Speaker, the hon member for Sandton has set out our party’s attitude towards the Bill. He has welcomed it and he has explained why we regard it as a very positive and encouraging development. I shall not go into the points he has already raised. Other speakers also have almost with monotonous repetition praised the draftsmen of the Bill. I want to add my compliments to theirs because it is in fact a Bill which has clearly been drafted keeping in mind that one of the main objects of the Bill is to set up a simple system, something which can only be done effectively if the Bill is drafted in simple terms.

I want to deal with two or three aspects of the Bill about which I hope the hon the Minister will give us an explanation, two or three aspects which at this stage I regard as unsatisfactory. The first aspect relates to clause 14(2). The hon member Mr Schutte mentioned that under this Bill no one will be able to claim that justice has been denied him. Then we find in clause 14(2):

Let us assume that the hon member for Krugersdorp stops at a stopstreet and a police van bumps into his car … [Interjections.] … causing damages to the extent of R800. He cannot then turn to a small claims court to recover the damages. Why not? Perhaps the hon the Minister can explain to us why the State is being protected under this Bill. One could even go as far as saying that it reflects on the quality of the small claims court if the State is treated as the Big Brother who cannot be touched. The ordinary citizen frequently has a claim against the State. Why should he then not be entitled to make use of this court? One must also take into account that clause 16(f) lists a number of causes of actions in respect of which the small claims court should not be used. For instance, one cannot use such a court for a case of defamation. Other actions contained in the list are malicious prosecution, wrongful imprisonment, wrongful arrest, seduction and breach of promise to marry. [Interjections.] In most of these prohibited causes of actions the State is involved. So the State is already to some extent protected by clause 16.

Why is there a blanket prohibition against actions against the State? I have looked at the Hoexter Commission Report and I have not been able to find any suggestion in that report that the State should be excluded as a defendant in a small claims court. I cannot find any indication in the Hoexter Commision Report—in the Fourth Interim Report—that it is in favour of such a provision.

Mr Speaker, who, does the hon member suggest, should represent the State in a case in which the State is being summonsed? Normally of course the particular Cabinet Minister is cited as the defendant.

Mr Speaker, the hon member for Port Elizabeth North, I am told, was a legal practitioner. He will therefore know that despite the fact that the particular Cabinet Minister is normally cited as the defendant that Minister’s department may well be represented by officials who appear in court. That is no problem whatsoever. That is an aspect with which I should like the hon the Minister to deal when he replies to the Second Reading debate.

A second point I want to refer to is a point that has also been touched upon by other hon members. It relates to the quality of the presiding officers. The hon member for Barberton, for example, mentioned that the success of these small claims courts would depend on the quality of the presiding officers. The hon member for King William’s Town said the same. I have been pleased to note that on the Order Paper an amendment by the hon the Minister appears in terms of which presiding officers will have to have practical experience of seven years. That is exactly what the Hoexter Commission recommends. If one looks at the particular clause of the Bill, however, one finds that it still provides for academics to be appointed as presiding officers or as commissioners without providing that they must have have practical experience.

That is the point.

Exactly. It is therefore possible in terms of the Bill as it stands now that the Minister may appoint an academic with legal qualifications who has not had any practical experience whatsoever.

Are you taking the proposed amendment which seeks to take care of that, into account?

Mr Speaker, I have read that amendment. There is no suggestion, however, in that amendment that academics must have had practical experience. The amendment only relates to attorneys and advocates. I mention this because it appears to me that the Hoexter Commission went to great lengths to stress that whoever serves as commissioner of a small claims court must have had practical experience. In this respect I refer to page 177, paragraph 13.4, of the Fourth Interim Report of the Commission, which reads as follows:

The Commission sees as the likeliest candidates for appointment as adjudicators in a South African small claims court unpaid volunteers drawn from the ranks of (1) practising attorneys of at least seven years’ standing; (2) practising advocates of at least seven years’ standing; (3) academic teachers of law of at least seven years’ standing with actual experience of practice either as attorneys or advocates.

The Hoexter Commission makes that quite clear.

They must be people of experience; academics of standing with actual experience. Read it again.

It does say “with actual practical experience”. The Hoexter Commission proceeds, on page 199, subparagraph (m), and I quote again:

The adjudicator will be drawn from a panel of qualified lawyers who must have had actual and considerable experience of practice as an advocate or an attorney.

The Bill as it stands does not provide for academics to have had actual experience. The Bill merely provides that they must have the qualifications of an advocate or an attorney. I believe this is an aspect which needs to be looked at. The commissioner must not only be an advocate or an attorney; he must also be an experienced advocate or attorney, and for that reason I shall be interested to hear the hon the Minister’s comments in this regard.

Clause 9 contains a provision which simply gives the Minister the discretion to appoint whomever he may think fit to appoint. It provides that the person concerned has to be an attorney or an advocate or an academic who must have had experience, and then goes on to provide:

I understand, Sir, that this system is going to be introduced by means of pilot projects in mainly—to begin with—the metropolitan areas. I suggest that the success of this system will depend upon the perception that the public has of the few pilot projects that are begun. It is therefore absolutely essential that at the start of this new system the public will know that the person who is the commissioner has actually had practical experience of court cases over a number of years. I want to ask the hon the Minister in his reply to give us an indication of the intention behind this legislation in regard to the quotation that I have just given. What other experience is envisaged here? Will it be experience in a Commissioner’s Court? Such a person would have experience. Would that constitute such other experience? I suggest that unless the public knows in very clear and simple terms that a commissioner is an ex-lawyer or practising lawyer who has had at least seven years’ experience, they will not be assured that their case will be presided over by a qualified, wise and well experienced lawyer.

The final point I wish to make is really related to an aspect to which the hon the Minister referred in his Second Reading speech namely the fact that the department intends to publicize the advantages and procedures of these small claims courts. I do not think that one can stress this aspect sufficiently. Let me give an example. When legal aid was introduced in South Africa, we heard speeches similar to those we are hearing at the moment. I was not here at the time but I have gathered as much from Hansard. People were patting one other on the back and saying what a fantastic new development this was in South Africa. It was said that all the poor litigants would be able to make use of it and that the legal system was going to be very generous from then onwards. However, statistics show that the people who actually benefited from legal aid during its first ten years were not in the first instance those who were really in need of legal aid namely the poorer section of our society such as the Blacks and the Coloureds. It is interesting to note from these statistics that in 1973, of the people who made use of legal aid in civil litigation, 55% were Whites, 30% were Coloureds and Asians and 15% were Blacks. Ten years later the position had changed. This took ten years to happen but the position was still unsatisfactory. In 1983, of those who made use of legal aid for civil litigation, 30% were Whites, 44% were Coloureds and Asians and 26% were Blacks. I merely mention these figures to indicate that, quite clearly as far as legal aid is concerned, whatever the department tried to do—and I know that it did try to publicize the system—it was obviously not enough. One also, of course, takes into account the fact that there were other problems in regard to legal aid such as the belief that it was linked to the State. However, the fact remains that if this new system is really to be fully available to the poorer people who need it then the department will have to do far more in terms of publicity. The community, the legal profession and the media will also have to do far more than was the case in regard to the legal aid system when it was introduced otherwise this new system of small claims courts is not going to redound to the benefit of the poorer people who have the greatest need for it.

The Bill is a positive development which will work if the legal profession does pull its weight. Various speakers have expressed their appreciation for the undertakings by the legal profession to do the work, and one hopes that that will actually be forthcoming. One hopes that the hon the Minister will be able to start with this system as soon as possible in the major centres and to use them as an example for expansion in other areas so that as soon as possible there would be greater access to our courts for people who until now could not afford it. We support the Bill.

Mr Speaker, as the eighth speaker on an agreed measure I can understand the frustration of the hon member for Durban Central as the seventh speaker to fall for the temptation of splitting hairs because that is what the hon member really did.

*I refer to his objection to the exclusion of actions against the State. If actions against the State had been permitted, it would run counter to the spirit of the Bill entirely, because what do we find? The State has many expert lawyers. Who would they appoint to defend the State? Would they begin at the top scale and say: “No, you are too skilled” and then come down until they get to an official of whom it may be said that he is not skilled and will justify fairness in these small courts? I support the provision that actions against the State are excluded for that very reason, because it runs counter to the spirit of the legislation that an unskilled person should come up against a skilled one.

Hoexter does not say so.

Another objection advanced by the hon member relates to the amendment to clause 9 which the hon the Minister intends moving in respect of the English text only. That amendment already appears on the Order Paper. The aim of the amendment is only to rectify an obvious mistake in the English text. The objection of the hon member is that he wants to incorporate in the legislation a provision to the effect that a commissioner must have specific practical experience extending over seven years. What the hon member will do, if that requirement is incorporated in the Bill, is to disqualify certain people who could be very good commissioners. Let us consider the requirements set for a commissioner in clause 9. Clause 9(2) provides inter alia:

All the members agreed that it will be necessary to effect rectifications and amendments to the legislation in future, and any further restriction imposed on the prior experience of a commissioner will be counterproductive and will be to the disadvantage rather than the advantage of the legislation.

The hon member for King William’s Town also saw fit to insinuate that the amendment of the hon the Minister aimed at reducing the amount to R1 000 was supposedly due to the legal profession forming a pressure group because they were supposedly concerned about their fees. Let us investigate the role played by the legal profession in this legislation. All the hon members were agreed that the most important benefit of the legislation was that it would bring about a saving in costs. Who will have to pay for those costs? Those fees and costs will come straight out of the pockets of the Side Bar and the attorneys of this country. Therefore I cannot understand the hon member’s attitude. It must be borne in mind that the original proposal of R1 500 is equal to the maximum jurisdiction of magistrates courts, where attorneys can appear at the moment. I therefore support this amendment. I take it amiss of the hon member for making this insinuation about the legal profession which has adopted a magnanimous attitude in regard to this legislation. Not only are attorneys sacrificing a great deal of their income, they will also play a decisive role in causing this court to work. They are going to do so free of charge.

I laid down seven criteria whereby this legislation could be tested. The first is the accessibility of our courts. The man in the street has a fear of courts and this must first be surmounted, as hon members have rightly said. I have no doubt that he will not have that fear of this court and that the adventurous will even welcome it to an extent.

The next criterion is the prompt settlement of a case. There is a saying: “Justice delayed is justice frustrated.” In this instance there will be a summons that will also specify the date of the trial, and there will be a decision that will not be subject to appeal.

The next criterion is costs. I have already indicated that we have no problem in that regard. Criterion number four is whether the procedure is simple. There is no doubt that an inquisitorial system is not as good as our existing adversary system, but for the purposes of the simplification of the procedure and the benefits that that entails, it is appropriate for cases that are limited to the amount specified in the Bill.

The next test is whether a person can defend himself. In terms of existing legislation a person may approach the court in his own name but in view of the complexity of pleadings, etc, this is in fact a right he has in name only, because the present system is too complex for him to succeed. Nor will it happen that a skilled person will appear in court against an unskilled person, because cession of claims is not permitted. Therefore a person will not be able to sell his claim to an expert who may have an advantage in that court.

The next criterion I want to apply is that of fairness. At first glance the fact that there is no appeal gives rise to concern, but no appeal is possible when there is no record. There is also the question of review, to which certain hon members have referred. I just wish to point out that the court itself has the power to set aside its own decision in certain cases, for example an order made in the absence of the defendant if at a later stage he advanced sound reasons for being absent. Orders that are void ab origine, and also patent errors, may be rectified.

Certain hon members have laid considerable emphasis on the importance of the role of the commissioner. I repeat that the qualifications laid down for the commissioners guarantee fairness for the ordinary man.

The final criterion I want to apply is whether the courts will be effective. I believe there need be no doubt on this score and if problems are experienced as regards the operation of the courts the law can always be amended in future and the matter rectified. The rules, which must be very simple, ought also to play an important role in the proper functioning of these courts. These are seven very important criteria and I suggest that the legislation complies with all these criteria and that it represents a considerable improvement in our legal system. I therefore support it wholeheartedly.

Mr Speaker, I have very little quarrel with what the hon member for Nelspruit had to say, save for the fact that he must not underestimate the point made by the hon member for Durban Central in regard to the person to be appointed as commissioner. I think we are all agreed that the success or failure of the small claims court will depend upon the person who is going to preside over that court. If he has sufficient experience, tact and know-how, then the court is going to be a success. Therefore I think one should give very careful consideration to the point that the hon member has made with regard to the commissioner’s experience. I will refer to the hon member for King William’s Town’s speech in a moment.

Let me say at the outset that I welcome the Bill and that I have approached it with as much enthusiasm and support as though it had been the Smoking Control Bill! I could not have more enthusiasm for this Bill. I should like to congratulate the hon the Minister on introducing the Bill in this form, as well as the officials who drafted it, and in particular Mr Justice Hoexter whose very fine Fourth Interim Report contained the recommendations that have given birth to this fresh approach to the judicial system in South Africa. I think this is evidenced in paragraph 12.2 on page 174 of the report where it is stated:

On page 16 of the report the criteria are laid down based on the British and the American systems. The criteria of the British system are:

I also quote in regard to the American system:

Broadly speaking, what the Bill does is to retain as much as possible of the judicial system that exists in South Africa today, particularly with regard to the procedure that is laid down for cases to be heard in magistrates’ courts, yet at the same time it strips it of that part of the procedure which would slow down the administration of justice in the civil sense and introduces expediting factors such as accessibility, simplicity and lower costs. Quite honestly, I think this legislation has been drafted neatly. I can only have the highest regard for the way it has been presented. There may be one or two small points of criticism which we will deal with in the Committee Stage but by and large, in principle, my approach is that this is sound legislation.

One of the most important aspects is the question of cost because litigation is a very expensive pastime in South Africa today. Other aspects of the Hoexter Commission’s report which will no doubt be discussed are the references to the very high costs insofar as senior and junior counsel and litigation are concerned. It has been stated in other reports that it is not worthwhile going to a magistrate’s court with a claim of less than R750 and to the Supreme Court with a claim of less than R7 500. Now we have a court whose jurisdiction has been fixed and an amount has been set. Hoexter also says that as far as justice is concerned, it is open to all. It is just like the Ritz Hotel. Here we are eliminating the Ritz aspect and making the hotel available to all litigants in South Africa.

At slightly reduced tariffs.

Insofar as the costs and the attorneys are concerned, I should like to associate myself with what the hon the member for Nelspruit said in regard to the hon member for King William’s Town who seems to have some aversion to the legal profession. I do not know whether he has had a brush with the legal profession, but he must have come off second best somewhere along the line because he is always trying to have a dig at the legal profession. However, the hon member for King William’s Town quoted from the Fourth Interim Report of the Hoexter Commission and, in view of the assertions that he made here today, I cannot help but wonder how well he read that report. Perhaps he did not read the report properly and may have just skipped page 31.

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

Mr Speaker, may I just make my point? Par 5.4 on page 31 of the report states:

The attitude of the Transvaal Law Society …

In case the hon member does not know, that is a society of attorney’s only attorneys:

What could be more clear than this paragraph where the president of the law society speaking on behalf of the attorneys, actually supports the Bill. I will now take the hon member’s question.

Mr Speaker, I should like to ask the hon member why it has been necessary, after all we have gone through concerning civil litigation which for years and years has cost the litigants vast amounts of time and money, for a judicial commission to come up with these answers? The hon member suggests that the legal profession, attorneys and advocates, have sympathy with the man in the street but in the meantime they have up to this stage done nothing to reduce costs. Indeed, they have been wallowing in … [Interjections.] Why have they not come up with the answers? It has taken a judicial commission appointed by the Government to make these suggestions. [Interjections.]

Mr Speaker, that is a rather garbled question, but apparently the hon member wants to know why the legal profession have not reduced their fees. Is that the question the hon member is asking? [Interjections.] I do not know whether I can answer the question to the hon member’s satisfaction but I am coming to my next point and perhaps that will answer his question as well.

After thirty-five years of practice in the legal profession, I can tell the hon member that it does not pay an attorney to forfeit a day in his office and to spend his time fighting a civil case in a magistrate’s court. He cannot afford to leave his office and all the other work that is involved in order to devote practically a full day—and in many cases the case is postponed or there are other delays—to a case in the magistrate’s court. So what happens? Because the attorney cannot handle the case himself, he usually has to brief counsel. Counsel then has to go to the magistrate’s court which results in an escalation of costs. After all, counsel have to live and are entitled to their fees. [Interjections.] The system as it is today lends itself to this type of situation. If the hon member would only appreciate what I experienced when I first started practising, namely what we had to pay rent for our offices, what we had to pay typists, what we had to pay for typewriters, etc. There is such a wide gap between the equipment used and the salaries paid to staff today and what we used to pay that it is utterly impossible for an attorney to run a legal practice today on a tariff other than the one laid down today. There is a tariff committee on which a judge sits, which lays down the tariffs. There is also a taxing master, and if any attorney should try to tax more then he is entitled to, the taxing master will tax him off. Not only is an attorney not allowed to charge more than he should, but the public is fully protected in this respect. I think this answeres the question of the hon member.

What I appreciate about the small claims court, is, the enthusiasm expressed here today for this court. This is perhaps shared by the public of South Africa, and in this respect we owe a debt of gratitude to SABC-TV who have for many months screened a program which showed a small claims court operating in America. I know that a lot of people watched this program with a lot of enthusiasm and must have thought what a splendid idea this is. I do not know whether the hon the Minister of Justice is thinking of showing the proceedings of this court on TV, I sincerely hope that he does not, because I was shocked to learn that the people appearing in the people’s court in that program actually got paid for appearing. I believe that would encourage litigants to go to court in the hope of getting paid for appearing on television. That would defeat the very purpose for which the small claims court is being instituted.

As I have said, the public of South Africa now has a very good idea of what a small claims court is all about. The procedures we have seen on television will to a large extent be followed in our small claims court, namely that there will be no cross examination, that the rules of evidence as far as hearsay evidence is concerned will be admitted as part of evidence, that the commissioner will be the one who will try and ascertain who is right and who is wrong, and that each of the witnesses will be able to present their cases and to bring their witnesses to try to substantiate their cases. Very often litigants are divided into two classes. There are litigants who genuinely need the money and someone has not paid them their money, while there are litigants who go to court because of a principle. Even if the claim involved only amounts to R10, they want to satisfy themselves about the principle. Sometimes, if they can afford it, they do not care what they spend to satisfy themselves about the principle. Here we have a wonderful opportunity for those whose claims are within the limit laid down to go to court, to have their say, to get something off their chest and to try and exact justice. On the other hand, those who need the money, can also, if they prove their case, obtain judgment. I like the idea that if a person cannot afford to pay the amount awarded to a claimant, the commissioner can order that it be paid in instalments or that the judgement debtor can offer to pay the amount by instalments, although it may not be accepted by the judgement creditor. Provision is, however, made for this friendlier atmosphere to prevail.

One thing I am not clear on as far as the Bill is concerned, is that it does not actually mention the venue where the small claims court should actually operate. Whereas the jurisdiction of a small claims court can be prescribed, it remains to be seen how and where the small claims court is going to operate. I believe that in respect of small claims courts preference should be given to easily accessible venues. The hours when these courts would sit, should also be made convenient for people. I would not mind to see a small claims court sit in the evenings, for example, from 17h30 to 19h30, or whatever the case may be, so that people will not have to give up a day’s work, but could go to a small claims court at a time convenient to them.

A further aspect I want to raise is a very important one concerning non-discrimination against people who may appear before the small claims court. There is reference made to Black people and I hope that I read it correctly that, where there can be actions between Black and Black, there can also be actions between White and Black and that there is no restriction in that regard. I think I am right in saying that. I submit that, when it comes to deciding on venues for the small claims courts, for actions involving Blacks, the hon the Minister should give serious consideration to a small claims court sitting in an area such as Soweto. When it comes to the commissioners who will adjudicate at the courts at such a venue, I want to point out that there are many Black lawyers or advocates with seven years experience or more who may be able to give of their time to sit as commissioners. I believe we will be doing the Black people of South Africa a service if we bring the small claims court within their reach so that they too can have their claims settled by such a court. Those are aspects which I think should be considered.

There is a small point I should like to raise in regard to clause 30, a point which causes me a little concern but which is perhaps not very serious. This clause provides that:

I do not want the situation to arise where a plaintiff, having brought the defendant to court and involved him in litigation, sees that he is going to lose his case and therefore withdraws his claim. It is true that he can only withdraw it with the consent of the court, but I wonder whether we should not give consideration to the consent of the defendant also being required if the plaintiff wants to withdraw his claim. Once the plaintiff has taken the defendant to court and the defendant has put his case, I am not sure that, unless the defendant agrees, the plaintiff should be allowed to withdraw his claim. That is one small point to which I think we might give consideration in the Committee Stage.

To conclude, I want to refer to one further aspect. I should like to congratulate the hon member for Sandton, our spokesman on justice. The idea of introducing the innovation of a small claims court was in fact even mooted in this very Chamber on 6 June 1977, seven years ago. On that day the hon member for Sandton, speaking about the high cost of litigation, the number of cases in magistrates’ courts, etc, had the following to say (Hansard, col 9326):

Prophetic words.

Well, I think he really deserves to be congratulated. Something which is perhaps even more interesting and which I cannot resist referring to is to be found in column 9380 of the Hansard for the same day. Here I congratulate this hon Minister of Justice who is “verlig” unlike his predecessor whose name was, I think, Jimmy Kruger. In column 9380 of Hansard of that same year the then Minister of Justice had the following to say, and I quote:

He was referring here to the hon member for Sandton:

The whole suggestion was rejected by the then Minister of Justice in 1977. I am therefore even more delighted that we have now at last reached the stage in which these Small Claims Courts are being introduced in South Africa.

Finally I should like to express a small degree of disappointment at the fact that the hon the Minister has seen fit to reduce the R1 500 limit to one of R1 000. As the hon member for Sandton has pointed out, however, an explanation has been given for this reduction of the said amount to R1 000. If we were to follow the other recommendations by the Hoexter Commission, I believe, we would do better by increasing the jurisdiction of the magistrates’ courts while leaving the jurisdiction of the Small Claims Courts at a limit of R1 500. I do accept, however, the fact that it is at this stage still R1 000 and that the whole matter will be reviewed shortly, as the hon member for Sandton has also pointed out. Finally I should like to make one other point. That is that in a Small Claims Court—and this particular aspect is not referred to in the Hoexter Commission report—many disputes are heard which require expert knowledge on the part of the adjudicators. One such example is that of building disputes. Those are disputes relating to the erection, the renovation and the extension of buildings, etc. In Holland and in Belgium there are special courts dealing exclusively with building disputes. Perhaps the hon the Minister can give consideration some day in future to introduce a building disputes court in which matters of that nature can be settled by expert adjudicators. I believe that we will realize some day that this measure we have introduced here today, and the new procedure we have introduced, will indeed lead to arbitration proceedings, which are also expensive in South Africa today, being replaced by Small Claims Courts. This is indeed necessary because in most arbitration proceedings counsel and attorneys are briefed as well, and this of course adds to the costs of already expensive court proceedings in this regard. It is therefore, that with great enthusiasm, my colleagues and I support and welcome the Small Claims Courts Bill.

Mr Speaker, as a non-smoker I do share of course the enthusiasm revealed by the hon member for Hillbrow in respect of this measure. The only difference being of course that this Bill, unlike a certain other Bill, will most definitely not remain on the Order Paper until the end of the session because it is already in the process of being finally disposed of. I do presume so, at least, Mr Speaker. [Interjections.]

*In the course of the debate thus far on this extremely interesting subject, big speeches have been made about small cases. This of course also indicates, in fact, that important people can still concern themselves with the small things in life that are important to ordinary people. I believe that this is probably the best message that could be conveyed from here to the consumer public of South Africa as a whole, namely that this highest Chamber in the land can concern itself for so long with the creation of a court which is being made accessible to the ordinary man, in that the cost structure is being cut to the bone and the ordinary man is being put in a position to be assisted in that court by a presiding officer who will look after his interests. It is also important to state that there is so much unanimity in this House concerning, this very important matter. I believe it is significant that this is what has happened.

However, this Bill also have a by-product that we must not overlook. It goes without saying that dealers and those who envisage exploiting the consumer public—and let us assume that this will be by way of exception only—will indeed have to put their affairs in order from the moment the State President signs this Bill, thereby enabling us to begin our projects. In their dealings with the consumer they will have to act correctly. Why do I say this? As I shall indicate in a moment, even if we are only able to put the first project in operation in six to nine months’ time, we must bear in mind that in terms of the Prescriptions Act claims lapse by prescription after three years. This means that anything that may happen in the next few years may be covered, but that also applies to the period prior to the date of inception of a court. Accordingly, the public is in fact already being protected with retrospective effect for three years prior to the date of inception of the court. They will just have to hurry with their reminders and summonses. Therefore, in my opinion, we have hereby given notice to those who are perhaps planning to impinge somewhat upon the rights of the consumers of South Africa, either now or in the future.

Before replying to various points raised by hon members, I just want to discuss the question asked here, viz how this project will be put into effect. In the first place, it is of course going to cost money, and in the nature of the matter this could not be included in our budget. I have requested my department to make an estimate of the cost of putting into operation approximately five such projects. The total estimated cost will be in the region of R183 600 per annum. If we were to hire courts somewhere—we do have to use existing magistrates’ courts— then the rental will also have to be taken into account in that regard. In view of the rising building costs—because we shall also have to effect certain security measures—we can calculate that it will cost us roughly R40 000 per project. However, if we were to expand these projects to a possible six or seven centres, it will be realized that an amount of between R250 000 and R300 000 will be involved.

May I please ask a question? The hon the Minister spoke of five projects. Can he give us an indication where he intends making a start on those five projects?

I also spoke about seven.

Possibly seven; but at the outset the hon the Minister mentioned five. Where are those projects expected to come into operation?

I am getting to that. The hon member for Durban Central should not always be in such a hurry.

One will probably be at Delmas. [Interjections.]

Mr Speaker, Delmas does not need such a court. After all, there are only honest people there. The consumers there are never involved in altercations, after all.

Therefore, if we expand this system to seven projects, we are speaking about an amount that will exceed R280 000. We have not made provision for this in our present budget and accordingly we shall have to approach the hon the Minister of Finance, cap in hand, to request these amounts in an additional appropriation. If we are unable to obtain these amounts in an additional appropriation, the projects will have to stand over for the next financial year. These are the realities we are faced with. Our realistic target dates is 1 April 1985, but we are going to do our best to determine an earlier target date if we are able to obtain the money either from the hon the Minister or from savings, although nowadays it is difficult to do this in respect of Justice. Alternatively, we shall have to do it by way of an additional appropriation.

The hon member for Durban Central asked me what projects we had in mind and where they would come into operation. I thought that in all fairness we should give every province a fair chance and that we should not overlook the capitals of the various provinces in this regard. However, it could also be that due to practical reasons one may shift away from the capital city itself to some extent, depending on how the province itself identifies with the situation. We considered having one project in the Transvaal, one in Natal, one in the Free State and one in the Cape. It will also consider the situation of the universities; it could be either in Pietermaritzburg or in Durban, as far as Natal is concerned. In Transvaal is could be either Pretoria or Johannesburg, but I think that everyone will want to let Pretoria have the honour. In the Free State, Bloemfontein, with its Appeal Court, is the fairly obvious choice. Then, of course, there is Cape Town.

I also spoke about a fifth project, because we should like to see how this operates on the platteland. In this regard we had in mind a place situated close to Pretoria, a place like Rustenburg, which is a fairly large place. However, that is arguable. If we were to find that there were a few dealers in Delmas who required the necessary attention, then it could be Delmas. [Interjections.]

Earlier I spoke of seven. What I had in mind was that in the light of the vast distances of the Cape we should give the eastern Cape an opportunity as well, because there is a university there, too. Here we have Port Elizabeth in mind. In view of the considerable population density in the PWV area, we also considered Johannesburg.

That is where we stand at this stage, but I do not want to be dogmatic about this. I wanted to give an indication of the cost factor, our target date and the places where we can launch the pilot project.

The Bill has been drawn up in such a way that we can establish a court by proclamation. We need not establish all the pilot projects simultaneously. We are flexible in this regard. Accordingly, we shall establish them as soon as we can, and, if at all possible, at these different places.

There is a reason why I should like to establish them simultaneously at all these places if this should prove to be feasible. In clause 25 provision is made for the establishment of an advisory body to assist the Minster in regard to the operation of these courts. What I have in mind is that the advisory bodies be manned by certain people. In the first place there is a magistrate, because a magistrate performs a very important function. In terms of clause 11, he has to appoint the staff. He has to see to it that the documents of the clerk of the court are in safe custody, and so on. The magistrate has to perform work of tremendous importance. I thank them in advance for their enthusiasm for this matter. Apart from the magistrate, an attorney, an advocate and an academic must also serve on the advisory body. We could perhaps consider another member as well.

These people will identify the commissioners for us. They will advise us as to the make-up of the panel. What is more, if we do appoint an advisory council for each of these pilot projects—this is possible, because this is what is provided for—what will happen? Cape Town will ensure that its project is a success, as will the people of Bloemfontein, if I am not mistaken, and so will Pretoria and Johannesburg. We will create a spirit of competition, of striving for quality. That is what we shall achieve thereby.

And the finals will be at Ellis Park.

If that hon member had not been protected by clause 16 which makes it impossible for us to bring certain claims against him, for example perpetual silence, we should certainly have dealt with him within the framework of that clause. [Interjections.] The hon member for Barberton knows exactly what I am talking about.

That is where we stand now as far as these projects are concerned. I think that we have now dealt with them in sufficient detail. A great deal of work lies ahead. If the hon members have thanked the officials, then I think they would do well to consider the tasks that lie ahead of them in the future. There is the drawing up of rules of court, the development of a procedure for the identification of suitable persons, the appointment of supporting staff, the security of court buildings and the drawing up of a budget. That is always a difficult matter. Then, too, there is the identification of the relevant court buildings and the development of a process of control and management of the pilot project.

I now want to turn to a question asked by the hon member Mr Schutte. We shall very probably draw up a manual as far as the administration of the courts is concerned, but we shall certainly not establish guidelines or a manual for the presiding officers, because they must be seen as people who are not provided with any guidelines. I think the hon member meant that there should be a manual only in respect of the control and management of the court so that everything will run smoothly. That is what I understood him to mean and that is why I raised this matter.

I now turn to the remarks of a few hon members whom I want to thank for their support.

†The hon member for Hillbrow really pre-empted my congratulations to the hon member for Sandton on the fact that as far back as 1977 he referred to this very issue. My intention was to congratulate him on the fact that as far back as 1977 he had his last lucidum intervallum. At that time he had a clear vision, but ever since then it never returned to him. It has in fact left him completely, as will be proved tomorrow. I nevertheless think the hon member should be congratulated for his insight.

*Mr Speaker, I wish to thank you, too. You were abroad for several years and you came back with manuals and other documents to indicate how the courts worked there. You handed them over with great enthusiasm and said that this was the ideal for South Africa. Therefore the scales of justice have been restored, since we have a Nat on one side and a Prog on the other.

†I do not claim any credit for myself. I am merely an instrument of history at this point in time. One of the terms of reference of the commission was to look into the possibility of establishing a small claims court. The commission was appointed by my immediate predecessor, Mr Schlebusch.

*I want to take the opportunity to pay the necessary tribute to him in this regard, and to the department that made it possible for us to reap the fruits of the work of this commission this evening. This does not detract from our enthusiasm for this matter. One can understand that it could be said that matters had not progressed so far in 1977, but we have not ignored the progress made since then. The commission was appointed in 1977 and now, in 1984, we are discussion legislation arising out of the report of the commission.

This brings me to certain remarks by the hon member Mr Schutte. I have already replied to him concerning his suggestion of a manual. He also paid tribute to the professions. He would have neglected his duty if he had not done so, since he is himself a practising advocate. All practitioners, and those who took part in the debate this evening, have attested to the fact that what some have said about the legal profession is not true, viz that it is more difficult to open a lawyer’s mouth without money than to break open an oyster with a rubber spoon. That does not apply to my colleagues in this profession.

This brings me to the hon member for Barberton. He most appropriately recounted here the first lessions of his legal training. I could not help being reminded of the fellow who stormed into an attorney’s office, pulled out a R20 note and said: “Please give me the best possible legal advice immediately because Koos has told me to go to the devil.” The attorney wrote out a receipt for the R20, put the money in his pocket and said: “Don’t go.” [Interjections.] Sometimes the patently obvious is the preserve of lawyers.

The hon member raised a few very interesting matters. In the first place, he referred to the question of the oath. Unfortunately, time does not permit me to go into this in detail. A commission under the chairmanship of Appeal Judge Mr Justice Botha also investigated this matter, among other things. Having given the matter very careful consideration, the commission recommended that the law of criminal procedure and the Justices of the Peace and Commissioners of Oaths Act be adapted to make provision for an affirmation apart fromt he oath. Whereas we refer here so a prescribed affirmation, in the rules we shall indicate clearly how it will read. I believe that this concerns the actual substance of the hon member’s problem and not the details. However, that is the history of the matter. The Government considered this at one stage and this was the considered opinion of a respected person like Appeal Judge Mr Justice Botha.

The hon member raised some other interesting points as well, for example the question of the forum, as embodied in clause 24. He referred to the fact that the defendant should also be able to exercise a choice, for example if he is indigent, etc, but I think he will concede that the defendant will often be a company, perhaps even a well-off company. It would be very difficult to find a criterion in terms of which one could determine whether the person was entitled to evaluation as an indigent and should accordingly be entitled to choose the forum. Apart from that, this is totally in conflict with all current concepts of the right of the plaintiff to choose the forum. Dominus litis applies here. However, if the hon member wants to discuss this matter in future, that will be in order.

The hon member also raised a problem in respect of clause 14(1) In terms of the Interpretation Act, “person” also includes a company. Therefore I believe that the hon member will now accept that this is duly covered. I hope the hon member accepts that I have furnished him with satisfactory replies to his remarks and that I can now proceed to refer to other speakers.

I have also referred to the remarks of the hon member for Verwoerdburg.

†That brings me to the hon member for King William’s Town. Perhaps if he will pay attention for a moment, I will deal with his very valid questions on the decrease of the jurisdiction. Assocom, for instance, proposed that the jurisdiction be set at R1 000. Is the hon member suggesting that I am in a lobby with Assocom? They represent both the consumer and the trader. I think it was a bit unfair that he should ascribe it to a lobby. That is what I object to. [Interjections.]

Who persuaded you the first time?

I will come to that. The hon member for Nelspruit gave the answer, namely that we have just yesterday increased the jurisdiction of magistrate courts from R1 500 to R5 000. Now all of a sudden we increase this jurisdiction to R1 500 thereby creating the impression that for all these years, 15 or 20 years, magistrates courts only had jurisdiction up to R1 500 and that it was in order. It might also create the impression that for many years they were limited to dealing with small claims. The hon member for Nelspruit dealt with this. That is, however, a part of my concern but I did not succumb to pressure.

You did.

I did not. I was not part of a lobby. However, I was requested by the law societies and the General Bar Council of South Africa to reconsider the question of jurisdiction, and they had a very valid argument. According to Hoexter, we had to take the question of inflation in consideration. If one compounds the inflation rate in relation to the amount of R750 since the report was published what do we arrive at? At R1 000. I am therefore not denying the consumer the ultimate advantage of an increased jurisdiction due to inflation. However, I have said that we should be logical and that we should subject the increased jurisdiction of our courts to a board which we shall hopefully institute in the near future. That, in my view, is sheer logic.

I have up to now regarded the hon member for King William’s Town as a very sensible man and I suggest that he should once again prove his sensitivity to sense and review his opposition to this provision. [Interjections.] After all, nothing can be gained from trying to be popular. He should instead be wise for a change. [Interjections.] The hon member can discuss this matter further in the Committee Stage. I know the hon member for Durban Point and I am sure that he will probably come to the House with a few articles valued at R1 500 although they may be very small. Nevertheless, I am sure the hon member will support me at the Committee Stage.

Mr Speaker, may I ask a question? I want clarity on the point the hon the Minister has just made that it was as a result of representations from the General Bar Council and the law societies that he did in fact lower the amount to R1 000.

I was requested to review the situation.

By the legal profession?

Yes, by the legal profession.

[Inaudible.]

The hon member surely knows me to be an honest lawyer, does he not?

Of course!

Why then does he cross-examine me? I have told him that, and I also explained it to the hon member for Sandton. I did not hide it from him, and I will tell the hon member why I did it. Every hon member on our side for once came out very strongly in support of the lawyers because the lawyers will be the people who will be manning the bench in these small claims courts. Apart from the academics, we will be completely dependent upon the lawyers. No one has twisted my arm. The figure of R750 has been increased to R1 000. Do not let us spoil a good Bill.

Mr Speaker, may I please ask a further question? The hon the Minister has just answered my initial question by telling us that in respect of the request made to him by the legal fraternity he did accede to that request by bringing the level of the ceiling down. The point I made—and I should like the hon the Minister to respond to it—is whether in future the question of raising the ceiling will be a matter for the legal fraternity to decide.

No, and I have said so to the hon member. I have told him that that will be considered by a board which will be instituted in due course. That board will monitor the jurisdiction of the lower courts. I cannot be clearer than that, can I? Apart from that, I also told him that Assocom said in their evidence that they thought that R1 000 would be a fair amount. Other submissions ranged from R500 to R5 000. We had to start somewhere.

*I now turn to the hon member for Port Elizabeth North. He asked a question about minors. Clause 7(3) provides that minors must be assisted. The hon member will understand that one cannot appoint a curator ad litem in respect of a relatively small claim. However, the hon member may rest assured, because provision is indeed being made for assistance for minors.

The hon member gave us a valuable analysis and if he wants to discuss clause 16 further, we can certainly do so during the Committee Stage.

†I now come to the hon member for Durban Central. I want to tell him that he should not try to establish whether someone has read something correctly or whether someone is deliberately trying to mislead the House, but should tell me whether I have read the following passage correctly and if his Hansard is going to reflect this. I want to read the following passage on page 177 of the fourth interim report of the commission:

In other words, there could also be other candidates. They leave the whole question open … [Interjections.] Well, seeing that the hon member has conceded that, I should actually sit down. However, I quote further, as follows:

There is no mention here that they should have seven years practical experience. The hon member tried to convey that impression. I should take him to task for that.

Mr Speaker, has the hon the Minister read paragraph 14.3(n) of the commission’s main findings and recommendations, which states:

Yes, but has the hon member read what is said on page 177? What the hon member has read out, is a synopsis and obviously not a complete synopsis.

It is a recommendation.

Yes, but at the same time it was just a guideline and the commission is not contradicting itself. The provision in the Bill also does not contradict the essence of the commission’s recommendation. [Interjections.] The hon member can speak again during the Committee Stage.

The question is whether the proposed amendment takes it further. The answer is that it does, because it rectifies a printing error in the English text. The Afrikaans text is very clear. People who are appointed as presiding officers should have had practical experience and will be appointed from certain categories of people. However, the clause also provides that also people who possess such other experience as “in the opinion of the Minister” renders then suitable for appointment as commissioners, can be appointed. I think that is what the hon member is objecting to. What about a law adviser? Is he objecting to a law adviser? I am not going to mention names, but there are some retired senior law advisers who have guided Parliament for many years. Is the hon member denying them the right to adjudicate in a small claims court? He is not.

I think I have now dealt adequately with the hon member for Durban Central. His criticism was nevertheless objective and I think it was well meant. All I can finally say to him is that the advisory board … Would the hon member mind listening to me? I am not going to reply to him any further.

*The hon member for Nelspruit gave a fine exposition of various situations.

I now come to the hon member for Hillbrow. Since it is getting late, I just want to say that I think it would be as well to regard the contribution of the hon member for Hillbrow as one of the very best I have ever heard from him. I do not know whether it is just that I did not listen as well at other times, but the hon member impressed me this evening as a practitioner who knows exactly how much money one may ask for an interview. His contribution made me happy. The mere fact that he is prepared to sacrifice all this and write it off is, in the final instance, a message to South Africa.

Question agreed to.

Bill read a Second Time.

Mr Speaker, I move:

The Bill which is now under consideration contains the latest of many amendments to the Deeds Registries Act. This Act regulates one of the services provided to the public by the authorities, one which is taken for granted by the public. We are fortunate in this country in having a system of deeds registration which has been described as the best in the world. It is not necessary for any land-owner in the Republic to entertain a moment’s doubt as to the validity of his deed of transport. He knows that if if has been registered by the deeds office, he can rely on it and defend his ownership in any court. All credit is due to the creators of our Deeds Registries Act, and also—this I must add at once—to the officials who have implemented the provisions of that Act so faithfully over the years.

The amendments envisaged in terms of this Bill are in line with changing circumstances and the demands of the times. If hon members would consult the principal Act, they would notice that the respective areas of every registry are defined in the second schedule to that Act. Under present-day circumstances, this rigorous delimitation is unnecessarily restrictive.

Earlier this session, the Black Communities Development Act was passed by this House. In that Act provision is made, inter alia, for the registration of 99-year leaseholds. This means that deeds registries or sub-deeds registries will have to be established at strategically situated places in order to meet the needs of the community in question.

†This Bill aims, therefore, to empower the Minister of Community Development to establish deeds registries and sub-deeds registries by notice in the Government Gazette and to determine the situation and respective areas of such offices. This arrangement is a much more practical one, especially in view of the fact that deeds registries or sub-deeds registries will have to be established to attend to the registration of the 99-year leaseholds.

The principal Act requires the Chief Registrar of Deeds also to be the Registrar of a Deeds Registry. This requirement is no longer necessary as, in terms of the new arrangement which came into operation in 1982, the Chief Registrar of Deeds occupies a post separately from that of a Registrar of Deeds. This arrangement has made it possible for the Chief Registrar to devote his time and energy to the management of the Deeds Registry organization.

A number of years ago an amalgamation of the divisional councils of the Cape Province took place, which required, inter alia, the transfer of the fixed property of divisional councils which were abolished, to the new enlarged divisional councils which were established. The divisional councils concerned are experiencing difficulties in finalizing these transfers and representations have been made for the amendment of the Deeds Registries Act in order that the transfers can be effected without further delay and costs to the councils concerned. Clause 4 of the Bill offers a solution to the problem.

Clause 6 and clause 7 deal with the amendment of section 31 and section 32 of the principal Act, which regulate the transfer of expropriated land and servitudes. Before such registration can take place certain documents have to be lodged with the Registrar of Deeds. These documents are now listed in the proposed amendment and will remove uncertainty which has for some time existed in this respect.

*Hon members will also notice that there are several amendments relating to the registration of leaseholds. These amendments are necessary in order to deal with such registration in terms of the Deeds Registries Act so that a deed of leasehold registered in a deeds registry will have the full support of our tried and tested system of registration.

I believe that hon members will welcome and support the amendments proposed in this Bill.

Mr Speaker, we in the official Opposition welcome this Bill and will support it. The main purpose of this amending Bill in to enable deeds registries throughout South Africa to undertake their registration of 99-year leaseholds in respect of Black people in various regions throughout the country. Right at the beginning of his speech the hon the Deputy Minister referred to the Deeds Registry system as one of the best of such systems in the world. I do agree with him in that respect because the system of registration together with the information that has to be obtained, the process of microfilming, etc, make this possibly one of the best systems of its kind in the world. I do therefore agree with the hon the Deputy Minister in respect of that statement of his.

Because we are dealing with what we believe to be one of the best systems of its kind in the world, we must of course also be fair. Therefore I must point out to the hon the Deputy Minister that the system is not working quite well as it should be working, the reason being that the deeds office, owing to staff shortages, is unable to cope with the volume of deeds loged with the Deeds Registries for the purpose of transfer, mortgage bonds, servitudes, etc. Practising conveyancers—and I am one of them—have in the past experienced delays of up to two or three months in the consideration of deeds for registration by certain deeds registry offices. At times, I must say, there is an improvement in the situation. At other times, however, this situation deteriorates again, particularly towards the end of the year, when the assessment rate period expires and the flow of deeds increases tremendously. In better times, when more money is available and when the financial institutions, such as building societies, are willing to lend people bigger amounts of money more mortgage bonds and transfers are of course registered with the result that very often the Deeds Office cannot cope with the volume of work.

I wonder whether the hon the Deputy Minister realizes how many millions of rand in interest the country has to pay as a result of delays at the Deeds Registry Office. That is of course money unnecessarily lost.

I have been conducting correspondence with the hon the Minister of Community Development in connection with the system as it operates at the moment. Not only are there delays in regard to registration but after the deed has been registered, particularly in a place like Pretoria, it takes from two to three months for the deed to be sent back to the conveyancer from the deeds registry. I think that this matter needs investigation.

In correspondence that I have had with the hon the Minister it has been suggested that since section 15A of the Act has been implemented and there is now an additional duty upon conveyancers to certify certain documents and facilitate the work of the examiners, the process has been speeded up somewhat. Although it has been suggested that further improvements be effected to section 15A, I have certain reservations in this regard. However, I do feel that we should make use of any improvements that can be effected in order to speed up this process.

In his Second Reading speech the hon the Minister also referred to the number of pages that have to be microfilmed. Everything is, of course, microfilmed nowadays and if building society bonds which run into many, many pages of small print also have be microfilmed, this will also cause an additional delay. Therefore, if these documents, as well as transfer deeds and other documents as well, can be abbreviated it will certainly help to speed up this process. Perhaps further consideration could be given to this matter.

I had in mind at one stage that some sort of autonomy should be given to deeds registries so that they could then be responsible for paying their staffs themselves by generating their own finances, which perhaps could attract more people to act as examiners. I feel that this too is a matter that merits further consideration. It may also be possible to make use of the services of national servicemen with legal training in deeds registries to assist with the registration of deeds.

The important provisions of this Bill are forthcoming, firstly, as a result of recommendations that emanated from this Parliament when the 99 year lease was originally mooted. I think it was Dr Connie Mulder who was the responsible Minister at the time. At that stage I asked why it was necessary to go to Commissioners’ Courts for registration when this work could be handled by the deeds registry. For whatever reason, however, these 99 year leases continued to be dealt with by Commissioners’ Courts.

As a result of the recommendations of the Venter Commission as well as those of the Committee on the Constitution we have now reached the stage where the registration of 99 year leases is handled by deeds registries. This is a very welcome change. The registration of these 99 year leases forms a very important part of the work of deeds registries. According to a reply to the most recent question I placed on the Question Paper in this regard, the number of plots surveyed in each of the provinces in 1983 was: Transvaal, 63 000; Cape, 16 000; Free. State, 11 000; and Natal, 1 000, making a total of 91 000 that are now available for 99 year leases. In 1983, 3 970 leases were applied for in Soweto of which 3 945 have been granted. That may be a little slower than could be expected. In The Daily Mail of 26 March of this year a report appeared to the effect that of the 500 000 housing units the Government has available for sale in terms of its new housing plan only 8 000 have been sold. I wonder simply whether the reason for the delay is the fact that there is a 99 year lease attached to these units instead of their being freehold property. In view of the fact that deeds registries can handle the registration of the 99 year leases, including servitudes and transfer, surely it would be more logical not to have 99 year leases but allow the people in the various areas to obtain freehold title. As I have said, we are pleased that the 99 year leases are now being handled by the various deeds registries where the details of all the various documents can be microfilmed. This in itself is an advantage in that information can be obtained more readily and more speedily. I would urge, however, and I want to make an urgent plea that we should go for this wholeheartedly. Let us do this properly and let us go for the proper transfer of freehold property and let us not worry about the 99-year leases.

As we are dealing with the registration of areas occupied by the Black population, I should like to point out that we were shown in detail the proposals for Khayelitsha in the Cape Peninsula. It is contemplated that some 20 000 plots will be available for occupation. Surely if a 99-year lease can be registered in the rest of the country, the time has come for 99-year leases to be registered in the Cape Peninsula as well and particularly in Khayelitsha which is being planned for future occupation. I do not know whether it is the prerogative of the hon the Deputy Minister, but I think it can be done.

Turning to the Bill itself, I want to say that the advantage which it contains speaks for itself. Here I refer to the registration of leaseholds in our deeds registries. Provided that we can get rid of the delays to which I have referred, we should have a system whereby deeds can be speedily registered in the deeds offices. I particularly hope that the form of registration will be simple, a one-page document for which the minimum stamps and fees will be required, so that a cheap and inexpensive system will obtain.

As far as clause 2 is concerned, I welcome the rearrangement in so far as the Chief Registrar of South Africa is concerned. Previously he was the Registrar of Deeds in Pretoria. I want to wish Mr Du Toit luck in his post as the Chief Registrar of South Africa. He has a very important task, because of the problems existing in deeds registries, to bring about co-ordination and uniformity in the deeds registries and to facilitate the passage of the 99-year leases and I hope in future the passage of freehold title that goes with it.

Coming to clause 3 I must point out that the regulations will have to be amended to make the registration of 99-year leases possible. It is only proper that this should be done.

The hon the Deputy Minister referred to the problems concerning the amalgamation of the divisional councils. These problems are peculiar to the Cape Province. Whereas amalgamation has resulted in the takeover of new areas, it is correct that the amendment contemplated in clause 4 is brought about so that the problems of the divisional councils can be solved and registration can take place speedily and without delay.

Perhaps I shall be allowed to say in passing, because this is not relevant to the Bill, that I am sorry that where certain amalgamations take place, for instance here in the Cape Peninsula, certain areas are being developed into townships where there actually should not be townships. Here I want to refer to a place like Sedgefield where the divisional council of Outeniqua is developing a township on the eastern side of Sedgefield Extension against the wishes of all ecologists and nature lovers. I want to ask the hon the Deputy Minister whether it is right and proper that a divisional council should undertake the development of townships. Is it not the prerogative of individuals and companies to develop townships? Is it fair and proper that ratepayers’ money should be used for the development of townships by divisional councils? As far as the registration of the land is concerned, obviously we must come to the assistance of the divisional councils as is contemplated in clause 4.

Clause 5 embodies the authority to deal with 99-year leases. In terms of this clause the registration of such leases will be authorized. As I have already indicated, I hope we shall have simple one-page documents which will be easy to register.

Clauses 6 and 7 deal with difficulties concerning expropriation. Expropriation actions take place in terms of regulations, but perhaps it is not entirely correct that these actions should be governed in terms of regulations. Therefore, in order to cross the t and to dot the i, it is necessary to have proper provisions for these actions inserted in the Act. Clause 6 deals with transfers and clause 7 with servitudes.

Clause 8 seeks the repeal of the second schedule to the principal Act. In that schedule we find the various areas of jurisdiction but they will now be redefined. I sincerely hope and trust that the Government is contemplating the establishment of a deeds registry in Soweto, Attridgeville or any other township in which Blacks live and where the 99-year leases have to be registered. It will then be available in their townships and the registration will be available on microfilm. That will make their task easier.

The definition of “right of leasehold” is amended and the right to leasehold must comply with the Black Communities Development Act. The “right of leasehold” is defined in this Bill as:

Therefore, what is being done by the Deeds Registries Amendment Bill is to bring it in line with the definition in the Black Communities Development Bill. It is also necessary to define “owner” in these Bills as a person who is the holder of leasehold.

In these circumstances we will be supporting this Bill.

Mr Speaker, the hon member for Hillbrow referred to several matters and did, I think, generally make a constructive contribution in regard to this legislation. I agree with some of his remarks, but unfortunately there are others in regard to which I cannot agree with him.

To start off with I want to refer to the last part of the hon member for Hillbrow’s speech in which he specifically asked why the hon the Minister could not introduce the 99-year leasehold system in the Cape Peninsula. He knows that this is not the policy, and whilst that is so, we shall subscribe to it.

The hon member further alleged that the reason for the delays in the registration of deeds of transfer in the various provinces were due to the 99-year leases attached to the 91 000 erven available instead of their being freehold property. Here I disagree with the hon member, because he knows as well as I do that it is not the question of the deeds of transfer that is causing this delay. The delay is being brought about by land-surveyors who cannot submit the diagrams making it possible to proceed with the deeds of transfer.

The hon member also referred to the small divisional council development at Sedgefield. I sympathize with the hon member, because it is very clear that the system of divisional councils, which only applies in the Cape Province, is somewhat foreign to him. It is therefore a pity that he interfered here in a system he basically has no knowledge of. Had he known what significance divisional councils have had for the province as such, and what they have already done in furnishing services and contributing to development for all population groups, particularly in the rural areas, his attitude would have been one of great and positive acclamation rather than the negative attitude he adopted here this evening. He would have said: “Three cheers for our divisional councils!” He would have been able to speak with great appreciation of all the wonderful work divisional councils have done in the Cape Province in the past, in all the various areas in which they function. Particularly after the rationalization of divisional council areas from the original 92 to 34—I think that at present even 1 or 2 more have been eliminated—this has become a tremendously effective system of rural government. Hon members will remember that the erstwhile Borckenhagen Committee endorsed and recommended this system of rural government for all the other provinces of the Republic of South Africa.

Order! What does this have to do with the legislation we are discussing at present?

Sir, I am merely reacting to a point raised by the hon member for Hillbrow, but if you think that I am digressing somewhat, I am prepared to come back to the legislation and raise the matter again at a later stage under a specific clause. I agree with the hon member for Hillbrow that we hope, in future, to see deeds offices established in Soweto and elsewhere.

As far as the legislation itself is concerned, I think that in his Second Reading speech this evening the hon the Deputy Minister came to light with a few ultimate truths that we in South Africa are not conscious of each and every day. I should like to refer to that again—in spite of the hon the Deputy Minister already having done so—because it is tremendously important. Firstly we in this country do not adequately appreciate the “vested” system. I want to agree with the hon member for Hillbrow that we have the system of deeds registration in the world.

The second point relates to the commendable service that the officials of the department have rendered over the years within the context of this system. They have dutifully and painstakingly maintained this system. I do not think we can express enough appreciation to the officials for this, or compensate them adequately in the future.

Hon members have pointed to problems in the deeds system in South Africa, but I think there are several mistakes that are made in this connection. One of the big problems that exists in regard to the optimal utilization of the officials in this system bears on the various favourable and unfavourable swings in the business cycle that we experience, something to which the hon member for Hillbrow referred. In favourably economic periods deeds registration turnover can quite easily be three times what it normally is in unfavourable economic periods. Bearing that difference in mind, it is impossible to achieve optimal utilization of the officials. There is a long drawn out process involved in obtaining the qualifications that the officials need. I agree with the hon member for Hillbrow and want to join him in asking the hon the Deputy Minister to request the Defence Force to allow those people who are not prepared to do normal active service to give the benefit of their services to this department. The problem we have is, however, that this is a specialized service for which specialized officials are needed.

As far as the attorney’s profession is concerned, a training course of at least four or five years is required for someone to qualify as an attorney. In addition one must acquire at least one year’s professional knowledge and write a further exam in order to become a properly qualified conveyancer. Then, however, one is merely on the threshold of this aspect of the attorneys’ profession, and only agter 10 or 15 years is one regarded as a properly qualified conveyancer. I therefore do not think we would get much help from people we drew from the Defence Force, although it might perhaps help us, and we should therefore give it some attention. We must realize, however, that the situation in regard to conveyancing in South Africa has changed over the years, and it has therefore been essential for the legislation repeatedly to have been amended in order to keep abreast of the changing situation. So this evening I also want to compliment the hon the Deputy Minister and his department on this legislation, and in this connection quote a report that appeared on 11 September 1983 in the Sunday Times under the heading “Combating Deeds Office Bottlenecks”:

That is one of the factors we must give some attention to, because it is one of the aspects of the legal profession that has, over the years, completely and fundamentally changed.

In the past the staff of the deeds office took responsibility, to a large extent, for the proper registration of deeds. That responsibility is now being transferred to the legal profession, and this introduces a completely new dimension, because now there will be found to be a shortage of trained staff in the attorney’s profession. I want to acknowledge at once that one of the problems with which the hon the Deputy Minister and his department are faced is that as soon as someone has been trained, the attorneys’ profession or other institutions tend to buy them off. They perhaps do so because they are interested in the possible progress the person can make or because they are trying to give him a better deal. In the past few years there was fortunately been the realization that these people’s salaries should be improved, and with the rationalization of the Public Service their salaries have indeed improved.

Within-this context I want to come to a complaint the hon member for Hillbrow made about the payment of the staff in deeds offices and the way they are treated. He said, amongst other things:

With all due respect to the hon member for Hillbrow, I think he is making a cardinal error there, because he has forgotten to acknowledge—and I am putting this mildly— that deeds office staff were amongst the first in line, in the Public Service rationalization programme, to be placed on a professional basis, and we have already seen the results. The staff position in the deeds offices is now on a much sounder footing than it ever was in the past, and we express our thanks and appreciation for that fact. It nevertheless remains a situation that has to be watched, because as a result of constant new developments it may again become a problem in future.