Mr Chairman, hon members already know that Adv J P J Coetzer, the Director-General of Justice, will be retiring on pension at the end of June 1984. We have therefore come to the end of an era in which various and some of the most important law revision programmes were embarked upon either under Adv Coetzer’s guidance or with his co-operation. Adv Coetzer joined the department on 12 May 1943, and by 1974 he had already progressed to the very high position in the department at the time, namely that of Secretary. On 1 April 1980 he was promoted to the post of Director-General. During his career he excelled himself in many spheres. For example, he was actively involved in the then Botha Commission of Inquiry into Certain Organizations, and he was also member of the Rabe Commission of Inquiry into our security legislation. He is still a member of, inter alia, the International Bar Association, the Legal Aid Board and the National Road Safety Council where he is rendering valuable service. Besides this, he has also served on the Unisa council and on other statutory councils. It is unnecessary for me to say that one only advances to councils of this nature if one possesses the necessary ability.

Throughout his whole career, Mr Coetzer has shown a particular interest in legal reform and the revision of the law. He has also campaigned for an autonomous body to perform this task, and it was largely due to his efforts that the South African Law Commission Act was passed in 1973. For many years he campaigned for the reform of our courts of law, particularly in order to make our courts more accessible to a larger section of our population. Besides other studies in connection with the courts, in 1979 he undertook an extensive trip abroad and, inter alia, made a study of American and European court systems in particular. A report in this regard was submitted to the Government subsequently. The Hoexter Commission of Inquiry into the Structure and Functioning of the Courts was subsequently appointed on the initiative—and I want to emphasize this again—of the Government.

In the administrative sphere, too, Adv Coetzer has since his appointment as head of the department campaigned for reform in a number of spheres. One of his most important aims was that judicial officers in his department should receive the greatest possible measure of academic schooling. My personal gratitude and that of the Government to him for his sustained and loyal support and assistance over the past years. I hope he will have a pleasant rest but in any case make it a continuation of an interesting and productive career.

Mr Chairman, I should definitely be doing an injustice to the feeling of unanimity that has prevailed in the Department of Justice over many years if I did not also express appreciation to Adv Coetzer’s wife, Mrs Helen Coetzer, who has assisted and helped her husband most stylishly in his work in the Department of Justice. In his place, I want today to welcome a well-known figure in justice circles, Adv Fanie van der Merwe, who at the end of November 1981 after 32 years’ service—he still looks so young—in the department was promoted to the office of Director-General: Internal Affairs. I also had the privilege of experiencing two sessions of Parliament with him in his capacity as Director-General prior to his departure to the aforementioned department. During that period, he was truly a pillar of strength to me together with adv Coetzer. I am looking forward to his coming and will welcome him officially later. I can give hon members the assurance that what I have just drunk is absolutely clear and harmless soda water.

This brings me to adv Fölscher. Another colossus in the legal sphere who has decided to retire at the end of June of this year is adv Fölscher, the Chief State Law Adviser. He joined the Public Service on 16 March 1945 and the department on 1 July 1954. He became Chief State Law Adviser on 1 January 1981. As in the case of adv Coetzer, he also distinguished himself during his career not only as a hard-working, reliable and unassuming official but also as a brilliant lawyer with an extensive knowledge of State administration and an exceptionally sharp insight. His ability to be able to get to the crux of any problem always impressed his colleagues and all other persons with whom he came into contact in the broad sphere of his activities.

Notwithstanding the scope, involved nature and urgency of any task in which he was involved he always produced work of a high standard.

Although it is scarcely possible on an occasion such as this to give a review of all his achievements during his exceptional career, some sort of effort can be made in this regard by mentioning a few outstanding examples in respect of which his merit as State Law Adviser comes clearly to the fore. I want to do this comprehensively, Mr Chairman, because I personally believe that the work of the State Law Advisers more often than not takes place out of the public eye without much attention being given to it, but this does not mean that what is not seen is lacking in great quality, as in the case of Adv Fölscher’s work.

In the first place, there was the gigantic and monumental task that he fulfilled in connection with the drawing up of the Republic of South Africa Constitution Act in 1983. This Act which he had to have ready for introduction within a period of six weeks, is a living example of the high quality technical skill that was always so characteristic of Adv Fölscher’s work. In the second place, there was the period of three years during which he served in South West Africa as law adviser to the Administrator-General from 1 September 1977. This was a period during which by means of suitable legislation which he had practically alone and unaided to formulate and frame he enabled that territory to take over the administration of South West Africa, to establish the basis of a general election there and, more important still, to establish a basis on which from a State administration point of view the territory can very easily go over to independence at any time.

In the third place, there are various other important laws on the Statute Book in which Adv Fölscher had no mean share, such as legislation in regard to marketing, industrial diseases, mining, road transport and many, many others. And then we also cannot neglect to laud him as leader of the team of State Law Advisers.

It can be stated briefly without any fear of contradiction that what Adv Fölscher achieved during his career, has been achieved by few officials, and that it was done in a way and with an efficiency that very few lawyers could emulate. His retirement will undoubtedly leave a gap in a division in the Public Service in which work of an absolute necessary nature is done, and in regard to which particular care has to be taken at all costs for the sake of the specialized nature of the work.

He too was fortunate to choose as his wife Mrs Lettie Fölscher who adorned the Cape scene for many years, and not simply in the immediate official or political vicinity. On the contrary, her activities in the cultural and other spheres are well-known. We also thank her for her assistance to her husband.

I am pleased to announce that the Government has decided to appoint Adv R P Roussouw, better known on many select committees as Dolf Roussouw, one of the present Deputy Chief State Law Advisers, as Adv Fölscher’s successor. Adv Roussouw has been in the Public Service since 1955. That is the year in which he obtained his LL.B degree. On 1 March 1958 he was transferred to the State Law Adviser division where he has since left his mark in no uncertain manner. On 18 January 1973 he was appointed by the State President as Senior Consultus. We welcome him to this new post, and I am very pleased that he has in fact seen his way clear to accept this extremely important task.

It would also be fitting at this stage to pay lengthy tribute to a man who has made his presence felt within a short while in the sphere of the administration of the Prisons Service, but I believe that this was done quite fully on a previous occasion. For the sake of the record, however, I should like once again to record the Government’s appreciation to the late Gen Otto and his family for the extremely valuable contribution he rendered in leading the Prisons Service within a short period to become an institution that has increased in stature to a point which in the light of what had already been achieved, was not easy to do. Nevertheless, he succeeded in making a considerable number of new sounds heard and in coming to light with ideas, and for many years still we will be able to analyze and develop the philosophies that he established.

This is the first opportunity that I have had to welcome most warmly probably one of the youngest Commissioners that the Prisons Service has ever had in this post. He is Lt-Gen Willem Hendrik Willemse. He was born somewhere in Natal, but very clearly not in a city, and this is something which as far as I am concerned immediately places him head and shoulders above any other individual. He matriculated in 1956 at the Volkskool at Graaff-Reinet, and obtained a degree at the University of Pretoria. Before his appointment as Commissioner he was of course Chief Deputy Commissioner responsible for staff services. He has already shown within a short period that he has all the disciplines in the Prisons Service properly under control, and we extend to him a most hearty welcome.

While Gen Otto was abroad and Gen Willemse was Acting Commissioner, certain things happened at Barberton. It is already more than well-known that we subsequently appointed the Van Dam Committee, and I want to record the fact that the purpose of this step was to obtain all the relevant facts and that it is in line with the policy of the Government that the prisons system of the Republic of South Africa should function effectively and that civilized standards have at all times to be maintained in our prisons.

Regional court president Van Dam has submitted his report to me. The Commissioner has commented thereon and we have already released it. I should like to express my gratitude to regional court president Van Dam for the speedy manner in which he disposed of his task, for his well-considered report, and at the same time also express my appreciation to his fellow committee members, Prof Herman Venter and Brig Bertie Venter. You already know that I considered it to be in the public interest that this report be released.

I should also like it recorded that the occurrences on 29 December 1982 and what preceded them are totally unacceptable to the Government and are condemned most strongly. I am satisfied that the Commissioner of Prisons dealt with the matter most responsibly and openheartedly, and that the law took its full course. I have noted the finding that the Prisons Service’s legal and other prescriptions are comprehensive and adequate, and accordingly we do not envisage any steps in this connection. The Commissioner was in constant touch with me throughout the handling of this matter and in regard to preventive measures in connection with the work of the Prisons Service. This perspective comes very clearly to the fore in his comments and memorandum. I am satisfied that the SA Prisons Service is geared to prevent any repetition of what happened at Barberton or a similar incident at any other prison. On 20 and 30 September 1983 a mass escape was most meritoriously prevented by the staff of the SA Prisons Service, notwithstanding the fact that they put their lives in jeopardy, and further loss of life inside and outside the prison was accordingly prevented. The Government would like to express its appreciation to these staff members.

As the Commissioner has indicated, these were isolated incidents and, should they occur again, they will continue to be dealt with as an unacceptable and isolated situation. I should however like to make use of this opportunity to express my sincere appreciation for the efficient manner in which the thousands of staff members of the SA Prisons Service generally, often under difficult circumstances, render their protective service with great devotion. I thank them for it.

While I am dealing with the Prisons Service, I want to refer to a matter that may again be raised in the debate at a later stage. It is important for me to refer to the handling by the Press of matters affecting the Prisons Service. Prisons are a sensitive matter for any government and society. The service therefore needs constructive relationships with the Press which is responsible for the balanced and objective reporting of prison matters. Furthermore, we need good relationships to enable the Prisons Service to react timeously to matters that are given prominence by the Press. The standpoint of the Prisons Service, a standpoint which it has stated quite clearly, is that it has nothing to hide, and that all it asks is objective, true and balanced reporting. A high premium—and this is one of the reasons—is placed on the responsibility of the Prisons Service in respect of prisoners, the people who find themselves in prison, and their next of kin. They have at the same time to be protected against excessive exposure.

In the midst of the foregoing the Prisons Service has since 1975 built up a liaison service through the medium of which the media can obtain information in regard to allegations affecting prison matters on a 24 hour basis. This liaison service has endeavoured—and has succeeded in doing so—to satisfy all Press inquiries as swiftly and in as much detail as possible. I feel that they have also succeeded in not inhibiting newspaper reporting. Newspapers make ample use of this service. Our experience thus far has been 1 000 official inquiries per annum. Mutual relationships with many newspapers have largely been promoted by this means, so much so that an applicable formula has been worked out in practice in terms of which the publishing of the comment of the Prisons Service together with a report is regarded as an adequate degree of verification. A further step has been taken since 23 June 1982 when the Prisons Service began specifically to apply the unilateral policy of regarding certain steps as reasonable in terms of section 44(l)(f) of the Prisons Act in order to make sure the specific information was true. The first step is that in order to ensure in this process that information regarding the conduct or experience of a prisoner or ex-prisoner or regarding the management of a prison is true, use has to be made of the media liaison service in order to obtain comment in respect of allegations or information. As a second step the comment obtained from the liaison service in this way must be given equal prominence and must be published in as much detail as has been agreed upon, together with the allegations or information concerned.

†This informal application has been utilized by several members of the media. For the co-operation received from these newspapers and members of the media I wish to express my appreciation. In fact, it has been our experience that the coverage of the Barberton events have been mainly fair and factual and that the Prison Services’ comments had been obtained in advance where applicable. For this, once again, I wish to express my thanks.

A further case in point is a report in the Rand Daily Mail of 29 March 1984. That report dealt with allegations concerning Mr Herman Toivo ja Toivo’s experiences in prison. Several serious allegations were published, but the newspaper afforded the Commissioner the opportunity to reply to these allegations and published these comments in full on the same page and with the same prominence and completely unabridged. I sincerely appreciate this.

*Hon members can look at this report to see how it was handled. One full page has been devoted to this alone.

In the meantime the SA Media Council has laid down its own code of ethics which has been laid down together with the guidelines that I referred to previously as the policy of the Prisons Service in regard to the verification of reporting. By this means the possibility has been created of considering the application of section 44(l)(f) in order to ascertain whether an arrangement with the Press Union can be formalized. A start has already been made through the medium of discussions in this connection with the Press Union and the Conference of Newspaper Editors.

In the meantime I have bound the Prisons Service to a continuation of this positive cooperation on the basis that has already been established over the past years, and I am sure that the media will continue to contribute towards the building up of constructive relationships in our mutual interests.

The Hoexter report is also the order of the day. I have said on occasion that now that the fifth Hoexter report has been dealt with and we have started work on it, the question now arises: “What next?” After this there will be a vacuum because this report with its five components has kept the Department of Justice and the legal world very busy indeed and, here and there, in a state of some excitement.

There are a number of cases which I feel should be dealt with further during the course of the debate. For example, I replied partially to a question from the hon member for Sandton in regard to the legislation that is envisaged and the program in this connection when I sketched a proposed program for him and other hon members yesterday. I do not think that anybody will contradict me when I say that that program bears witness to an absolute and complete understanding of the findings and acceptance of most of the findings of major importance in the Hoexter report. I want to express my most sincere thanks to the officers who worked particularly hard in this regard in preparing the draft legislation which will soon be seeing the light of day. In the vanguard in this regard were the Deputy Director-General: Justice, Adv Van Niekerk, Mr Noeth, Director (Legislation) and chief researcher on the commission, and Mr Thinus Ferreira. I can also not neglect to say that we have with us today our two chief directors, Mr Marais and Mr Booysen, two officials who threw themselves fully into this work over a number of weekends as well of which I am aware. I thank them for this support.

For the sake of the flow of the debate, however, I think it is necessary for me to add certain remarks to what I have already stated in connection with the further report of the Hoexter Commission. The Cabinet has decided that the legal functions, the relevant legal provisions, the legal institutions and the staff involved falling at present under the control of the Department of Cooperation and Development should as soon as possible be placed under the control of the Minister of Justice.

†I shall give hon members a guess as to what the target date for this is.

Three months.

But now I am suspicious. Have you had inside information?

*The target date is more or less 1 September 1984. For this purpose we are deviating from the phased procedures as suggested by the Hoexter Commission in regard to divorce and appeal courts. Furthermore, in regard to commissioners’ courts, a distinction must be drawn between the legal functions and other functions which functionally belong elsewhere, a facet that is already being dealt with by the Commission for Administration. As far as practicable—according to the resolution—the separation of the legal functions from such other functions must take place before the target date. Otherwise this has to take place after incorporation under the jurisdiction of the Minister of Justice, in which case services may be rendered to the Department of Co-operation and Development on an agency basis. This resolution is being implemented in the closest cooperation with the Commission for Administration as well as the Department of Co-operation and Development. That is as far as I want to take this matter at this stage. I can see that the hon member for Sandton can hardly wait to congratulate me on this decision.

Mr Chairman, I ask for the privilege of the half-hour.

I should like to say to Adv Coetzer that I share the hon the Minister’s admiration for his work over the years and that I believe that his retirement is going to mean a great loss to the department and to the administration of justice in South Africa. I want to thank him for this valuable work over the years and for his co-operation with all members of Parliament, and I should like to wish him a long, happy and active retirement.

I should like to welcome Adv Van der Merwe to the Department of Justice. I know of his work and I am sure he will do very well. We in the Opposition will certainly offer to Adv Van der Merwe our co-operation wherever possible, and we hope he has a long association with this department.

As far as Adv Fölscher, who is now retiring, is concerned, I have learned in past years firsthand of the value of this gentleman. I have seen and experienced his great expertise and I want to say that we will miss him. We wish him a very happy retirement. To Adv Rossouw, who is going to follow Mr Fölscher, I wish to say that this task that he is taking on is an exacting one, particularly when he has to draft these peculiar laws demanded by this Government, but I believe that he will acquit himself well of the task and with distinction. I wish him well in his appointment.

At the very outset of this debate I think there are a few things that need saying. They are words of thanks. The first word of thanks arises out of what the hon the Minister has just said. I want to welcome and thank him for his fresh approach to the media. Often Government has had a very strange relationship with the media. I believe that as the hon the Minister has spoken this morning he has evidenced a fresh approach towards administration, particularly within the prisons. Open government and better relationships with the Press mean better reporting, a more informed public and the end-result is better government.

Firstly I should like to say—the hon the Minister will be a bit surprised here—thank you to the hon the Minister. While we may differ politically, even in our style of politics, for we serve different constituencies, and while I may and will yet again criticize the hon the Minister sharply from time to time, sometimes even in strong language, I retain a professional respect for the efforts this hon Minister has made on behalf of the legal fraternity and on behalf of the public. I am neither afraid nor ashamed to say thank you for that.

Secondly I should like to extend my thanks to the Director-General, whom I have mentioned already in a more formal sense, and his staff and also to all the judicial officers spread wide around our country in our villages and in our cities. Despite personnel shortages, despite the lack of money available for expansion, despite unfavourable working conditions in many places, despite often unbearable workloads, the Department continues to provide services which are essential if civilized standards are to be maintained in the Republic. The PFP in Parliament is also grateful to the unfailing courtesy which is afforded to us as also for the assistance and advice made available, whenever it is needed.

Thirdly, a well deserved word of thanks is properly directed to the South African Law Commission. I have read their latest and fullest ever annual report with great interest. It evidences much fruitful activity. Allow me to bear witness to the very real contribution that the Law Commission is making to law reform in South Africa at the present time. Whether we discuss such diverse subjects as the Admiralty law or the matrimonial property law, or many other facets of our legal code, in a short ten years this Commission has made its mark on our legal system—and I believe for the good.

Before I move off the subject of the Law Commission I would like to ask the hon the Minister a few pertinent questions. What is he doing about the Commission’s problems and frustrations so graphically adumbrated in its report? For instance, the inadequate back-up facilities which they experience and which are available to the commission. The shortcomings in the library services; the problems of outdated equipment; the delays in the publication of professional studies; the crying need for an expanded research staff; the bureaucratic necessity, for instance, of having a proper financial controller and, finally, the concept, as mentioned in the report, that an important and permanent commission of this nature should incorporate elements, including the chairman, who are not part-timers and who are not beset by other onerous duties. All of which serious matters require responses from the hon the Minister and executive action.

In particular, the hon the Minister owes us an answer as to what he proposes doing to rectify the shortcomings so relevantly pointed out.

Mr Chairman, I would now like to move to aspects relating to the judiciary. Most of these arise out of the fifth and final report of the Hoexter Commission. To start with I quote selectively from pages 63 and 64 of Part A of that report. For example, it was alleged—and I quote—that:

On page 64 is stated:

The commission makes no finding on this contention and based on the skimpy evidence before it, it believed that no improper discretion had been exercised. I quote however from page 65 as follows:

I have no hard facts on this issue, but it is a sufficiently important matter to command the earnest attention of the hon the Minister. Certainly several judges have over the past years presided over more than one political trial. And certainly there are several judges of long standing who have never ever presided over trials of this nature. I ask: Is this coincidence? What I would like to know is this: Has the hon the Minister investigated this aspect? Has the hon the Minister discussed it with the Judge President concerned? Is he in the position to give an assurance to this Committee that that contention is devoid of truth; and further, that trials of a political nature will not be heard only by selected judges?

Mr Chairman, I turn to another aspect and in doing so I quote paragraph 1.3.2 of the same report:

Now, it cannot be argued that political appointments to the Bench have not occurred from time to time. The commission, in fact, confirms that fact. An easy historical example is to be found in the appointments to an expanded Appellate Division during the constitutional crisis of the 1950s. More recently, certain individual appointments and promotions and glaring omissions from promotions, have given rise to serious criticism, as has the appointment of certain delimitation commissions, for instance.

I am not accusing the hon the Minister, this hon gentleman who is now the Minister, of making political appointments. I am not accusing him of that, but I do believe that his response to date to this aspect of the report has not been anywhere near full enough. I ask him this: Will the hon the Minister give his assurance that this Government has turned its back on appointments to the Bench other than on the sole basis of merit? Not language—merit; not past affiliation—merit. Secondly, will he respond more fully to the suggestions contained in the report in regard to changing completely the system of appointments and in regard to the recommendation that the Bench, the legal profession, the Department and also the Minister, should all be involved prior to appointments being finalized? I would ask the hon the Minister to respond to that aspect of the recommendations. Finally, in regard to the judiciary, I refer the hon the Minister to paragraph 3.3.3.4 on page 20.

Do you say that the commission specifically recommended that all these appointments...

No, I am talking about the commission’s recommendations A, B and C in that section of the report where it says that it seems that the options B and C would be the best. I am referring to that aspect.

Now, Sir, I quote:

These comments are validly borne out by the information contained in pages 89 and 90 of the annual report of the Department. Analysing statistically the workload of the various Benches, some interesting figures emerge. For instance, the judicial workload of the Natal Bench amounts to some 5% of the judicial workload country-wide. Yet Natal has a Bench accounting for 15% of all the judges of South Africa. The CPD handles 14% of the judicial workload, yet it has 19% of the judges; the Transvaal Provincial Division gets through 55% of all the judicial work in the Republic, but it has only 40% of the judges. Now, there is something wrong somewhere. I am not pleading for a reduction in any Bench, but what I do say, is that the Transvaal appointments have not remotely kept up with the growing volume of work in that province and I call for this to be rectified. I trust that the hon the Minister will today tell the Committee what his intentions are in regard to that aspect.

Several suggestions, which I have not the time to mention now, are made by the commission to ease the workload—sometimes unbearable on judges, and I would like to know what the hon the Minister is going to do about these particular recommendations.

I would now like to turn to a completely different matter. In 1978 the South African Defence Force raided deep into Angola and captured a group of people—some Swapo terrorists, some Angola citizens, some women, some children and hangers-on. These people were brought back to South West Africa and interned, without publicity, in Mariental. Six years later many of these people are still being held. I can understand that in our current situation captives of this type could be used as a bargaining power in regard to prisoner swops or other diplomatic initiatives. But, I ask: After six years, is this reasonable? The very lives of human beings are involved. Now, if these people are innocent of any crime they are surely entitled to petition the courts for their freedom. After all, South Africa is not legally at war with Angola and that being the case, this was an instance of abduction. Abduction, under combat conditions yes, but abduction nonetheless. Abduction is an act which we in South Africa have publicly deplored in international forums. So, after all this time, these internees who have not been charged with any offence, have sought legal relief and have placed themselves at the mercy of the South African Courts in terms of the ordinary law. What is the result? The hon the Minister, duly authorized by the State President, and no doubt advised by the hon the Minister of Defence, has issued a certificate...

I am not sure whether this matter is not perhaps a security one.

No, I do not believe it is.

I am just mentioning it. I have received notice of application, and it will take some time, perhaps towards the end of the month.

Well, I have nearly completed what I wanted to say.

Perhaps you should leave it over. We have got plenty of time. Let us get assurance on this topic. Would you mind? Please!

I shall accede to the hon the Minister’s request and I shall not take what I have to say on this particular aspect any further. But may we come back to it during this Vote?

Yes.

All right.

I would now like to turn to the final Hoexter report and to its recommendations. I refer to that section dealing with the commissioners’ courts. The hon the Minister has made an announcement here this morning saying that within three to four months these courts will be transferred to the jurisdiction of his department. I will refer to that announcement in a few moments. It is not my intention to discuss today the level of injustice meted out in these courts to the thousands of people who stream to the cities to escape starvation and to seek work. That is not the fault nor is it the specific responsibility of the hon the Minister of the Department of Justice. It would form the subject matter of debate under Co-operation and Development and of course under the general debates of this House. I refer rather to the hon the Minister’s response to this finding. Firstly, his initial response, and also his response today, namely that the Government accepts in principle the recommendation that there should be a single hierarchy of courts and that these courts will in due course be abolished in the form that they are known today and will be incorporated in the normal court structure. I think the hon the Minister owes us a little bit more detail than he gave us this morning. I think we need to know what is going to happen to the staff in the present courts. Are they going to be transferred and perform the same functions? Will there be new procedures adopted? Or if the same staff come over, will they be re-educated in advanced law? Will the standards of prosecution, for instance, that are required for prosecutors, be upgraded? Will the courts remain sitting in the same buildings as they presently are? Will they be separate Black courts merely under the Department of Justice? Or will the courts themselves be moved into the Department of Justice buildings and away from Co-operation and Development buildings? If they move into buildings under the administration of the Department of Justice, will they still be separate courts administering a separate form of justice? All these sort of questions require answers. I want to say to the hon the Minister that I welcome his good intentions, but I want to ask him—I do not want to throw cold water on his good intentions—whether he has considered the consequences of this Cabinet decision. Certainly by bringing the courts under the discipline of the Department of Justice, perhaps even the same buildings and environs, the quality of procedure and adjudication may improve. Will that solve anything? If the same offices are merely transferred to a new department and continue to exercise their functionary duties, what will be new? There is an overriding fact to consider. That is that the pass laws which are applicable only to Blacks, result in over 200 000 arrests per year. All these people have to be processed through the courts. The Hoexter recommendation and the decision of the Government is not going to change that particular fact. Nor will it change the fact that there will then exist under the jurisdiction of the department courts that adjudicate on laws which apply only to Blacks. The racial connotation of separate justice for separate groups will merely be transferred from one department to another. One of two things is going to happen. I think we should recognize this fact. Either, because of the more demanding and the fairer procedures which will be adopted, the whole works will be gummed up, resulting in the doubling up of awaiting trial prisoners in jail—and this is a problem which already faces South Africa—or, if that does not happen, and the second possibility is more likely, these particular courts will very soon adopt the same conveyor belt style of justice which Mr Justice Hoexter condemns. In the end result, injustice cannot be administered justly. I now want to make my final point: In truth the fault lies not in the courts, but the fault lies in the laws themselves. It is in that direction which I ask the hon the Minister to exercise his influence. Ultimately I would like to ask the hon the Minister a direct question requiring an honest response. I await his answer in this debate with interest. What positive difference does the hon the Minister envisage will develop once this transfer is effected? Where and how will the benefits be seen? That is the question that I think requires an answer. There are many other matters which I omitted to deal with, as also aspects of the hon the Minister’s introduction to which I have not as yet responded. My time, however, is regrettably up. Hopefully my colleagues—in fact I know they will—will deal with some of these points. I shall speak again in this debate and shall try to cover at least some of the facets which need debating. In the meantime, I await the Government’s response to what has been said so far.

Mr Chairman, I have great pleasure in adding to the words of praise, thanks and appreciation which have already been directed towards Adv J P Coetzer, my thanks and appreciation and that of the members of the Justice study group on this side of the House, thanks and appreciation for 41 years’ good and loyal service to the department, but in particular for the past four years during which Adv Coetzer has been the head of this department. I wish him and Mrs Coetzer a pleasant retirement in the knowledge that it will be a well earned rest. At the same time I welcome Adv Coetzer’s successor in advance namely Adv S S van der Merwe, on behalf of this side of the House and the members of the Justice study group, and assure him of our sincere co-operation.

I want to congratulate the department on an annual report which speaks of an ongoing striving for greater efficiency by, inter alia, the identification of deficiencies and shortcomings and the search for and implementation of measures to eliminate those deficiencies and shortcomings. However, this annual report also testifies to an ever-increasing workload. From the paragraphs dealing with magistrates’ courts the following, among other things, becomes evident:

And further:

What follows then is important:

In this regard I should like to express my thanks and appreciation to the court officials who, in spite of the amount of pressure to which they were subjected, nevertheless did work of a very high standard. They succeeded in providing an administration of justice which compares favourably with the best anywhere in the world. In these circumstances I cannot help but advocate this and, when I make this plea, I do not direct it so much at the hon the Minister of Justice, but at the Treasury—for more money to be voted for Justice so that a better dispensation can be brought about with regard to the provision of staff. In the light of the attitude revealed in the annual report of the department I do not have any doubt that if the department is voted the necessary money, steps will be taken to eliminate the reasons for the criticism which may be levelled at the moment as a result of the under-utilization of posts.

Then there is also a continuing staff loss, in particular as far as professional staff is concerned. The annual report states that provision for 1 844 professional posts is made in the department. Of those only 1 704 were suitably filled. A total of 87 were not suitably filled and 53 were vacant. This means that 8% of the total number of posts were not suitably filled. As far as administrative posts are concerned, only 432 posts out of a total number of 565 were suitably filled. As many as 25% were therefore not suitably filled. The report states further that there was an increase in the number of resignations in the professional and administrative divisions. I quote further from the report, as follows:

The backlog in regard to the filling of these posts places a heavy burden on judicial officers. The fact that they nevertheless succeed in maintaining such a high standard in the administration of justice in spite of this fact, not only testifies to exceptional dedication but also does our judicial officers great credit. However, this state of affairs cannot be in the interests of the administration of justice. It is also not fair to judicial officers who do work of a high standard. I want therefore to call again for a larger amount to be voted so that an adequate extension of the establishment can be brought about.

The Hoexter report was debated in the House on 12 April this year. In my speech at that time I pointed out that the Hoexter Commission was appointed by the Government on its own initiative. The Hoexter Commission was not appointed on the initiative of hon members of the official Opposition or of any other body. It was appointed on the initiative of the Government. Hon members of the official Opposition and the hon member for Sandton in particular should therefore not now try to make out that this side of the House is disinterested in the Hoexter Commission and its report.

Those are old stories. This is a new debate.

These are not old stories. I am just stressing the facts. Not only was the Hoexter Commission appointed by the Government but the Government also formulated the terms of reference of the commission. By doing so the Government had already identified the shortcomings and the unacceptable conditions. [Time expired.]

Mr Chairman, I rise simply to give the hon member the opportunity to complete his speech.

Mr Chairman, I thank the hon Whip of the Official Opposition. In that speech I also pointed out that many of the recommendations of the Hoexter Commission that had been brought forward in previous reports had already been implemented. The hon the Minister also indicated that various other legislative measures were already being prepared. These measures are to give effect to further recommendations of the Hoexter Commission.

There is no indication of the details of the recommendations.

The hon member for Sandton says that there is no indication of the details of the recommendations. From the nature of things, that is so. Indeed, the hon the Minister has made it clear that this legislation is still in the process of being prepared. It is therefore silly to say that the hon member does not have the details yet. This legislation also affects other bodies and departments. For the record I want to mention the relevant measures: There is the Family Courts Bill; the Divorce Amendment Bill, the Courts Council Bill, the Civil Procedure and Evidence Bill and the Supreme Court Bill. All these Bills involve other Government departments, bodies and persons, and it is therefore obvious that this legislation cannot be implemented until there has been the closest liaison with these other departments, bodies and persons. The fact is that the House will in due course, when this legislation is introduced, be fully acquainted with what is envisaged by this legislation, and that then will be the appropriate time, if the hon member for Sandton thinks that there are shortcomings in the legislation, to debate them. Surely we cannot put the cart before the horse and appoint the hon member for Sandton as arbitrator over legislation to be introduced into the House. It is envisaged that all five of these measures will be published for comment before the end of the year and that the comments on them will be processed before the end of the year. The hon member will simply have to wait until the next session of Parliament when he will have all this legislation before him and when we can debate it. However, the hon member now wants to put the cart before the horse.

The Government has proved unequivocally that it does not stand aloof from the short-comings and the problem situations identified by the Hoexter Commission. The Government has also proved its bona fides by considering the recommendations of the Hoexter Commission on merit and eliminating the shortcomings as far as possible by the implementation of the recommendations of the Hoexter Commission. However, this does not mean that the report of the Hoexter Commission should be accepted uncritically and without further ado. The Hoexter Commission makes certain findings which cannot simply be accepted without comment. For example, we read the following in paragraph 3.4.1 on page 24:

What is the position now? The separation of the executive, the judiciary and the legislature is of course a political ideal. The judiciary does not, however, function in a vacuum. The judiciary too is but a part of the governmental structure of a specific state. As such it is closely linked with the two other spheres of authority and it is therefore unrealistic to expect that there should be absolute separation. When one considers the Hoexter commission’s reasons for its doubts in this regard, it appears that mention is made, among other things, of the question of remuneration. The Executive Government pays the magistrates, but who pays the judges? Surely it is the same executive authority that pays them. Who appoints them? They are appointed by the same executive authority.

That is a weak argument.

No, it is not a weak argument, and I am just trying to show that no absolute separation exists and that the judiciary does not function in a vacuum. The Hoexter Commission says that magistrates are subject to transfer, but then the commission recommends a commission to deal with transfers. It says that because of merit assessments the possibility of favour-seeking now exists. There will, however, always have to be a body which will do the merit assessments and surely the possibility of favour-seeking will then also exist. It is a wonderful ideal, but I believe that the Hoexter Commission goes too far in anticipating that the ideal of absolute separation should be adhered to. It is just not practically feasible.

There are also other aspects of the report and recommendations of the Hoexter Commission which cannot simply be accepted without further ado, for example, the separation of the judicial and administrative duties of magistrates. I concede that in certain cases this has great merit, especially in the rural areas where there may be a magistrate who is a good official but who does not have the necessary legal qualifications. But absolute separation can also result in the magistrate administering justice becoming so removed from the realities of the community in which he stands that this fact has a negative effect on the administration of justice. I say it is debatable and not something which can be accepted without question. I believe that other members on this side of the Committee will comment further on this matter and on the recommendation in respect of commissioners’ courts. In fact, the hon the Minister has already reacted to it, and I believe that other hon members will react further to it.

I believe that the report of the Hoexter Commission, in spite of all its undoubted merits, should not of necessity be accepted in every respect without further ado. [Time expired.]

Mr Chairman, it is very clear that the hon member for Sandton was trying to annoy the hon member for Mossel Bay with all his interjections, and I know that when that happens the hon member for Mossel Bay makes his best speeches. I also want to say that by the time the hon member for Houghton has made her contribution this Committee should be red hot.

I will come back to the retiring Director-General and the new Director as well as the new Commissioner of Prisons at a later stage. I should like then to say more about those gentlemen. I also want to say that one of my colleagues will deal in his speech with the Van Dam report in regard to events at the Barberton Prison.

As far as the Hoexter report is concerned, I think—when I look at the program presented to us by the hon the Minister in respect of legislation emanating from the Hoexter report—that we will be given many opportunities to discuss the Hoexter report very thoroughly.

In this speech I want to devote my attention to a subject which was also mentioned in the annual report under the heading “Crime Research”. I want to confine myself specifically to the subject of the meting out of punishment or the passing of sentences. I am doing so because considerable attention has been given to this subject recently in newspapers and other publications. I have quite a number of cuttings in my possession with headings which refer to the meting out of punishment, headings such as “Suid-Afrika is ver agter met die toemeet van straf”, “Strawwe skep soms verwarring”, “Straf-toemeters moet ook leer” en “Boetes moet billik wees”. This type of caption of course evokes all sorts of further comment. It is said in the newspapers that South Africa’s penal system, in particular in its magistrates’ courts, lags far behind that of the Europe and America. It is further alleged that the public in South Africa is losing confidence in the country’s penal system and is threatening to take the law into its own hands. In support of these articles and standpoints, reference is made in the Press to a few sentences which have been imposed by our courts recently. I do not want to mention all of them. I just want to refer to a few. Among other things details of a sentence are given in the case of a Pretoria teacher who was found guilty of culpable homicide after having shot a boy playing tick-tock. His sentence was imprisonment for one year or a fine of R1 000, and a further year’s imprisonment was suspended for a year. Another article tells about a man who bought groceries for R115, but who did not pay for a pen worth 19 cents and who was then fined R100. A further article reads as follows:

Another article reads as follows:

This type of reporting compels one to apply oneself to the subject so that it can be put into perspective. For the sake of a full perspective with regard to the whole question of the meting out of punishment, I should like to bring the following to the attention of the Committee.

In South Africa sentencing is carried out by 112 judges, sometimes assisted as in the past financial year by about 47 senior advocates or retired judges. The meting out of punishment is done by 751 magistrates. During the past financial year 2 251 criminal cases were recorded in the divisions of the Supreme Court. During the same period, 1 600 000 criminal cases were recorded in magistrates’ courts. When this very important matter, namely the meting out of punishment, is talked about, written about and commented on, and particularly when the spotlight is placed on our magistrates’ courts and when we are told how far behind our magistrates’ courts are in comparison with those in America and Europe, we should take care not to belittle or to misrepresent the very good work done by our magistrates, and also as far as the meting out of punishment is concerned. Very often a magistrate has to deal with the facts and struggle with the legal problems without the assistance of legal practitioners such as advocates or attorneys. When we consider the tremendous amount of everyday administrative red tape and routine work which rests on the shoulders of our magistrates, we should ensure most circumspectly and carefully that the whole question of the meting out of punishment by our magistrates is placed in the right perspective. I believe that no one should doubt that the Department of Justice is aware of the bottlenecks in respect of the system of meting out punishment, is aware of the shortcomings and the necessity of striving for a uniform system of sentencing, and is aware that the meting out of punishment is developing into a refined science today. In making these remarks, I want to refer the Committee to the statement we find in the annual report on pages 61 and 62. It reads as follows:

The contribution of the Press in focusing attention on this thorny matter must certainly be appreciated. Particularly in the light of the positive contribution which Mariëtte Crafford has made recently in Rapport, I want to say that one has to take note of the contribution made by the Press. According to her, she has, after consultation with the foremost lawyers and academics, drawn up a ten-point plan in respect of this penal system. I do not want to repeat each of the points mentioned by her, but merely want to point out that, inter alia, she made the following remark:

As the point has been made that the media has an important role to play in the new awareness of penalization, I should like to make the following remarks. Criminals and the sentences meted out to them are constantly in the limelight. Certain types of crimes in particular feature regularly on the front pages of our newspapers, namely crimes of violence such as murder, culpable homicide and rape, drug peddling, drunken driving etc. The media have an increasing tendency to make heroes and martyrs of criminals, especially in sensational murder trials. We also find that the themes of television programmes are often of such a nature as to evoke admiration for the criminal and his ingenious planning instead of revulsion. This sympathetic image of the criminal has an unhealthy influence on people’s judgment of what is good and what is bad. I believe there is an increasing feeling among responsible people in particular among parents with young children, that the media must reconsider their role in this regard. The sympathetic image of a criminal results in the criticism against the imposition of sentences becoming more outspoken and severe. The media should guard against magistrates and even judges being placed in the dock because of this. However, we must also concede that the media do have a role, for example, to make known the feelings and the influence of the community as opinion formers in respect of penalization. In this way the media can, for example, help to bring the community’s growing feeling...

Order! I am sorry, but the hon member’s time has expired.

Mr Chairman, I rise merely to give the hon member an opportunity to complete his speech.

Mr Chairman, I thank the hon member for Mossel Bay.

In this way the media can, for example, help to bring to the attention of the authorities the community’s growing feeling that drunken drivers and drug pedlars should be more severely punished, that the reign of terror of rapists should be terminated mercilessly and that muggers should be punished more severely. The media therefore have the role of bringing the feeling of the community on these matters to the fore. The community can make a contribution in this regard, and that is why we welcome the role of the media in conveying this feeling of society.

The time has come for the media, the newspapers, the magazines, radio and television to reflect very seriously on the sensational manner in which they report on these sentences. It happens far too often that when criticism is levelled at penalization, the critics are not in possession of the relevant facts, facts which are at the disposal of the presiding officer and which he can evaluate better than the reporter. The critics also do not have the practical experience and knowledge of the considerations taken into account when sentences are imposed. Therefore I believe that the media should see to it in the interests of the administration of justice in our country that sentences are not indiscriminately misrepresented and compared injudiciously with one another. In addition, there should also be much more appreciation for and credit given to the outstanding work done by our judges, and in particular by our magistrates, in the very important task they have of imposing just penalties, having regard to the guidelines which have been established in this regard by our courts and jurists over many years. We do realize that sometimes the layman cannot understand sentences which have been imposed. We as lawyers must also admit that it is sometimes necessary for us to say: “The law is an ass”. If this is so, one can understand that the ordinary man will also often say: “Well and truly, the law is an ass”. I should like to repeat what Mr Justice Corbett said in connection with penalization. He said:

I think that Mr Justice Corbett has aptly described the whole question of penalization in this approach.

I want to conclude by saying that it is necessary for serious attention to be given to the practical implementation of the ten-point plan which has been mentioned in the Press. While I have criticized the role of the media when it comes to the handling of a sensitive subject such as penalization, I should nevertheless also like to emphasize very strongly the very positive contributions made by the Press.

Mr Chairman, the hon member Mr Theunissen has delivered a very interesting and informative speech. I think we on this side of the House will be the first to agree with him that the imposition of punishment is a very difficult matter because it depends essentially upon the discretion of the presiding judicial officer.

I remember that many years ago I acted as pro Deo counsel in a murder trial.

Did you win your case?

The hon member should just exercise a little patience. My client was convicted of murder. He was sentenced to be detained “until the rising of the court”. He was never sent to prison but had to wait some three to five minutes until the court adjourned. It was a very just sentence. On the Bench was a very senior judge who, in my respectful and modest opinion, treated this Black accused quite fairly in the circumstances.

What I really want to say therefore is that discretion is the whole basis of the imposition of punishment because there are certain factors which have to be taken into account. We must realize, however, that one can very easily go beyond the limit of discretion. Nevertheless, one ought not to frustrate the exercise of discretion, for that would lead to complete uncertainty and also unfairness. For that reason the following tests are being applied in the Supreme Court. When one appeals against a sentence the test which applies in the first instance is the question of whether the presiding judicial officer has erred by reason of misinformation. The second basis on which one can appeal is that the sentence in question is outrageous because no other reasonable court of law would have imposed a similar sentence. We must always bear in mind that the imposition of punishment is a personal problem even for the presiding officer. It creates a difficult situation for him. Nobody is keen to send other people to prison. It is not at all pleasant. It is a duty though. Therefore we must also have sympathy with the presiding officers who have to perform this duty.

In the main therefore I wish to say that I appreciate the contribution by the hon member Mr Theunissen.

I want to come back to the Hoexter report by way of a few brief references.

†The hon member for Sandton started off extremely well and I was most gratified by his attitude. But then, of course, at times he went off at a tangent and went completely slightly off the rails. That is unfortunate.

How can you be both completely and slightly off the rails.

I am trying to be reasonable towards the hon member.

It must be either completely or slightly.

Well, if it will satisfy the hon member, he went completely off the rails.

I just want clarity.

The hon member also mentioned Black common law as a separate form of justice.

No, I was talking about statutory law.

I beg your pardon. In that case I will not pursue that point.

The hon member also referred to a “level of injustice”. That is really the whole argument for branding certain laws as unjust laws. I do not want to be drawn into that argument because it is not the function of the Department of Justice to pass Acts. Acts are passed by Parliament. I think that argument should be raised when a particular Act is passed in Parliament. Of course, this statement is just a platitude, a broad statement without going to the crux of the matter. I can say in jurisprudence it has often been stated—I think it is also good law—that law is the command of the sovereign. When one comes to jurisprudence and arguments in that regard one finds that it is a very interesting and complex argument. It is not simplistic at all. One cannot just state that laws are unjust or that natural justice should apply. These matters are extremely complex and I do not think the hon member’s arguments did any justice to this particular concept at all.

I should now like to turn to certain specific aspects of the Hoexter report.

*The situation is that in terms of the philosophy of jurisprudence my argument is 100% valid, and if the hon member disagrees with me in this regard he does not understand the philosophy of jurisprudence.

I want to put it to the hon the Minister that he is a man who brings about reform fearlessly where necessary. I think the reform which the hon the Minister has already brought about and with which he is still occupying himself should actually serve as a monument to him because it demands courage and hard work. We express our gratitude to him because he is not afraid and does not hesitate to carry through this reform in the interests of South Africa.

When we talk about the Black courts of law which, as has already been explained, will now fall under the jurisdiction of the hon the Minister of Justice, it is necessary for us at this stage to be quite honest and to take a very meticulous look at this whole matter, also realizing that we are greatly indebted to the commissioners for what the commissioners’ courts have done so far. The fact of the matter is that the commissioners have to apply certain legal provisions and that they also have to make decisions speedily. That is stated very clearly on page 14 of the Hoexter report, as follows:

I agree with this. The commissioners’ courts play a particularly important role in this regard. Consequently I should like to refer briefly to criminal and civil trials. As far as criminal trials are concerned, I want to point out that a considerable commotion was apparently caused among some politicians in regard to the application of criminal law in the commissioners’ courts. I cannot understand that. The law is there and it has to be applied, and the commissioners’ courts have never been charged with failing to enforce the law. If the laws are not good enough then it is an incompetent opposition that should be charged with...

The reasons are given in the Hoexter report.

No, wait a moment. If people complain because the laws are not changed it is an incompetent opposition that should be charged with failing to cause those laws to be changed.

On page 29 of the Hoexter report it is stated:

Here Hoexter comes very close to the crux of the matter. The mere fact that the onus of proof is being reversed is, in my opinion, per se not aggravating at all. As a matter of fact, where the person in question is particularly knowledgeable about a certain matter it would perhaps be wrong not to reverse the onus of proof for we want justice to be done and we do not want to frustrate the course of justice by means of clever argumentation of matters relating to legal proceedings and to the law of evidence. Furthermore, we should bear in mind that magistrates are also commissioners. We often say that commissioners’ courts are bad courts but we tend to forget that in rural areas virtually every magistrate is also a commissioner. I have never heard magistrates’ courts being criticized in this regard. People should think a little before they talk about commissioners’ courts. Therefore we want to express our gratitude to the commissioners, including those magistrates who act as commissioners, for the 10% of criminal trials they handle. We appreciate that for they have done a tremendous job under difficult circumstances. There is hardly any appeal against the findings of commissioners, not because there are certain presumptions... [Time expired.]

Mr Chairman, I would just like to say to the hon member for Pretoria West that I find his argument about the magistrates being commissioners a rather hollow one, because in effect the rub-off in that situation is that because they are doing that sort of work they will get lumped with commissioners’ courts in the negative sense. I think that was hair-splitting, because the report refers to those areas where commissioners’ courts do not function adequately. There can be a spin-off in that respect. The other statement made by the Hoexter Commission indicates that the magistrates’ appointments and the functioning of those courts are so closely allied to the public service, and therefore the Government gets the whole thing tangled up. I think the splitting of hairs in that regard does not reflect the intention of the Hoexter Commission’s report as far as commissioners’ courts are concerned, namely to try to clear justice as such of any hint of involvement in political ideology as opposed to the simple exercising of justice in the best possible manner. I find that hon member’s argument a little farfetched.

Mr Chairman, I wish to associate us on these benches with the remarks made by other hon members about the retiring Director-General, Adv Coetzer. I have not had the pleasure of having a great deal to do with him over the short time that I have been here, but I hear excellent reports. Apart from all the kind words that have been stated one sees a wonderful clarity in the use of words in the report, which makes it such a readable report. I am sure it flows from somebody who has a very great feeling for justice. We say the very best of luck to the other members of the staff who are being promoted. They are entering an era which is going to be full of challenges for the department and which will put a great strain on their resources; on their human resources as well as on the financial resources of the Minister of Finance, in order to bring about an improved situation. We wish the Director-General a happy retirement—I am sure that he will watch the progress of the department, having been involved in the initiation of a new phase in the department. He will watch it with interest and will perhaps throw in a word of advice here and there, now and again from the side line.

I think it is the right time for me to welcome the Commissioner of Prisons. I note with interest that he comes from a cultured, traditionally stable and not terribly over-politicized part of the world; from a part of the Karoo which produces fine people, fine wool and fine ideas. I am sure that that injection into the department is going to be...

All the crooks in the Karoo come from Graaff-Reinet.

No, all the crooks have moved to the North. There are no more crooks in Graaff-Reinet.

†I would just like to comment—just in case I forget it, which so often happens to me when making a speech; and I do not seem to be getting into great gear today—on a remark made by the hon member for Santon in respect of the hon the Minister’s fresh approach to the Press. It has given him access to an arm which can better explain or put forward the department’s point of view. Perhaps, in making the point, I should just warn the hon the Minister that he is moving into a very dangerous field and that there is a real question-mark about the veracity of some of the statements coming from those gentlemen. They are a very powerful group and the hon the Minister can get himself involved in a very difficult situation. However, I would ask him to use that new-found arm and ability to rectify one thing that worries people. One again and again comes up against constituents who are often terribly troubled and concerned about the apparently low fines or sentences or sympathetic judgments in respect of what appear to be very serious crimes. Statements appear in the papers without any reasons being given for a sentence and the person reading it forms and opinion without any insight into the facts of the case and the reasons for that judgment. I would say that these reports should always contain reasons which would give a better impression of these matters. That would be a very worthwhile service, in the interests of justice, indeed. I have had countless queries about that sort of thing. Well, perhaps not quite countless. That is a word that is something like the word used in the oil scandal, namely anonymous, but it is useful.

I have already mentioned that we have found the report readable, well-phrased, and in meaningful language and also very honest in its identification of problems and shortcomings in the department. I think it is true to say that the phase which the country is moving into and reform in general is going to tax the hon the Minister and his department tremendously. The report really sets a train of thought in motion in one’s mind which leaves one with the overriding concern that the Department of Justice is facing a colossal task in making up a backlog of almost every description, whilst at the same time, having to bring about a programme of law reform, which is occasioned not only by changes in our society, but also as a result of the consitutional reform. One asks oneself just exactly what the capacity and the ability of the department is to cope with the situation. I would be very much obliged if the hon the Minister would—perhaps it is a little bit early—forecast the sort of programme that they are looking at in order to cope with this. There is the added burden of the commissioners’ courts, the backlog in respect of so many aspects and the tremendous workload that is already placed on all the courts, from the top to the bottom—magistrates’ courts, regional courts and supreme courts. They all have this intense workload. If one goes across to the law advisers’ department one sees that they have an incredibly overtaxed situation, which is not going to get any better when it comes to the constitutional reform and the new parliamentary set-up. Even the very fount of law reform, the Law Commission, finds itself in a position where it needs reform within its own structure to be able to cope with its task.

I would like to express my appreciation and congratulation for a very fine report from the Law Commission. It becomes very apparent that the manner in which they have operated until now has put a great deal of strain on members, who are only appointed on a part-time basis and have produced very fine work. The paragraph dealing with the question of law reform is one which has some very noteworthy points. However, I think the most important statement is that law reform cannot be done on an ad hoc basis if you relate it to the situation in this country. The question of exactly why little or no attention has to date been given to the formulation and development of a philosophy of law reform is explained. It further explains what the commission would like to achieve. We would like to support those recommendations. We feel that this is such a vital body in the phase which the country is going into. The commission has already done such tremendous work under difficult circumstances that it is critical that they operate in the sort of organization they require in order to cope with their very vital task. [Time expired.]

Mr Chairman, in the last minute or two I want to deal with a few points raised initially by the hon member for Sandton. I hope to reply more fully in this regard after lunch. I think that the tribute he paid to the South African Law Commission is very fitting. I think the South African Law Commission has grown in stature over the past few years. There is not simply frustration; in fact, it is their vitality, vision, determination and, above all, enthusiasm to implement their statutory task that have led to the fact that certain needs are now coming to the fore. There is a need for more research staff, better equipment and access to resources. In this regard we have been placed on an exciting path. I foresee that in the light of our capital requirements it is going to be very difficult for us to meet the needs that are also developing in this sphere. However, one thing is certain: The commission has my and the directorate’s support in giving them as much help as we can to enable them to fulfil their task. That assistance has been given to them to date otherwise hon members would not have received these reports from time to time. I do not know whether other hon members are going to refer to the reports but they have already been referred to. Simply taking note of the impressive number of projects upon which they are presently embarked bears witness to the fact that this is a well-equipped commission indeed as it exists at the moment, and this is a commission that has only been in existence for a few years. Therefore, I can assure the hon member that their infrastructure and their basic requirements in relation to equipment and financing are being studied in depth.

In reply to the question whether they are going to be given greater permanence, I can say that, as the position is now, the State President can appoint any number of permanent members. I hope still to introduce legislation during this session to amend the legislation relating to the Law Commission to make it possible for two things to happen: Firstly, that a number of permanent members be appointed who will be able to function as a commission on their own and who will be able to carry out certain specific tasks on the authority of the main commission. This will lead to matters being able to be dealt with more expeditiously.

Business suspended at 12h45 and resumed at 14h30.

Mr Chairman, before lunch I was dealing with questions from the hon member for Sandton in regard to the Law Commission. I had said that the Law Commission could expect the largest measure of support from the Government. The directorate is of course responsible for the secretariat of the commission in the sense that its funding etc takes place through the medium of the budget of the department, and that staff are provided by the directorate to assist the commission. I think that this is a sound arrangement which has to be dealt with in this way because it enables the commission to proceed with its functional work instead of having to concern itself with the recruitment of staff and so forth if it has its own budget. As far as this matter is concerned, we have in fact given attention to possible alternatives over the past while. I have for example asked that the possibility be investigated of the Law Commission itself receiving and handling grants. However, this would cause budgetary questions to arise which we would not be able to solve at this stage. Financial independence will not necessarily provide the requirements of the Law Commission. There is and always has been a demand for more money. I believe that the measure of discretion that we have created now in regard to the Law Commission namely that as far as its operational needs are concerned it has a say and can make representations to the department in regard to the demand for and appropriation and spending of funds, is the correct policy. We feel that at this stage it is an adequate mechanism which will make ample provision for the needs of the commission.

As far as the staff of the commission are concerned, it may perhaps be fitting for me to inform the Committee that from 1 June 1984 we will in fact be creating four additional posts in respect of the commission, namely a justice administration officer, two senior justice administration clerks and a typist. We are doing this at a very difficult time but it shows our attitude in respect of the work of this commission, and we have already received the thanks of the commission in this connection.

I am aware of the fact that other members also have questions in regard to the Law Commission and that all members would like to hear more about the activities of the Law Commission, and for that reason I am not going to anticipate their questions.

That brings me to the other aspects mentioned by the hon member for Sandton. He said that certain selected judges would not be appointed to try specific cases. I think it is a pity that that allegation has had to be made once again. A Judge President is autonomous as far as the activities of his Bench are concerned, for example, the compilation of the roll and the appointment of judges. I think that this matter has been dealt with in the Galgut report. I have a document here which I shall send to the hon member and which reads, inter alia, as follows:

Whatever else it means it certainly means that the Judge President has a discretion and also that the State which appointed that Judge President must have confidence in him in the exercise of such discretion. I want to emphasize this point very strongly. The most important point is however that the Hoexter Commission did not make any finding or recommendation on this point. In pursuance of Prof Dugard’s standpoint in a lecture he gave which was later published, the commission has this to say:

I said that.

That is the most important facet of the whole issue, and should have been left there.

It is said in the very next paragraph that it cannot be left at that.

In the following paragraph the commission does in fact deal with further facets in this regard and gives its opinion. If I heard the hon member correctly, he asked me what I was going to do about it. Why should I do anything if this commission made no finding or recommendation in this regard? The Judge President is autonomous. There is also no concrete finding or recommendation. In the subsequent paragraphs the commission states that it is giving an opinion, which as such ought to be respected, but no fixed finding or fixed evidence is indicated. In fact, it is stated that on its own it cannot be considered that the appointment of specific judges constitutes an improper exercise of his discretion. I hope that that section of the Press which previously gave publicity to the hon member for Sandton in this regard will rectify this matter, and I hope that the hon member for Sandton will realize that he will be casting suspicion upon our Bench if by any means he allows the idea to gain ground that the Judge President is exercising his discretion incorrectly. That is why I quoted from the report of Mr Justice Galgut. I want to leave the matter at that.

That is an inadequate reply.

If the hon member wants a more adequate reply, I just want to add that it is not my intention to do anything about this matter because I respect the autonomous position of a Judge President.

Do you agree with the finding?

What finding?

That the matter cannot be left there. That it is vitally important that the general public should have confidence and so on. Do you agree with all that?

That is an opinion.

Do you agree with it?

It is the value of an opinion. I can agree with the opinion or not because it is not a finding or a recommendation. I agree with the opinion that the general public must have confidence in the Bench, but that is not the only point at issue here. The point at issue is that the chief spokesman of the official Opposition is seeking to sound a note of no confidence.

Do not try to make politics of it.

I do not want to imply that the hon member wants me to interfere because I know that he is more sensible than that. That is probably the last thing that he would expect me to do. If he does expect it of me he is under a misapprehension. We are not living in an authoritarian State. There is a clear distinction between the Executive Authority, the Legislative Authority and the Judicial Authority.

†When the hon member for Sandton inquired after my attitude towards political appointments I am sure that he forgot what I said on the subject during the debate on the Hoexter Report, when I stated without any qualification that appointments to the Bench were on merit. I stated unequivocally that appointments to the Bench were on merit. I am really very surprised that the hon member tries to raise this subject again. Why does he do it? I want to quote from a synopsis of a speech by one of our Judges President, as follows:

Why has there been no English-speaking member on the Delimitation Commission since your Government came into power?

Is Mr Justice Baker an English-speaking judge or is he not?

I am talking about past Delimitation Commissions.

I am talking about the present one. Is he English-speaking or is he not?

I do not know Mr Justice Baker.

Mr Justice Baker is more English-speaking than the hon member for Sandton.

Are you talking about the Coloured and Indian elections?

I am talking about appointments to the Bench. I am addressing the hon member as far as the question of political appointments is concerned. I think I have now dealt adequately with that aspect.

I now come to the method of appointment. I think that the hon member and I have been reading different reports. As a matter of fact, I got the impression during the debate on 12 April that the report he had read and the one I had read, differed considerably.

You probably read the English version.

And you the abridged version.

With regard to the recommendation of how judges should be appointed—and I will go and read the hon member’s Hansard—he tried to create the impression that the Hoexter Commission considered three possibilities...

Yes, I thought so.

... and that the second and third possibility...

Seemed the most reasonable.

Yes, but did the hon member read the whole recommendation? I am very concerned about the fact that the hon member today argued in the same way he did when we discussed the report of the Hoexter Commission on 12 April. He accepts evidence, alternatives and possibilities as firm recommendations. This commission went to great trouble to suggest alternatives to various situations, also as far as the appointment of judges is concerned. On page 63 of the English version—I am now reverting to the hon member’s language to make it more clear to him—the commission says in paragraph 137:

They should have said “however”, because then the hon member would have understood it. I quote further—

When the Hoexter Commission made its recommendations, it deviated completely from its own attitude, because it then recommended that there should be consultation with the Judge President and with the Chief Justice.

I have my own views on that.

I am talking about the hon member who linked his arguments to the findings of the Hoexter Commission. I put it to the hon member that he argues on the basis of the wrong premises. On his behalf I want to accept that he did not do so maliciously. If it were so, he must have done so in ignorance. I cannot say it is because of stupidity, because that would not be fair. The hon member now agrees with me that what the Hoexter Commission in fact reported, deviating from its own point of view, was that in the light of the very strong opposition virtually from every member of the Bench, there should only be consultation with the Judge President and the Chief Justice. What did I say in the debate in 12 April? I said that we, in fact, accept that recommendation but it is also a fixed and standing practice that we do so and therefore we do not intend embodying this recommendation in legislation. That is what I said. Therefore, it would seem that I have dealt adequately with that point.

As far as the work load of the various benches are concerned, I at least have the benefit of my experience to use as background for my argument. My experience with the judges, and especially with the Judges President, is that their judgment is very reliable and when they advance an argument in support of an application for an increase in the number of benches, before refusing any such application, I shall consider those arguments very carefully. Hitherto I cannot remember that it has ever been necessary for me to disregard any of their arguments. As a matter of fact, long before the Hoexter Commission published its report two Judges President made certain recommendations as to the number of judges on their Benches. According to the norms which we have developed—and I would not say these norms are foolproof but they do take cognizance of the nature of the cases and so forth—we have decided to increase the numbers of those benches. Allow me to mention one bench; the Bench of Natal. Hon members will remember that the increase as far as that bench was concerned was announced long before the report was tabled. As a matter of fact, that particular Judge President came out strongly in favour of an increase of the number of judges long before the report was even in my hands, and I indicated to him that according to the norms that we had established in the past, he was entitled to an increase. We then proceeded forthwith. There is also another bench I would not like to refer to in particular because the matter is still under consideration.

Are you going to do something about the Transvaal, because that is the important issue?

I think the hon member will agree that where the Hoexter Commission perhaps criticizes the Transvaal Bar for not having accepted appointments the criticism was rather levelled at the Transvaal Bar, or perhaps I should say the societies because we have two societies; one in Pretoria and the other in Johannesburg. However I want to come out very strongly in support of these bar councils because they have as of late come forward very strongly in their assistance to the bench, not only when it comes to acting appointments but also in the case of full-time appointments. I hope to announce in the very near future a few more appointments to that bench but then that bench is entitled to an increase. It is carrying the largest work load. I really want to commend that bench for doing the work that they are doing. A bit later in the Vote I shall also announce a further development which flows from the Diemont Commission’s recommendations.

*Mr Chairman, that is largely my reply to the hon member. There are perhaps a few further minor points we could discuss but I think that as far as his request and arguments in regard to the commissioners’ courts are concerned, I want to delay my reply to some extent because the hon member for Pretoria West also argued very strongly in this connection and I should like to reply to him at the same time.

That brings me to the hon member for Mossel Bay. The hon member for Mossel Bay did me a personal favour. He is not without influence with the Government because he has been in the House longer than many other hon members. When he appealed here to the hon the Minister of Finance for a larger grant to the Department of Justice, that request came from the right man. The hon member was speaking in the context of the annual report and also in the context of the challenges that await us. The hon member for King William’s Town also discussed this point but I shall reply to him in detail later on. We made an approximate estimate in regard to the cost of the implementation of the Hoexter report to the State by way of additional accommodation, the improvement of accommodation, the provision of posts for the separation of legal and administrative work, and female court operators at magistrates’ courts as well as additional transport for magistrates and so forth. This is a vision of a legal system in which one can achieve the absolute ideal—and I say this with my tongue in my cheek—namely to ensure that the magistrate’s office at Onseepkans is air-conditioned. I say this actually to illustrate what the effect of the recommendations of the Hoexter report can be if we can take it as far as even having air-conditioning in that office.

As far as the accommodation for family courts is concerned, an amount of R250 million is being provided, and improvements, court accommodation and so forth amount to a further R350 million. The provision of posts for the separation of legal and administrative work will amount to a further R150 million, giving us a total of R750 million, and that amount has been calculated at prevailing prices.

It costs almost as much as a Coloured homeland.

Mr Chairman, if I am correct, it amounts to nearly four times as much as our present annual budget. The hon member for Mossel Bay is also a practical person, and I think that I should give him some brief statistics in regard to the staff position. As far as technical posts are concerned, 96 are vacant, and a further 36 administrative posts are vacant. 105 clerical posts are vacant while eight non-classified posts are vacant and 65 clerical B posts are vacant. I should perhaps tell the Committee that as far as the technical staff to whom I have just referred are concerned, there were 96 vacant posts as at 31 March as against 53 on 30 June 1983. This deterioration can be ascribed chiefly to the creation of various new posts that we have not yet been able to fill. I want to state carefully but clearly that this deterioration occurred because we established new posts, but these now appear on our establishment and it looks as though the position has deteriorated. Although a total of 152 technical posts are indicated as not being suitably filled, only 28 persons who are not legally qualified are occupying technical posts. The remainder are chiefly legally qualified people who are serving extra-contextually, for example prosecutors in magisterial posts and vice versa. Therefore, what we are saying here is the following: That we are for example using public prosecutors extra-contextually in magisterial posts and also magistrates for example in public prosecutor posts. So when we say that such a post is not suitably filled it does not mean that those people are completely unsuitable. The term “not suitably filled” in the language of the directorate means that we even have more highly qualified persons in specific posts than we actually need to use for that purpose. In the administrative division there were 36 vacancies as against 50 at the end of 1983. There was also an improvement in the suitable filling of these posts. At the moment there are only 170 vacancies as against 243 at the end of 1983. The improvement in the position is due to the implementation of the occupational differentiation dispensation at the end of 1983. How many posts have we created? In the South East Cape there is a shortage of magistrates, and this also holds good for other places. We have in fact received additional funds from Treasury which have enabled us to create the following posts: 15 regional magistrates, 17 magistrates, 61 public prosecutors and 34 court interpreters. Simply therefore to reassure the Committee I can give the assurance—unlike what the hon member for Sandton intimated on 12 April—that we have in fact succeeded in influencing the Minister of Finance. I cannot deal now with the programme referred to by the hon member for Mossel Bay as far as the recommendations of the Hoexter Commission are concerned, but the hon member for Sandton should pay attention to what he said. It is not at all necessary for us to say at this early stage what the contents of that legislation will be. All I gave the hon member was a programme, and that was all he asked for in the Assembly. I tabled it specifically so as to be able to thank the officials who worked day and night, but I want to go one step further now and say that for the sake of the goodwill of hon members on that side, I will provide them with copies of that draft legislation long before it is brought to the House. I have already said on other occasions that in this reform exercise we want to take all hon members along with us, and accordingly we will deal with the matter in that way.

It was not a criticism of the document; it was just that I did not know...

I am commenting on what was said by the hon member for Mossel Bay.

The hon member for Pretoria West then rose to speak and he dealt with the question of the taking over of the courts that are aimed at members of the Black population groups. I just want to point out to hon members that the taking over of judicial work falling at present under the hon the Minister of Co-operation and Development implies that judicial staff as well as other staff who are at present rendering supplementary services at those courts will have to be transferred from the Department of Co-operation and Development to the Department of Justice. The necessary funds that have at present been appropriated on the budget of the Department of Co-operation and Development will also have to be transferred to the budget of the Department of Justice. It is envisaged that an immediate start will be made with the investigation into the implications of the aforementioned takeover, and consultation will moreover take place on an ongoing basis between my department and that department. I want to take this opportunity to assure the officials who will be transferred from that department to the Department of Justice that all the steps that are taken will be taken in consultation with them and also in consultation with the Commission for Administration which is the watchdog over their rights. We will not summarily tamper with their established rights without first finding alternatives. I want to assure hon members that we will deal with those officials with great circumspection and respect. I also want to take this opportunity to associate myself with the hon member for Pretoria West in regard to the point he made that here we do indeed have judicial officers of a high standard. The Hoexter Commission was not able to indicate to us a massive setting aside of their sentences, or successes or appeals against them. I do not think that we can complete the takeover successfully unless a substantial section of that staff and also the technical staff come over as well. We will respect them as experts.

Mr Chairman, I come now to the question of the hon member for Sandton in regard to whether we are going to train them. The Department of Justice is a department which provides all its officials with ongoing in-service training. Prosecutors undergo courses from time to time, and there are even magistrates who undertake refresher courses. The Hoexter Commission recommends that we should provide training to an increasing extent, particularly in respect of civil work. We accept all this as part of this process. Nobody must please create the impression that we have something to teach these people, because I can say that they have many years experience.

I was struck by the last point made by the hon member for Pretoria West. He referred to what happens in these courts. These courts are not administrative courts applying administrative law; they are applying a law of Parliament. If they are going to fall under the jurisdiction of the Department of Justice, they will continue to apply the laws of Parliament or the common law.

What is the change going to be?

No, just wait a moment. What does the Hoexter Commission tell us? In the first place it tells us that it is an unacceptable thing if there is a court system which does not fall under the Department of Justice at all. That is its central point of departure.

[Inaudible.]

It says that that is its central point of departure.

†Otherwise it has a racial connotation. That is his point. That is the very criticism that we shall be removing.

They should welcome it.

We sháll be removing it. That is the very point that we shall be addressing. If the hon member for Houghton wants to voice her opposition against the laws that apply, as she has been doing for many years, I can tell her that this is not the forum.

You should use your influence to get that law changed, because you know the results of it better than anyone else.

All right, you can say your piece just now...

I will.

... if you will allow me to say mine now.

You are not doing badly.

You are doing all right. Keep going.

Mr Chairman, what does this picture look like? We understand that there are 54 commissioners’ offices in the Republic outside of the national states. Fifty-one of these offices are in magisterial districts within the White area which already fall under the administration of the Minister of Justice. In these 51 districts there are therefore both an independent magisterial office and an independent commissioner’s office. The Department of Co-operation and Development has three offices outside of the national states at which magistrates are also appointed. There are no offices of the Department of Justice in these three districts. Another type of exercise will then of course have to be carried out. However, the important point is that the magistrates in 251 magisterial districts are also appointed as commissioners. Our magistrates in those offices are already doing the work of the commissioners on an agency basis. I am arguing this point because the hon member asked me how we were going to succeed in handling this massive quantity of work. The fact is that this work is already being done at 251 offices. We are doing it on an agency basis.

They are peri-urban offices.

I want to agree with the hon member immediately. This is not the case in the larger districts in the urban areas. We shall undoubtedly have to investigate the question of accommodation in this connection because the Department of Justice cannot take over these functions on 1 September and have premises completed by that date. Accordingly, we shall have to negotiate.

Yes.

The hon member agrees. I allow him the privilege of agreeing with the Government on one point.

There must be an interim period. You must not leave them in the buildings of the Department of Co-operation and Development for ever.

Let me give the hon member this assurance. Where there is also a magisterial office in the same district, we will not move to the other offices unless they are really functionally acceptable and can be used effectively. Every situation is possible but taking the picture as a whole I do not see this as a point of departure. We are also taking over the divorce courts and the appeal courts. It so happens that the infrastructure, staff and presiding officers in the divorce and the Black appeal courts are the same.

Mr Chairman, I should like to ask the hon the Minister a question before he moves off the Black commissioner’s courts. I asked him this specific question, but he has not answered it. What positive difference does he envisage will it develop once this transfer is effected? Where will the real benefit be seen? I say this specifically in relation to par 3.4.3.5 on page 29, where the commission makes a finding on the lower standard of justice being handed out in the one set of courts. Where is the benefit and the difference going to be as a result of this transfer? This is really what we are trying to find out.

Mr Chairman, the hon member must, for the sake of proper debate, concede to me now that he himself, during the debate on 12 April, made some very articulate sounds—I almost said “noises”—on the issue of the total and complete unacceptability, on racial grounds, of there being a different system.

Absolutely correct. I agree with you.

Firstly, there is a benefit—perhaps not a real tangible benefit—in terms of the image of our judicial system. This is the first great step and it is important.

I support that, but it is intangible. What I want to know, is what tangible benefits there are.

As far as tangible benefits are concerned, what does the hon member expect, unless he indicates to me that it relates to the quality of justice? I have replied to him that the hon member for Pretoria West has voiced the argument that no real fault could be found with the justice there, as reflected in the number of appeals and as reflected in the number of reviews. The hon member must first answer that. Secondly, I also said to the hon member that a situation of in-service training will naturally have to ensue. However, it is not a matter relating only to these judicial officers. It will be a matter for the whole system of justice. If the hon member has in mind the nature of the criminal offences that will be tried by these courts, it is another forum. He has done so already. Has he not spoken in the discussion on the Vote of the hon the Minister of Co-operation and Development? He has.

I hope you have read what I said.

Ha received a lot of publicity about that. I shall address him just now on his visit to one of these commissioner’s courts.

Six of them.

He had his own commission. He was trying that judicial officer on the nature of his attire.

And his bearing and his attitude towards...

I thought this rather unbecoming of an hon member of Parliament.

[Inaudible.]

Order!

Nevertheless, I accept his bona fides...

Please do.

... and his goodwill and his desire to improve the quality of justice. This exercise will be aimed at improving the quality of justice without detracting from the ability ingrained and otherwise in those judicial officers. That hon member must please not make my task any more difficult now by degrading any of those people, because I, who shall be responsible for them in future, will not tolerate it. I have said my piece.

What will you do? Trample me underfoot?

Mr Chairman, I think that the hon member is conversant with the situation of the divorce courts, appeal courts, etc. All these other courts will—if I may have the hon member’s attention—then also be taken over by the administration of the Department of Justice on 1 September, or as close to that date as possible.

*Mr Chairman, that brings me to the hon nominated member Mr Theunissen. I want to thank him very much indeed for a very illuminating analysis of a fairly difficult subject, something which is of deep concern to all of us. It is very easy to be dissatisfied with the judgment of a magistrate or a judge. In every case there is a winner and a loser. In every criminal case there is somebody who runs the risk of being found guilty. This causes me to think involuntarily of what an American judge said on one occasion when speaking about his life. He said that he did not have a long speech to make about his life. What he did however want to say was that when he thought back over all the cases that he had tried, he remembered that in all the traffic cases that he had tried all the people pressed their hooters timeously, drove on the right side of the road, drove within the speed limit and parked on the right side of the road. That is the situation in which the judicature finds itself. That is why its symbol is the scale or the balance. That is what we are striving for; that is what the universities are striving for with their legal training, that is what the Department of Justice is striving for with its in-service training. It is our aim to retain and maintain a balance in our administration of justice. An indispensable part of this is however the discretion that has to be entrusted to a court. The hon member for Pretoria West also stressed these points strongly. That hon member referred to the Rapport investigation. I want to confess immediately that we did not write this note quickly. We anticipated it. A certain young lady, Miss Mariëtte Crafford, also telephoned my office to ascertain a certain point of view. I saw her photograph in Rapport last Sunday. I think it is very encouraging that an attractive young lady like this should be concerned about the standard of punishment. I take it that because of her pretty face she will probably more easily receive the correct answers than a person who is perhaps less friendly. However, this does not mean that she was correct in any respect or that she was on the right track or that she was not perhaps too ambitious as far as her programme is concerned. However, I do not want to discourage her but wish to ask her to take note of a few facets in this debate and, if in pursuance of that she has any further questions, she can approach us again.

I want to state a few general guidelines as far as her thoughts in connection with punishment as a subject are concerned. Every jurist is schooled to think analytically and evaluate facts. By doing so, he is being indirectly trained to impose a sentence. Subdivisions of the penal code such as the various theories on punishment, the purpose of punishment and so forth do in fact form part of the course in criminal law at most universities.

As far as Justice itself is concerned, since 1981 punishment has been offered as a fully-fledged subject in justice training during the courses for magistrates and aspirant regional magistrates. A former regional court president, Mr Klopper, who was a full-time member of the permanent Penal Reform Committee, is involved in this. Since 1981, 315 magistrates have attended this course. Punishment is presented in depth in such a way that the judicial officers in the lower courts cannot do otherwise than find it helpful. In 1981 the Legal Training Division went so far as to have an in-depth investigation made by the Institute for Criminology at Unisa in respect of this attitude on the part of a number of aspirant regional magistrates in regard to certain aspects of punishment. The result was excellent and was made available to the Legal Training Division. I mention this to indicate that we are not insensitive in this respect. However, there is no doubt that punishment is being given full attention by the directorate on an ongoing basis.

I want for example to refer to the fact that during the period July 1982 to June 1983 regional courts and magistrates’ courts dealt with more than 48 000 and 1,5 million criminal cases respectively. During that period 25 980 criminal cases were referred to the Supreme Court for review. Only a small percentage of the sentences in these cases were amended. This is also apparent from the Hoexter report and the praise in it in regard to the regional court. This is probably an aspect which Miss Crafford missed, namely the fact that so few of these sentences are amended at all. However I should like to leave the matter at that for the time being in view of the fact that the debate in this regard has not yet been exhausted and certain hon members will probably wish to refer to it further.

We in this Committee ought to have the privilege of the outlook of the Chief Justice of South Africa. I asked him to give me his view in writing. I am very grateful to him for having in fact done so because I do not think that the syndrome should be allowed to gain ground that all of a sudden there are a large number of sentences being imposed that are unjustifiable. I refer to the large number of criminal cases tried in the various courts. We shall be doing our penal system a disservice if this syndrome is not correctly dealt with. The Chief Justice contends that the general import of these articles borders on exaggeration. He says:

He goes on to say:

He makes use of this very valid argument:

This also explains the personal situation and the consideration of factors to a large extent. I do not wish to refer any further to this situation, and I think the hon member Mr Theunissen merits our appreciation.

In saying this, I want to point out that we are not static. We admit that in terms of various laws there is a restriction in respect of the discretion of those who impose punishment. I want to tell the person who wrote the articles in the newspaper and any other person who expresses himself in this regard that this matter cannot be rectified by means of a law. On the one hand Parliament is criticized if restrictions are imposed upon the discretion of the judicature, where provision is made for a certain sentence to be imposed and then, on the other hand, it is contended that there is a mistake. One cannot have one’s cake and eat it. However, I admit that there are restrictions, but hon members will admit that over the past three years laws have been passed on various occasions in which the courts have been given a discretion rather than that a discretion has been imposed. That is why the legislator will very seldom and only in exceptional cases limit that discretion. However, we are not static.

For that reason I want now to make the following announcement. The permanent Penal Reform Committee—the hon member for Houghton is aware of the good work which this committee has been doing—will henceforward be integrated with the South African Law Commission and will function as a committee of the Law Commission with the necessary legal status. It is hoped that legislation to bring this about can still be introduced during this session. It has always been an advisory committee, and I cannot see that its function will change. However, I do foresee that it will be very much more active than it has been in the past in regard to the consideration of punishment and the principles that are at stake. Such a step has the further merit that except in so far as it may be necessary to strengthen the secretariat of the Law Commission, the permanent Law Revision Committee will have the infrastructure of the commission at its disposal. We hope in this way not to remain static as far as the imposition of punishment is concerned. Should hon members have any further questions in this regard I shall provide them with the necessary information.

†The hon member for King William’s Town also posed the question whether we were prepared for the work load ahead. I will not deal with any of the other matters which he has raised, but just want to say that he is correct when he says that we will have to strengthen our management. In the first place, the Department will need to be structured in such a way that management is strengthened by the creation of more managerial posts to cope with the new “total onslaught” on justice.

That is a good one!

I am glad the hon member thinks that, as I think so too.

Strangely enough, we will be supporting that concept of “total onslaught”.

However, we also have to strengthen our officer structure in another way. As far as professional groups in Justice are concerned, I should like to make the following announcement. The Commission for Administration has undertaken an occupational differentiation investigation into identified law groups in the Public Service. These groups are as follows, namely legal officer, legal administrative officer, State Attorney, State Prosecutor, State Advocate, magistrate, regional magistrate, State Law Adviser and law adviser. I am also authorized to mention the fact that this investigation also includes military law advisers, military legal officers and also commissioners, including members of the Black divorce court and the appeal court. It is hoped that this investigation will have been completed by the end of June, and the implementation of the recommendations will of course depend upon the availability of funds. The Government is however in earnest in wanting to build up a sound corps of legal staff through the medium of the envisaged revised dispensations so that justice can be administered effectively.

I have been on my feet long enough and I leave the floor now to the hon member for Houghton.

Mr Chairman, I have the impossible task of trying to cover some of the issues raised by the hon the Minister and to deliver myself of what I wish to say during this Vote, all of which must be done in 10 minutes. I will not refer to prisons now as I believe this will be discussed tomorrow.

Unless you want to speak about it now.

No, not now.

Like the hon member for Sandton, I very much welcome any alleviation of the overpowering influence of section 44 has on the publication of news on prison conditions. I hope the same kind of influence will permeate both the Defence and the Police Ministeries as well and that there will be a much better attitude and liaison between the media and these departments.

I want to refer briefly to the Black commissioners’ courts. The Hoexter Commission was, of course, very anxious to avoid what it called the humiliating and repugnant racial aspects of dividing the system of justice between the Black commissioners’ courts, the ordinary civil courts and the criminal courts. At the same time one set of courts cannot surely be replaced by another in view of the processes which are carried on in these enormous numbers of cases left without legal aid, due process etc—because then we will not effect any improvement whatsoever. I hope the hon the Minister will not simply say that now that the magistrates’ courts have taken over the administration of justice as far as pass laws and influx control are concerned, we need not give the matter another thought. I reiterate the fear which I expressed during the debate on the Hoexter Commission’s report, ie that a large number of cases may very well be sidetracked and the courts avoided altogether by the use of the Aliens Act and the Admission of Persons to the Republic Act in the case of people who are no longer citizens of the Republic.

I want to identify my views with those of the hon member for Sandton concerning the Hoexter Commission’s comments both on the appointment of judges and the assignment of judges to certain criminal cases affecting security. The hon the Minister has dealt with this to some extent, but he has glossed over the comments of the Hoexter Commission. Why does he think the Hoexter Commission devoted so much time to examining the submissions made by Adv Kentridge as far as the appointment of judges and the political nature thereof are concerned and suggesting that if there is any room for gossip whatsoever that there are political sentiments which guide the hon the Minister in the appointment of judges? This is something which needs to be wiped out immediately. The commissioners did not do that capriciously, but took the accusation seriously. As far as the assignment of certain judges to examine security trials is concerned, the Hoexter Commission was even more adamant. He examined Prof Dugard’s submissions and although he says that there is no real evidence of this, he used a “however” which the hon the Minister would do well to look at. He said that whatever is said about the facts not bearing out any accusation of improper or injudicious assignment of trial judges, it is vitally important that the general public should have confidence that our courts will maintain absolute impartiality at all times and especially in cases involving subject and State. Why did the Judge President of the Transvaal fail to comment on the submissions of Prof Dugard when the Hoexter Commission specifically asked him to do so? I want to know whether the hon the Minister has any intention of discussing this matter with the Judge President because the suspicion is undoubtedly there. It is not so much that the same judges appear in the security cases; it is that certain judges never appear. We never have them sitting on the Bench, and this has aroused suspicion among a large section of the public, and the hon the Minister cannot simply avoid it.

I have a third reason why I, as a believing member of the public who had great confidence in the courts, and more particularly in our high courts, find that that confidence is beginning to be seriously undermined. That is because of the totally incomprehensible judgments that have been handed down over the past few years. I want for instance to mention the extraordinary disparity in the sentences handed down by Judge Van Dyk in two cases that he sat on. Firstly, the trial of Barbara Hogan, who was accused of high treason and of being a member of the ANC and an active supporter of that body. One will find more details of this if one looks at Bulletin 3 issued by the Lawyers for Human Rights. The State accepted that she was not associated with any violent activities on behalf of the ANC. She had collected information about labour unions for the use of the ANC, and to aid in recruitment for the ANC.

Although Hogan was a first offender and had already spent about 11 months in custody—almost all of it in solitary confinement—Judge Van Dyk sentenced her to 10 years imprisonment—a savage sentence by any standards.

Did she appeal?

I do not know. I do not know whether she was given leave to appeal; I doubt it. That is another thing: the automatic right to appeal that has gone. The same judge that sits on the case, decides whether there shall be right of appeal or not, and I believe that that is indeed defeating the ends of justice. [Interjections.] I see from my notes that Judge Van Dyk refused the right to appeal.

The same judge, Judge Van Dyk, was on the Bench when the case of the State v the Afrikanerweerstandsbeweging which was about unlawful possession of firearms, was heard. The accused, who were three members of the AWB, were in possession of what I can only call a veritable arsenal of arms, including AK-47 rifles and over 4 000 rounds of ammunition. The three accused were sentenced to 2, 3 and 4 years in gaol respectively, all suspended for five years, and leave to appeal was granted by Judge Van Dyk in this case.

Judge Van Dyk described the accused as “civilized and decent people”, and one of these “civilized and decent people”, Eugene Terre’ Blanche, is strutting around the Republic, addressing mass meetings and giving the Hitler salute, as we all saw recently on television. He is enjoying maximum exposure by SATV, and I believe that this is of course due to the Government’s desire to scare the wits out of English-speaking voters, and other Opposition supporters and scare them into supporting the “moderate” NP against the far right parties. [Interjections.]

There is another example I can cite namely that of Judge De Villiers, who presided in the Mkhize case, to which I have already referred in this House. Constable Nienaber got off scot-free. Saul Mkhize was called impolite and arrogant by Judge De Villiers, who, I doubt ever met him. He was shot dead. I might say that Saul Mkhize could have taught a lot of hon members of this House good manners. I knew the man. He visited me on several occasions. He was a decent, respectable man.

In the same Driefontein district court, the same Judge De Villiers gave suspended sentences to three policemen found guilty of using electric shock on suspected cattle thieves. One victim was seriously injured and the other died. The judge commented inter alia—having given everybody suspended sentences—that one of the policemen was only a youth when the crime was committed—not too young, however, to assist in the killing of a man!

I will not go into decisions given by the lower courts as I do not have the time. I can anticipate the hon the Minister’s reply to my criticisms. What he is going to say, is do I want him to interfere with the independent judiciary.

On a point of order, Mr Chairman! Unfortunately I do not have the rules in front of me. May a judge, however, be criticized by name in this Committee?

Order! I am not aware that it is forbidden in terms of parliamentary rules.

Year after year judges are criticized. After all, they are not above criticism. I am merely giving the cases and hon members can judge for themselves. I do not want the hon the Minister to interfere with the independence of the judiciary. That is not my objective in raising this issue.

What is your objective?

My objective is to make it known that the biased comments and astonishing judgments that are made in the courts by some of these learned gentlemen have not gone unnoticed, and that they have been brought to the attention of this the highest forum of the land and are on record in Hansard, so that in future they may think twice before they make these remarks and hand down these absurd sentences. [Time expired.]

Mr Chairman, the hon member for Houghton ranted here, I would be inclined to say, while merely putting forward a number of cases, among others those of Hogan and Mkhize, and objecting to the sentences imposed. She neglected, however, to discuss the details of these cases.

That is a disgraceful comparison.

The hon member for Green Point is objecting now, but as one involved with the administration of justice, he ought to know that the one aspect of which one must take cognizance if one is in the legal profession is that one must personally know the facts. One cannot rely solely on what appears in newspapers, definitely not. In all the cases to which the hon member for Houghton referred, there was an opportunity to appeal. The hon member must tell us whether notice was not given of appeal, and if not, why not. [Interjections.] If the same judge was involved, a petition could have been submitted. One could, however, come to no other conclusion than that the hon member for Houghton attacked the independence of the courts and disparaged the action they took.

I should like to refer to what the hon member for Sandton said, which is particularly important in regard to Natal. He referred, inter alia, to the Hoexter report and especially to references in it relating to judges and their appointment to the various divisions. He said, inter alia, that Natal carries 5% of the work load of the Supreme Courts in South Africa and has 15% of the judges. I do not know where he got his figures.

The last report of the department.

It just cannot be so, Mr Chairman. I checked it and according to that the civil process amounted to 88 000 for the whole country and 12 000 for Natal, ie approximately 15%. As regards criminal cases, the total figure was 2 251 and the figure for Natal was 520, ie approximately 23%. I have referred to that, but the hon member did not interpret it properly.

It is, however, a very difficult problem to determine the work load and to attempt to draw a comparison between one division and another. How is one to compare them? Reviews and divorces cannot be placed on the same level. Appeals and cases for trial cannot be placed on the same level. I just want to refer to what the Hoexter report says in this connection (page 201):

Before any real conclusions can be drawn about the incorrect utilization of judges in the various divisions, a scientific investigation will have to be launched, and I believe that the Hoexter Commission also requested that.

I should like to refer briefly to the steps the Government took on the strength of the Hoexter report, and I just want to refer to what appeared in Rapport on 15 April. The steps taken by the Government in respect of the Hoexter Commission were referred to and reference was made to the considerable degree of cynicism which in recent years had manifested itself amongst members of the public in respect of commissions of inquiry. In the article it was claimed that it was often unjustly said that commission reports actually just gathered dust. That is simply a sideswipe at the steps the Government took in respect of the Hoexter report.

The last argument that can be raised against this Government and this hon Minister as regards the Hoexter report is that they did not take it seriously or that they did not consider it as a matter demanding urgent attention. In this connection I just want to mention a few facts. In the first place three laws have already been passed. Administrative steps have already been taken to overcome shortages. The hon the Minister has already in the debate dealt specifically with 15 recommendations and comments. Indeed, a target date was announced today as regards the incorporation of the Black courts. In the document which was released there is reference to five bills, namely Bills concerning family courts, divorce, a rules board for law courts, civil process and evidence and the Supreme Court Bill already prepared and now to be introduced. The fact of the matter is that these steps, flowing from the Hoexter report, were taken within a few weeks.

I want to suggest, therefore, that the Government and this hon Minister deserve far greater credit than they have received so far. I also do not know of any other report as extensive as the Hoexter report which has within so short a space of time received so much attention and led to so much action being taken. What is far more apposite is that which appeared in the Pretoria News of 13 April where the far-reaching legal reforms and their acceptance by the hon the Minister are acknowledged with great appreciation.

One of the dangers related to the Hoexter report is for so much attention to be given to it that the very important and far-reaching actions taken in other respects are overlooked. One exciting development in the department is in my opinion particularly evident in the Masters’ division. In the past few years a number of pieces of legislation passed through the House which were aimed at the simplification of the administration process and the results of that are now evident. I just want to give a few examples. As a result of the limit placed on small estates having been increased from R1 500 to R15 000, the shortened administration process could in 1982-83 be applied to 41% of the estates dealt with as opposed to a mere 20% of estates in 1980-81. The approval of appraisers’ accounts is now also being dropped, which means that 15 000 of these accounts no longer need to be approved. As regards the appointment of executors, in certain circumstances it is now no longer necessary to do that after a meeting and that means that the time taken to finalize estates is being shortened considerably. The same applies to the obligatory submission of inventories. That has to a large extent been done away with, with the result that, while in the past 23 000 inventories had to be submitted, that figure is now being halved. These are not revolutionary changes, but they are calculated and gradual. They are not spectacular, but they are no less imaginative for that. I simply wish to congratulate the department on these initiatives.

Another aspect which must be mentioned in this regard is that the backlog which existed at Masters’ offices has now been dramatically reduced. That was a consequence of the hon the Minister’s request in December last year for each Masters’ office to report to him on a monthly basis on progress being made at the Masters’ office. That gave rise to a competitive spirit between the Masters’ offices and led to a considerable reduction in the backlog. I can give a few examples in this connection. The office in Pretoria, for example, was 56 working days in arrears in December. That was reduced to 30 days in February, 21 days in March and 14 days in April. The backlog at the office in Cape Town was reduced from 30 days in December to 14 days at present. The office in Pietermaritzburg has, naturally, always been up to date and is still up to date.

There is no work.

The hon member is very loyal. Many thanks. Bloemfontein was 10 days in arrears and is now up to date.

That does not mean, however, that there has been a reduction in the number of estates. With the recession in the economy we are experiencing at present the number of insolvent estates must have increased considerably. [Time expired.]

Order! Before I call upon the next hon member to speak, I would like to read from the Manual for Presiding Officers on the question that was raised by the hon the Minister—and I quote:

However, on the question of the conduct of a judge, it reads as follows:

I shall read them presently—

Mr Chairman, on a point of order: May I ask if your decision then also covers the conclusion that can be drawn from that, namely that Judge President Boshoff did not respond to the Hoexter Commission’s inquiry and that he, as can be deduced from that, did not do the right thing, and also the fact that I have been asked to deal with that?

You were merely asked to discuss it with the Judge President. That is the only request the hon member made.

Yes, that is mentioned in the report.

Was that in regard to a matter concerning the courts?

It concerns the concept you quoted, namely that of “conduct of a judge”. That is very wide. I submit that “conduct of a judge” means the same whether it relates to a law report or to any other document.

Mr Chairman, on a point of order: All that the hon member for Houghton did was virtually to paraphrase a sentence in the report of the Hoexter Commission, which reads as follows:

Previously it said that comments had been asked for. All the hon member did in this particular case was to ask why no comments were received and whether the hon Minister would please discuss the matter with the Judge President. That is how I understood it. I do not think that was a reflection on the Judge President.

Order! In terms of that particular aspect it was not a decision of a court and consequently that question can be discussed in debate. However, originally the hon the Minister raised the question of whether the hon member for Houghton was in order to discuss an actual ruling of a judge. That, in terms of these remarks, I must rule out of order.

Mr Chairman, I think that we are all grateful to you for the ruling you have just given. I want to say that even in politics one never grows too old to learn. I want to say further that I am sorry that the hon member for Houghton persists with the attitude of her party in suggesting that politics plays a role in the appointment of judges to the Bench. She undoubtedly does our administration of justice a disservice by continuing to persist with this kind of suggestion.

That is what Hoexter says, not I.

There were good days in the days of the old United Party when one really thought that political appointments had nevertheless played a role.

Nonsense.

I am afraid that the hon member for Houghton became so used to resorting to certain wiles at the time that she now expects the same of others.

What do you know about the United Party? Gives us an example of what the United Party did wrong.

The hon member for Yeoville must not get excited. I think I am a few years older than he is. He must also not think that because he has been active in politics for so much longer than I, I have not participated fully in politics from a very early age. He does not need to teach me anything about the old United Party.

Give an example. You cannot, man.

I do not want to commit the error, like the hon member for Houghton did, of quoting examples. The hon member can ask me in private and I will then give them to him—in profusion too.

No, I am talking about here in the Committee, not privately. We are conducting a debate here.

When I addressed the Committee earlier, I said that I should like to come back to the comings and goings of officials, something which we have also heard about today. At this stage I want to associate myself with the spokesmen for the Government, the PFP and the NRP who paid tribute earlier today to Mr Flip Coetzer, our present Director-General, who is going to retire from the service of the department. On behalf of my party I should like to associate myself with my hon colleagues who in the appropriate manner said these nice things about Mr Coetzer and who wished him the very best on his retirement. In my view Mr Coetzer—and we know him as such—is a good-natured and friendly person. In fact, as far as I am concerned, he is a very complete person in every respect. He is a first-class official and an extremely able jurist. For that reason I want to take the opportunity to thank him for the years of good service which he rendered to this department in his professional capacity. However, I also want to thank him for the exceptional role he played in and the contribution he made to the community in which he lived. In that respect I just want to say that the Director-General and I were deacons and elders in the Lynnwood congregation for many years. In those good days we saw to it that the people of Lynnwood followed the right path. While I am today taking leave of him here, I want to add that we also have a great appreciation for the role played by Mrs Helen Coetzer. We also want to thank her for the very good service which she rendered in our community and at her husband’s side as well. We trust that we will continue to see them for a long time and very often in the future.

At this stage I should also like to congratulate Mr Fanie van der Merwe who has been appointed as the new Director-General and who will occupy the position in the near future, and to say to him: “Welcome home”. I want to give him the assurance that we will support him wholeheartedly in his work.

I should also like to congratulate Gen Willemse wholeheartedly on his appointment as Commissioner of Prisons, a post which he has occupied for quite some time now. He is performing a task with great responsibility and will hopefully continue to perform it for many years to come. He has to ensure that what belongs inside, remains there. To him to I say that we will support him wholeheartedly in the performance of his important duty.

At this stage I should also like to thank the hon the Minister for the fact that he has throughout the year and in the past involved all the political parties in discussions with regard to legislation. We appreciate the fact that he takes it upon himself to call us in to have talks with him. I am referring now to all the Opposition parties. We have great appreciation for the role the Minister plays in this respect.

I should also like to thank all the officials of the Department of Justice. They are people who have our greatest respect for the very good work they do everywhere. We find the officials of the Department of Justice in many places. We find them on select committees, commissions and in many other important posts in other departments. This bears witness to the exceptionally good work done by all these officials as well as the trust which is placed in them throughout.

I want now to refer briefly to the annual report. One goes through it so fast that one sometimes forgets that the department also sets itself objectives. In this report in particular we are told this year that the department has set it self three objectives in particular, namely to maintain the performance of the department at a high level, to promote the efficiency of the department and also to combat the inflation problem. Having read the annual report thoroughly, we can all bear witness to the fact that the department has succeeded very well in achieving these objectives it has set itself. There are various examples in the annual report which indicate that it has succeeded in doing so. One thinks for example of legislation we dealt with fairly recently which was aimed at dealing with the question of inflation and costs. One also has only to think of the legislation which was aimed at promoting efficiency. In this regard one can refer to the amendments to the Administration of Estates Act and the Insolvency Act, the extension of the civil jurisdiction of our magistrates’ courts, and the passing of the Small Business Development Amendment Act. These steps were not only designed to establish procedures for the efficient handling of the work of the department but were also without doubt, as I have said, aimed at promoting efficiency, and undoubtedly also to a certain extent at putting the inflation bug in its place.

Suffice to say that the annual report is very important to me. One can look at page 62 in particular where there is an exposition of the composition of the Directorate of Justice, namely the head office, the registrars’ division, the magisterial division, the masters’ division, the attorneys’-general division, the state attorneys’ division and the state law advisers’ division. When I looked at it again, I said to myself that we, who have had the privilege of university training and of entering the legal world, are in fact totally ignorant of this pivot on which the whole administration of justice in this country hinges. I want to say that it is necessary—I do not know whether it happens—that this annual report should also be sent to all the law faculties at our universities. What is more, advanced students in particular ought to jump at the opportunity of examining these reports so that when they enter the legal world they will really know what it is all about, what it looks like and what the whole organization of the Department of Justice is all about.

Mr Chairman, I should like to associate myself with the words of congratulation that have already been directed at Mr Fanie van der Merwe and Gen Willemse, as well as the good wishes to Mr Coetzer on the road ahead.

As far as the contribution of the hon member Mr Theunissen is concerned, I want to compliment him on a very positive and good contribution.

Before I come to the subject I want to raise, I cannot resist referring briefly to the hon member for Houghton. Once again she has acted here today in her stereotyped way. It came as no surprise to me that she did not come to talk about a water matter but to drag in the ANC directly, and did so in a positive way in respect of that organization.

Mr Chairman, on a point of order: The allegation is made that the hon member for Houghton has sought to bring the ANC into the debate on a positive note—those were the words the hon member for Roodepoort used. In other words, it seeks to suggest that the hon member for Houghton is advocating the positiveness of the ANC and, bearing in mind that that is an illegal organization, I believe that that is not permissible and that you should ask the hon member to withdraw it.

Order! The hon member for Roodepoort must withdraw that.

Mr Chairman, I will withdraw it. I will not discuss it further. The hon member is wasting my time. I withdraw it.

Mr Chairman, on a point of order: It is not permissible to allege that when a member takes a legitimate point of order, he is wasting time. To take a point of order is permissible and you should ask the member to withdraw it.

The hon member for Roodepoort has withdrawn the remark. The hon member may proceed.

Mr Chairman, I hope I will get a bit of injury time. I think it hurt the hon member just now when the hon member Mr Theunissen got at him. I wonder whether he can give that limp-handed salute yet.

I would like to refer briefly to the question of penalization. The hon the Minister has already dealt rather fully with it as did the hon member Mr Theunissen, and I thank him for his positive contribution in this respect too. The subject of penalization has elicited much discussion over the past few weeks. Penalization, seen from various points of view, is a very emotive matter. Whether it is seen from the standpoint of the condemned person, from the standpoint of the victim, from the standpoint of those dear to a person who has been wronged or from the standpoint of society, a certain amount of satisfaction or of resentment is experienced. [Interjections.]

Order!

Mr Chairman, is the hon member for Mossel Bay allowed to threaten the hon member for Yeoville by suggesting: “Jy gaan moeilikheid kry”?

Mr Chairman, I said that the hon member for Yeoville should not stir up trouble on this Committee where there was none.

No, you said: “Jy gaan moeilikheid kry”.

Order! No, we cannot allow a discussion across the floor of the Committee. The hon member for Roodepoort may proceed.

On the part of society there is also often either a feeling of satisfaction or of indignation after the imposition of a particular penalty, although they are often not fully informed about all the relevant facts in respect of such a sentence. From the point of view of the person who has to impose that sentence, I want to suggest respectfully that in most cases it is a time for profound consideration and reflection and often also of trial for him when a death sentence or a long period of imprisonment or even a lesser sentence has to be imposed, and that it does trouble and place a great burden on that presiding officer. We have made great strides since the time of the Old Testament when an eye for an eye and a tooth for a tooth were still demanded. The question of penalization is as old as the hills, and I think that from the time of Christ, we can see the different points of view of a Caiphas or a Pilate or others. I want respectfully to suggest that the considerations which have to be taken into account by the person who has to impose a sentence are very profound ones. According to the Hoexter Report on page 278 the following numbers of criminal cases were handled by our courts in 1980: The Supreme Court—1 549 or 0,09% of the total; regional courts—46 294 or 2,75% of the total; commissioners’ courts 199 487 or 11,86% of the total; and district courts—1 434 884 or 85,30% of the total. The hon the Minister has already referred to the statistics of cases for the period 1 July 1982 to 30 June 1983, and I am not going to deal with them any further. In order to deal with the criminal cases I have just referred to, there were the following number of officers available as at 31 December 1982 as set out on pages 209 and 270 of the Hoexter Report. Judges who presided in both criminal and civil cases—96; regional court magistrates—110; six regional court presidents were involved in these matters and in 305 magistrates’ courts there were 635 magistrates who had to deal with these sentences. As has been said previously, 191 commissioners were involved in cases handled in commissioners’ courts. I sincerely believe that the majority of these presiding officers do their work with dedication and with much soul-searching, and that they do not at any stage impose a sentence in a frivolous or any other fashion. In a recent series of articles which have already been referred to, a journalist referred to penalization, inter alia, as follows: “’n onderontwikkelde en afgeskeepte deel van ons regstelsel”; “die Aspoestertjie van die regspleging”. Then prof Glaser of the University of Natal talked about “’n lukrake besigheid”. I am the last person to say that the last word has been said about penalization and that it should not be criticized. As is said very often criticism is a good thing, but it must be constructive, it must be expressed in a good spirit and also with a good and balanced knowledge of the facts after a reasonable study of a very complex subject.

In the investigation conducted by Mariëtte Crafford, it struck me that she had obtained a BA degree at Stellenbosch in 1983 and that she had had no legal training of any sort. In the short time at my disposal, I want to make a few remarks about the article concerned. One of the points of criticism was that this subject did not receive attention on an ongoing basis. Apart from what the hon the Minister has already put on record, I want to mention that seminars on penalization in which presiding officers are involved take place regularly. I can, for example, refer to the seminar which was held in Pretoria on 25 and 26 June. They also take place on a regional basis. There was one on 8 September 1983 in Port Elizabeth in which 228 presiding officers were involved as well as one on 11 November 1983 at Kimberley in which 128 presiding officers were involved. Often magistrates, especially in the rural areas, get together to discuss matters related to their profession. There is a variety of magazines such as The Magistrate and many others in which these subjects are dealt with from time to time. The guidelines, as laid down by the Supreme Court, form a very important part of the training of officers. One can, for example, look at page 147 of the Viljoen Report. Because of the lack of time I cannot at this stage refer to all the books and magazines available. However, I do want to mention the book of Advocate Du Toit, a book of more than 500 pages in which an in-depth study is made of the science of penalization. If one looks, inter alia, at Chapter 2, which deals with the aims of punishment and the general method of penalization, one sees that every so often the theory and then the practice are discussed, and it then becomes very clear that much more than guidelines are given in these books of which very careful note should be taken.

Mr Chairman, I must say that the way in which members of the Government react to this situation when they in fact hold all the cards really surprises me. They have received a series of magnificent reports at their own instigation and have almost immediately followed up the recommendations with legislation. Yet they react to minor criticisms and inquiries in a very defensive manner. They must change their style.

I would like to join some other members on a bit of thin ice. I would like to say that I think everybody in this country was extremely surprised that a person in possession of the weapons and the arsenal almost, available to Mr Eugene Terre’ Blanche, did not receive any sentence at all. Let us take it on a quite different tack: What chance would a member of any other population group have had had he been found under those same circumstances in South Africa? The points made by the hon member for Houghton had nothing to do with the ANC, but were related to justice. She transgressed the rules of the House by doing what none of us here knew was incorrect in that she mentioned certain matters that are sub judice. Equally, her substantiation of her input was obviously very flimsy. But that is not the issue. The issue is that she was talking about justice and that is what this debate is all about. Really, Sir, any child could see that that was what the hon member was doing. The Government benches now swing away from trying to pin things on the CP—who really deserve things being pinned on them, lets face it—and get back to the old style of trying to look for something in a debate which is really not interesting or very enlightening, and I think they must change their style, I really do.

If she had not spoken you would not have had a speech.

That is not quite true. The issue concerned is probably better than my speech, so I am quite happy to devote a few minutes to it. I am very sorry for the hon member for Roodepoort who had so much interruption, but that will teach him in future. I must say that I find it difficult to follow his speech, but I always listen to what he has to say and have read some of his speeches. He usually has a very good input in the Justice debates.

I would like to carry on from where I was this morning. It is a little difficult, as the hon the Minister has answered so many points. I put them in for the record and also because there are aspects of them which were not previously enunciated.

In essence, what I was going to lead on to—this has been covered to a very limited degree—was how the Minister was going to cope with the problems outlined in Chapter 1, paragraphs 1 2(a) to (c) of the report of the Director-General: Justice. I know he has talked about the structure and management situation improvement, but the report outlines a situation where, at this stage, a R9 million shortfall exists to cope with the backlog, let alone further extensions. How is he going to cope with the additional 54 magistrates’ courts required or the 18 regional courts or the alarming rate of finalization of cases in some regional courts? How will he staff these extensions with experienced judicial officers? We know this state of affairs happened because his predecessors did not act with alacrity. We know that the hon the Minister is involved very strongly in rectifying the situation. I think what is important is to try to project what sort of time period and what sort of action is going to be taken to get down to the nuts and bolts of bringing about the improved situation that we all desire. The quality of justice under these pressurized conditions in which presiding officers sit, must suffer. Even for experienced personnel it must be extremely difficult. If one adds to that the present lack of experienced staff in some areas, there is a very definite situation in which there must be a lowering of standards. I cannot agree with the hon member for Mossel Bay that a satisfactory level can be maintained under such conditions. The hon. member indicated in his speech that a high quality can be maintained. Apart from the justice point of view, from the staff’s point of view that is not a realistic statement to make. I think the reverse is true. The standard can be maintained over a short period, but under such incredible pressure, something will crack. The point I want to make, is that one should admit to its being an issue in regard to which we cannot maintain the quality of justice we would like to maintain, rather than say that we can maintain it.

I should like to say something about the additional burden thrust upon magistrates in the 160 magisterial districts declared grazing distress areas in the year under review. The service in this field and the disruption that this must have brought about, is acknowledged and highly appreciated, particuarly under the difficult circumstances we have been discussing in this debate. I think one must see that it in itself must have had an additional detrimental effect in some cases whilst one appreciates the difference between rural and urban circumstances as far as the courts are concerned. If the hon the Minister does separate the administrative function of the magistrate from the judicial function, that would assist matters in this direction considerably, but naturally one is then looking at an extra staff requirement. The role of magistrates in the rural communities, in particular throughout South Africa, is an extremely important one. Their dignity, wisdom and political impartiality as well as the quality of person is something that is scrutinized very carefully by the citizens from each population group. It very quickly becomes known throughout that community. There are cases in which the persons’ suitability is questioned, when they simply do not fit into the community, perhaps due to their demeanour or even sometimes a careless expression of political opinion. A great deal is expected of them by the community. The community like to like them and they have the right to do so, because they look up to this very important post in their community. They like to be proud of them. I should like to ask the hon the Minister to give on-going attention to the quality aspect of magisterial appointments and I do not do that with any ulterior motives. I simply feel that is something one must bring to the hon the Minister’s attention.

Now I should like to turn to the Law Commission Report again and I should like to ask the hon the Minister if he is in a position to give the Committee any further information concerning project 45 on page 33 entitled “Women and Sexual Offences in South Africa” and whether project 51 “The Review of the Matrimonial Property Law of Black Persons” appearing on page 35 enjoys the priority that it really deserves. I think this has come out very strongly in the Select Committee’s report on the Matrimonial Property Law Act and it is something we should like to feel is getting priority attention. Certainly the commission’s report and the remarks concerning their modus operandi and the fact that the work study group is getting going indicate that their approach to the matter is highly satisfactory, but we should like to know what form of priority it enjoys.

Last, but by no means least, I should like to, also on behalf of us on these benches, express a word of appreciation to the parliamentary staff of the department. We have had tremendous service from them. They are extremely good ambassadors for the department and we enjoy their services and congratulate them for that.

Mr Chairman, the hon member for King William’s Town will pardon me if I do not comment on his speech. Unfortunately, I was not here when he commenced speaking with the result that I did not quite follow the trend of his argument. I must say it is always interesting to listen to the comments of laymen, including the hon member for Houghton—however misguided such comments may be—about the activities of the legal profession.

*Mr Chairman, I should like to express a few thoughts in connection with certain recommendations of the Hoexter Commission. I want to restrict my comments to the commission’s criticism and recommendations relating to lower courts, that is, magistrates’ courts. Allow me, however, to point out firstly that while we are going through far-reaching changes in the constitutional field, we are now experiencing equally far-reaching changes in this field. It is always said without fear of contradiction that legal people are conservative. I am not talking about conservative in the political sense. People in the legal profession do not easily yield to change. Our country is a wonderful example of this since the origins of our common law go back thousands of years to Roman times. It goes without saying, of course, that even in this sphere changes and adjustments have to be effected in order to meet the needs of modern times. In many respects the Hoexter report indicates the direction we should follow. During the debate on the report the hon the Minister intimated that his predecessor had initiated the commission. There is no doubt, however, that the great task of sorting out the various recommendations and of deciding which recommendations should be implemented and how and when such recommendations should be implemented, rests squarely on his shoulders. I am guilty of an understatement when I say that the hon the Minister has so far acquitted himself superbly of this task. In the process of bringing about certain reforms we have been guided by a firm hand. Other legislation has wisely—and I emphasize wisely—been referred to a select committee of Parliament and is now awaiting Parliamentary 3196001 approval. We ought to give the hon the Minister our full support in this difficult but historic task he is performing.

I want firstly to seek the attention of the hon the Minister on a matter of urgent and essential reform. It is accepted that a new Supreme Court building in Port Elizabeth has become an urgent necessity. On page 100 of the Hoexter Report no less a person than the Judge President of the Eastern Cape Division speaks of the total inadequacy of the facilities there and of how, between 1974 and 1981, he repeatedly conducted interviews with successive Ministers of Justice and with officials of the department before certain additional facilities were made available. Those facilities are, however, still inadequate, One must remember that most Supreme Court work in the Eastern Cape is undoubtedly done in Port Elizabeth and not in East London. Earlier this session the hon the Minister of Community Development in answer to a question indicated that draft plans for a building were in preparation and that the building was expected to be completed in 1988. The existing facilities are however so limited and inadequate that I want to urge the hon the Minister to see to it that everything possible is done in order to expedite the planning and the completion of that building.

I should like next to come to a more general aspect of the report, namely the report on lower courts. In relation to one facet of this, the commissioners’ courts, the hon the Minister made an important announcement this afternoon. In accordance with the general position in South Africa the commission finds that there is a shortage of experienced, skilled manpower in magistrates’ courts. This is a countrywide problem for which no instant solution can be offered. According to the annual report of the department—as is the case throughout South Africa at the moment—facilities have been created for in-service training. It is interesting to note that the department even makes provision for the legal training of officials of other departments such as the Department of Agriculture. The report goes on to state that the seminars were attended by 44 more judicial officers than was the case the previous year. Certain statistics given in the annual report indicate the type of judicial training employees of the department undergo. It is an impressive list indeed. Academic training is not being neglected either. During the year under review 173 employees of the department obtained, for instance, B Juris or Dip Juris qualifications. I think the department could very well give more publicity to these achievements. The commission points out that the incorrect utilization of legally trained manpower also occurs from time to time. I wonder whether this should not rather be seen as proof of the versatility of the legally trained person. In this respect I find myself in agreement with the hon member for Mossel Bay. So many of the functions that are for instance carried out by magistrates on an agency basis on behalf of other departments do require legal qualifications. The commission itself admits that public interest worldwide demands that the expertise of people in legal office should also be utilized in respect of functions which are classified as administrative or quasi-judicial. A total separation is just not possible. The commission also remarked that judicial officers were officers in the employ of the executive and that they were therefore often required to perform executive duties. This gave rise to criticism on the part of jurists. It is however of note that the commission’s own finding was that the independence of magistrates in passing judgment was not affected by this. Other findings of the commission, however, prove just the opposite. The commission finds judgments in the district criminal courts to be satisfactory, and those in regional courts to be excellent. As far as civil cases are concerned, the average quality of the administration of justice was found to be unsatisfactory. The commission furnishes reasons for this state of affairs and comes to the conclusion that this is not as a result of prejudice on the part of the judicial officers or of subservience to the executive but rather of a lack of training and promotion opportunities. The commission further quotes with approval the words of Mr B R Bamford written in the SA Law Journal in 1956. These words appear on page 390 of the said publication, and I quote, as follows:

I submit politely that in South Africa we do indeed have “proper men” in our magistrates’ courts. I find though that I cannot subscribe to the recommendations of the commission in this respect, namely that the judicial and administrative functions should be separated as a matter of course. I wonder whether that recommendation does not justify further study.

Mr Chairman, the hon member for Port Elizabeth North put a reasoned argument. I regret that I cannot quite agree with his approach in respect of the duties of a magistrate. What one is always afraid of is that to some extent a magistrate in the exercise of his non-judicial duties may well end up being involved in something which is of a controversial nature and which therefore would affect him in the exercise of his duties as a magistrate.

I do not intend to continue on that particular point because I should like to choose a particular topic for debate and that is the high cost of litigation. There is no doubt that the high cost of litigation is a matter which not only has been dealt with at great length in the Hoexter Commission Report, but is a matter of extremely great public concern. It was dealt with also in the Galgut Commission Report. The issue really is whether in fact the courts are available to all equally by reason of the high cost of litigation. Sometimes the point may be made in reality there are only two types of people who can litigate: either the very rich or the absolute poor. If you are a middle class man with some resources and you get yourself involved in civil litigation in what may well be a just cause, you may end up being ruined financially as a result. I think this is a factor that we as legislators, have to take into account and have to take notice of because it is clear that we cannot allow this present situation to continue. One of the matters which is clearly a cause of the high cost of litigation is the speed with which you can dispose of litigation. There is little doubt that far too much litigation, both civil and criminal, in fact takes too long. May I just give an example in respect of criminal litigation as to how it affects the community? There are so many people who are reluctant to be witnesses in a criminal case. They would rather disappear from the scene because they do not want to be called to court and be asked to come back again and again and hang around. The result is that they rather say they did not see anything. This certainly does not advance the course of justice. The same applies in regard to our police. Just work out the number of hours that our policemen spend waiting at courts for cases to come on when they could be doing more useful work like patrolling the streets. With civil cases it is exactly the same.

The other matter I want to raise is the question of unnecessary technicalities. Just look at the technicalities which one has to go through in litigation. There is no doubt that many people take advantage of the technicalities of the law in order to get themselves time and escape their actual responsibilities. I wonder whether there is not an even greater need for constant review of our rules and of our procedures. There are two things that I should like to suggest. Firstly, we should get to the root of the matter as far and as quickly as we possibly can and in the most efficacious manner possible. Here I would like to suggest that we look, for instance, at a procedure which is adopted in North America which they call a discovery procedure and in terms of which, before the case actually appears before a court official, a recording is made of the evidence of the parties to the litigation. In this way they avoid technical offences and the record can then be used in the trial eventually. In practice the man appears and a recording is made of his evidence. It is then placed before a court official and the issues are determined. You then find that many cases disappear because you can get to the root of the matter without having to go through the process of proving points, which is so difficult. I would ask the hon the Minister to investigate the North American discovery procedure in order to deal with this particular problem and I am quite sure that it will help.

You are a practitioner in your own right. Do you think practitioners apply the present system properly?

No, I think there are many practitioners who use the present system in a manner which they should not use it. The hon the Minister knows that I practiced both at the Bar and at the Side Bar. There are without doubt people who use the technicalities of the system in order to delay or frustrate. There is no doubt that our job is to make sure that they cannot do that. We are here as legislators and we have to ensure that this cannot be done.

We then come to the question of legal costs and I also want to ask the hon the Minister to investigate the question of there possibly being an option for the lawyers to charge not only on a time basis, but on a fixed scale as it is done in many European countries for various stages of litigation. The scale is based on the amount involved and the type of dispute which is in issue.

Then I want to raise an issue about which there might perhaps be divided feelings, and that is the issue of the divided profession.

May I ask another question? In what way will it differ from the scale that is applicable in the lower courts?

What happens in Europe is that you charge an amount that is determined for a particular stage of proceedings depending on the amount which is in dispute. If the hon the Minister would like details I have details of the system as it applies in Germany and I can give it to him so that he can study it.

I want to deal with an issue that I think is important and that is the question of the divided profession. It is true that this division is traditional in South Africa, but there are many other countries where it is not the case. It is also true that you can argue, depending on whether you are an advocate or an attorney, for the case on both sides, but the reality is that there are, I believe, more advantages in not having a divided profession than there are advantages in continuing with the present system. I would appeal to the hon the Minister that he should negotiate with the professional bodies, both the Bar Associations and the Law Societies, in order to deal with this problem. I do not suggest that from today to tomorrow we should just merge the two professions. I think the commission itself on page 159 of its report says that it could be an evolutionary process. I would like to suggest to the hon the Minister that he can start this evolutionary process by allowing, in order to reduce the cost of litigation, attorneys to do a whole series of things which they cannot presently do. There is no need why all pleadings in the Supreme Court should be signed and prepared by an advocate. There is no reason why in default matters there should be any appearance in court at all in many cases. Why can it not be dealt with in chambers and counsel called for if necessary? There is no reason why attorneys cannot appear in certain motion proceedings. I do not disparage the role of the advocate. Far from it. I believe there will always be a role for the specialist and there will always be a role for the trial laywer and there will always be a case for people to specialize. As is pointed out by the commission the attorney is no longer an inferior functionary as he was looked upon years ago. I think the attorneys and advocates should have the same qualifications. I believe if we want to look at reasons why we should eventually bring about a fusion of the two professions, we need to look overseas again where it works and works well. We need to look at the situation in relation to the contact between the client and the man who actually appears in court so that we can actually get a situation where you will find that the profession functions far more efficiently and far more effectively. If you look at the objections which are listed in the Hoexter Commission’s report you find that they are very brief. There is a long list of reasons why there should be fusion and there are a couple of words about why they should not be. As regards the remarks that you cannot have fusion because lawyers are too busy and that they get interrupted by telephone calls, well, anybody who goes to counsel’s chambers when he is busy—the hon the Minister knows it—will find that he is surrounded by papers. If counsel does not stop the phone calls he has got the same problem as the attorney who does not stop the phone calls. These arguments are ludicrous, with respect. I think the real issue is that we need to look at the cost position and the effectiveness of legal representation and we need to bring about changes by means of co-operation between the various professional bodies and the Minister and his officials. If we do that we can get to grips with the real high cost of litigation in South Africa. In the present system, we have duplication of costs. We find that you duplicate consultation and the amount of paper you produce. This sometimes leads to differences between what eventually is said in court and what was started off with in the attorney’s office. I would ask the hon the Minister to initiate the debate in South Africa on the issue as to whether we should not gradually and in an evolutionary manner by consultation bring about a situation where we can reduce the cost of litigation by gradually fusing the professions and having one profession in law for us.

Mr Chairman, I have pleasure in following upon the hon member for Yeoville. In so far as the exorbitant legal fees are concerned I should like to point out that the Hoexter report states very clearly, on page 133:

As regards its opinion in connection with the divided profession, I think the hon the Minister will need the wisdom of Solomon in order to choose because the lawyers are in favour of amalgamation while the advocates are against it. I do not know who is going to win in the end. Fortunately the hon the Minister is a lawyer and therefore I side with him.

I want to state as an indisputable fact that the Government, which came into office through the National Party, has at all times had a sympathetic ear for the judicial needs and the judicial problems of its subjects. That is why the National Party Government is determined to ensure that our judicial system will at all times protect the rights, the interests and the privileges of every citizen of South Africa. This is a proud ideal which is difficult to accomplish. It is not only an ideal that must be pursued but also one that should in fact be realized. Only then can what Langenhoven on occasion put so simply and effectively in fact come true, namely:

One must never lose sight of the fact that the judicial system is subject to constant change. The test for every authority is whether it identifies the change, gives consideration to it and allows it to take shape. The history of our own judicial system is a striking example in this regard. It is even more than that. For the government of the day it is an example worth following. In approximately 450 BC the laws of Rome were engraved on clay tablets. That was the beginning, the earliest known source of what to this day prevails as our law. Later most of the law was taken over by Holland, and as a result we have what is known today as Roman-Dutch law. We see therefore that the history of the development of our law spans many centuries. During the past year or two, and particularly the current session, there have been moments of tremendous and exciting development in our law. Things are also very promising for the foreseeable future. We can in fact talk about law revision in the true sense of the word. Law revision will always have to take place in a developing and civilized society. Without it we would be faced with the stagnation, deterioration and deadliness of our civilization. That would be the writing on the wall. Law revision should be an ongoing process. That is a sign of a civilization on the move. Fortunately, there are numerous persons and bodies in South Africa which are constantly and positively contributing towards law revision. I want to mention a few of them, thank them and at the same time pay tribute to them for it: The Bench, the South African Law Commission, the Bar Council, the Law Society, juristic academicians, the Department of Justice, the Minister and Parliament. In this regard I should like to learn from the hon the Minister what sort of progress is being made in respect of the proposed changes to the SA Law Commission in order to provide, inter alia, for full-time membership. By the way, what progress has the Law Commission made in respect of its investigation into the woman and sexual crimes? Parliament bears a great responsibility in this regard. On occasion the hon the Minister of Justice has rightly sounded a warning to the effect that in today’s sophisticated society the creation and adjustment of legal principles by way of custom has to a large extent become a thing of the past, and that legislation had probably become the most important source of law creation and law reform.

The National Party as the chief initiator of legislation takes constant note of law reform. Allow me to quote some examples in this regard. During the current session of Parliament we have had legislation in connection with small claims courts, something which is a totally new concept in South Africa. Here we have a process of adjudication which enables the ordinary man to settle his minor civil disputes by way of a simple, quick and cheap method.

A second example is the following. The NP Government, as custodian of the interests of the nation, also keeps a watchful eye on the interests in law of the various divisions of society, namely the family, the marriage and the home. By the same token the introduction of a family court is also under consideration, and we are awaiting a Bill to that effect. The NP Government is also alarmed at the high divorce rate in our country, and is anxious to promote steps aimed at curbing the disintegration of marriages. Furthermore the NP Government is concerned about the preservation of the family as a fundamental unit in our community. Over and above this the Government also has the interests of children at heart.

A third example is the Matrimonial Property Act. Here the Government has examined the socio-economic development in which women have taken part during the past decades.

A fourth form of law reform is the recommendations contained in the Hoexter report. In this respect I refer specifically to the further comment by Commissioner J M Potgieter on the judicial office in the Supreme Court, and in fact in regard to the question of whether the standards of our Bench could not be improved if judges were to be appointed from a greater variety of sources. I submit that the hon the Minister should give consideration to appointing judges from the ranks of practising attorneys as well. I agree wholeheartedly with Mr Potgieter’s motivation. According to him there are approximately 6 000 practising attorneys. On page 85 of the report he is quoted as saying:

I am sure the hon member for Yeoville will agree with me that in the ranks of attorneys there are in fact good jurists who would be an asset to the Bench. I make a very strong plea to the hon the Minister in this regard. In the special debate on the Hoexter report the hon the Minister said (Hansard, 12 April 1984, col 4868):

I should like to know whether the hon the Minister is in a position now to give us further particulars in this regard, as well as particulars in regard to the so-called national law school to which the commission referred.

Another striking example of unique law reform in South Africa is the way in which group rights are being handled in terms of the new Constitution.

I should like to state finally that I do not have the slightest doubt that any objective observer will come to the conclusion that the Government that was placed in power by the NP not only looks after the interests in law of the individual and the various divisions and groups in society but is in fact also meeting the heavy demands which law reform has made of governments over the centuries.

Mr Chairman, I am not going to follow directly on what the previous speaker said.

As regards the question of the divided Bar to which the hon member for Yeoville and also the hon member for Bloemfontein East referred, I just want to say I am glad that in that connection I am not in the hon the Minister’s shoes. I think it will require Solomon’s wisdom to find a satisfactory solution for both these divisions of the profession in this connection. For us attorneys it sometimes gave rise to a very strange situation, particularly when in the Supreme Court one was obliged to make use of junior advocates in cases which one could sometimes deal with just as well as they could and often better. I recall that at the time when I was an attorney’s clerk, my colleagues who obtained an LL.B together with me could straight away appear in the Appeal Court while I was not permitted to conduct an ordinary section-65 debt examination in a magistrates’ court. Because I chose to become an attorney, I was considered to be unqualified to do that, but the other man could appear in the highest court in the land.

I just want to come back briefly to the decision taken by the hon the Minister with regard to the Bantu commissioners’ courts. It has been claimed that these courts had a bad racial connotation. That may be so, but I think it would be wrong to claim that those courts did not fulfil an important function in the administration of justice in South Africa. There was a demand for that and they served an important purpose. Concerning the hon the Minister’s announcement that he is now taking these courts under his wing, there is one thing that worries me. It is this: Have we now finally decided in this country where we are going with Black customary law, not only in respect of the Black man in his own area or self-governing area, but also in respect of the Black man outside of those areas? My standpoint is that the Bantu commissioner’s court was in the past par excellence the court which specialized in and was knowledgeable on Bantu customary law for purposes of the administration of justice according to Bantu customary law amongst Black people. I think we may have to proceed carefully. Although on the basis of our Western standards we may perhaps think that Black customary law is anachronistic in modern times, I think we will nevertheless have to take care not to offend the Black people in this country in respect of their approach to law and their view of the law. From practical experience one knows that many of the Blacks who have not yet become westernized or completely westernized do not necessarily have the same conception of the law that we have. Let me give a simple example. Those people are not and never have been familiar with a concept such as that of prescription. I recall the case of a Black man who came to see me to reclaim another Black man’s ox. He could describe that ox exactly, its every marking. I then had to determine exactly when the transaction took place and it turned out to be more than 40 years ago.

Was the ox that old?

No, according to Black customary law the man who got the ox from him had to give him not the same ox but another ox.

I also came across many other things in my practice. In one case in the regional court I defended a Black man charged with rape. Fortunately I had some knowledge of Black customs in my part of the world. The complainant in the case claimed, inter alia, that she had been assaulted by the accused and that for that reason she finally consented. By chance I happened to know that in terms of Swazi custom no decent young Black woman would give in to a man, to put it like that, unless he assaulted her, so-called. In this particular case the serious assault consisted of his giving her a few raps with a light stick. On the strength of that knowledge which I and, coincidentally, also the Black interpreter in the court possessed, an innocent person was rightly found not guilty.

Therefore I want to make a serious appeal this afternoon: we must proceed carefully. Since the Department of Justice is now going to take over these courts, I should like to know from the hon the Minister in what light he sees the role Black customary law will play also in our area in the adjudication by these courts. Reference has already been made here this afternoon to the costs of litigation. We are all aware that litigation between Black man and Black man is far cheaper if they have recourse to the Bantu commissioners’ court than if they turn to the so-called White magistrates’ court. I look forward to the hon the Minister’s comments in this regard.

Mr Chairman, the hon member for Barberton put certain questions to the hon the Minister and I accept that he will receive replies to those questions. The hon member also referred to the question of costs and the system of lower and higher courts which applies here. I thank the hon member for his insight, because one will indeed require Solomon’s wisdom to solve that problem.

The Hoexter report mentions that there are certain senior attorneys who would grace the Bench of the Supreme Court but who are not permitted to appear before a judge. I just mention that to highlight the problem further.

The image of our judicial system is mainly determined by the image of the judicial officer. If the judicial officer does not enjoy the respect of the general public, he will not succeed in fulfilling his function. His function is primarily to ensure that order is maintained in society and to combat undesirable situations. Historically our magistrates have a reputation, particularly in rural areas, of being people who fulfil a very important function of being in society. The Hoexter report has also confirmed that. The magistrate fulfils this function not only as judicial officer but also as a functionary of the State in many other very important respects. I shall just mention a few of those. He is electoral officer during elections, presiding officer when insolvent or deceased estates are examined, and also chairman of licensing boards, road boards and agricultural credit committees the importance of which was again highlighted during the recent drought. He also fulfils certain functions in respect of marriages and applications for citizenship. All these functions contribute to the maintenance of order in society. Particularly in rural communities that is just as important as a very good administration of justice. All these functions also demand a thorough legal knowledge as well as the ability on the strength of certain information laid before the presiding officer to take decisions based on facts and the law. It also directly affects the lives and fortunes of many people. Inept and bad handling of these affairs will be just as detrimental to the community as a bad administration of justice. Although the administration of justice is the primary function of magistrates, I want to point out that magistrates have a limited jurisdiction while in financial terms many of these functions are of unlimited value—I refer, for example, to investigations in connection with insolvent estates, his function in connection with the road board which often has to deal with very important and urgently required roads, and also his function in connection with licences. I know of no other party in the rural areas which can fulfil these functions better than a magistrate. The competent way in which these functions were fulfilled over the years contributed to the development of the judicial officer’s involvement with a community. As a result the administration of justice by the magistrates becomes more acceptable. I know that the hon member for Yeoville expressed his concern at the fact that a magistrate can become a controversial figure if he has to give a ruling which actually has nothing to do with the administration of justice. As we heard again this afternoon, a ruling he gives in his capacity as judicial officer can also possibly result in his becoming a controversial figure and, therefore, if he is qualified to fulfil a function and does so impartially, I cannot see that that can have any other influence than when he fulfils his function as judicial officer.

I accept that administrative tasks must be taken away from the judicial officer in the lower courts if that is going to affect the quality of the administration of justice. In this debate much has been said about the manpower situation, but I maintain that, in solving one problem, we must not create another. The Hoexter Commission did not delve into an analysis of the man-hours spent on other services, nor was that that commission’s task, but the appendices to the report contain interesting facts about this. There we see how the man-hours and time spent by the various courts differ. As I have already said, I do not believe it was the Hoexter Commission’s task to delve into this nor that it was possible for the commission to determine how these additional duties influence the man-hours spent by magistrates. Circumstances also vary too much from place to place. I want to argue that that can be undertaken far better by the department itself, perhaps in co-operation with the Commission for Administration. The implementation of any change must take place without a lowering of the standard of the service presently provided. I know that the hon the Minister does not allow commission reports to gather dust. In this instance the hon the Minister really moved very quickly, but I nevertheless want to warn that in this specific case the recommendations must be applied in an evolutionary manner. I should like to mention a few factors that can play an important role.

The commission anticipates the establishment of a family court. Such a court should have a social component known as “the family court counselling service” and, secondly, a court component. I quote:

The increased jurisdiction of magistrates’ courts may increase the pressure on civil courts, but on the other hand the small claims court, in respect of which legislation has recently been adopted, can serve to reduce the pressure. What the ratio will be is something we can actually only determine in practice. For that reason and because we are concerned here with factors which can increase or decrease the pressure on existing manpower, I maintain that these matters must be very well monitored. The department, in co-operation with the Commission for Co-operation and Development, is best able to undertake this task. In this instance we must not take functions away at the expense of a good service.

In this debate mention has also been made of the so-called independence of our lower courts. I do not have the time to analyse that. It can be accepted, however, that the report proves that the lower courts’ judgments are good. In this connection I should like to associate myself with the hon members who congratulated the staff of the Legal Training Branch. Any practitioner will know that the quality of our prosecutors has recently improved considerably. If the quality of our prosecutors improves, I can assure you that the quality of the magistrates before whom they appear will also improve considerably. It cannot be doubted either that our magistrates enjoy the esteem and respect of the local public. That is at odds with the view that there is a dependent bench in the negative sense. That in itself is proof that the administration of justice by our magistrates is independent and is also seen as such by the public.

Mr Chairman, the hon member for Nelspruit has dealt with the tremendous and diverse responsibilities which magistrates have in South Africa. I agree with everything he said in that regard. I think they do have very wide responsibilities, particularly in the country areas and I think that that should be recognized. The hon member has also dealt with various aspects of the Hoexter Commission Report. Much of this debate has ranged over a wide area of subjects from the Hoexter Commission Report, the merging of the legal profession, the operation of the Law Commission, to the problems of the department in finding suitable staff and training suitable staff. I want to raise a somewhat unusual matter with the hon the Minister this afternoon and I make no apology for doing so.

I want to deal with a specific matter in respect of which the hon the Minister has responsibility in terms of the Animals Protection Act. It is the question of animal experimentation and vivisection in experimental laboratories. I realize that other departments are also involved and implicated in this aspect such as the Department of Agriculture and the Department of Health and Welfare, but when I looked into the ultimate responsibility for matters of this kind I find that this hon Minister is in fact the legal guardian against cruelty to animals in terms of the Animals Protection Act.

I know that however abhorrent cruelty to animals is in any civilized community, it is a fact of life that wherever animal experimentation takes place which can benefit human beings, by way of medical research, this is generally accepted by society. I think that one must recognize that as a separate aspect. It is justified by the necessity for scientific research in order to treat disease and find cures for disease in an attempt to save human life. It is something which, we know, happens all over the world in the name of medical research. However, I am concerned that experiments on animals appear to go far beyond simply meeting the motive of medical research. I want the hon the Minister to indicate what sort of control, if any, is exercised over this type of research and the cruelty which results to animals. The Animals Protection Act cites a long list of offences in respect of animals, 19 in all. It provides inter alia in section 2:

1. (1) Any person who—
   1. (a) cruelly overloads, overdrives, overrides, beats, kicks, goads, ill-treats, neglects, infuriates, terrifies, tortures or maims any animal... shall ... be guilty of an offence... and liable to a fine not exceeding R1 000 or 12 months imprisonment.

That is the first of 19 offences listed in the Animals Protection Act. The Act also, as the hon the Minister will know, provides that the hon the Minister may make regulations. I quote from section 10 of the Act:

1. (1) The Minister may make regulations relating to—
   1. (a) the method and form of confinement and accommodation of any animal or class, species or variety of animals, whether travelling or stationary;
   2. (b) any other reasonable requirements which may be necessary to prevent cruelty to, or suffering of, any animal;
   3. (c) the impounding, custody or confining of any animal due to any condition of such animal and the recovery of any expenses incurred in connection therewith from the owner of such animal; and
   4. (d) generally such matters as are required for the better carrying out of the objects and purposes of this Act.

Those are the provisions for the hon the Minister to make regulations and this gives him the power to act and also, I believe, the duty to act in appropriate cases in order to watch over cruelty to animals.

I want to ask the hon the Minister what sort of surveillance, if any, does he or his department conduct in respect of the vexed question of animal experimentation. Are there any regulations? Have any regulations been issued in terms of the powers which the hon the Minister enjoys? Is there any sort of control over this sort of experimentation?

From evidence which comes to one from the lobby concerned there is evidence all over the world that animal experimentation takes place on a massive scale and not just for the sake of medical research. That is the point I want to emphasize. The anti-experimental lobby claims that the total number of animals used annually in laboratories is something like 200 to 250 million around the world. It says that the United States accounts for something like a 100 million; the United Kingdom for something like 5 million per annum and it estimates that South Africa accounts for something like 4 million per annum. The journal of the South African Association Against Painful Experiments on Animals states the following:

The journal quotes examples:

The LD50 test is mind-boggling and horrifying. I want to read what the association says about the LD50 test:

This is done in a civilized society purely for commercial and non-essential purposes. It certainly should be something which must fall within the purview of the Animals Protection Act. As I have indicated, the Act provides that it is an offence if anybody maims or wilfully ill-treats any animal. I want to know whether the hon Minister is aware of whether this test which I read about, this LD50 test, is, in fact, being applied in South Africa. If the hon the Minister is not aware of it I would suggest that his department, amongst all its other responsibilities, should investigate it. One wants to know what control is operated.

I hope you are not suggesting that we should also take over all the laboratories in South Africa.

No, I am not suggesting that at all. I say that this hon Minister, amongst all his other responsibilities, has the responsibility of being the guardian against this sort of cruelty if it is taking place needlessly and not in the name of medical research. I think the hon the Minister or his department should also look into how experimentation is conducted in regard to animals in South Africa. One would hope that at least it would be possible to make it mandatory that animal experimentation is conducted with the use of anaesthetics in all experiments which cause pain. I believe that at the present time most experiments are performed without any form of anaesthesia at all. I also have figures which indicate that in Britain, for example, 90% of the experiments which are carried out on animals are carried out without any form of anaesthesia.

Another improvement would perhaps be the prohibition of the multi-unrelated surgical procedure whereby the same animals are used again and again in surgical experiments.

These are matters, I think, which the hon the Minister and his department could well investigate, because, as I said, the hon the Minister has the power in terms of the Animals Protection Act. I believe it is a matter which is causing a great deal of concern to a large number of people who do not like this sort of thing taking place needlessly. I believe it is a case which must be made and I hope the hon the Minister will react thereto.

Having said that, may I offer the hon the Minister my apologies for not being able to be present when he replies, because I have an aircraft to catch in about an hour’s time.

Mr Chairman, the hon member for Berea asked the hon the Minister specific questions in regard to cruelty to animals and I am quite sure the hon the Minister will answer them. I should, however, like to warn the hon the Minister that he is moving in a very sensitive field in this respect. I read in the newspaper yesterday that at the annual world congress of animal lovers a lady issued a warning and asked that in a case of divorce the parties should take into account the feelings of their pets. That actually happened. According to her, divorce is more traumatic for a dog which becomes fond of both parties than for a cat which becomes fond of the specific place where he finds himself. The hon the Minister must take care because he does not know whose tail he might just tread on. In all seriousness, experimenting on animals is something which is assuming tremendous proportions, and I believe it is vital that one should at all times guard against abuse. I should like to associate myself with the representations made by the hon member for Berea in this regard.

I should like to draw the Committee’s attention to the problems of procedural law brought about by the interstate situation which arise through the formerly national states becoming independent. Before such independence, although the administrative work of the Department of Justice has in all probability already been transferred to an own department of the state concerned, there are no problems since the legal process of the non-independent state and of the RSA applies in one another’s area. In the case of the independence of the TBVC countries problems do, however, arise, in respect of both the civil and criminal procedural processes in that court documents in the Republic are no longer valid and enforceable in the independent states, while the reverse is of course also true. The most important bottlenecks that merit attention are those that are experienced in the execution of civil judgements, the security involved and also the serving and legal force of summonses, especially for minor offences.

Firstly, therefore, there is the question of civil judgements and their enforcement. Our common law does provide for a process in the Supreme Court in terms of which provisional judgement can be obtained on a judgement passed in the Supreme Court of another recognized country. Application has to be made to the Supreme Court, and the court then determines whether the foreign court had jurisdiction, whether its decision was final, whether the order is not too old and whether it was in persona and for an amount of money. The debtor is notified and he can defend himself against the claim. It is, however, clear that this procedure is a long and extensive one and, since the merits of the case can also be investigated, it may in certain cases seriously prejudice bona fide creditor's. This only applies in respect of Supreme Court judgements.

Owing to the fact that the common law produced problems on this point, Parliament in fact passed legislation, namely the Reciprocal Enforcement of Civil Judgments Act, Act No 9 of 1966. For reasons which I shall discuss later, it has, however, not been put into effect in practice. In terms thereof the procedure is briefly that a Supreme Court judgement is registered through diplomatic channels in the Supreme Court of the other country. The debtor is notified and afforded the opportunity of setting aside the judgement on specific grounds. This procedure is quicker and cheaper than the procedure for which the common law provides, but naturally it can only work if the other states accept it. At the time of the passing of the legislation it was aimed at the BLS countries, which did not want to accept it. The position was the same later on with regard to the TBVC countries, for various reasons, but, inter alia, because they were of the opinion that their common law did in fact provide for that, and that the Act would present certain practical problems. In the light of that fact it would have been useless to put this Act into effect. In any case, this Act, like the common law, applies to Supreme Court judgements only and does not include magistrates’ court judgements which of course occur in far greater numbers.

Another bottleneck which to a certain extent is related to the abovementioned position, has arisen in respect of the legal rule that a foreign plaintiff, a peregrinus, must provide security at the request of the defendant when a civil action is instituted. In the Eastern Cape case of South African Television Manufacturing Company (Pty) Ltd vs Jabuti and Others, 1983, the court found that citizens of an independent state, in that case the Ciskei, would in fact be foreigners in a South African court and would therefore have to provide security before an action could be proceeded with in the Republic. This situation will naturally also apply in respect of the other independent states, and also conversely in respect of South African plaintiffs in the court of one of those states.

This security rule is a recognized legal principle which is aimed at ensuring that the defendant will be able to recover the costs which he has incurred in defending the case should the claim against him be dismissed. The object of this is to counter unfounded litigation, and generally speaking the rule works well in practice. With regard to this interstate situation it does, however, open the door to abuse because a bona fide plaintiff could also be compelled to furnish security with the sole object of making it as difficult as possible, and in the case of his not being well off, of making it impossible for such plaintiff to proceed. The latter practice is assuming alarming proportions and, if a solution cannot be found, it could lead to large scale injustice.

I want to suggest that the solution to these problems lies in concluding a comprehensive agreement between the RSA and the TBVC countries providing for judgements to be reciprocally enforceable, both in respect of the Supreme Court and the magistrates’ courts, in accordance with the present position in South Africa in terms of which the transfer of a case from one magisterial district to another is controlled. To ensure orderliness and to give recognition to the independence of the individual states, a procedure could be followed in terms of which legal documents, in particular summonses and writs of execution, have first to be registered and endorsed in the specific court in whose area they have to be served.

Should this reciprocal enforcement of judgements exist, the reason for the furnishing of security would disappear, and it could then be determined in the agreement that citizens of the states concerned would not be deemed to be foreigners in one another’s courts.

The procedural position in criminal cases is generally controlled by the Extradition Act, Act No 67 of 1962, in terms of which the State President can conclude a suitable agreement whereby people could then be extradited on a reciprocal basis. Not many major problems are experienced in practice as far as serious offences are concerned, although in some cases it can be a very time-consuming procedure. In the case of minor offences, and in particular where a summons has been issued to obtain a person’s presence in court, problems are experienced, especially in view of the tremendous number of summonses involved. On the one hand the State is virtually helpless to do anything if a person does not turn up, while on the other hand it leads to undesirable practices. In some of these states, for example, a person may be arrested on the spot for the most minor traffic offence if he cannot pay the fine immediately, and he will then be detained until someone pays his fine. This understandably leads to tremendous friction and, in some cases, injustice towards the person arrested. There have unfortunately also been cases in which this has led to unlawful and even corrupt practices. Time does not permit me to elaborate on the international position and how the matter is dealt with elsewhere, except to say that this is normally dealt with by way of agreement and that the most practical arrangement seems to be the one which exists between Great Britain and the Irish Republic. In terms of this “backing of warrants” arrangement a writ is issued in the one country and taken to a court in the other country where it is then endorsed by the magistrate concerned and served in accordance with the normal legal process. I want to advocate the introduction of a similar process by way of an agreement with these countries. [Time expired.]

Mr Chairman, the hon member for East London City has raised some very pertinent and important points which affect mainly the border areas. I wish to comment on one aspect he raised, namely the problem which peregrini, or foreigners, experience when they want to institute litigation in South African courts.

The hon member comes from East London where that is a particular problem, namely where citizens of Ciskei who practically live in East London, namely in Mdantsane which is Ciskeian territory, want to institute action in East London. The case he referred to was in fact a test case to decide this difficult problem. Nine citizens of Mdantsane instituted action in a South African court alleging that they were wrongfully dismissed. Security of more than R4 000 was required, and the court held that unless that security was paid, the action could be dismissed. The hon member has suggested one way of dealing with the problem, namely by way of interstate agreements which would do away with the necessity of furnishing security, but may I suggest another possibility of tackling this problem, which will become an ever-increasing problem? We cannot get away from it. I suggest that it could be solved through the mechanism of the Legal Aid Board. The rules of the Supreme Court provide that if someone institutes litigation through the Legal Aid Board, in other words with legal aid, then that person need not provide security. The problem in areas like East London is that if a citizen of Ciskei comes to East London to apply for legal aid, he does not qualify and cannot get legal aid even though he qualifies in terms of the means test, because he is a foreigner. If he goes to Ciskei to ask for legal aid, and it is granted, and he then comes to East London, in terms of our rules, that is not recognized. It may therefore be a possibility, if the hon the Minister can perhaps, through the Legal Aid Board and through the legal aid organizations in our independent states, enter into some sort of agreement whereby legal aid appointed litigants from South Africa and the independent states are treated in the same way, in other words that they need not furnish security even if they are appointed by a legal aid board in, for example, Ciskei.

That will be a partial solution only.

Yes, the hon member is correct. It would only be a partial solution, because it will only affect indigent people who in any event could not afford it. I agree with the hon member that a more comprehensive solution is necessary.

I wish to refer to another matter also dealt with in the report of the Hoexter Commission, namely the question of pro Deo counsel and pro Deo fees and what is going to be done about that aspect. The hon the Minister knows that this aspect was dealt with at considerable length in the report of the Hoexter Commission, where in its recommendation on page 40, the commission says the following in para 4.3.8:

The commission comes to the conclusion, for a number of reasons, that the present pro Deo system is unsatisfactory, and I do not intend to go into the reasons now. It comes to the conclusion, on page 180, that the system has outlived its usefulness and that some other solution to the problem is called for.

The report also refers to a joint memorandum which was submitted by the Bar Councils and by the Association of Law Societies. An excerpt from that memorandum reads as follows—

The commission endorses that view.

Can the hon the Minister give us an indication whether it is his intention to merge the existing pro Deo system into the legal aid system? Can we envisage that, at some future date, all accused in serious criminal cases will be able to have the assistance of legal aid, and not only in cases with possible capital punishment through pro Deo as it is at the moment? Unless, as the commission points out, it is done through legal aid, the present unsatisfactory aspects which are being experienced with the pro Deo system, will continue.

One other aspect which was raised by the hon member for Mossel Bay and the hon member for Nelspruit relates to the recommendation in the report that magistrates should divorce their administrative functions from their legal functions.

*The hon member for Mossel Bay summarily rejected this recommendation, and the reasons why he did so really surprised me.

Do not put words in my mouth.

The only reason he could advance was that magistrates should also do administrative work every now and then so that they could keep in touch with the people. If ever I have heard a weak argument in this connection, that is one. One can then apply this argument to judges as well. One can then say that judges should also have to fulfil the role of clerk of the court sometimes because they have to keep in touch with people. [Interjections.]

If the hon the Minister has a better reason why one should reject that recommendation, we can argue about it and discuss it.

What recommendation exactly?

Mr Chairman, I will refer to it; it appears on page 41 in the English version of the report and I quote from paragraph 4.4.1:

This finding was not made lightly. The commission went into it in depth, and when one reads the report it becomes very clear that there was a lot of evidence that this should be done. I therefore ask the hon the Minister to give us an indication whether the department envisaged conducting an investigation in this regard and whether we can expect to move in that direction. It definitely cannot happen suddenly, but I hope that it will nevertheless be possible to separate these two duties as far as possible.

In another point made by the hon member for Mossel Bay he referred to the control of the executive over magistrates. This criticism against the present system is also strongly motivated in the report. This is not something which was stated in the report without evidence and without a thorough examination. When one looks at page 56 of the English version of the report, the following is stated in paragraph 1.1.4, and I quote:

Paragraph 1.1.8 on page 57 reads:

I want to ask the hon the Minister in this respect as well whether he can give us an indication of whether attempts are going to be made to remove the lower courts from the Public Service as such and to let them fall under the Council of Justice or a similar council or body.

Mr Chairman, one cannot just sweep this recommendation of the Hoexter Commission lightly from the table as the hon member for Mossel Bay did. [Time expired.]

Mr Chairman, the hon member for Durban Central will forgive me if I do not react to what he has said. He has touched upon important matters, and the hon the Minister, I am sure, will answer him in full. I should also like to apologize for my absence during the interesting discussion here this afternoon but, as you know, Sir, I have to contend with my own problems in the Assembly and it is therefore not possible for me to be here all the time.

Mr Chairman, I should like to direct a personal word of thanks to Mr Coetzer, the retiring Director-General of the department. The two of us used to work together, and I know that he has rendered excellent service to the department. He has also played a major role in the renewal process that is being carried out within the department, and I want to tell him that we appreciate that. Furthermore I should like to extend a hearty welcome to his successor, Mr S S van der Merwe, whom I also know well. I know that he too will render valuable service to the Department of Justice.

From the nature of things the Hoexter Commission in its investigation into the structure and functioning of the courts gave attention to the handling and execution of the documents of those courts. That is a very important and indispensable facet of our whole judicial set up. That brought them to the existing offices of messenger of the court and deputy sheriff. They are important officials without whom no court of law can function properly. At first glance it is evident that there are two types of functionaries in our courts. They are the sheriffs and the messengers of the court. Although they perform exactly the same duties, namely the serving and execution of documents of the court, their designations differ, and their conditions of service, including their rates of remuneration, are not entirely the same. The mere fact that the separate courts of law employ separate rules of procedure is, I believe, no justification for the current situation. There are, for example, considerable disparities in the remuneration of these two functionaries. One also cannot quite say that the serving and execution of legal documents result in the one group incurring greater expense than the other. It would seem that there is no practical reason why the position should be as it is but that it is merely the result of the historic development of our legal system.

However, I want to take the matter even further. There are at present also other people involved in the handling and execution of documents issued by our courts of law. The SA Police, for instance, handle documents such as summonses in criminal cases, support cases etc. Furthermore, officials of local authorities also handle certain court documents. Then there are also officials of other Government departments who handle court documents under specific circumstances as well. The result of this practice is that more than one trained person has presently to cover the same route to a specific address, each with the same purpose, that of serving a court document. The execution of court documents nowadays has in our courts of law become the duty of able and trained people. The deputy sheriff, however, has to occupy himself with the handling of documents; the messenger of the court is similarly occupied, as are traffic officials, the SA Police and a host of other people. The question is whether South Africa with its critical shortage of trained manpower can in fact afford this type of thing any longer. I really do not think we can afford it. Besides, it also has the effect—this is what I believe—of causing the costs in respect of the execution of the judicial process to rise to the detriment of all of us. It is self-evident that the work can be done more cheaply if it involves only one functionary. The overall costs would decrease and it would certainly also lead to a better utilization of our scarce manpower. I admit that there is concern that this might even lead to further cost increases. I do believe, however, that this fear is unfounded because, notwithstanding the argument in respect of cheaper overall and administrative costs, it is also true that the moneys payable to such a person will now and in the future be subject to stricter control by a council established for that purpose. Finally, the ultimate say in the matter still rests with the hon the Minister.

Mr Chairman, there are also certain definite proposals with a view to greater and more direct control over such functionaries by a statutory council similar to the councils controlling lawyers, medical practitioners and so forth today. On page 554 of its report the Hoexter Commission also refers to this matter. I just want to quote certain portions of it:

The Commission’s recommendation in this regard reads as follows:

Mr Chairman, in the debate on the Hoexter Commission report on 12 February 1984, the hon the Minister said, inter alia (Hansard, col 4868):

I fully realize that there are vested interests in this regard which will have to be taken into account. These must be protected. For that reason the proposed amendments, should the Government find them acceptable, cannot be introduced overnight. I believe, however, that they should be phased in over a certain period. This should happen with due regard for vested interests but, above all, with due regard for the question of what will be in the best interests of the administration of justice and also in the best interests of those who will be affected by it.

In pursuance of the very strong evidence before us, I am convinced that the time has come for us to embark upon this new and logical development in our administration of justice.

Mr Chairman, if I did not make it sufficiently clear on 12 April 1984, I want to make it very clear now that, in principle, the Government accepts the commission’s recommendation that in the course of time there will be only one functionary appointed for the service and execution of all processes. Besides having other advantages, such a step may also possibly result in a saving in costs. I want to repeat that it must be stated emphatically that the implementation of this recommendation will necessarily take time in view of the fact that interests are at stake. This is a vested interest of deputy sheriffs in the rural areas. In my city there was for example a firm of attorneys that did the work of a deputy sheriff for three generations. There is a separate office for the messenger of the court. It is true that already in some rural areas we cannot do otherwise than to integrate these professions. However, the person concerned then retains two professions—that of deputy sheriff and that of messenger of the court. We are in the process of evolution; we have to take our scarce manpower and knowledgeable manpower into consideration. I want to make it clear here today that the Association of Messengers of the Court has made an enormous contribution towards the creation of a professional image and content for the profession of messenger of the court. At the same time the Association of Deputy Sheriffs is also a very vital organization. However, this does not mean that if in principle there is only one profession eventually, we are going to choose one or the other. I want to make that very clear. It is a question here of one functionary. What we are pleased about is that on the part of both groups there is this hankering after professionalism. For that reason we shall have to make haste slowly with this matter. As has correctly been said, a Bill will be released for comment shortly.

I am convinced of the fact that we will at the same time be able to see what other functions this functionary can perform if we do not do so before the time.

Mr Chairman, in the time still left to me, I should like to revert to a matter that was raised by the hon members for Port Elizabeth North, Nelspruit and Durban North. I am referring to the proposed system in regard to certain facets of magistrates’ courts. In the first place, there is the proposal of the Hoexter Commission that magistrates should cease to do administrative work as soon as possible so that those who are qualified to do so can apply themselves to the administration of justice. I thank the Hoexter Commission for its recommendations that the agency work for other departments such as for example the Department of Agriculture and also agency work within the Justice family and in fact for the Master’s Office, for example, will in any case not summarily fall away but that this work will be done by a resident magistrate. That recommendation does not imply that the quality of our administration of justice will become suspect. It is recommended that the LL.B. degree be set as the minimum qualification. I shall reply to the hon member for Bloemfontein East in this connection tomorrow. This also does not imply that the administrative leg which will also be undertaken by a resident magistrate has become less important; on the contrary, the implication is that this leg too must offer a professionally oriented career to persons involved in it.

I also want to refer to the recommendation that magistrates should not be linked with the Public Service. Paragraph 5.1.1 of the Hoexter report reads as follows:

A policy decision was taken earlier in pursuance of the Senekal report, which is important but not of immediate relevance, that agency services would fall away. The paragraph goes on to say:

Paragraph 5.1.2 reads as follows:

There was therefore no unanimity in regard to how this should be done. Paragraph 5.1.3 reads as follows:

That holds good for all of them, the lower courts as well as the Supreme Court:

So the Hoexter Commission raises the possibility of appointments eventually being made from outside the Public Service as well and, in fact, from the law professions. The latter statement in the paragraph that I have just quoted ought however not to be interpreted as negative standpoint on the part of the Hoexter Commission. In Part II, Chapter Two, of the report, Commissioner Potgieter has this to say:

†Just to retain the attention of the hon member for Houghton I will repeat this in English.

Go ahead, I can listen with one ear.

Paragraph 2.16.3 reads as follows:

Paragraph 2.16.4 reads as follows:

That is according to Commissioner Potgieter.

A minority view.

That was his personal view that was recorded, but he was not a minority in that sense. Paragraph 2.16.4 reads further:

This is another viewpoint.

*Where the arguments refer to the appointment of magistrates as judges, those arguments are not being used here to advocate such appointments but simply to show that if present magistrates were to continue as magistrates in a new dispensation, there could be no accusation of identification with the State, in spite of the present objection to the supposed identification of magistrates with the State referred to in paragraph 5.1.3 of the report. Nowhere in the report is the view of Commissioner Potgieter refuted. On the contrary, even in regard to a case where action on the part of the Minister of Justice is authorized by law, namely in regard to the powers of attorneys-general and the institution of legal proceedings in regard to which the administration of justice can be indirectly affected, the commission states in Part VIII of its report:

It is clear therefore that there is no objection in principle to using the existing structures as a starting point in order to achieve the ideals set out in the Hoexter report. To put it another way, let us imagine that we were to decide to accept the recommendations of the Hoexter Commission in regard to abscission from the Public Service as well, what would the position be then? Can it be implemented immediately or must we first abscind administrative work? Of course we must; in other words, we must use an existing structure. I want to use another argument. The Hoexter Commission states that there are a few yardsticks against which the independence of a magistrate can be measured. One of these is the fact that he can be subject to transfer. If in this ideal situation we have to rearrange matters in South Africa by appointing members of the judicature at specific places from where they can move throughout the rest of the country in the administration of justice, this will imply transfers. The standpoint that we must use the existing system as a point of departure is therefore a sound one. The Hoexter Commission also subscribes to it. In paragraph 5.1.5 it sets out the position as follows:

1. (c) a system under which—
   1. (i) magistrates would be relieved of their administrative functions and given statutory independence as set forth below; and
   2. (ii) the abovementioned step would be regarded as the starting point of a process of evolution, to be followed by positive steps to promote the expertise and independence of all magistrates.

There is therefore a choice between summary independence and a starting point for an evolutionary process and thereafter positive steps. The latter system, namely the present system as a starting point and thereafter positive steps to promote expertise and independence, is what the Hoexter Commission recommends. In paragraph 5.1.6 of its report the Hoexter Commission states:

The last-mentioned system, which is the one recommended by the Commission, would entail the following:

1. (a) magistrates’ courts would continue to exist as district and regional courts;

That is why I have so much appreciation for hon members who have stated here that we dare not cast suspicion upon the judgments of magistrates’ courts, because this is not done in the report of the Hoexter Commission. On 12 April the Government also intimated that magistrates’ courts were in fact independent and were not influenced in regard to the content and quality of their administration of justice.

That was not why the Hoexter Commission made the recommendation. That is not what it is all about.

I know, but I do not want to allow any shadow of doubt to continue to exist in regard to the quality and the independence of the administration of justice of the magistrates. The magistrate is just as independent in his thinking and his judgment and in the field of his sentence as any other member of the judicature. I have quoted at length from this report in order to substantiate that point. That is also the message that has to be transmitted from this Committee. The Hoexter Commission does not express an opinion in regard to whether magistrates are being manipulated but states that there are indications that this can happen.

The perception exists.

Yes, the perception. If the perception can also just be transmitted from this Committee that this does not exist, I will be pleased.

As the starting point of an evolutionary process the Government therefore puts the following standpoints in regard to this whole matter:

1. 1. The administration of justice in the Supreme Court and the magistrates’ courts has been and is independent of the executive authority.
2. 2. This fact is not refuted in the Hoexter report.
3. 3. What is questioned is whether the administration of justice in the lower courts is also seen to be independent.
4. 4. Recommendations have therefore been made by the Hoexter Commission in regard to steps to be taken in order to reflect the separation between the judicial and executive authority more clearly by means of greater administrative independence. The aforementioned steps are not necessarily the only alternative or point of departure. There may also be other means.
5. 5. The Government is in favour of all possible and executive steps being taken to retain and reaffirm the existing reality of an independent administration of justice as well as the image of an independent judicature. However, such steps must not lead to the administration of justice in the Republic and its functioning being hampered at any time or the administration of justice in the Republic being at all detrimentally affected in the process. Like the Hoexter Commission, the Government sees this as its first step in order to bring about separation between judicial and administrative functions.
6. 6. It is therefore the intention that the judicial officer in the lower courts be divested of administrative tasks to an extent where justice of a high calibre can be administered by judicial officers versed in the law throughout the whole of the Republic together with the provision of an efficient structure and expertise or control over supplementary services to the courts and the provision of other administrative and agency functions.
7. 7. Although the Hoexter Commission recommends that members of the judicature in the lower courts should be divested of administrative functions as soon as possible. (Part IV, par 6.4, page 367), the commission has itself appreciated the many practical problems in respect of the implementation thereof, and it has accordingly been decided to appoint an implementation committee under the leadership of the Deputy Director-General: Justice, Adv C M van Niekerk, and further consisting of, inter alia, Mr S J N Marais, Chief Director: Administration of the Directorate: Justice, and Chief Magistrate O A De Meyer of Johannesburg, in consultation with the Commission for Administration, to give positive attention to and report upon the most practical manner in which to give effect to the envisaged separation of judicial and administrative functions—I repeat—without the service to the public in connection with either the judicial or administrative functions being detrimentally affected in any way.
8. 8. In the process of the implementation of the envisaged separation between the judicial and administrative functions of members of the judicature in the lower courts with the least possible disruption, continual consultation will take place between the head office of the Directorate: Justice, the magistrates, the attorneys-general and other interested members of the legal profession.

Mr Chairman, may I ask the hon the Minister whether he intends to implement, whether gradually or not, the suggestion by the Hoexter Commission that the lower courts be divorced from the executive arm of government?

Order! I shall give the hon the Minister plenty of time to think about that question because I think the time has now arrived to suspend business.