Mr Speaker, I move:

Mr Speaker, it is indeed a privilege to participate in the Government of the hon the Prime Minister, Mr P W Botha, under whose regime and leadership an investigation was instituted into the structure and functioning of the courts, inter alia, in the interest of the Republic of South Africa and with a view to prompter and more efficient administration of justice and a reduction in the cost of litigation. Underlying the investigation was, of course, the fact that the economy, and also the political and constitutional structure of a progressive country like South Africa, is subject to an on-going process of modernization and refinement. To keep pace with this process the legal structures and legal processes of the country also have to be adapted from time to time. My immediate predecessor, the hon A L Schlebusch, now Vice State President—who initiated the investigation by the Hoexter Commission, can look back with satisfaction on his contribution in this regard.

Underlying this investigation was and is also the determination of the Government to ensure that our administration of justice, due to its effectiveness, remains the guarantee, as it always has been, of the rights, interests and privileges of all the citizens of this country.

†Mr Speaker, every hon member present here today bears witness to the fact that the previous reports by the Hoexter Commission were treated by the Government through the Department of Justice with the greatest respect and were acted upon promptly and effectively. The new arrangement in relation to appeals enacted by Parliament in 1982 and the Small Claims Courts Bill, presently being debated in this House, are cases in point. The fifth and last report will receive the same treatment, as I shall indicate in a moment.

It is appropriate, however, that at this stage I should express the Government’s appreciation towards the chairman of the commission, Mr Justice Hoexter, and his co-commissioners, Mr J C Ferreira, Prof A J Middleton and Mr J M Potgieter. Another member of the Commission, Mr Justice Schreiber, passed away before the report could be finalized. These commissioners have indeed fulfilled a monumental task. The commission was ably assisted by Advocate Noeth, a director in the Department of Justice, and also by regional magistrate, Mr Venter, and the law-adviser, Advocate G Grobler, and the secretary, Mr Allers. For the edification of the hon member for Sand-ton I want to point out that they heard evidence far and wide. They also brought out their reports in a fearless manner, delivering praise—and there is plenty of it even in the fifth report—where praise was due. They also criticized where in their opinion it was justified, thus illustrating to the hon member for Sandton and others, illustrating to the Opposition and to the outside world, that when the Government appoints a commission that commission does its work independently and fearlessly. The Government indeed expects such a commission to be factual and truthful in order to enable the Government to take the correct decisions. The Hoexter Commission’s report complied admirably with these requirements and norms.

*The commission has advanced various recommendations and I shall now proceed to deal with those in respect of which the Government has already adopted a standpoint. As regards those recommendations that are not dealt with, comment is first being called for before a standpoint is adopted. Therefore they are being exposed to comment by all interested parties. They are being referred to the Commission for Administration for investigation and comment because they have implications for staff matters too.

In the first place, I shall now deal with what is probably one of the most important subjects in the report, viz the relationship between the administration of justice and the Executive. The judicial authority of the State is vested in the courts. Traditionally, and in accordance with the doctrine of the separation of powers, the administration of law must be carried out by autonomous and independent courts. That is how Verloren van Themaat and Wiechers put it and this is endorsed by the Government as well. The Hoexter Commission has consistently based its recommendations on this doctrine.

The recommendations made in this regard relating to the Supreme Court are for the most part confined to the manner of appointment of judges in the various divisions of the Supreme Court. The statutory amendments suggested by the commission in this regard do not in any way depart from the practice in terms of which the Minister of Justice is obliged to consult with the Chief Justice or the Judge President in question before judges are appointed. Accordingly legislation in this regard is not envisaged. The Government emphasizes the fact that judges are appointed on merit, and this, of course, also applies to the appointment of judges to ad hoc Government commissions. It is already the practice, as far as possible, to consult in advance with the Chief Justice or the Judge President concerned—as the case may be—as regards the availability of a judge.

The Government welcomes the commission’s proposals that administrative services, as are at present performed in all the magistrates’ offices, specifically in the platteland, be continued with and, apart from this, that in future justice be dispensed in magistrates’ offices by judicial officers who have legal training, are thoroughly suited to the task and will concentrate exclusively on that function. This is a very fine and important ideal which we shall pursue with vigour. The needs of the platteland will of course enjoy high priority in this regard.

As the commission indicates, the Government has for some time been considering the possibilities as regards alleviating the burden imposed on magistrates as far as agency services are concerned. Separation of the judicial and administrative functions of magistrates’ courts will represent a continuation of the process in terms of which magistrates will eventually be employed solely for the performance of their primary function, viz the administration of justice.

This ideal, however fine, however praiseworthy, cannot, however, be pursued irrespective of the implications as regards staff which it may entail. That is why there is a need for an urgent investigation.

The independence of the judicature, particularly in our magistrates’ courts, has enjoyed the special attention of the commission. As far as the quality of the administration of justice is concerned—and this is very important—the magistrates are apparently not under suspicion and there is no evidence in the report that magistrates try to oblige the State. Indeed, one commissioner specifically states that no evidence could be found that magistrates administer justice as pawns of the Executive. We on the Government side say that this is good, that this is right and that this is the way it must remain.

As regards magistrates’ administrative links with the Public Service, the Hoexter Commission makes certain observations and recommendations that are logically well-founded and which will therefore also enjoy further attention. This is an important aspect which will be followed up vigorously.

This brings me to a matter in which the hon member for Houghton undoubtedly has an interest. I refer to the special courts for members of the Black population groups. The commission was specifically directed to investigate the possibility of including those courts for which other departments are at present responsible as part of the administrative responsibility of the Minister of Justice. This recommendation by the Hoexter Commission did not come from nowhere. It was not simply dreamt up. It was initiated by this Government. It was for this reason that the courts specifically established for members of the Black population groups enjoyed the attention of the commission. The Government accepts in principle the recommendations of the commission that amount to rationalization. The possibility of the administrative incorporation of these courts and of the jurisdiction of Justice has for some time been given our attention. However, this is a complex issue because it concerns people, it concerns officials with vested rights. The Government welcomes the special attention given by the Hoexter Commission to this part of its terms of reference. As does the Hoexter Commission the Government regards this matter as one of great importance. More Details of the programme in terms of which rationalization will take place, will be made public in due course.

Another matter in which the public has an interest is the adjudication of family affairs. The Government is concerned about the high divorce rate in the Republic and is eager to promote steps that could counter marital breakup. For that reason it endorses the spirit and principles underlying the recommendations of the commission, viz that expert advice with a view to reconciliation and the interests of the children ought to precede a divorce order. The Government shares the commission’s apparent concern about the preservation of the family as a fundamental unit in our community and is grateful to the commission for the special attention that this matter was given. [Interjections.] Accordingly the Government has decided to consider the establishment of a family court and a Bill will shortly be published for comment. When that is done the hon member for Bryanston can make a positive contribution for the first time in his life. [Interjections.] The proposed amendments of the Divorce Act are also regarded as important and are being dealt with accordingly.

This brings me to a body recommended by the commission viz the Council of Justice, which is concerned with liaison in regard to the administration of justice. I shall pass over this except to say that the recommendation has merit and that we are referring it to interested parties.

I also wish to point out that the commission dealt in detail with the cost of litigation. Recommendations made by the commission with a view to countering the high costs of litigation are inter alia, the small claims court we are dealing with at present; the abolition at the Bars—there are two where this still applies—of the two-counsel rule; the elimination of delays in the courts; steps to counteract non-compliance with rules of court; the implementation of certain recommendations of the Galgut Commission with regard to the curtailment of trial procedures and the simplification of those procedures; the establishment of a uniform rules board; the overhauling of the existing legal aid scheme; the proper training and retention of experienced Taxing Masters; and action against advocates and attorneys who overtax accounts by more than 20%. As I know them, hon members of this House need not be concerned about that. [Interjections.] Moreover, there is the involvement of attorneys and chartered accountants in investigations by Bar Councils and supervision of the limits of jurisdiction of courts as far as, for example, the rules board is concerned.

The cost of litigation is one of the most worrying aspects that the Government is attending to. Accordingly I have discussed with them—intensively in one instance—recommendations that exclusively affect the legal profession. They recognize the gravity of the matter and are giving the matter the necessary attention so far as they are able. I think at this stage we should leave the matter at that, but recommendations affecting the various benches as regards costs and so on are being brought to the attention of magistrates and judges.

Apart from the matter to which I have referred, the Government will welcome any other proposals that could come up, today and otherwise, as regards the combating of costs, and will give them due attention. We shall then take the necessary steps as we deem fit and as we have shown that we are prepared to do. I want to emphasize that it is the point of view of the Government that the final word on the combating of high legal costs has not been spoken by the Hoexter Commission.

Of course, an ideal system can only succeed if we have the maximum legal training of the highest standard. Accordingly we welcome the recommendation that the LLB degree for all judicial officers be set as a target, and it is envisaged that the necessary steps in this regard will be taken in due course. The Hoexter Commission gave consideration to all the posts, even those of deputy sheriff and the messenger of the court. According to the commission there ought to be one post. This affects existing rights, and a Bill in this regard is being made available for comment. The Government cannot simply take part in this process without calling for comment.

The Attorney General and the Registrar also enjoyed the attention of the commission. I welcome the fact that the commission investigated these posts. They are key posts in the administration and implementation of the law in our country. Neither post may be underestimated. We are giving careful consideration to these recommendations and eventually they, together with all other recommendations, will enable the department to develop a manpower plan of its own and apply more purposeful management.

This brings me to the prison population. The Hoexter Commission saw fit to discuss certain evidence in connection with the prison population. We are of course concerned about this phenomenon. Our concern is evident from our building programmes—large prisons have been completed recently.

That is treating the symptoms and not the disease.

Our concern is also evident from the steps we have taken to prevent this. Much is being made of the contention that the prisons are overpopulated due to so-called influx control, but what are the facts? On 15 March 1984 we had a special survey carried out and that date the so-called control offenders numbered approximately 7% of the total prison population. Leaving aside their numbers, we would still be saddled with a problem of overpopulation. Various steps have been considered to date and we are also considering further steps. The steps we have taken thus far have resulted in the overpopulation rate dropping recently from 46% to 41,8%. I think that the prison authorities, and perhaps the Minister himself as well, deserve praise for this.

Hear, hear!

I am merely taking a leaf from the book of the hon the Minister of Transport Affairs.

The Government has already given its approval to the investigation of a project in terms of which new prisons will be built with a view to either maximum security or minimum security, with reference to a prisoner’s prognosis. The fact that prisoners may now be accommodated in a prison with minimum security will enable us to provide accommodation far more cheaply and in that way manage to achieve more with the funds available. However, we realize that this is not the answer and that this new approach still requires a great deal of research.

In conclusion I wish to point out that it is still in the public interest that criminals who pose a threat to the public should be behind lock and key. On 15 March 1984 crimes of violence comprised 42,8% of the types of crime for which people were in prison, whereas house-breaking, theft and fraud made up 45,98%. Drug offences represented 5,16%; control offences, 4,41% and reckless and negligent and/or drunken driving, 1,01%.

Mr Speaker, I trust that when hon members opposite enter the debate they will at least base their standpoints on data that I have provided.

Mr Speaker, the first thing to be said is that the PFP welcomes this report and congratulates the Hoexter Commission on its findings and recommendations.

This debate has come not a moment too soon. It is high time that the Government takes seriously the criticism of the glaring weaknesses within our system of the administration of justice, weaknesses which have been pointed out over the years to the Government by the Press, by the judiciary, by the official Opposition, by private citizens, by Black leaders and by academics. Their advice and criticism have up to now largely been ignored. It is a tragedy that procrastination, indolence, insensitivity, complacency, indifference and incompetence on the part of the Cabinet and successive Ministers of Justice have resulted in the sad state of affairs pertaining, as described by the Hoexter Commission.

I would go so far as to say that if I were Minister of Justice and received an authoritative report of this nature, evidencing malfunctioning, inadequacy, deterioration and stagnation in respect of virtually every aspect of the portfolio for which the Minister is responsible, I would have done the honourable thing and resigned my position.

Firstly, the hon the Minister has failed to appreciate, as the commission pointed out, the needs of his department and of the judiciary. He has furthermore failed to take the necessary steps to remedy these shortcomings and, thirdly, he has been timid to the point of delaying needed reforms while awaiting judgment on his own department by others and while allowing grave damage to be done to the administration of justice. Possibly I would have said to myself that my influence in the Cabinet was so weak, timid and unlistened to that I have been unable to persuade the Cabinet as to the reforms that should be brought about. Sir, I truly believe that the hon the Minister should seriously reconsider his position in the light of this report.

The Minister was angry at the strong statement which was issued by the PFP when this report was first tabled. He tried to excuse his own Government’s failings by claiming credit, and he did it again this afternoon, on behalf of the Government for appointing the commission in the first instance. What an indictment to draw attention to the fact that no on-going reform is possible without resorting to outside commissions! I am critical even of the method in which the hon the Minister has chosen to debate this afternoon. In order to ensure a fruitful and rational debate, the hon the Minister should have tabled his formal responses to the main recommendations of the commission several days ago. But he has not done that. So uncertain is this hon Minister of his capabilities in the handling this debate, and to reply to it, that he plays his cards close to his chest, he speaks first, he springs certain announcements upon us and possibly avoids the duty of replying to the debate altogether. These tactics may give the hon the Minister a brief advantage this afternoon, but it will not cancel out the massive and overwhelming criticism of his and his Government’s stewardship of the administration of justice in South Africa. Almost no single facet of his department has been left untouched.

The hon the Minister has put up a brave face, and has dealt superficially with some of the complaints and the points made by the commission. But what a feeble response! What a spineless, bland, weak, vague, insipid response we have had to this report this afternoon.

Let us look at the commission’s report and let me try, in the five minutes I have had to examine them, to deal with some of the points he has made.

The commission commented on the Bench itself. The commission finds that the Transvaal Provincial Division of the WLD is grossly overloaded and that the various divisions have been increased without reference to any proper and/or valid norms. That is criticism of the hon the Minister but he did not even bother to respond to it this afternoon. The commission also finds that there is no moral justification for separate court structures. It says that such a system is a negation of the principle that all are equal before the law. Finding: The standards of justice in the commissioner courts are considerably lower than in other courts. Finding: They are seen by Blacks as an instrument of subjugation. Finding: The procedures in those courts are characterized by undue haste and disregard of the rules. Finding: Those courts are subversive of justice. These are the findings of a judicial commission, and what does the hon the Minister say? We get the weak response from him that he will look at it on the basis of rationalization and that in due course something may be done, possibly in consultation with the Commission for Administration. That is what I mean when I talk about an insipid response to substantive criticism. We have witnessed an insipid response to a finding that these courts are basically racial courts dealing with racial justice.

Let us look at the findings of the commission on the desirability of a Council of Justice. It finds that a counsel of justice should be established to advise on appointments, promotions, working conditions, transfers and salaries, to help create greater independence of the courts and to make regulations in respect of all courts from time to time. What is that hon Minister’s response? He says that he thinks it is a good idea, that they will look at it and will make an announcement in due course. That is an insipid, inadequate and stupid response. What this country wants from the Minister of Justice is a few answers, not vague responses.

The commission makes a finding on the independence of the courts, as follows: The fact that magistrates are identified with the State, gives rise to severe public criticism and sullies the image of the administration of justice. Their independence is suspect. The hon the Minister does not mention this. It also finds that judicial officers should not also be members of the legislative organs of the State and that the hiring, promotion, transfer and firing of judicial officers should be subject to the advice on advisory bodies. The hon the Minister did not even mention that in his speech. The commission also finds that salaries and working conditions should be scrutinized regularly by the Council of Justice. The lower courts should be made independent of the Public Service. The hon the Minister has made no announcement on that.

I did.

What was the hon the Minister’s announcement? Will they remain dependent upon the Public Service? Is it “yes”, “no”, or “maybe”? It does not seem as if the hon the Minister is capable of an answer. He has not given us any clear answer on this at all. [Interjections.] He has even failed to comment on the shortcomings which he himself mentioned.

Let us look at the position of the judges of South Africa, the people who are the guardians of our legal system and the administration of justice. The finding of the commission is as follows:

There are indications in the evidence before the commission that, in the assessment of possible candidates for the elevation to the Supreme Court Bench, individual merit has not always been the criterion.

This is the finding of a commission of inquiry. What the commission is saying is that it is not always merit which is the criterion. Perhaps it is politics sometimes. Then there is the finding that the Bench should be consulted prior to new appointments and a statement by the commission that this was not happening at the present time. There were complaints from judge-presidents. [Interjections.] The hon the Minister is interrupting, but the commission would not make such a finding unless it found that there was a lack of consultation. If there was full consultation, the commission would not have made that finding at all.

Another finding is that judges should not be appointed to commissions without consultation with the proposed Council of Justice and the Judge President concerned. Why? Because they believe the appointment of judges to commissions disrupts the work of the Bench and very often gives judges an unwanted political connotations or images. Yet this matter was blandly passed over by the hon the Minister. He merely said that consultation already takes place.

Another finding of the commission is:

This was not answered or addressed by the hon the Minister in his speech at all except to pay lip-service to denying the practices involved while there is evidence to the contrary.

Legal aid is a matter which affects every single working man in this country, whether he be Black, White, Coloured or Indian. We know that there are serious inadequacies in the legal aid system which gravely prejudice the well-being of people who are accused. The commission makes a very strong finding in regard to this. It says:

A great need exists for more civil and criminal legal aid—and the means test should be revised.

Another finding of the commission is that due to various factors, suspicion of the executive is prevalent among the Blacks of South Africa, particularly of the legal aid system because of its linkage with the executive. There is also a finding that the lack of publicity has made the ready availability of legal aid almost non-existent to many Black people. There is also a finding that non-Whites have less access to legal aid than others. Replies to questions asked only a few days ago in this House show that thousands of cases go through the Black Commissioner’s Courts without anybody receiving any legal aid whatsoever. There is a finding that a comprehensive system of legal aid should be set up.

You extolled the virtues of our legal system only last week. [Interjections.]

That hon member will have his chance to speak. He is expert at making a lot of noise in a short time.

Another finding of the commission is that the Government should support private legal aid clinics and that the means test should be examined. The hon the Minister has not addressed these problems.

We can discuss it fully under my Vote.

But we are discussing the Hoexter Commission’s report now! The hon the Minister spoke first and tried to pre-empt the debate. What he did was to gloss over all the main features of this report in a bland and absolutely confusing manner.

As regards prisons, I want to refer to the finding of the commission that large numbers of people should not be in custody at all and that influx control is the reason for this. The finding says that these people are not malefactors, but victims of a social system that makes criminals of them. Another finding is that the reason for this influx is poverty. Another finding is that prisons are unnecessarily and grossly overcrowded. What has been the hon the Minister’s response? His response has been that the commission got its figures wrong; that it got its facts wrong and that there is only a 7% difference relating to the matters put forward by the commission.

You are malicious.

Sir, I did not interrupt the hon the Minister when he spoke and I think he should now sit quietly and take his medicine. What is the answer given by that hon Minister? I will tell hon members what his answer is. He put it quite plainly in the last part of his speech. His answer is that he is going to build more prisons, bigger and cheaper prisons. I want to say that he has not even begun to address the problem of a proper administration of justice in South Africa if he thinks that the way in which to deal with overcrowded prisons is purely to build more prisons. We have to look at the root cause, and that is that we have technical laws which make people criminals in the country of their birth.

I now turn to the question of the needs of judicial officers. The commission finds that the executive has displayed a lack of appreciation of financial and back-up needs of the judiciary. This is being investigated, says the Minister. The same is said by the commission for the lower courts. Another finding of the commission is that auxiliary and administrative services have been bogged down in the bureaucracy of the Public Service; that library services are inadequate; that working conditions are intolerable and unfavourable—offices, courts, library services, recording devices; that there is a stagnation of professional and administrative services available to the judiciary. Those are findings of the commission. What is the response of the hon the Minister? It is no good saying that this is going to be referred to the Commission for Administration. He has now been Minister of Justice for several years. Does he not know his department? Does he have to wait for a judge to tell him that his courts are in a mess, that the judges do not have proper facilities and that the magistrates cannot do their work? Does he have to wait for a judge’s findings on this? What does he do when he gets the judge’s findings? He has had the report for the last month or two. It is not as if he has just got it. It has had to be translated and that is why it was not released earlier. However, when he gets that report, what does he, with all the benefits of department assistance, Cabinet meetings and everything else, say? He says: “We will refer this to that for investigation; we will look at that again; we will make an announcement in the future; possibly that is a good idea.” What sort of response is that to a responsible commission?

In regard to the lower courts there is the finding of the commission:

The hon the Minister never mentioned that in his reply. What is the Government’s attitude to that particular finding of the commission? Why is South Africa being kept in the dark? Then there is the finding that the injudicious use of legally qualified personnel on administrative bureaucratic functions, detracting from the efficiency and dignity of the courts, must stop. What is his response to that? He says: “Yes, we will try to stop it; it is being looked at and we are going to try and find ways and means.” We have not had a positive response to that.

Then there is a finding on the Minister of Justice himself: Section 95 of the Constitution is not being observed. The Minister of Justice plays only a minor role as part of a broader Executive. The Commission for Administration dominates. This is undesirable. The Minister of Justice should be given greater powers. What has the hon the Minister been doing in the Cabinet? Why is he allowing his powers to be usurped? Why is he allowing the bureaucracy to take over the administration of justice in South Africa? Why can it not be handled by professional people, by his department in a professional manner?

I turn to the question of costs of litigation. The finding is:

So it goes on. What does the hon the Minister say? He lists the findings of the commission at length, says he is looking at them and asks others to submit further suggestions. What sort of response is that to a criticism and a crying need in South Africa, by a man who professes to know what is going on in his department?

I turn to the question of accessibility to justice. The finding is the following: Accessibility to justice is hampered by the excessive costs of litigation, delays in the administration of justice, a lack of comprehensive legal aid, the geographical distribution of the courts, the lack of legal information and guidance. In respect of all of these the Minister says: “We are looking at it; we are going to do something; we will see legislation in due course.” We may have a response in six months, in a year or whatever. So I can go on. There are the findings on Attorneys-General. There are no specific decisions by the hon the Minister on the inadequacies of the facilities available to Attorneys-General.

The only thing that we have had a positive response on is the soft option. He took the soft option by saying that we are going to have a family court because he knew that would have the agreement of everyone. He knew it would not frighten the right wing or the left wing and that it would be nice and satisfactory and quite easy to implement without offending anybody.

On the main recommendations we find: On Black courts—no finality; the Council of Justice—no finality; the independence of the lower courts—no finality; the appointment of judges—a bland denial; legal aid—not mentioned at all; prisons—a denial of what the commission has said; and pass laws—not mentioned at all.

To sum up, a massive criticism rests in this report of the administration of justice under the hon the Minister in South Africa, which reflects on every department for which he is responsible. It condemns the racialism inherent in the system and evidence of incompetence at the level of Government leadership. What response have we had today? The criticisms have been passed over. The decisions that have been made appear to be incomplete. The hon the Minister has been vague as to what his strategy is. It seems that we are going to have further procrastination on major issues. It seems that the public is going to be fobbed off once again. The hon the Minister’s response and his responsibility falls far short of what is needed in a system in which one has a competent administration of justice.

The hon the Minister should accept these recommendations and not merely say that the matters will be investigated. He should put it to work study committees of his department whose brief should be not to investigate, or to regurgitate or refurbish the Hoexter report, but to find ways and means of speedy implementation of the recommendations. This is what the Government should do and what the country needs. [Interjections.]

Lastly, I also believe that the Government should ponder the role of the Opposition in a democratic society. Very often we say things rudely, even unpopularly, but the Opposition in the past 10 years has touched on virtually every single subject that is raised in the Hoexter report, and has made recommendations very much in line with the Hoexter Commission on virtually every single subject. But it has been ignored. If a democracy is to work the Opposition should be looked at and listened to. On these matters raised by the Hoexter report the Opposition has been right all the time.

Order! Before I call upon the next hon member to speak, I want to ask the hon member for Bryanston whether, in the course of the speech made by the hon member for Sandton, he said with reference to the hon the Minister of Justice: “They say you are a rotten Minister”?

I said: “He says you are a rotten Minister.”

The hon member must withdraw that.

I withdraw it, Sir.

Mr Speaker, at the outset it is a pleasure for me to convey gratitude and appreciation on behalf of this side of the House to Mr Justice Hoexter and the members as well as the co-workers of the commission for the excellent way in which they performed this comprehensive task. The commission received no fewer than 1 264 written submissions and heard oral evidence from 205 witnesses, whose evidence occupied a total of 7 021 pages, which the commission had to process. Consequently it was indeed a comprehensive task that the commission had to perform.

The commission instituted an in-depth investigation into the functioning of the South African law courts, gave a clear indication of existing shortcomings and deficiencies and made specific recommendations for rectifying them: I think this House is greatly in debted to the commission for the work it has done!

The fifth and final report of the commission has been well received in all quarters and has elicited favourable and positive reaction. However, there were also several discordant notes, which I wish to dwell on this afternoon. In this connection I am referring in particular to the hon member for Sand-ton, who has just sounded another discordant note in this discussion of the report of the commission. The hon member is the spokesman for the official Opposition on justice matters, and when cognizance is being taken of his conduct and observations, it must be borne in mind that he is speaking on behalf of the official Opposition, and that his observations are supposed to reflect the standpoint of the official Opposition. If any other member of the official Opposition, perhaps the hon member for Bryanston, wishes to repudiate the hon member for Sandton in this connection, he must please do so now.

This afternoon the hon member for Sandton again succeeded in lowering this debate, which held out the promise of being conducted on a high level, to the level of personal attacks on the hon the Minister of Justice. [Interjections.] The hon the Minister opened the debate on a high level by dealing with the recommendations of the Hoexter Commission on their merits. However, the hon member for Sandton was not satisfied with that. No, he had to lower the debate to the level of personal attacks on the hon the Minister.

The hon member for Sandton saw fit to issue a Press statement on the report within a few hours after the tabling of the report of the commission.

So what!

The report of the commission runs into more than 500 pages, but the hon member for Sandton was prepared to issue a Press statement within a few hours after the tabling of the report. [Interjections.] In this statement the hon member saw fit to say, inter alia, the following:

[Interjections.] That was what the hon member for Sandton had to say. He continued:

Finally the hon member said:

†In his eagerness to score a political point against this side of the House, the hon member did the commission a disservice by completely politicising their report. In the light of this, he is hardly one to accuse the Government of insensitivity. Furthermore, the hon member went completely overboard in his criticism of the Government.

*Later the hon member, apparently because he realized that he had made a fool of himself, tried to back down and get away from his Press statement. The fact of the matter is, however, that he went about boasting to his colleagues about his statement to the Press, and that up to now he has not repealed it or offered any apology for it. Instead of doing that, he again exceeded all bounds in the debate this afternoon, and for that reason I think we are entitled to hold the hon member and his party, the Official Opposition, responsible for the utterances of the hon member in the Press statement.

The hon member said that he hoped that his request for a discussion of the report in this House, “in the interest of democracy” would immediately be granted. Now I ask the hon member how democracy will be served or promoted by the discussion of this report in this House. Hon members of the official Opposition are constantly dismissing legislation of this House as supposedly being undemocratic because this is a White legislative body, in which 90% of the population of South Africa has no say. How does he reconcile that with his standpoint that the report should, for the sake of democracy, be discussed in this so-called undemocratically elected House? [Interjections.] According to the PFP view, any decision or any step on the part of the Government which may possibly ensue from the discussion of the report, will in any event be undemocratic.

†How can democracy, in terms of the perspective of the PFP, be served by a racially constituted Parliament in an unjust society? [Interjections.] The hon member should explain to us how that is possible. [Interjections.]

*Through the Whips of his party the hon member requested an urgent discussion of the report. There was no need whatsoever for him to request a discussion of the report. This discussion would have taken place in any event, on the initiative of this side of the House. However, the hon member is trying to pose as the great champion of justice and equity. He tried, but erroneously, to create the impression that it was thanks to him that this report was being discussed.

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

No, Mr Speaker, I do not have the time to reply to any questions now. My time is very limited. [Interjections.]

In addition the hon member for Sandton’s request for an urgent discussion of the report was entirely misplaced. It created the impression that we were confronted by a crisis situation which could only be dealt with by crisis action. Nothing could be further from the truth, and I think it is in the interests of the esteeem in which our administration of justice is held that this should be made very clear. As for the hon member’s request that there should be no restrictions on the duration of this debate, I want to point out that debates in this House are subject to the provisions of the Standing Rules and Orders, and that a mutual agreement is also reached among the Whips of the respective parties in regard to the duration of debates in this House. The hon member’s request for a discussion of the report by way of a debate of unlimited duration is therefore nothing but a precaution on his part to enable him to insinuate in gossip-mongering fashion afterwards that there had been a “cover-up” here; that we had tried to gloss over and suppress matters. [Interjections.] Surely he knows—or he ought to know—that debates in this House are not arranged in that way.

That brings me to the substantive accusations of the hon member against the Government. In the first place, the hon member accused the Government of “complacency”. But who identified the problems to which reference was made in terms of reference of the Hoexter Commission in the first place?

We did! [Interjections.]

On whose initiative was the Hoexter Commission appointed on 29 November 1979 by the State President? Who formulated the comprehensive terms of reference, within the framework of which the commission functioned? The answers to all these questions are obvious: It was the Government. Does that testify to “complacency” or smugness on the part of the Government?

The second charge levelled at the Government by the hon member was one of “indifference”. Before the appearance of the fifth and final report of the Hoexter Commission, four other reports with recommendations were published by the commission. Of these recommendations the following have already been implemented, on the initiative of the Government. Two of the commission’s recommendations to alleviate the pressure on the Appellate Division of the Supreme Court were implemented by means of the Supreme Court Amendment Act, No 46 of 1980. To cope with the staff shortage in the Department of Justice, particularly as far as its professional officials are concerned, annual allowances of R3 600 and R4 800, respectively, have since as long ago as 1 April 1981 been paid to some legally qualified State attorneys, State advocates and magistrates. The third interim report of the commission dealt further with the workload and the congested court rolls of the Appeal Court. The crux of the commission’s recommendations in this connection was contained in the Appeals Amendment Act, No 105 of 1982. In its fourth interim report the commission found that there was an urgent need for special machinery to resolve small civil disputes in an informal way, and this hon House is at present considering the Small Claims Courts Bill [B71—84], in order to implement this recommendation. In the meantime the Magistrates’ Courts Amendment Bill, by means of which the civil jurisdiction of magistrates’ courts is increased, inter alia to alleviate the workload of the Supreme Court, was piloted through this House in all its stages with general consent the week before last.

I ask you: Are all these things indicative of indifference on the part of the Government? So I can continue with one indictment of the hon member for Sandton after another.

†Mr Speaker, I want to conclude by saying that we on this side of the House are sick and tired of the official Opposition’s pontification …

Then you must resign because we do not want a sick and tired Government.

… on matters of justice and the maintenance of law and order. The hon member for Bryanston should keep quiet because he knows nothing about this matter at all. [Interjections.] We do not need their advice or their views on the administration of justice or the judiciary. In fact, they are the last ones who should speak about justice and the administration of justice in South Africa.

Why?

I shall give you the reason now. More often than not their utterances and their actions have the effect—and I want the hon Chief Whip of the official Opposition to listen to this carefully—of undermining respect and regard for the administration and application of law by our courts. [Interjections.] Therefore, Sir, they are the last people who should talk about the administration of justice in this country.

*Mr Speaker, it is a pleasure for me to identify myself with the observations of the hon the Minister of Justice in respect of the report of the Hoexter Commission.

Mr Speaker, I think we all agree that the Hoexter Report is one of the most sensational reports submitted to us in recent years. This is the case because the Hoexter Commission made far-reaching and drastic recommendations as regards the structuring and the functioning of our courts. I have already said that it is sensational and I want to add at once that the report has definitely made many people and may newspapers very loquacious. With all the excitement the Hoexter Report has caused and will cause this afternoon as well, I should very much like to direct a word of warning or, to be precise a request to everyone concerned not to do an injustice to the excellent report of Mr Justice Hoexter and his commissioners by making hasty and irresponsible remarks. One gains the impression that some people see and want to use the Hoexter Report as an opportunity to start a witchhunt against the present structuring and functioning of our courts, against the legal profession and certainly also against certain Government departments. We want to warn against this.

I think we are entitled to say that the aim of this debate this afternoon is briefly to take cognizance of the most important findings and recommendations of the commission, and to ascertain to what extent the commission carried out its mandate. It is true that some of the findings and recommendations are drastic while others seem unacceptable at first glance. There are even recommendations and findings which are unrealistic. There are also some which are very impressive. Some of the recommendations can in fact be questioned in certain respects.

In many respects the commission’s findings and recommendations are only guidelines according to which, by means of which and through which action will have to be taken in future and of which account will have to be taken. They will have to be borne in mind, studied and processed, and they will have to be implemented wherever possible, practical and desirable.

It must be remembered very clearly that this House will eventually be the body to give practical form to the recommendations of the commission by means of legislation with due regard to the political, social and economic realities of our country. We have to expect that generally speaking there will be a great deal of pressure from idealists, realists, humanists, moralists and others for the recommendations of the commission to be implemented as quickly as possible. Whether they are urgent, whether they are desirable, whether they are acceptable, whether they are realistic and whether they are implementable are questions that will be debated frequently in the future. In the limited time at our disposal this afternoon we certainly cannot do justice to the Hoexter Report.

We have to take cognizance with great appreciation of the enormous amount of work the commissioners did. We can record with gratitude and appreciation the fact that the House of Assembly is extremely grateful for the gigantic task Mr Justice Hoexter and his fellow commissioners tackled and completed.

For some time now voices have been heard, impatient voices demanding to know when the Hoexter Report would appear. Because it is now here, and we can refer to it very briefly and, as the hon member for Mossel Bay said, page quickly through the more than 500 pages of the report and annexures, we all realize that the report attests to great depth and thoroughness.

It is of course the right of every political party to refer to the report and to comment on it from its specific point of view bearing in mind its programme of principles and policy, but I belive it is the responsibility of every member of Parliament without sacrificing his own political views to temper his comment on the report at this early stage with fairness, reasonableness and sensibleness as particularly people with a legal background can be expected to do.

I myself would like to refer briefly to probably the most exciting recommendation of the 61 recommendations of the commission, namely the recommendation that a family court be introduced in South Africa. One of my colleagues will refer to other facets of this report later on in the debate. The commission found that one of the most important structural adjustments in our court system should be the introduction of an independent family court. In a nutshell, one can say that a family court will be a court with comprehensive jurisdiction in respect of family matters. It has to be a lower court, as the commission pointed out, functioning at the level of regional courts. It has to be a court accommodating the existing children’s court, the juvenile court and the maintenance court under one roof. It has to be a court to settle divorce cases and applications in this connection, and should thus have concurrent jurisdiction with our Supreme Courts with certain additional clear qualifications. What is interesting about the family court is that it will have a structure which will consist of two components: A social component which will render an advisory service to the family court, and, in the second place, a court component. As far as the settlement of cases in matters pertaining to the family in South Africa is concerned, at present there are various independent courts which have jurisdiction, from the Supreme Court to the magistrates’ courts, the commissioners’ courts, children’s courts and divorce courts for Blacks. In view of this we can understand why the commission was concerned about the fragmentary settlement of family matters. Such a state of affairs is not conducive to the retention of the family unit.

The commission also found that there was general dissatisfaction regarding the way in which divorces were handled in our Supreme Court, and that the interests of minors in particular were neglected. In assessing the desirability of a family court, the commission definitely came across quite a number of divergent ideas. According to the report the majority of legal experts, including judges, advocates and others, were rather sceptical about the idea of a family court, but on the other hand the representatives of social welfare institutions were virtually unanimously in favour of the introduction of family courts. To sum up one can say that the commission’s findings in connection with family courts and all that they entail will be followed up with interest to see how these ideas take shape. The principle of the introduction of family courts is sound, and we in the Conservative Party support it, but with the clear qualification that there have to be separate family courts for the various population groups; in other words, the family court has to be ethnically oriented.

Sir, if we were to decide to implement all 61 of the recommendations of the commission immediately, we would be faced with two things: In the first place, this would cost millions of rand and, in the second place, we do not have the manpower with the necessary specialized knowledge. Sir, we must not prejudice the recommendations and findings of this commission by unfair criticism. Adjustments in order to implement the recommendations of the commission will have to take place gradually, particularly as regards the proposed family courts. The simultaneous application of the recommendations of the commission through out the country is not practicable.

In conclusion, Sir, I want to emphasize that a specific and special priority rests with the State to give precedence to the preparatory steps to tackle the specialized training of administrators of justice, probation officers and social workers among all population groups.

Mr Speaker, I cannot but thank the hon member Mr Theunissen for his balanced and responsible approach. Here was a good example of a person who disagrees with the Government politically but nevertheless approaches matters in a responsible way. As far as the discussion of this report is concerned, such an approach is in the interests of the administration of justice. In this regard the hon member set the hon member for Sandton a good example. In his headlong pursuit of publicity and attention that hon member simply hurled every insulting adjective he could think of at this side of the House. We on this side can take these senseless emotional outbursts, but what did the hon member in actual fact do? Without qualifying his statements he blatantly dragged our administration of justice through the political mire. The hon member showed no understanding of the fact that it is in the interests of the country that our administration of justice be above politics. He showed no understanding of the fact that if we want to retain the confidence of the public in our administration of justice, we should not tamper with the system unnecessarily. The hon member referred to the independence of the magistrates’ courts. Magistrates’ courts have been part of the administration of this country since Union, but suddenly within a week he wants it to be decided that magistrates’ courts be dealt with in another way. That is simply being unrealistic. Stability is an absolute prerequisite for our administration of justice. The proposed Council of Justice is another matter which has major implications and which cannot be decided on overnight. Our administration of justice demands that we deal with the matter in a responsible way and not in an emotional way as the hon member did. He simply has no understanding of the situation.

There is also no reason why this matter should be dragged into politics. What are the basic guidelines which come to the fore in this report? In the first place there is the recommendation that the Bench, and particularly the lower courts, should be independent. This side of the House supports the principle of the independence of the Bench. Then there are proposals to keep legal costs down in order to make the courts more accessible. This is another matter which this side of the House supports. There are also proposals to improve the administration of justice in the rural areas in particular, which is a praiseworthy effort. There are also proposals aimed at the more effective combating of family problems, and this is another matter close to the hearts of those of us on this side of the House. There are also proposals on the prison population, a subject to which the hon the Minister has referred in the past and about which he is concerned. However, this side of the House has been unequivocally condemned by the hon member. I maintain that by his attitude the hon member has done our administration of justice a great disservice.

I should like to refer to a few matters, the first of which is litigation costs. The commission found that high legal costs were the most important reason why our courts were not accessible to everyone. It has also made various proposals, some of which have already been implemented, for example, the introduction of the small claims court and the increase in the jurisdiction of magistrate’ courts, which will make a major contribution. Certain proposals have also made with regard to the attorneys’ profession and the advocates’ profession, and I should like to deal with one of those proposals, namely the abolition of the rule that a senior advocate has to be assisted by a junior advocate. This rule was abolished a few years ago in Natal and no problems have arisen. However, I doubt whether this recommendation will lead to large savings in legal costs although it does have the advantage that a client can decide whether he wishes to be represented either by a senior advocate only or by a senior and junior advocate. I want therefore to appeal to the Bar Councils that have not abolished this rule yet to do so as soon as possible.

In the light of the publicity that has been given to the very high incomes of certain advocates, I feel it is necessary to take up the cudgels for this profession. Some newspapers published the incomes of certain advocates, who are in actual fact exceptions, under banner headlines. Not one of the newspapers mentioned the findings of the commission in this regard. The commission has this to say on page 141 of its final report in this connection:

I want to suggest that this finding is justified. The advocates’ profession is an extremely competitive and demanding profession. A very high percentage of people entering the profession leave it again very quickly. It does not afford any security either and the period during which an advocate is at the top of his profession is not very long. In addition the market mechanism applies very strongly in this profession, because an advocate who asks too much and whose services are not commensurate with his fees, will very soon find himself out of work. Advocates also do a great deal to assist needy persons in respect of pro Deo, pro amico and in forma pauperis appearances at the request of the court, and in legal aid cases, where they receive either no payment or a reduced amount. Having said this I do not mean that no rules can be laid down as far as costs are concerned to improve the advocates’ profession.

What is their percentage of bad debts?

Fortunately not so high.

I want therefore to appeal to the Bar Councils to accept the proposals in the report of the Hoexter Commission as soon as possible. This involves the notification of parties prior to hearings, of advocates’ fees to be paid by them, and also the stricter internal disciplining of advocates as regards their fees. I maintain that these are well considered proposals which will be to the benefit of both the profession and the public.

As far as legal costs are concerned, the greatest problem remains the shortcomings in pre-trial procedures. As far as this matter is concerned, I honestly do not believe that this report really offers a solution. I doubt whether the proposals made by the commission, for example, sworn statements three days prior to the hearing to explain why rules were not complied with, and that orders in regard to costs can be made if there is unnecessary delay, as well as the fact that proper critical attention was not given to the Galgut Report, will be effective enough to combat this very important problem.

As far at the family court is concerned, the commission made very good findings. In the first place there are too many courts dealing with family affairs and, in the second place, from a therapeutic point of view, insufficient attention is given to divorces. However, this matter should not be dealt with overhastily. I say this in view of the fact that there was almost unanimous opposition from the legal profession to this. The status of a person is a very important matter which should be decided in the highest court in the country. Divorces also affect the property of people, and for that reason we must guard against there being too many courts in our country, particularly in view of our manpower shortage.

The interim reports we have received thus far from the Hoexter Commission have given rise to quite a number of positive factors in our administration of justice, and for this everyone involved should be thanked. I believe that this report also contains many positive and practical proposals which will elicit a great deal of further discussion in this House.

Mr Speaker, I would like to begin by congratulating Mr Justice Hoexter and his commissioners on a fine report. In the years that lie ahead this will act as a major input as regards the reform process in South Africa. The effect which its recommendations if put into operation will have on the attitude of people of the different population groups in this country will be very important indeed.

At this stage of the debate we have already reached the usual position where members to the right and to the left of us have already stated their attitude. There has also been a comeback from the Government side, leaving very little that is new to add to the debate. However, I would like to comment on one or two points before stating this party’s view as to the timeousness and the importance of this report.

I often have the privilege of following upon the hon member Mr Schutte in debates. I do not think the National Party, the Government, can run away from the contents of this report. What has happened in South Africa to the judicial system, has happened during the long tenure of office of the NP, the Government on that side of the House. I do not think that it is absolutely fair that the hon the Minister should carry the blame. I think he inherited a whole wagon-load of problems.

Do not weaken a strong cause.

The hon member for Parktown suggests that we are weakening a strong cause. I would say that, on the contrary, the hon member for Sandton, in overstating his case, weakened his own case.

He quoted the report.

That is all I did.

I do not remember all the adjectives he used when quoting from the report; I may have missed one or two here and there. He said earlier that the PFP have over the years pointed out every weakness that has now come forward in the report. It is, however, that party’s activities, the way those hon members put their case and their fixation with sensation that lead to their lack of credibility. Sometimes the hon members of that party look as if they are Press junkies. Unless they get their weekly fix, they experience withdrawal symptoms. [Interjections.] It is quite incredible, Sir.

You had withdrawal symptoms in Pinetown.

We have got over it, but those hon members are still main-lining.

We in this party have a different approach. We are grateful to have this opportunity of putting our attitude to this matter on the line. In September 1983 the House passed the Republic of South Africa Constitution Act introducing far-reaching reform to the constitution of our country, a country which strongly claims the right to the maintenance of Western standards and civilization, its norms and value systems. In the preamble to that Act exactly that is said. As regards this debate, we want to emphasize that one of our national goals is to uphold the independence of the judiciary and equality of all before the law. The report being discussed here today represents no less important a document in the reform process. Indeed, the legislation which will and is already flowing from the commission’s reports will play a vital role in helping to achieve our national goals and should therefore be treated with the same sense of urgency and application as the introduction of the new constitution. I say this because the executive, the legislature and the independent judiciary form the three legs of our constitutional model and system. As such, the independent judiciary is inseparable in the reform process. The quality of civilization in any country is dependent on its system of justice and particularly on the administration thereof. We in this country are justly proud of our system, but have good reason strongly to question its administration and the results that have flowed from that.

The appointment of the Hoexter Commission was a message in itself to that very effect. The Government must be credited for having appointed the commission, for having seen the need really to get down to the very roots of the problem, in this particularly important reform stage the country is in. If the commission has done one thing, it is that it has really swept the cupboards out, taken out every document and every dusty book, and had a very good look at exactly how the administration of justice has progressed over the years—or failed to progress, I should say. The appointment of the Hoexter Commission was a message in itself to that effect. The commission’s report is a strong and fresh wind of change in itself. It is forthright, penetrating and courageously unflinching in its criticism of every aspect of the administration of our judicial system which does not measure up to the very highest ideals of justice. From the exposure of the undue influence on magistrates by the Public Service through to the condemnation of the commissioners’ courts, the Hoexter Commission shouts its protest at the effect ideology has had on the functioning of the courts. It is in fact a sorry tale of maladministration in many cases and it records the manner in which the administration of justice has been dragged down, bringing about a situation where there has now been inculcated into the minds of some people a certain querulousness as to their respect for the law. We are going to have to learn repeatedly during this reform period to see ourselves through the eyes of the other groups and to see the effect of our systems on those people as if we were members of those groups.

I have a query in regard to the onesidedness of this situation. I ask myself whether the fault is entirely administrative. Surely there should have been an urgent ongoing flow of criticism and queries from the Bar Council, law societies, the Bench and magistrates, which in itself would have been part of the process and warning signals …

There was, but the Minister does not listen to them.

I do not believe that those criticisms have been sufficiently strong and persistent for the Government to have made the necessary changes. I think this is a two-way thing. Possibly the Council for Justice, which is being suggested here, will in future be the body that will see that that sort of criticism will come from both sides and will be dealt with.

The hon member Mr Theunissen suggested that we should approach this report with caution and that there are many aspects which they consider are not completely in step with reality. I must say that that is at least true to type. Those remarks conjure up the vision of a doughty conservative old legal man surrounded by dusty tomes and parchments—even if he has a new moustache on the way! [Interjections.] I want to advise against that attitude. That is the last approach that we need in this country to the report of this commission. That is a very dangerous approach. We have before us evidence of a very high quality and calibre and we must make the utmost use of its content and spirit in this very challenging situation in which the country finds itself today.

Mr Speaker, I want to refer at once to the statement issued by the PFP on 6 April. I quoted as it appeared in Die Burger:

[Interjections.] Looking at this statement, one can come to only two conclusions. The first conclusion is that the hon member for Sandton has not read the Hoexter report properly, and the second one is that he has an undisciplined and unfair concept of justice and of the law. Because I must accept that he has read the report, only one alternative remains, namely that the spokesman of the PFP has an undisciplined and unfair concept of justice and of the law. On page 22 of the report, I read:

I ask the hon member for Sandton: Does this statement testify to Nationalist incompetence?

Regarding the accessibility of the South African courts, the commission says on page 129:

Once again I ask the hon member for Sandton: Does this statement by the commission reflect a hollow cry by Nationalists about important legal matters?

On page 119, the commission mentions that intensive research has been undertaken worldwide with regard to the accessibility of courts, and that in some respects, positive results have been achieved. Then the commission goes on to say, and the hon member for Sandton and the lawyers must listen to this:

Once again, I ask the hon member for Sandton whether this is due to indolence on the part of Nationalists. After all, the South Africal legal fraternity consists of members of the NP, CP, PFP and NRP. Is the legal fraternity influenced by indolence on the part of the NP? To suggest this would be an insult to the legal fraternity of South Africa. On page 133, we read the following:

I should like to inquire of the hon member for Sandton whether this statement is a public indictment of NP complacency and whether the NP Government is the cause of the problem in every country in the Western world. [Interjections.] I know the Government is extremely influential, but I did not realize that they had such an influence in every country in the Western world.

On page 135, the commission says:

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

Mr Speaker, I am sorry, but I have no time for questions now.

I now ask the PFP whether all the advocates and attorneys in South Africa are Nationalists. I specifically ask the hon member for Sandton whether the commission has come to such a conclusion, namely that the high cost of litigation in South Africa is attributable to the fact that all the advocates and all the attorneys are Nationalists. [Interjections.]

On page 141, the commission says:

I should like to inquire of the PFP whether there was a further finding to the effect that those advocates who did charge exorbitant fees were Nationalists.

Is the Opposition prepared to say to which party Adv Kentridge SA belongs, and whether he is giving his services gratis in the Van Heerden case in the Pretoria Supreme Court? [Interjections.] On page 151, the commission says:

[Interjections.] I should like to ask whether there has been any finding that these bills of costs are drawn up by the NP Government. I cannot find such a finding anywhere.

Has anybody suggested it?

On page 166, we read:

Once again, I ask the PFP whether these cumbersome rules of procedure are due to NP indifference or to NP procedural measures.

On page 173, the commission says:

The commission then refers to the increasing tendency towards inordinate and improper cross-examination, in the face of which trial courts display altogether too much forbearance. I should like to enquire of the hon member for Sandton whether this abuse is due to NP forbearance or to inordinate and improper cross-examination by Nationalists. Are the guilty ones not the lawyers rather than the NP Government?

On page 230 we read:

Now, the commission says that as far as it was able to establish, this system is unique to the Republic, but that it has numerous positive aspects which justify its retention. I now want to know whether this unique system is due to Nationalist racial prejudice because this system is found only in South Africa, and because we follow a unique policy in South Africa.

On page 240, we read that in the first place, the rules of court themselves give rise to delays. The commission finds that there is a great need for the simplification of procedure in the South African administration of justice. Is this Nationalist bureaucracy? I should like to enquire of the hon members of the PFP whether this statement is only applicable to Nationalists in the South African administration of justice. Does the NP Government have anything to do with legal principles and court procedure? Did the NP formulate the rules of court? Do they not have their origin in Roman Law, and later in Roman Dutch Law as well, and have they not been influenced by English and American law as well? Or were Cicero or Voet and others Nationalists?

Do you know what you are doing? You are ducking the issue. [Interjections.]

Mr Speaker, the hon member for Pinelands and other hon members of the PFP can carry on as much as they like. I am accusing them of … [Interjections.]

Order!

The PFP has done the report of the Hoexter Commission a great disservice. They have also done the South African legal system, the judges and the advocates of this country a great disservice.

However, I submit that there are mitigating circumstances in the case of the PFP. Their nature and their political philosophy have so warped their judgment that they cannot distinguish between right and wrong. Therefore the PFP does in fact have an undisciplined and unfair conception of justice and of the law. Therefore I ask that they be sentenced to life imprisonment without the option of a fine. I believe that this would be an appropriate sentence.

Mr Speaker, I do not intend to spend any of my precious time on the hon member for Bloemfontein East, who has spent his full 10 minutes refuting arguments not used by the hon member for Sandton, also making what I would call quasilibelous statements and naming eminent advocates—which, I am sure, he will not dare to do outside this House—and therefore he does not warrant any further attention. [Interjections.] I should like to ask him one thing though. He is an attorney.

He is an advocate.

That makes it even worse. I want to know from the hon member whether he has ever spent any time in a Black commissioners’ court watching the way that Black commissioners’ court functions. I intend to devote a good deal of my time to the comments of the Hoexter Commission in connection with the question of the Black commissioners’ courts.

I want to begin by saying that anyone who has spent any time at all in those Black commissioners’ courts will understand why Mr Justice Hoexter and the commission made so many unfavourable comments about the functioning of those courts. They are more like sausage machines than dispensers of justice, and as a study by the Centre for Applied Legal Studies at the University of the Witwatersrand revealed in June 1983, the fair trial procedures required by our law are not employed in those courts and cannot be implemented until a system of comprehensive legal assistance is extended to those courts. Yet they are an integral part of our system of justice. They are criminal courts presided over by judicial officers and about one-third of all the cases brought to trial each year in South Africa are actually heard in the Black commissioners’ courts.

Mr Justice Hoexter says among other things that the criminal prosecution of inhabitants of the same country in separate courts of law purely on the basis of race is “by any civilized standard unnecessary, humiliating and repugnant”. He also says that in examining the evidence brought before the commission that the general view was that it was “monstrous and untenable”; that commissioners in the Black courts acting as judicial officers actually carry out the administrative work that implements Government policy. That is the important thing.

I want to add that since Government policy is synomymous with apartheid, the Black commissioners are hopelessly compromised. Before they even start they are hopelessly compromised for they are implementing the Government’s policy of apartheid. Their courts have therefore become symbols of discrimination and oppression, especially in the urban areas where they hear so many thousands of pass law cases. I believe that all these facts are cogent arguments for the abolition of the Black commissioners’ courts and for the amalgamation of their work with the ordinary courts, as Hoexter suggests, namely that the Department of Justice should take over the judicial functions of the Department of Co-operation and Development, other than those applying to Black law, which are performed by the Black commissioners’ courts.

I believe this specifically when one reads the comments made by the Department of Co-operation and Development in giving evidence before the Hoexter Commission. This we will find on pages 390 and 391 of the report of the commission under consideration, and there one reads totally outmoded and totally racist comments made by the Department of Co-operation and Development in giving evidence before the commission.

Having said all this, I also want to say that I am, of course, concerned about the practical implications of handing the work of the Black commissioners’ court over to magistrates’ courts because I do not know how this is going to function. Will it mean—this is my great fear—the extended use of both the Admission of Persons to the Republic Regulation Act of 1972 and the recently passed Aliens Amendment Act as far as non-citizens are concerned? I do not think the magistrates’ courts are going to be able to cope with the thousands upon thousands of pass law cases, more especially as one assumes that more attention will be given to proper judicial procedures in the magistrates’ courts than is paid in to these prosedures the Black commissioners’ courts. When legal defence was provided to the squatters from KTC and Nyanga in the commissioners’ courts in the Western Cape, those courts were totally gummed up, but the Government’s solution to that was to divert thousands of cases away from the courts altogether and simply deport people. Something like 4 000 people were deported in 1981-82, and, as a result, these cases simply did not come to court at all. I am concerned that this may be the fate of pass law offenders if their cases are heard by a magistrate’s court instead of a Black commissioner’s court. The truth of the matter is, of course, that the remedy for the situation that resulted in the arrest of over 200 000 people in 1982 and of about 1,2 million between 1977 and 1982, and that has landed hordes of Black people in prison thus overloading our prisons by 46% and giving us the highest daily pro rata prison population in the Western World, is not just a revision of the judicial arrangements but a revision of all the wretched laws that have caused this situation. In fact, it is our contention that only their repeal will do anything to improve the situation. I do not know where the hon the Minister gets the figure of 7% because if one examines the number of convictions and persons actually in jail at any moment in time, one finds that something like 52% have sentences of less than four months. Surely then it is logical to assume the the majority of those cases are pass law offenders.

I have given the figure.

I do not believe that figure. I do not accept that figure. I believe that the hon the Minister has been totally misled. I believe indeed that the Hoexter Commission has tacitly accepted that the actual repeal of the pass laws is the answer. In this regard one can read what the commission has to say on page 580, namely:

The commission goes on to say—and it certainly does not agree with the hon the Minister:

Of course, the commission also repeats the sharp criticism that was uttered more than 40 years ago by the Smit Committee, and later, I may say, by the Fagan Commission, of the whole system of influx control. The Smit Committee actually said:

That is how they were called then:

That was said in 1942. It was repeated more or less in 1948, but not quite so crisply by the Fagan Commission. We have had the Viljoen Commission since then recommending the depenalization of the pass laws.

Forty years later, after the Smit Committee and a few million Black jailbirds later— that is what it has meant—we have Hoexter reiterating exactly the same sentiments on page 581.

The fact that the prisons are crammed with thousands of breadwinners—breadwinners, not criminals—who have landed there for minor technical offences breeds in many Blacks, especially those who have actually suffered the shame and indignity of imprisonment for minor offences contempt for the administration of justice in general and the criminal courts in particular, and serving a prison sentence is no longer regarded as a stigma by many Black inhabitants of the country.

“Evidence”, said the commission, “brought to light a state of affairs in our prisons that cannot simply be allowed to drag on.”

That is crisis language.

I cannot think of a stronger indictment. It is a pity that the commission did not actually come out unequivocally to say that it wanted the abolition of the penal sanction on people who are these technical offenders. I believe that only the abolition of the laws that create millions of statutory criminals can obviate the state of affairs to which the commission refers.

Mr Speaker, I should like to start off by saying that although the hon member for Houghton did not want to compliment the hon member for Bloemfontein East, I should like to do so. I think he made a brilliant contribution which went unanswered by the Opposition side of the House.

†The hon member for Houghton took the opportunity to criticize the influx control pass laws, but the hon member for Houghton said nothing at all about the commissioners’ courts because the commissioners’ courts obviously have to administer these laws and it is not their fault if such laws exist. Therefore, when we consider the commissioners’ courts, we should bear in mind that they have nothing to do with the creation of the legislation which they are required to administer.

*The fact of the matter is that the hon member for Houghton said nothing about the whole matter we now have to discuss. She went on talking about her old hobbyhorse, ie legislation that is not at issue now.

Next I come to the hon the Minister. We must ask ourselves what we are really dealing with now. We are engaged in considering a report that saw the light of day as a result of the fact that former Minister Schlebusch appointed the Hoexter Commission. The Hoexter Commission, which has now issued its report, is a judicial commission. The hon the Minister of Justice has today submitted the report for discussion. The hon the Minister is the one who must act correctly. He must act as one would expect a Minister of Justice to act, and that is indeed how he does act. He says: Here is a report; let us discuss it in the House. This takes place in full public view. I should like to compliment the hon the Minister on having taken this step in a manner befitting a Minister of Justice.

Now I come to the theme of my speech. In looking at the commissioners’ courts, it is a good thing to be aware of the fact that these courts did not spring up overnight. To tell the truth, the first commissioners’ court was established in the Transvaal in 1885. That is 100 years ago now. Let me concede at once that conditions have changed since then. We must remember, however, that an Act was passed in 1927, section11 of that Act providing for the existence of such courts and the fact that these courts would administer Black law in litigation between Black people. In other words, this Parliament established those courts, laying down that Black law would be implemented. These courts are doing an excellent job. It cannot be said there is only one system of Black law. Each Black people has its own law, although there are points of similarity. What has happened in this country? We were the victors in the struggle, but did not wipe out the indigenous system of law. Ours is one of the few countries in the world that protected the law of the indigenous population. This is something that reveals the attitude of the Afrikaner and of this Parliament towards Black people.

We specifically established the special courts so as to allow the Black people to implement their system of Black law and enjoy its protection. I think too little is made of the fact that in our actions we try to be fair. I want to concede at once, however, that there have been social, economic and political changes. This had to happen. We must bear in mind that illiteracy in South Africa is perhaps less prevalent than in any other country in Africa. We must also remember that there is probably a higher level of urbanization in South Africa than in all the other countries in Africa. Here we have a process of urbanization, literacy and economic progress. The time has now come to see whether it is necessary to continue having these courts. That was part of the whole Hoexter investigation, and I think the hon the Minister should be given a vote of thanks for this. We tried to determine present-day trends and find out what we should do.

There were also political changes. We must remember that there are national states and independent states that can implement their own systems of law. If the indigenous Black populations want to retain their own systems of law in their own national states, they are free to do so. I do not think that any of us sitting here want Black law to be abolished. I have heard no one say that Black law should be abolished. All of us therefore agree that Black people should still have an opportunity to implement their law. The only thing we should perhaps still discuss is in what form that law should now be implemented. In this connection the hon member for Houghton posed an interesting question. She asked whether it would be physically possible, with the available manpower, to switch over from the commissioners’ courts to the magistrates’ courts. That is a very good question, but the mere fact that the hon member asked that question is proof that the matter still needs to be considered. I think that we are convinced, in principle, that all these facets should eventually be transferred to magistrates’ courts. It is also very clear, however, that there will still have to be many investigations in this connection. As the hon the Minister has put it, these matters must be rationalized.

The Hoexter Commission was a commission consisting of first-rate individuals who said themselves that they were not going to express an opinion about whether there should still be Black law in South Africa or not. One should also realize, however, that the problems also arise in the commissioners’ courts. Like other hon members, I have also practised there. The method of litigation amongst Blacks has a time element different to that in the case of White litigation. In the case of litigation amongst Blacks, far fewer witnesses are called. When evidence is to be led, motions for postponement are the order of the day because of the fact that there are some witnesses who cannot be traced. It must be realized that the type of Black law that is implemented does, in itself, embody certain qualifications in regard to the manner in which the legal system, as we generally know it, is implemented.

Under the circumstances it is interesting to note how well the commissioners’ courts have done their job. In the report of the Department of Justice it is said that during 1981-82 there were certain reviews of commissioners’ courts decisions by provincial and local divisions of the Supreme Court. Such reviews therefore do take place, and the judge would be the first to point to any incorrect decisions. The numbers of reviews are, in point of fact, declining. In 1981 there were approximately 2 500, and in 1982 approximately 1 600. When one notes the tremendous number of cases that are dealt with, and sees how few people lodge appeals, one can take off one’s hat to the officials involved.

In principle one court set-up should be advocated for all the inhabitants of this country, and that set-up must function within the framework of the Ministry of Justice. This matter must, however, still be clarified, since there are many other problems involved. It must be clarified with other relevant departments, and staff matters must be clarified with the Commission for Administration. In the circumstances prevailing in South Africa I am convinced that the hon the Minister, his department and the Government are giving attention to these matters with all due speed, and I therefore have great pleasure in supporting this standpoint of the hon the Minister.

Mr Speaker, I have no fault to find with the approach of the hon member for Pretoria West. It was a sound and conservative approach he adopted towards this matter. In the course of my speech I shall be making a few remarks about the commissioners’ courts.

†I respect the hon member for Sandton’s judicial acumen, but to come with such a categorical condemnation of the administration of justice in South Africa within hours after receiving the report which covers such a vast field as this report, and which has taken so many years of intensive study and consideration, is most unfortunate. To my mind it demonstrates on the part of the hon member for Sandton a victory of political bias over the objective legal approach which a report of such an involved nature and complexity demands. Unfortunately, the hon member, assisted by the hon member for Houghton, continued in this vein today.

The commissioner’s courts were established in 1927 and even before that in the Transvaal, as the hon member for Pretoria West pointed out. They have therefore been in operation under different Governments for decades. The fact that on page 8 of the commission’s report it is stated with regret that there was a disappointing lack of interest displayed by the general public, at least leads to the reasonable inference that the situation cannot be as disastrous as the hon members have suggested.

Or as Judge Hoexter suggests.

The position is that he makes no such suggestion. I disagree with the hon member if he says the judge describes it as being disastrous.

Secondly, the report itself contains equally sound arguments for the retention as for the rejection of the status quo in this respect. I have a suspicion that the complaints are directed more at the standards of the dispensation of justice than at the system itself.

Show us the quotes.

I will give it to the hon member. If, therefore, also in the commissioners’ courts the concept of an independent judiciary and better training are accepted, the objections will to a large extent be removed. The underlying motivation also seems to be that the different population groups have as a result of better education and the improvement of their quality of life, begun to expect higher standards of adjudication.

*This is stated on page 409. The hon member for Pinelands is free to go and have a look at it. It seems essential that in the administration of justice, too, one should duly consider the diversity of our peoples.

I agree with the hon member Mr Theunissen that it is difficult to do justice to this report within the confines of a debate such as this. As the Government gives effect to the recommendations in one way or another, however, we shall have an opportunity to argue the specific aspects in depth. I now just want to refer to a few aspects.

The commission’s motivation in regard to a council of justice is not convincing. All those persons mentioned on page 125 of the report have access to the department. The Chief Justice, the Judges-President, the advocates, the attorneys, the academics—all have access to the department by way of already existing channels. The department therefore already plays the role of a council of justice. We are confident that the department can play the role of co-ordinator and carry out the functions of such a council of justice. In the commission’s attempt, on page 122 and 123, to highlight the position in other countries, Australia is referred to as an example of a country where such a body exists on a voluntary basis. It is not an organization created by the State. I have said that all those mentioned on page 125 are themselves organized within their own ranks and have full access to the department and the Minister. The difficulties highlighted in this connection are not the result of a lack of understanding, being more a question of finance, manpower and training.

A second aspect I want to refer to involves separating the judicial functions and the administrative functions of a magistrate. We find that acceptable. Provision can also be made—in his speech earlier this afternoon the hon the Minister referred to that—for more rural towns to be served administratively, obviating the necessity of closing magistrates’ offices in small rural towns. Provision could then be made for the magistrate concerned to administer justice on a circuit-court basis.

Another aspect I briefly want to refer to is the separation of the Bars. I am not convinced of the fact that the commission is correct in its conclusion that attorneys should not be allowed to practice in the Supreme Court. I think that the proposal made by the advocates in this connection—on page 159— is a reasonable one. If they want to specialize to the extent of also appearing in the Supreme Court, and want to regulate their affairs in that way, they must be granted that right. The counter-offer in this connection is that the public should also have direct access to advocates and not have to approach them through attorneys.

There is not a single page in this report that does not require deep reflection. The report attests to a very serious approach and wide-ranging research. It is easy to read because it is logically set out and scientifically structured. Anyone who has to come up against the administration of justice ought to have this report on his bookshelf.

I should like to refer to one aspect of the hon member for Sandton’s speech, and that is the fact that it would have been desirable to have had the hon the Minister’s reaction to this report made available to us in advance, by way of a White Paper or by way of a document such as that submitted here today. That would have facilitated the approach to the debate. I think that is a valuable consideration for future reports of this nature.

As far as the question of the overpopulation of prisons is concerned, the commission itself stated that it was not within the ambit of its investigation to pass judgment on that. Reference is made to that at the end of the report. All right-minded South Africans agree that the overpopulation of prisons is a situation that deserves attention. One must bear in mind, however, that when one is dealing with numbers, with a social problem such as influx control, it is to be expected that one would be saddled with problems of this nature. I therefore do not think that we can fruitfully discuss this aspect of the report in a debate such as this.

Mr Speaker, I take great pleasure in speaking after the hon member for Brakpan. I want to thank him for making a fine, positive contribution to the debate. The hon member’s contribution is in stark contrast with the contributions of the hon member for Sandton and the hon member for Houghton, since today they were competing to see who could sling the most mud at the Government and at the hon the Minister. I can understand why the hon the member for Sandton is doing this. After all, he has to make sure that the hon the Leader of the Opposition appoints him to that portfolio again. As you know, he had problems in that regard earlier this year. The hon member for Houghton tried in vain to use the report of the Hoexter Commission as a peg on which to hang her pink, leftist-radical political ideology. She was not successful either. Due to a lack of time, I shall leave the matter at that. However, I agree with the hon member for Pretoria West that those two hon members made no significant or meaningful contribution to the discussion of the report.

I want to confine myself to the discussion by the Hoexter Commission of the question of overcrowded prisons in South Africa. As the commission indicates, there is a connection between overcrowded prisons and the proper functioning of our criminal courts. The problems surrounding the overpopulation of prisons are by no means unique to South Africa. In fact, it is a world-wide phenomenon and trend, and it is increasing at an alarming rate, particularly in overseas countries. I have statistics available to indicate what the position is with regard to prisons in the United States, Britain, the Netherlands, Italy and France. The problem there is almost as serious as it is here. This problem is being given attention on a continuous basis, however, both in South Africa, as well as overseas, and every attempt is being made to combat this. There are also various campaigns in progress to try to keep the prison population within manageable proportions, and I should like to refer briefly to some of these. Firstly, the Krugel Committee was appointed. It is an inter-departmental committee that is investigating the overpopulation of prisons is South Africa. The committee is also investigating matters such as alternative sentences to imprisonment, release on bail, the swifter disposal of criminal cases, liaison between courts and prisons, and so on. This committee is making considerable progress and it has made very sound, positive inputs on various occasions.

Secondly, old buildings and structures are continually being modernized, and new prisons are being built—the hon the Minister referred to this as well. Thirdly, there is the country-wide programme of the deconcentration of prisoners from institutions with a relatively high overpopulation figure to institutions with a relatively more favourable population figure. Fourthly, there is the policy with regard to release, which makes provision for prisoners to come into consideration for remission of sentence, and even for conditional release if their prognosis is favourable. These campaigns are all aimed at alleviating the situation. The hon the Minister was able to announce that the overpopulation has already been reduced from 46% to 41,8%.

I should also like to refer briefly to paragraph 5.2 of the report, which deals with the question of awaiting-trial prisoners. Awaiting-trial prisoners constituted 17,7% of the total prison population on 31 December 1983. These are people who cannot be released on their own recognizances, either on bail or in terms of any other arrangement, pending their trial, but—and this is important—who, according to the judgment of the courts, ought to be detained in the interests of the administration of justice. Awaiting-trial prisoners represent a broad spectrum of crimes that can vary in degree of seriousness. In this regard it is significant that on 31 December 1983 only 1,88% of the prison population consisted of prisoners who were serving sentences of one month and less, whilst on the same day 52,8% of the prison population were serving sentences of two years and longer. Therefore, since there has been an increase in the number of unconvicted prisoners, this is also linked to an increase in serious crime, thus necessitating that more accused be held in order to protect the community, but also in the interests of the administration of justice in our country. I want to quote only one example in this regard by pointing out that the number of arrests by the policy of people trafficking in drugs was 27 404 in 1982. In 1983 there were 42 673 arrests on the same charge.

Secondly, it is strongly suggested in paragraph 5.2 that the so-called influx control offenders, who have already been discussed here this afternoon, are one of the main causes of over-crowded prisons. To put this matter in a better perspective, I wish to point out that on 31 January 1983 a special country-wide survey was undertaken to ascertain how many prisoners were being held in South African prisons on the basis of influx control measures that evening. This figure was 4 129. Therefore, expressed as a percentage of the total prison population, which was 103 576 that evening, the influx control offenders constituted only 3,9%, and the situation that applied then was that the prisons were over-populated by 41,14%. Consequently, if influx control offenders did not have to be accommodated, it would still have meant that South African prisons were overpopulated by 35%. It is therefore clear that the influx control offenders occupy a very small portion of the available accommodation in our prisons.

In view of the commission’s reference to the release of long-term prisoners, I should also like to bring this matter into perspective by pointing out that it forms part of a well-thought-out and thoroughly proven release policy that has developed over the years, and in which due account must be taken of the various aims of punishment.

In conclusion I should just like to point out that the South African prison population is the result of the community’s demand for protection against those criminal elements in society who threated its order, its safety, its life, its person, its property and so on. Every community has the right to claim such protection. It is also the duty of the State to afford its citizens that protection.

Mr Speaker, the hon member for Kroonstad will forgive me if I do not follow up on what he said by addressing myself to the same subject he chose to speak on. It does indeed demonstrate the first point I should like to make, and that is that there are so many subjects contained in this report that we quite obviously cannot debate them all. Nor can we debate them thoroughly here today. I think therefore that what really needs to happen is that the hon the Minister should prepare legislation—or cause legislation to be prepared—in respect of the various aspects of this matter, and then refer the individual cases to select committees for study. I believe many of these matters are not political issues at all and can therefore be dealt with in a non-political manner. Other matters, which perhaps have political connotations, can be dealt with in another manner. I should, however, like to see that procedure adopted because I think in that way we will get the best legal reform possible in this country.

A second point I should like to make— and I think I can make it in all fairness—is that it is wrong for hon members to attack the hon member for Sandton and to accuse him that he reacted immediately to a report which evidently he had not even had the opportunity of reading, while, I believe, those hon members know full well that in accordance with normal practice the hon member for Sandton received an advance copy of the report. [Interjections.] He therefore knew what was in the report. [Interjections.] To launch an attack of that nature on an hon member of this House is, I believe, to put it mildly … I cannot say it is dishonest, Mr Speaker, but if you could find another word that I can use, I should like to use it. [Interjections.] Be that as it may, I really do not believe that is the right way of approaching the matter. [Interjections.]

Another point I should like to make very briefly, Mr Speaker, is the following. I believe that in principle the hon the Minister should accept the concept that all people should be tried by the same courts of law and that the concept of having separate courts for the separate racial groups within the same country is not a just or healthy concept.

I quite accept that.

If the hon the Minister accepts that, Mr Speaker, I am happy because in his speech he spoke about the problems of the vested rights of officials. I think those problems could be solved without affecting the implementation of the principle.

A further aspect to which I want to refer briefly is the question of the family courts. I want to put it to the hon the Minister that I believe he will find wide support throughout South Africa for a system of family courts. One of the problems that I see in the whole concept, for instance, of divorce litigation is that the adversary system helps to turn love into hate. I find in many cases that the adversary system which exists in domestic matters causes hatred between spouses, something which, I believe, is absolutely unnecessary. If we could do something to avoid love turning into hate I believe we would be accomplishing something quite substantial.

We are accepting that whole principle as contained in the report.

Right. Then, I hope, the hon the Minister is going to introduce legislation in that regard. I should be very delighted to see that happen, and I should also like to see that referred to a select committee. However, I should like to make the following point. I think that as far as the status of the court is concerned, it should not be a lower court. I think it should be under a judge who would have a status similar to that of a Judge President and who could have other people acting as judicial officers under him. I should like to see that status. I should also like to see something done about costs in matrimonial actions because they are ruinous for the parties. I can give dozens of examples of matrimonial cases that have actually destroyed the whole financial position of a family. When money could have been better spent on children it has had to be spent on litigation. Much as I do not want the legal profession to become impoverished, I do not think there is any reason why that sort of thing should happen. I would therefore welcome such a Bill and I would ask that it be referred to a select committee.

Another matter which I think requires very urgent attention is the question of the Legal Aid Board and the concept of pro Deo counsel. These two aspects can be dealt with very quickly and I should like to see them dealt with in that way. The recommendations that are made in regard to who is indigent, the question of separating it from the State and the question of instilling confidence in the legal aid system are all matters with which I think the hon the Minister will agree. I think he should accept these and without delay set about creating the proper kind of legal aid for South Africa. The pro Deo system can also be improved administratively and I should like to see this done as a matter of urgency.

I come now to the question of the high cost of litigation. While it is said that the last word has not been spoken on this matter by the commission, and the hon the Minister has listed 11 recommendations, what I find disappointing is that the hon the Minister has not told us whether he is going to accept those 11 recommendations or not. I should like to know what his attitude is.

I shall deal with that in my reply.

I hope the hon the Minister will because I think it is important that we should deal with this matter very urgently. I want to say that the high cost of litigation is approaching what I would like to call—and I do not want to exaggerate in this regard—the nature of a national scandal. There are thousands of people being adversely affected and being deprived of their rights as a result, and I feel that this is a situation that cannot be allowed to continue. It requires attention. The question is posed in the report—and I want to pose it to the hon the Minister—at what price and for whose benefit does the system work? The question the hon the Minister must answer is whether he supports a laissez-faire system or a system that fulfils a social need. The three important matters—the high costs, the delays and the involved procedures—all need very urgent attention.

One of the disappointing things I find about the Hoexter Report—and I say this kindly because there are many good things in the report—is that there has been an insufficient examination of other systems. There has been no adequate investigation of systems, for instance, in respect of fees that are related to fixed scales for particular stages, for the amounts involved and the types of disputes, such as in West Germany. These systems have not been examined.

The hon member is now criticizing the report. I thought he was supporting it.

Mr Speaker, I am merely putting forward certain alternatives because the hon the Minister himself said that he wants to consider alternatives. That hon member must not talk nonsense.

The question that has not been investigated—and I know it is a highly contentious one—is the question of contingency fees in certain circumstances, and I think that this needs to be done. There is the example of Canada which has a contingency fee system that is subject to judicial supervision. We need further investigation in regard to more simplified proceedings and also the abbreviating of proceedings.

I am also very pleased that the hon member for Brakpan raised the question of the revision of the Bar. I find it remarkable that there is a long examination of reasons why there should in fact be a merger and a short statement why there should in fact not be one.

Then it is left to the Minister.

That is correct. Let us then hear from the hon the Minister as to what should be done. In this regard, One cannot say that because there are technical proceedings that are difficult and because it did not work in Natal, that it is not going to work anywhere else. There are many other things that have not worked in Natal and elsewhere they have not worked either. The whole thing has to fall to the ground because Natal has had an unfortunate experience. Fact is that they have had a few unfortunate experiences, but of course, also a few lucky ones.

It has been said that attorneys do not have enough time to do preparation. I say that is nonsense, absolute nonsense, with great respect. An attorney’s time on preparation does not differ from the time which an advocate can make available for preparation. One of the things which worry me is the way in which the attorneys’ profession is looked at in this light. I must say that the things which worry me are, firstly whether there is not a need for specialization and whether the bringing in of attorneys in another category into this whole sector is not an advantage, secondly there is the question of how many attorneys who are here and elsewhere have had the experience that the advocates drop them just before the trial. All the preparation has been done and all the knowledge has been gained, but the man is involved in another case. Look at the cost and look at the problems that arise from that. Thirdly there is the question of two counsel. Why do we have to have two counsel unless the case is so difficult that they are required? Why can we not slowly move to the stage where attorneys can appear in the superior courts? There are many other things to say, but with great respect, as I say, a select committee will be the place to discuss them.

Mr Speaker, in the very limited time allowed to me I want to address myself mainly to the hon member for Yeoville. Before doing that, I want to thank all the other members who participated in the debate. A special word of thanks to those hon members who have expressed support for the measures which we have introduced by way of announcing the Cabinet’s attitude.

I want to say to the hon member for Yeoville immediately that I have made it known that there will be Bills which are to be circularized for comment. Such Bills will deal with the family courts, the proposed Rules Board and the new offices of, probably, sheriff which will be serving process. I have expressed my interest in the matter and we are actually expediting these Bills. There may be other Bills as well. I have already said that we are attending to the implementation of the Galgut Commission’s report which deals with the procedure, but that can only be done with the co-operation of the Chief Justice. I have attended to such a discussion already.

The hon member wants to know what I am doing about the 13 matters tabled. They are spread all over the Hoexter Report. They entail the amending of the Supreme Court Act to change the system of appeal. I have attended to that promptly with the support of the hon member for Sandton. We also attended immediately to the question of jurisdiction the moment our hands were free. We attended immediately to the question of a small claims court, and that has taken us some time.

What about the autonomy of the professions? I think the hon member for Yeoville will agree that should I obtain the co-operation of the professions in attending to the matters which the Hoexter Commission brought forward, then I would have achieved something.

There is no difficulty there, is there?

Yes, exactly, and I said in my introductory speech that I had already had such a discussion. I can now tell the House that they will be co-operating. They themselves will take the initiative. Is that not what the hon member for Yeoville has in mind? I am sure it is.

Some of it and some of it by means of legislation.

The other matters will be attended to after they have been exposed to comment. I think the hon member for Yeoville has just told me that he wants to have a stake in law reform. I agree with him, and that is why I brought the report to the House so that it can be discussed. However, what did I get from the main speaker of the Opposition? A virulent attack on the Minister and malicious verbosity in the extreme. That is what we got from the hon member for Sandton. He made no positive contribution whatsoever. He could have made of this a momentous occasion, but what did he do? He chose to attack the Minister in order to score a few political points. What did he gain in the process? Feathers! He left it to the hon member for Yeoville to raise the Opposition from the ashes. Once again the hon member for Yeoville had to save the day for the Opposition, and I want to congratulate him on that.

I will consider very seriously the suggestion to refer any Bill, flowing from this report, to a select committee. As a matter of fact, the Bills are already in the final stages of preparation. How do these Bills come about? Of course they come about through working groups within the Department. What nonsense did the hon member for Sandton then talk about what should and should not be done! What is more, he attacks the Minister but he does not attack the Hoexter Commission for trusting the Minister. What does the Hoexter Commission do? It says that it entrusts the commissioners’ courts to the Minister of Justice. The commission did not know whether I would still be in the job and did not say that it should be someone else.

The time for this debate has almost expired, and I just want to say to the hon member for Sandton that despite his virulence I will still come to his rescue. I want to tell the House that I will defend him against Murphy’s law where it says: “Never ascribe to malice that which is adequately explained by stupidity.”

*Mr Speaker, since the time for this debate has now expired, I move:

That the motion be withdrawn.

Agreed to.

With leave, motion withdrawn.

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

1. 1. On page 7, in line 5, to omit “(2) and (3)” and to substitute “(3) and (4)”.

Amendment 1 agreed to.

Clause, as amended, agreed to.

Clause 9:

Mr Chairman, I move as an amendment:

1. 2. On page 7, in line 33, to omit all the words after “justice” to the end of the subsection.

This aspect was touched upon yesterday. It relates to the practical experience which commissioners should have in these small claims courts. As the clause stands at the moment, it stipulates that the commissioner should be qualified (a) to be admitted to practise as an advocate or (b) to be admitted to practise as an attorney, or (c) to be appointed as a magistrate under the Magistrates’ Courts Act. In addition to that, such a person, after having obtained that qualification, must have had practical experience of at least seven years. That practical experience which is referred to, relates only to the categories of advocates, attorneys or magistrates. It does not relate to the teacher of law or the academic or to the other category which the hon the Minister may appoint in his discretion without this Bill stipulating specific requirements as far as academic qualifications or practical experience is concerned.

The reason why I propose this amendment, is that if one looks at the Fourth Interim Report of the Hoexter Commission it appears that throughout the report Mr Justice Hoexter lays stress on the fact that in order for these courts to be seen as effective by the public and in order for them to function effectively and for the public to have trust in them, it is essential that the commissioner be a person who has proper academic qualifications but it is also very important that he has practical experience.

I referred the hon the Minister to certain provisions on page 177 of the report of the Hoexter Commission yesterday, where, as a guideline, it is suggested that the commissioners should be appointed from among people who have practical experience. I also drew the hon the Minister’s attention to the actual recommendations and findings of the Hoexter Commission which appear on page 199, and I quote from paragraph (n):

I am not suggesting that academics who teach law or, for example, law advisers of the department or other individuals with proper academic qualifications, do not know as much or sometimes even more about the law as such than the person who is envisaged as the commissioner in this case. The crucial aspect which I hope to cover here, is to ensure that the person actually has the practical experience of presiding over a court and being involved in the administration of law. The commission quite clearly aimed at obtaining someone who has been involved in the hurly-burly of litigation, of dealing with people in courts and knowing what procedures are about and identifying when a witness is uncomfortable and when he is telling the truth. He should in other words be able to size up the atmosphere and create an aura of confidence in that court. I fear that this will not happen if people are appointed who perhaps have good academic qualifications but who have not been involved in litigation and have no practical experience as attorneys, advocates or magistrates. I want to avoid that because I wish to ensure that the standard of commissioners is as high as possible and that the public perceive those commissioners to be people who have had actual practical experience in the administration of law in the three categories of advocates, attorneys or magistrates. I believe this will be so if the discretion which is being given to the Minister in that he can appoint virtually anyone who he believes has proper experience, is removed. If he appoints someone who has not had practical experience, the public and the individual who wants to claim through that court will not know if the commissioner is perhaps a clever professor who has not been in court or perhaps someone who has been in the hon the Minister’s department whom he believes should do that job. He will not know that because at the moment the clause enables the hon the Minister to appoint anyone whom he believes to have the adequate qualifications and experience. It will be far better if the individual knows that the commissioner is someone who has had at least seven years’ practical experience and also possesses the necessary academic qualifications.

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

1. 1. In the English text, on page 7, in line 33, after “involved” to insert:
2. for an uninterrupted period of at least seven years

That is merely to rectify a fault in the text. I am sure the hon member for Durban Central will not object to that because it also serves to clarify his amendment further.

Sir, I cannot accept the amendment of the hon member because, by virtue of it, he discriminates horribly against the academic world. He makes it impossible for me to appoint as officers certain people who have many years experience, if I understand his amendment correctly. Will the hon member confirm that with his amendment he is ousting the academic world completely?

I suggest that, unless the academic has actual practical experience, he is not the person best suited for the job.

Does the hon member think that no person from the academic world with, say, four years experience should be able to be appointed?

My amendment suggests exactly that.

Sir, I think it is most unfair. Consider the case of a professor who has had many years experience lecturing, for instance, on evidence and on procedure. He may have had, say, six years practical experience. Is it then fair that he should be excluded? I think it is eminently unfair. I think the hon member is doing himself an injustice. He will find that out if he goes back to Pietermaritzburg or Durban and has to face the legal fraternity attached to the universities there. I do not think it is fair.

Mr Chairman, may I ask the hon the Minister a question?

The hon member must just give me a chance. He can put his question later. I explained yesterday that the advisory board I visualize will see to it that, if a person from the academic world is to be nominated and his name is to appear on the list, he will have had the necessary practical experience. I therefore think that the hon member is definitely most unfair to the academic world. I want to ask him really to reconsider his amendment. It is unfair. What is more, it narrows the base from which we can make appointments. What would the University of Cape Town now think of the PFP? I am very concerned about that.

You leave the University of Cape Town to me.

Well, I am really very worried about that. I do not think the hon member for Groote Schuur understands the amendment.

Mr Chairman, may I now ask the hon the Minister why he adopts this attitude towards the academic world when he surely knows that countless Acts of Parliament create certain posts for persons who are advocates or attorneys of seven or ten years’ standing and for retired magistrates? I can refer the hon the Minister to 40 acts of Parliament in which posts of that nature are created. There was never any question of involving academic people in that respect. Why does the hon the Minister suddenly differentiate in regard to the small claims courts?

I made it very clear that we visualize that such an individual should have seven years’ experience as a lawyer or advocate, that he should be involved with the tuition of law or that he should possess such other experience as, in the opinion of the Minister, renders him suitable for appointment as a commissioner.

That is what we do not like.

The point is I am calling upon advocates and attorneys to advise me on who should be on this list.

Just follow the commission’s report.

I asked that hon member yesterday, if words have any meaning, what it means if it is stated that an academic should have had that standing for seven years and have had actual practical experience, while not indicating how many years of practical experience are required? That is what it says. I think it is most unfair, where we are trying to broaden the base as far as possible, to oust by way of an amendment people who may be suitably and admirably qualified to preside over these courts. The hon member is doing us a disfavour. A very favourable impression was created as far as the small claims court is concerned but it was destroyed earlier this afternoon. I am nevertheless affording the hon member the opportunity to reconsider his amendment. I am not prepared to accept the amendment.

Mr Chairman, I rise to support the amendment moved by the hon member for Durban Central. The first point he made was based on paragraph (n) on page 199 of the Hoexter Commission Report. I quote from the paragraph:

An academic has not had practice as an attorney or an advocate. There is a very strong precedent for the contention that is being advanced here, and the hon the Minister knows it. The precedent is the appointment of judges of the Supreme Court. The best judges of the Supreme Court are those who have practised at the Bar, who have had the experience. They have the practical experience of knowing both sides, not only the academic side. The hon the Minister knows that. Since the hon the Minister became Minister of Justice he has appointed several judges who have had practical experience of the Bar. Am I not right about that? That is the precedent for it. The hon the Minister bases his argument for refusing to accept our amendment on the fact that it is unfair. That is not, with respect, the way to approach the matter. It is not a question of fair or unfair but of who is the best person to act as adjudicator of the small claims court. The most suitable person is someone with practical experience, as recommended in the Hoexter Report. It is absolutely vital that he must have had practical experience of the courts, that he has appeared on behalf of plaintiffs and defendants and therefore knows the procedures of the courts. It is no good appointing an academic who has never really practised in a court to adjudicate on these matters.

You can rest assured that no unsuitable person will preside in a small claims court.

I can see now that we are not going to make any impression upon the hon the Minister.

I also want to get clarity on a second point. This also arises from paragraph (n) and relates to the appointee. I quote:

Is it the intention of the hon the Minister to follow this recommendation, namely that they will be appointed from time to time from a panel? Is it perhaps his intention to appoint one person permanently or will he draw from a panel of people who will act from time to time and who will be unpaid?

Mr Chairman, hon members will see that such persons can be appointed for a period of three years, or for any other period that may be deemed fitting. There is no provision that only one person must preside in these courts for the entire period. I spoke of a panel, and the idea is that a number of persons can be appointed to the same court. In fact, the Hoexter Commission holds out the prospect of a person only presiding or having to preside for a limited period. I think the success of this will depend on our appointing as many people as possible to this panel, otherwise two or three people will have to preside constantly, and if they are in practice, it would be unfair to expect this of them. In my opinion, we should not make the panel too large, but it must be a solid, extremely credible panel, ie people of quality. We must just see to it that one of them does not preside too often, and this Bill is worded in such a way that we will be able to implement this. In this regard I refer to clause 25.

Will they do duty on a voluntary basis?

Yes. During my Second Reading speech I said that the law societies and the Bar, for example, had offered to perform this service for us free of charge. I must admit that I have not had such an offer from the academic world, and that is why I am asking the hon member for Durban Central to withdraw his amendment, since I am afraid that that offer is perhaps going to fall away now. However, I want to tell the academic world that the hon member for Durban Central is still young. I do not know whether he still intends obtaining his Master’s degree. I would advise him rather to go abroad after this.

Mr Chairman, it is a pity that the hon the Minister is not prepared to accept the amendment, particularly because it follows on a specific suggestion and recommendation of the Hoexter Commission. There is one last finding and recommendation which I have not read to the hon the Minister, and that appears on page 202, par 14.9.

Mr Chairman, I am prepared to help the hon member because he is, after all, not such an impossible hon member. Will the hon member be satisfied if I amend that clause by deleting the word “or” and substituting “and”? I will ask my legal advisers whether they agree. It will then be clear that this will apply only to the academic world. In other words, apart from having to have seven years’ standing as a tutor, they will also have to have some practical experience.

Mr Chairman, that is exactly what the Hoexter Commission tried to avoid. It is said in the report that very often litigants find themselves under heavy pressure before they are about to go into litigation, and they therefore quickly settle before the case starts. I am facing very big odds in the sense that the hon the Minister has already indicated that he is not going to accept the amendment.

The offer is open for five minutes.

On instant reading, if the word “or” was to be deleted, it would appear that the teacher would in addition to academic qualifications also need some other experience. It is still very vague but one would hope that the hon the Minister clearly has in mind—and that the court will also have in mind—the aspect of practical experience. Without having the advantage of a team of advisers who can help, I would suggest that that is an improvement on the present situation because as the Bill is presently worded the teacher needs no qualifications or experience other than the academic qualifications which are referred to in subsection (2) (a), (b) and (c). That means that that if “or” would be deleted it would seem that the teacher of law would need some qualifications in addition to his academic qualifications. It would therefore appear to be an improvement, from my point of view, on the situation as it is at the moment. I would be delighted therefore to concur with the amendments suggested by the hon the Minister.

Order! Before requesting the hon the Minister to accept the offer, may I ask him to submit the amendment to us in writting?

Mr Chairman, this Bill is so important to us that I am quite willing to ask that we report progress and ask leave to sit again. We will then be able to prepare this small amendment properly. I truly want to take the hon members of the Opposition along with me because this Bill is so important to me. I think that in that way we can perhaps cut the knot as far as this small aspect is concerned.

Mr Chairman, if you insist that I submit the amendment in writing, I would also be able to consult my legal advisers about this. Then we shall all be happy.

Chairman directed to report progress and ask leave to sit again.

Mr Chairman, I move amendment No 4 printed in my name on the Order Paper, as follows:

1. 4. On page 5, from line 11, to omit “and who was admitted to practise as an advocate by virtue of a qualification contemplated in section 3(2)(a)(iii)” and to substitute:
2. but who is a citizen of a state the territory of which formerly formed part of the Republic

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

1. 1. On page 5, from line 8, to omit paragraph (b).

The amendment moved by the hon the Minister certainly brings about greater clarity in that—if I remember correctly because I do not have the amendment in front of me now—we now know roughly to what people the hon the Minister is referring in this clause without doing it in a jargonistic fashion. The hon the Minister identifies the people concerned by referring to them as persons who are citizens of a state the territory which formerly formed part of the Republic of South Africa. That certainly brings greater clarity and is more helpful so I do not think it does any harm. We shall certainly accept the hon the Minister’s amendment.

However, the hon the Minister has omitted to deal with our major objections to this particular provision. We spelt out those objections very clearly during the Second Reading debate when speakers on this side including the hon member for Green Point and myself pointed out that once a person had obtained a qualification in terms of this legislation, that qualification was not something that should be capable of being removed from the person concerned. At the time the particular person qualifies to be admitted to the Bar in South Africa, being a member of one of the TBVC countries, he has to qualify in a certain manner. He has to have a degree from a university recognized by South African universities. He also has to come from a country that is a designated country. Having also passed courses in English, Afrikaans and Latin and having also satisfied the requirements already referred to, that person is entitled to become an advocate and to practise in South Africa.

In terms of this new provision, however, far from protecting such person, a situation is being created where that particular qualification may in fact without such person’s consent—if I read the provision correctly— be withdrawn. If the person concerned ceases to belong to a category of persons or ceases to comply with conditions determined by the Minister his right to practise can be withdrawn. That is as I read the provision.

Our argument is that this Bill and the principal Act do not allow of specific conditions to be set by the Minister, and we do not think that it would be valid for the Minister to set conditions other than the normal ones relating to the practice of law. These are already contained in the Act and this Bill. Therefore having obtained those qualifications and having been admitted to practise we feel that it is wrong that such a person probably for reasons unrelated to the practise of law could find his qualification arbitrarily withdrawn.

It is for these reasons that I have moved my amendment to this clause and I want to ask the hon the Minister to think about this matter very carefully. Let him move his amendment if he has to but preferably I feel that he should accept my amendment.

Mr Chairman, it is without any malice at all that I tell the hon member for Sandton that I am unable to accept his amendment, although I do have reason to have certain hard feelings in respect of the hon member. I feel, however, that we have argued this matter ad nauseam and I do not think that it would help to argue it any further. In fact, the hon member for Green Point is perfectly happy with this amendment. It was he who actually triggered our thoughts on this issue and I have actually moved my amendment in order to accommodate the hon member for Green Point.

*The hon member for Green Point is happy. I do not want to sow dissension in the PFP in this connection. I must therefore ask the hon member for Sandton to accept the stand adopted by the hon member for Green Point. As I have said, I think we have discussed the matter in as much detail as possible, and there are two things we have achieved. Firstly I want to give the assurance that a citizen of the TBVC countries will not be made subject to the requirement of having to be present here for a certain number of years. We have already dealt with that, but to leave no doubt about that we again deal with it in section 7—that is the striking-off and suspension section—in order to place such a person in a completely different category. He can therefore not be struck off except in terms of this clause. Here the intention is simply to state who he is and to what category he belongs. It has nothing to do with his citizenship, his rights or whatever. If the hon member agrees with me on that point, he must accept the amendment.

My second objective is that an out-and-out foreigner should not enjoy these privileges. A foreigner still has to apply for citizenship after a period of six years has elapsed, or else he can be struck from the roll. I think that we are hereby indicating to the citizens of the TBVC countries our positive and forceful attitude towards them and their legal qualifications. I think the hon member should accept it in that spirit.

Mr Chairman, I wonder whether the hon the Minister could make it quite clear as to whether the phrase “after consultation with the General Council of the Bar of South Africa” applies to both “to belong to a category of persons” and “to comply with conditions determined by the Minister”. Is that an additional provision relating to both those conditions?

I understand from the law advisers and other staff of the hon the Minister that it is an additional provision in as much as that a certain flexibility is required in dealing with the new situation when it comes to the suspension of advocates or the removal of their names from the roll. If the hon the Minister and the department feel that they need this provision, I should like to know whether all the conditions set out in the clause will become operative on consultation with the General Council of the Bar. As I see it, it can read either way.

Mr Chairman, I did not participate in previous discussions on the Bill, but I was involved in an analysis of the legislation. I find the amendment moved by the hon the Minister interesting. It seems to me that the effect of the amendment is that we are exposing Blacks who are citizens of the TBVC countries to an arbitrary decision by the Minister, in co-operation with the Council of the Bar. In any case, that is my interpretation of it: That the right they were granted to practise as advocates could be taken away from them.

I now come to the case of Whites. I am aware of the fact that the hon the Minister and his department have had extensive talks with, inter alia, the heads of the law faculties of some of the universities, for example, the University of Bophuthatswana. I am also aware of the nature of the talks. It seems to me that the effect of the provision is that we are differentiating in favour of White South Africans who retain their South African citizenship, who are lecturers in the law faculties in the national states and who have been, or could be, admitted to the Bar in South Africa on the basis of their legal qualifications. Those people are not subject to the restrictions that are being laid down by way of this amendment. We are therefore differentiating between White South African citizens who are residing in the TBVC countries, as opposed to the Blacks, who are not South African citizens. That is my interpretation of this clause, and it seems to me that it is correct. To me, the interpretation of the clause is very clear with regard to Blacks who are admitted to the Bar in South Africa. The privilege of the Black citizens of the homelands in this regard can be terminated at any time by the hon the Minister, in consultation with the General Council of the Bar. I want to make it clear that this is not only concerned with the Blacks who were trained at universities in those states, since there are a large number of citizens of those states who receive their training in South Africa, for example, at the Black university in South Africa, or through Unisa. If my interpretation is correct, all those people will also be subject to this arbitrary right of the hon the Minister to withdraw the privilege they are granted to be admitted as advocates.

Mr Chairman, the hon member for King William’s Town asked me what the wording “after consultation with the General Council of the Bar of South Africa” refers to. It very clearly refers to the conditions the Minister determines in consultation with the General Council of the Bar. It therefore has to do with the conditions about which consultation will take place, and not with the abolition of a category of persons. Therefore, if a person does not meet the conditions determined by the Minister, after consultation with the General Council of the Bar of South Africa, by notice, the provisions of the clause concerned come into operation. I have no doubt that this wording very clearly only refers to the conditions, and that a new category of persons was was established by section 3 at some stage. The first two categories can be accommodated in terms of section 7(1)(a)(i) and (ii). Consequently, a new category cannot be established in terms of section 7 now. It merely points to the existing category that was established in terms of section 3, and consequently, the General Council of the Bar cannot make a contribution in this regard, but it can do so with regard to the conditions in terms of which the Minister can act. What these conditions are going to be is not clear at this stage, but they could have to do with professional conduct or a variety of considerations. We are dealing here with an international situation, which is fluid. I think that a body such as the General Council of the Bar must be able to speak to the Minister and say that a certain category of people is unacceptable to the practice, and they must be able to advance reasons for this. It could also happen that matters could come under fire due to interstate relations. It is therefore very clear that we are dealing here with a situation which was not created by the General Council of the Bar. A category of persons is being created, admitted and protected in terms of section 3 of the Admission of Advocates Act.

I now wish to refer to the questions of the hon member Prof Olivier. We are not exposing these people, but we are, in fact, linking them to the category being created by this Bill, viz a category which meets all the requirements of a degree at a university in this country, which the Minister submits to the General Council of the Bar. The General Council of the Bar will take note of the chair of the university in a particular country, and a number of other factors will also be taken into consideration. For example, the persons must be adaptable in the court concerned, and they must also have the academic qualifications that are equal to, or higher than, those at a university in South Africa. That category is now being created in the proposed new section 3(b)(iii). In conjunction with that, a corresponding omission clause is being created, since if this is not done, they are being exposed. Section 7 makes provision for removal upon the loss or relinquishment of citizenship, as well as the removal of a person who fails to obtain a certificate of naturalization within six years. If provision is not made to protect these people, there will be a vacuum. By altering the legislation in this way, we are indicating which category we want to protect.

The hon member for Green Point asked what the position would be of a person who studies at a university in South Africa, but who is a citizen of one of the independent countries and who wants to practise in South Africa. Such cases will be looked at, since the position is not very clear here. He would not be able to identify himself clearly in terms of the existing legislation.

Mr Chairman, I must be honest and admit that the hon the Minister has confused me.

If reference is being made to citizens of the TBVC countries who obtain degrees at South African universities, for example, the University of the North, or Unisa, the amendment in clause 1 is irrelevant. I am referring specifically to the requirements for a degree in a country determined by the hon the Minister. Surely the hon the Minister cannot declare the Republic of South Africa to be one of the countries in terms of the proposed new section 3. What is to become of all the Black citizens of the TBVC countries who, for example, obtain their LL B degrees with all the necessary requirements at Unisa, for example? It is my contention that the requirements laid down for admission to the Bar, require South African citizenship. The argument was advanced in this debate that in terms of section 6 of the Status Act, the right of those people is reserved.

[Inaudible.]

Yes, but I doubt whether that interpretation is correct, since we are dealing with a direct result of citizenship and since a law determines that a person must be a citizen of South Africa in order to do a certain thing. That person is not a citizen, and it is therefore my contention that that person cannot be admitted. A Black citizen of the TBVC countries who obtains his degree at a South African university is not covered by the proposed new section 3. Secondly, I want to say …

Which person, did you say?

A Black citizen of one of the TBVC countries who obtains his degree at a South African university, for example, at Unisa, the University of kwaZulu, or the University of the North, is not covered by subparagraph (iii), since that sub-paragraph refers specifically to a university in another country. We are therefore leaving that large category of Blacks in limbo.

Secondly, in all humility, I want to tell the hon the Minister again what the effect of his amendment will be. If he had determined in his amendment “a category of persons contemplated in subparagraph (iii)”, in other words, if he had defined the category, it would have been clear, and a considerable number of our objections would have fallen away. This would mean that if for some reason a person does not fall into that category, he could obviously be excluded. The “category” in paragraph (b), however, is not defined, and as far as I am concerned, it is very clear that the word “category” used here, contains no reference to the previous subparagraph (iii). If this is what the hon the Minister meant, he must insert after the word “category”, the words “contemplated in subparagraph (iii)”.

Mr Chairman, the people who study in South Africa, who are citizens of those countries and who are admitted here, have legal qualifications from South African universities, not so?

That is correct.

However, if they do not obtain citizenship within six years, they could be removed from the roll. The way the hon member argued, he wants me to say that these people are not being dealt with. I say that the amendment has the effect that those people are being dealt with, that they are being given preferential treatment. That is the effect and the intention of the amendment. The hon member can argue as he wishes, but I can see in his eyes that he did not realize— he is blushing, too—that the problem here is that a person who does not obtain citizenship within six years, could perhaps be removed from the roll. That is the point. By inserting this amendment, we are also dealing with the advocates who are admitted in terms of the new subparagraph (iii), and who studied at universities in the TBVC countries. Then we are also dealing with the individual who studied here, but who is not a citizen of South Africa, who qualifies for citizenship within six years, etcetera. We must protect him. I can see that the hon member did not see that point. He must please concede that now.

Mr Chairman, I think this is my final turn to speak, and I want to tell the hon the Minister that I am well-acquainted with the provisions of the Act, as well as with the requirement of naturalization within six years. The hard fact is that a Black citizen from one of the TBVC countries cannot obtain citizenship of South Africa through naturalization. I assume that it is the hon the Minister’s intention to admit the Black citizens of those countries who obtain the required qualifications either at a South African university or at a university of one of those countries. I know that that is his intention, but it is my honest conviction that that intention is not reflected in this legislation. That is all I have to say, and nothing the hon the Minister has said thus far has made me change my mind.

Mr Chairman, one must never advise oneself, but I wish to do so on this point. The legal advisers advised me as well, and they agree with this. The point is simply that not a great deal of harm can be done. We have achieved our main objective, viz to create a new category of persons, in terms of section 3 of the Act, who can be admitted as advocates. They are those who have studied at those other universities. In addition, we say that those who studied at our universities, are also covered by this legislation. We say this, but the hon member does not agree. The major consideration for the amendment was the request we obtained from the University of Bophuthatswana with regard to their graduates. The hon member is aware of this. This is the point we are obviating here. As far as I know, the matter has never given us any trouble.

I know what the intention was.

Our intentions are honourable. If we have achieved our main objective, we are pleased. I do not think the hon member will be proven to have been correct in time. This could only crop up if there were an application to remove one of the persons in the category to which the hon member referred, and a court case should ensue. I cannot foresee this at this stage, however. We have waited for many years for Moseneke’s case. There were no other cases either. I think we have achieved our main objective. We also believe that we have achieved our other objectives, and the hon member must accept that. In due course we will study his speech and reconsider the matter. We are quite willing to amend the legislation again if we have not achieved our objective. However, the hon member will concede that we have achieved our main objective by admitting advocates who have studied at universities in the TBVC countries. Does the hon member agree?

I have already said that I think you are making a distinction between … [Interjections.]

But is the hon member happy that we have achieved that? [Interjections.]

Mr Chairman, I should like to draw the hon the Minister’s attention to the wording of the proposed sub-paragraph (iii) of section 7(1)(a), to be in terms of clause 2 of the Bill. The words “after consultation with the General Council of the Bar of South Africa” apply equally to “a category of persons” and to “conditions determined by the Minister”. Let me quote the subparagraph, as amended:

I understand what the hon the Minister says, namely that the conditions are one thing and that “category of persons” is terminology used in order to encompass the other likely conditions. He said it was not only a legal situation but that it could also be a political situation. Either the consultation with the General Council of the Bar of South Africa applies or it does not, but in terms of the English version it does.

If the hon member’s viewpoint is correct, what is his point?

Mr Chairman, the hon the Minister will remember that in the Second Reading I indicated that the inclusion of the words “a category of persons” introduced almost a suspicion into what the intention exactly was. I made the following note in the margin of my Bill: “Once qualified, can it be taken away?” One wonders whether those words are not the phrase in which the hon the Minister …

We are not talking about the taking away of qualifications, but of removing people from the roll.

I realize that. It is a condition to removing a person from the roll. It is a hidden phrase. What applies to a category of persons, surely the General Bar Council should be involved in the removal of that person. However, the hon the Minister in his reply said there was another consideration. Possibly it was a political consideration—I think he used the term international. I do not follow it because the hon the Minister has not explained it satisfactorily.

Mr Chairman, the one moment the hon member for King William’s Town is arguing about the removal of qualifications, and immediately after that he speaks about something that is unknown to me. This is not about taking away qualifications, since those qualifications cannot be taken away. Section 7 of the principal Act deals with the removal of a person from the roll for a number of reasons. The first reason is a lack of citizenship, which the person can relinquish. The second reason is that a person could fail to naturalize within a certain period, and the third reason is that a person can cease to belong to a category of persons, or to fulfil certain conditions determined by the Minister, after consultation with the General Council of the Bar. The foundation is therefore being laid for the possible removal of such a person, since—and the hon member must use his sense here—such a person cannot enjoy better benefits than someone who is a South African, for example. A South African can be removed from the roll if he relinquishes his citizenship. [Interjections.] If the hon member objects to the Minister determining the category, or that he must determine the conditions with which such a person must comply, after consultation with the General Council of the Bar, then I say that I stand by that, and we need not argue about this any further. However, we will not be unreasonable or unfair, and any action takes place after consultation with The General Council of the Bar.

If the hon member argues that this also applies to the category of persons determined in co-operation with the Council of the Bar, I concede that, but I trust that he will accept the position now.

Amendment 1 negatived (Official Opposition dissenting).

Amendment 4 agreed to.

Clause, as amended, agreed to (Official Opposition dissenting).

Mr Speaker, I move:

That the House do now adjourn.

Agreed to.