laid upon the Table:

1. (1) Natural Scientists’ Amendment Bill [B 33—87 (GA)]—(Standing Committee on Education).
2. (2) Unemployment Insurance Amendment Bill [B 12—87 (GA)]—(Standing Committee on Manpower and Mineral and Energy Affairs).
3. (3) Nuclear Energy Amendment Bill [B 20—87 (GA)]—(Standing Committee on Manpower and Mineral and Energy Affairs).
4. (4) Children’s Status Bill [B 30—87 (GA)]—(Standing Committee on Justice).
5. (5) Liquor Amendment Bill [B 25—87 (GA)]—(Standing Committee on Trade and Industry).
6. (6) Security Officers Bill [B 118—86 (GA)]—(Standing Committee on Security Services).
7. (7) Forest Amendment Bill [B 28—87 (GA)]—(Standing Committee on Environment Affairs).

Mr Speaker, I move:

Agreed to.

Mr Chairman, before the debate was adjourned last time I was replying to hon members’ speeches.

This brings me to the hon member for Vryburg who made a clinical analysis of the Bill. He made the one crucial point that there are too many cases for too many judges. This situation must therefore be considered and a practical plan devised, one which must of course be coupled to the quality of justice and to the fact that the Supreme Court is pre-eminently entrusted with the task of adjudication in this country. Accordingly the Supreme Court must therefore be visibly involved at all times, whether by way of direct adjudication or by way of the supervision exercised when there is an appeal to the Supreme Court or when cases are reviewed. This does not, of course, detract in any way from the point raised by the hon member, which is that we must constantly monitor the system to establish whether we are not in fact channeling too many cases to the Supreme Court.

This is therefore a very practical measure— this extension of jurisdiction—with a view to giving attention to that facet. Therefore I am pleased at the insight displayed by the hon member.

I now come to the very interesting speech— particularly with a view to practical aspects— made by the hon member for Losberg [Interjections]. If the hon member for Brakpan would just give me an opportunity to react to the speech by the hon member for Losberg, I just want to say that he made a very good maiden speech. It was an interesting speech, a speech full of stimulating ideas. The one facet of his speech that we must all consider was concerned with the taking of concrete steps to promote accessibility to our courts. This is still a central issue. The issue of legal costs is also a central issue in this regard. It concerns the availability of costs for the public and for everyone who needs legal aid in this regard.

The hon member referred to several aspects and to a number of legal aid systems and their availability. I do not think that that list—the hon member will concede this point—has been exhausted. I think that on this occasion one should make special mention of the contribution, made by the Law Society in this regard, particularly in recent years. For example, in regard to small claims they provide basic legal advice at a fee of R25. I believe that they are also extending this service to other matters, with a view to advising, a person at this particularly low tariff, as to whether or not he has a case.

I have been informed that it was stated recently by a large firm of attorneys that if a person without funds approached them with a view to instituting legal proceedings, he could not go away without legal aid. That is the kind of spirit one appreciates.

I note in the Landbouweekblad that the Free State Law Society is providing legal services at a very reasonable fee, or even free of charge, to those farmers who require legal services in these times, particularly since their farms have been, and still are, ravaged by drought.

I want to take this opportunity of thanking the Law Society for their grasp of the situation. They are one of the functionaries without which the legal system cannot function and their contribution in this regard, although they also derive benefit from this system, is very greatly appreciated.

The hon member then made an interesting suggestion in connection with a scheme to make legal services available. I inferred that this would have to be a scheme which provided insurance against legal costs. In the old days—the practitioners will recall this— there was a scheme—I think it was in the days of the legal agent—which our Coloured and Black people in particular made use of. They would pay a small monthly fee to the legal agent in the rural areas. They regarded it as a kind of policy which they took out so that if they had a problem, such as running over a sheep or chicken on the road, they would be provided with the necessary assistance. I think that it is out of this system that our own “retainer” system arose, but it is of course as old as the hills and also has its roots in the British system.

Nevertheless it is interesting that such a proposal was made to the Hoexter Commission. It seems to me that the commission was of the firm opinion that this was a matter for the private sector, but it also had to take cognisance of the fact that there were insurance companies that directly or indirectly provided insurance against legal costs. They do so in an indirect way by, say, issuing a damages insurance package that implies that, in the event of a claim, the insurance company in question would assist the insured with legal costs, either fully or on a limited basis. Therefore this is not entirely new.

I think, in the first place, that we must appeal to the private sector to show initiative here. This would not be invalid. Indeed, I think it would be welcomed if this service were to be made more widely available and propagated. Nevertheless this is an interesting proposal that we may consider when innovations are being introduced.

This brings me to two other maiden speeches. The hon member for Rissik made a fine contribution on his constituency. I must also say that together with the hon member for Umbilo who sits near him, he was one of the few hon members representing constituencies that were previously represented by other parties. I must say that if I had had a problem as a voter—because I live in Rissik for part of the time—I could hardly have called in the assistance of my MP. However I shall now feel far more free to approach my MP. The course of events in that constituency, and the fact that the voters gave us such a strong young man who is in fact very well known in South Africa, is cause for gratitude.

The hon member for Umbilo is not present at the moment but I want to say that it is perhaps because it is so unusual for that constituency to be represented by an NP member that we did not acknowledge his contribution during the previous debate; I apologise to him for that.

I want to take this opportunity to congratulate him on his outstanding maiden speech on that particular subject. I should like to recommend that his voters take cognisance of it. What really struck me was that this “Boerseun” speaks such excellent English. That bodes well for the future. Hon members must please convey this to the hon member for Umbilo.

Another maiden speech was delivered by the hon member for Standerton. He mentioned several interesting points concerning among other things his predecessors. It is commendable that he referred in such glowing terms to Mr Hendrik Schoeman.

Two of the points he mentioned in particular deserve our attention. He referred to the fact that our regional magistrates are conveyed in vehicles that are not of their choice and that are sometimes not appropriate to the particular office they occupy. They used to participate in a more comprehensive scheme and although that scheme is no longer available, I want to give the assurance here and now that we always negotiate the best possible transport for our regional magistrates at the Government Garage.

They have to travel throughout the country to hear cases. This saves expense, because it eliminates the need to convey the accused and witnesses to larger centres. This entails a tremendous saving for the State. When I have another opportunity to approach the State in this regard I shall propose that we take this tremendous saving into consideration and introduce a better dispensation for the magistrates. We are engaged in negotiating a better dispensation. We must of course also take into account the reality of State finance. For every good case there is always a better case to be made. Consequently we always have the interests of the regional magistrates at heart.

I should like to express my appreciation for that occupational group. In saying that, I include all magistrates, but I refer in particular to the regional magistrates because they have made their mark. They are a young occupational group that has only been gracing our benches for a number of years but they have distinguished themselves. There is high praise for them from all quarters. The Hoexter Commission praised them highly and they have also had high praise from both sides of this House. We are very grateful to them.

The hon member also raised another point, viz the issue of the security at our courts. This is a valid and relevant point that is very topical. It is particularly important because we know that the revolutionary onslaught has South Africa’s legal system in its sights, since the legal system is a symbol of legal authority, one of the most important foundations of the State. By undermining and instilling fear into the legal authorities and inhibiting traffic near the courts they envisage creating lawless chaos. They therefore aim to undermine the maintenance of our legal authority. It is the biggest single stumbling block in the achievement of their objectives. This must be opposed. In this process we have already done a great deal and in dynamic fashion have achieved considerable success in our efforts to neutralise them. The picture could have been very different. In this regard the first and most important facet is the guarding of our courts by the police. Accordingly I should like to request my colleague, the hon the Minister of Law and Order, to convey our greatest appreciation to the Commissioner of Police, his department and everyone involved for providing that service. We are in earnest about the security at our courts as is also evident from the fact that two years ago a special law was passed to entrust the protection of our courts to the police. [Interjections.]

Mr Chairman, may I just mention that I hear better with my right ear than with the other one and I am hearing everything that is going on on my right.

Order! I was not quite able to hear what was being said to the hon the Minister’s right. Hon members must please lower their voices a little. The hon the Minister may proceed.

Thank you very much, Mr Chairman; we two have much in common.

We passed legislation in this regard some years ago and this illustrates that we are in earnest in this regard. Just recently there was the bomb incident that took place at the Johannesburg magistrate’s court. On behalf of the Department of Justice I should like to convey our sincere condolences and sympathy to all the victims, their families and the Force. We know that those people who died did not die in vain. We shall see to it that they will not die in vain.

It fills one with such repulsion that one does not simply wish to protect passively but also wants to take positive action. We want to take positive action to such an extent that this should remain fresh in our memories. The Pretoria bomb has almost been forgotten. I therefore ask whether the time has not come for us to commemorate these sacrifices annually, without becoming panic-stricken about it. These people have, in their own way, made a hero’s sacrifice.

We have so many other days at other times that I do not think it would be misunderstood if we could remember that day “as a day when these outrageous atrocities were committed against our Police Force, against the Government of South Africa, against every political party that strives for order and stability, and against the State of South Africa”. I think that that could be a worthy day. I want to say to the hon member for Standerton that there is another facet, too, in regard to which we do provide protection. We have our own security officers, and they form a unit together with the police. They are still being trained.

Our latest buildings have all been designed primarily with the security of the staff, officials and presiding officers in mind. Hon members can enter any of these courts and they will find that they are cut off from the public etc and that as is the custom in Britain, they really do not work in a cocoon but within a protected area. The reason for this is that presiding officers throughout the world have always been a target.

One final facet I want to mention is that we are making our own people sensitive to the circumstances of the times in which we are living by way of training.

I thank all the hon members who took part in the debate.

Question agreed to (Official Opposition dissenting).

Bill read a second time.

Mr Chairman, I move:

Firstly, there are enforced adjustments as one of the categories which the Bill deals with. Certain references became obsolete, certain outdated provisions in the Criminal Procedure Act must be scrapped and other changes must be made where local authorities are concerned. An example of this category is the fact that we now have a new Children’s Act. There is also, for example, the Child Care Act which has now come into operation, and then there are a few references to previous legislation in respect of internal security which was replaced by the current Internal Security Act. We had to correct those references.

In recent times several changes relating to local authorities have also taken place and we are compelled to use the expression “local authority” in its widest sense. Section 341 regulates the issuing of notices regarding certain offences and the payment of admission of guilt fines in terms of such notices relating to local authorities. In order to prevent amendments at regular intervals in the future and to bring the definition into line with similar broad definitions in other Acts, we are now submitting certain proposals. The meaning given to the said expression includes all forms of management bodies, as referred to in the Provincial Government Act. We therefore do not want to bother hon members in future each time an amendment is necessary.

The second category of amendments is that category which affects certain procedures and which is aimed primarily at saving members of the public time and money. At present there is uncertainty as to whether a copy of a summons must be surrendered when an admission of guilt fine is paid to the clerk of the court. In order to eliminate any doubt, an amendment is being introduced to make provision for a copy of the summons or notice to be surrendered only on payment of the admission of guilt fine in cases of the control document, ie the summons, not being available at such place of payment. This amendment ought to eliminate a good deal of administrative work for the clerk of the court. It will further facilitate and expedite the payment and settlement of admission of guilt fines for the public quite considerably in that it will not be necessary, in the case of an accused’s summons or written notice being lost, to obtain a relevant copy in all cases before the fine can be paid.

A further amendment in this category, ie that of procedural amendments, relates to section 111. This section provides, amongst other things, that a Minister may, in writing, direct that a trial be transferred from the area of jurisdiction of one attorney-general to that of another. The direction of the Minister must, amongst other things, mention the provincial division of the Supreme Court in which the trial must commence. Section 111, however, does not make provision for the transfer of a case to another local division. Hon members with a local division in Natal of the Transvaal will know how important it is that this amendment be effected.

A third example in this category is the following: In terms of section 316 (7) of the Act three judges of appeal shall consider a petition wherein leave to appeal is made. The consideration of petitions results in a heavy workload for the appeal court and takes up a considerable amount of time. In Clause 15 it is proposed that in the said section provision be made for two judges, instead of three, to consider the petition. Where the two judges differ in opinion from each other, it is proposed that the Chief Justice or a third judge, appointed by him, consider the petition, in which case the decision of the majority shall be deemed to be the decision of all three.

The third category of amendments envisages enabling the magistrate to better impose a suitable sentence and also envisages, in certain circumstances, ensuring by way of automatic review that a suitable sentence is indeed imposed.

†Mr Chairman, as a result of a recent decision there is uncertainty as to whether section 296 (1) of the Criminal Procedure Act obliges a court to request a report of a probation officer before an order committing an accused to a rehabilitation centre can be made.

In order to enable the court to determine whether the accused in question will benefit from the treatment offered by such a centre and whether such commitment is suitable, as well as to enable the director of the rehabilitation centre to make a correct placement of the accused, it does appear as if a report of a probation officer is essential in all cases. Clause 11 deals with that problem.

Section 302 of the Criminal Procedure Act provides which sentences imposed in lower courts are subject to review in the ordinary course of events, while section 302 (3) (b) provides when some of the sentences cannot be reviewed. In a recent case it was pointed out that section 302 (3) (b) is open to more than one interpretation and could lead to undesirable results in practice. In order to eliminate these problems, clause 13 (1) (b) proposes that section 302 (3) (b) be deleted. Although the amendment may possibly result in more reviews it will be to the advantage of an accused and ensure that justice is done.

The last amendment deals mainly with the protection of the interests of the community. In order to protect these interests effectively, it is essential that the community must have the confidence that their rights will be protected according to the accepted norms of the community at large. Any breach of this confidence might on the one hand have the result that the community takes the law into its own hands or on the other hand that the community must inevitably subject itself to the intimidation of transgressors of the law.

Section 40 (1) (b) of the Act authorises a peace officer to arrest without a warrant of arrest a person whom he reasonably suspects of having committed an offence referred to in Schedule 1 of the Act. Section 42 confers similar powers upon a private person. Previously the courts accepted the viewpoint that the provision which provides that an offence for which imprisonment for a period exceeding six months without an option of a fine may be imposed, as set out in Schedule 1, refers to both common law and statutory offences. According to the Appellate Division, however, the wording of that provision refers to statutory offences alone. This has the effect that perpetrators of serious and increasing crimes of public violence, malicious injury to property, kidnapping and child stealing cannot be arrested without a warrant of arrest. The said crimes demand immediate action. They are also linked very closely to sedition, house-breaking, arson, robbery, theft, etc. The latter crimes are already contained in Schedule 1 and the former crimes ought to be included in Schedule 1. In clause 17 it is consequently proposed that Schedule 1 of the Criminal Procedure Act be amended accordingly so as to include these crimes.

Second Reading resumed

Mr Chairman, it is a pleasure to announce that the CP, as the Official Opposition, supports the Second Reading of the Criminal Procedure Amendment Bill and will vote accordingly.

It is true that a country’s law of criminal procedure is not only the embodiment of the formal facets contained in such a law, but in a certain sense, a very important sense, it is also an expression of the basic principles of a community. That is why it can justifiably be said that a country’s law of criminal procedure is important as a criterion for the way in which the public’s individual freedom is being protected. The amendments to the Criminal Procedure Act, which are contained in the proposed amending Bill, attest to this underlying principle of a state’s law of criminal procedure.

In the first place I should like to mention that this side of the House congratulates the hon the Minister on bringing certain obsolete provisions up to date. Inevitably, when obsolete provisions are not brought up to date, the legislation does not create a good impression. The first set of amendments in question here are amendments to bring up to date certain provisions which have become obsolete and need to be updated.

A second facet which must be singled out here, is the updating of the concept of “local authority” which is also envisaged by the amendments in this Act. I think it also deserves the congratulations of this side of the House that the concept of “local authority” is now being brought into line with the well-known section 84 (1) (f) of the Provincial Government Bill, actually Act 32 of 1961, the old Constitution Act of 1961.

In the third place we come back to the important principle which forms the basis of any administration of justice, viz that of time that will be saved, and the concomitant saving of money. The only lack of clarity that is noticeable in the Criminal Procedure Act in this connection—I am referring to section 57 (3) (a)—is being clarified by means of clause 3 (a) in that provision is being made for a copy of a summons or a notice to be surrendered only at the time of payment of the admission of guilt fine, in a case in which the control document is not available at such place of payment.

What was an administrative bother in the past is being eliminated in this way. Not only hon members of this House or officials of the Department of Justice, but also every clerk at every criminal court in the whole country, will welcome this amendment because it does away with administrative red tape to a certain extent, in that a copy of the summons is no longer necessary for the payment of admission of guilt fines in cases where members of the public have lost them.

I can add, therefore, that this will be welcomed not only by the clerks of every criminal court in the country, but also by every citizen of the country. I am referring to cases in which citizens commit minor offences involving admission of guilt fines. They will be pleased that payment can now be arranged in a different way if they have lost their copy of the summons, as is provided in this Criminal Procedure Amendment Bill.

The amendment in respect of section 111, in terms of which the Minister may now direct in writing that a case be transferred from one attorney-general’s area of jurisdiction to that of another attorney-general, is also to be welcomed for administrative reasons. The direction of the Minister must inter alia specify the provincial division of the Supreme Court. For purposes of legal certainty, I think it also deserves support that direction in this manner should once again be in writing.

An important amendment, which can to a certain extent be useful in these times of heavy legal expenses and long waits as a result of crowded court rolls, is the amendment proposed in clause 15 of the Bill. Clause 15 proposes that the said section makes provision for only two judges, instead of the customary three, to consider a petition for leave to appeal.

In responsible legislation one expects that only the most essential amendments will be made and a security mechanism has been included in this connection too, viz that should the two judges differ in opinion in the consideration of a petition or leave to appeal, the Chief Justice can name a third judge—this may be the Chief Justice himself—to consider the matter and to settle the matter one way or the other by means of a majority decision.

The fifth amendment to which I should like to refer and which is to be welcomed, has disadvantages as well as advantages, like everything else in fife. The disadvantage of this amendment is that cases of automatic review will unfortunately be extended further by the amendment. I want to ask the hon the Minister whether or not the negative result of the amendment can be eliminated at some later occasion.

The last facet I want to refer to, is the question whether a court, when it wants to refer someone to a rehabilitation centre, is compelled to request a report from a probation officer. There was uncertainty about this in the past, and this uncertainty has been further emphasized by a recent decision of our courts. It is being eliminated now, and I think it behaves this side of the House to congratulate the hon the Minister and the department on eliminating the uncertainty and creating legal certainty, since the new clause provides that a probation officer’s report must be requested in all such cases.

Perhaps I should refer to the last amendment as well. It is a drastic amendment, but an amendment which was also the result of a decision given by one of our courts. It is drastic in that arrest without a warrant, for example, is always a drastic step. In any case, we have the fortunate position here—that is why it deserves our support—that commonlaw offences which fall outside the framework of Schedule 1 to the Criminal Procedure Act, are now made part of that framework in that certain offences in connection with which arrest without a warrant is possible, are now being added. In this connection I am referring to public violence, kidnapping, childstealing, and malicious injury to property.

It is the submission of this side of the House that the four crimes that are being added to Schedule 1 of the Criminal Procedure Act are of such a serious nature in any case that— fundamentally and practically—no right-thinking person could object to them.

I want to summarize the standpoint of this side of the House as follows: In the first place these amendments are forced amendments in that they are updating obsolete provisions. Secondly, the amendments take cognisance of recent findings of our courts, and in that connection the Criminal Procedure Act is being brought up to date. Thirdly there is the introduction of amendments which will bring our administration of criminal justice and administration of the law of criminal procedure in South Africa up to the required standard, viz a standard in terms of which everyone who wants to know what the law requires of him can consult the law of criminal procedure and know where he stands with regard to the law of the country.

It is my pleasure to announce that this side of the House supports this legislation.

Mr Chairman, I thank the hon member for Losberg for his support of this legislation. The hon member was quite comprehensive in dealing with the amending Bill. I merely want to refer to some of the aspects he mentioned. In the first place he referred to the importance of criminal procedure as such in the administration of justice as a reflection of the development of a community and the importance that community ascribes to the freedom of the individual. In this connection our legal system is an example to many other countries.

The hon member also referred to the measures which will save time in practice. I should like to associate myself with him in this connection, keeping in mind the old maxim: “Justice delayed is justice denied.”

The hon member for Losberg referred to the new situation in respect of powers of review and, to my mind justifiably, pointed out that this would certainly involve a degree of additional work. I think the advantage of this measure, viz the built-in security mechanism which is being intensified, quite overshadows the disadvantages, however, and that our magistrates’ courts will welcome this amendment. It provides clarity and will assist them in ensuring that the administration of justice in those courts retains its present high level.

The hon member also referred to clause 17 of the Bill, which I shall dwell on a little later.

I should like to refer to two clauses in the amending Bill under discussion. In the first place I want to refer to clause 11, which amends section 296 of the Act by making it quite clear that before a court refers anyone to a rehabilitation centre, it must hear a probation officer’s report. Recent decisions by our courts have caused doubt to arise in this connection. This amendment in the Bill makes it clear that it is imperative that a probation officer’s report be heard.

The determination of penalties is an immensely specialised sphere, particularly in our developing society. On the one hand it has as its object the protection of the community in the short term by the removal of the offender, and on the other, the same object in the long term in respect of the rehabilitation of the specific offender. It is immensely important, especially in the case of youths, that all the relevant facts be submitted to a court to ensure that a suitable penalty is imposed. This amendment is therefore to be welcomed because of the clarity it provides.

The other clause to which I want to refer is clause 17, which the hon member for Losberg referred to as well. In terms of clause 17, another four offences, viz public violence, kidnapping, childstealing and malicious injury to property, are being added to the schedule that refers to section 40 of the Act. In terms of section 40, an officer of the peace can arrest, without a warrant, any person whom he suspects of having committed an offence mentioned in that schedule. What is perhaps more important is that the schedule also refers to section 42 which provides that a member of the public may also arrest, without a warrant, a person who commits in his presence an offence mentioned in the schedule or is suspected to have done so. This amendment adds these four offences to the schedule and such arrests can then be made in the given circumstances without a warrant.

Of course the power to arrest without a warrant is a drastic assault on the freedom of the individual. With a view to that, our courts have always interpreted these provisions very strictly. Initially it was accepted—I shall come back to this—that the schedule also included common-law offences in cases in which the sentence the court could impose was six months’ imprisonment or longer. In the Appeal Court case of Arett v the Minister of Police in 1977, the court found, however, that the schedule, and specifically the provision in respect of six months’ imprisonment or longer which may be imposed by a court, has reference only to statutory offences, and does not include common-law offences. This interpretation caused confusion, as well as problems in practice in that now one can literally have the situation in which, if someone commits a serious crime of injury to property or even kidnapping, for example, a member of the public would not be entitled to arrest such a person without a warrant.

The other case is that in which an officer of the peace might have more than sufficient grounds to suspect that someone had committed such a crime, but despite this could not arrest this person without a warrant. This ruling deviated from former rulings in our provincial sections. As early as 1957, for example, in the case Rex v Mlangeni, it was ruled that injury to property did in fact fall under this group of offences because normally a court would impose a sentence of longer than six months’ imprisonment.

The present situation of the Appeal Court’s having interpreted the prevailing law is, with respect, quite untenable, and these amendments are rectifying an omission to express what I believe was the initial intention of the legislature. This clause adds these offences to the schedule, and is eliminating any possible lack of clarity which may exist. Consequently we on this side of the House should like to support the amending Bill under discussion.

Mr Chairman, this amending Bill bears witness to the reemphasis of the separation which rightly exists between the Executive and the Legislature in our system of government. In its original form the Bill contained a clause giving the Attorney-General the discretion in certain circumstances to issue or not to issue a nolle prosequi certificate in instances in which the State declined to prosecute. This would have had the effect of blocking prosecutions in some cases in which the State intended to take no action at all.

The standing committee, after much debate, reached consensus and deleted this stipulation, and I believe that the Bill, as now presented, is acceptable in its entirety. Virtually all the amendments envisaged are of a technical or a non-controversial nature, geared either to streamlining or to providing greater clarity. I do not propose to deal with each clause now.

Clause 17, however, merits a mention. Sections 40 and 42 of the principal Act authorised the arrest without a warrant of a person who had committed an offence referred to in Schedule 1 of the Act. Schedule 1 contains a list of some of the more serious offences, such as murder, rape, robbery etc. Added to the list now, in terms of the amendment, are public violence, kidnapping, child stealing and malicious damage to property. In the times in which we live and in truth, under any circumstances, where often the police are forced to deal with unrest and other dangerous situations, it is hardly practical to obtain a warrant before arresting somebody who is trying to destroy property or someone throwing stones in a riotous situation. Accordingly I cannot quarrel with this amendment.

All in all, Sir, the Bill causes us no difficulty at all and we will therefore support it.

Mr Chairman, I thank you for affording me the opportunity of addressing this House for the first time, a place where so many intellectual giants have left their mark, where so much history has been made and where I am certain under the guidance of Almighty God the destiny of this great nation will be sealed in perpetual peace and harmony.

By your leave, I propose to speak on the issue which has, for most of my life, been closest to my heart, namely people. Throughout the world entire societies are in disarray, families are crumbling, crime is rampant, drugs and disease are taking their toll in a manner unparalleled in history.

In the Republic of South Africa we have unfortunately not been immune to these trends. It speaks volumes, however, for the vigilance of the authorities and the innate good sense of all South Africans that we have escaped the worst of these excesses. Yet, this is an ongoing battle and fresh troops have to be committed to the fray if we are to win, as win we must and shall.

Another urgent need which has to be addressed is the undoubted plight of our senior citizens whose labours helped make this land the great country it is today. More attention must be devoted to their plight, especially in the light of economic factors such as inflation, accommodation costs and ever-increasing prices, including the cost of medicine. Surely in their twilight years our senior citizens are deserving of dignity, respect and assistance. Eminent authorities have advanced a variety of theories for what I call the descent into chaos. They are all right and they are all wrong, because one cannot theorise about people. Each human being is different. Each one of us, no matter how high or how humble, has needs, fears and wants. We ignore those needs, fears and wants at our peril.

I shall try to build a few of the pillars on which the temple of the human being rests. Our life could be compared to the swinging pendulum of a grandfather clock. As it swings upwards, the strain builds up until it overcomes the energy, and the pendulum stops and then moves downwards, relaxed, to swing up again building up a strain in its upward movement. That represents the equilibrium that we are looking for, and our success and happiness depend on how we cope with the stresses and strains of life. If that pendulum stops at the high mark, there will be a terrible strain and, if it is kept up for too long, something must give.

I am not referring only to the fact that our physical and psychological needs must be satisfied. We human beings also possess a third dimension, namely the spiritual dimension, which endows us with the power to move above ourselves and enter realms strange and unknown to any creature but ourselves. Our needs must be satisfied in all these dimensions.

It is an important fact of life that religion has become unfashionable in many quarters. As human beings, we desperately need the return of a commitment to religion and its ethics, for it is this that offers helpless man a true and lasting anchor.

I submit with respect that, in all cases in which people commit acts dangerous either to themselves or to others, there must be a common denominator universal to all mankind that forces these people to a point of no return.

What are the basic needs of man? I believe there are, if we consider the human drama, certain basic needs that everybody wants satisfied. If we ever wish to understand our fellow human beings, we must understand them in terms of the need to belong and to be accepted. Every human being has a need to be accepted. Nothing is ever done without a reason. Everyone wants to be loved and every person wants to be someone. He wants to feel he is a person. He wants self-esteem and appreciation; he needs them.

We as parliamentarians have the solemn God-given duty to preserve and enhance all these basic values and needs of every human being in our society, and we can only do this by caring about and supporting those in helping professions and, above all, getting actively involved in and interfacing meaningfully with our fellow-man. One of our tasks should, I believe, be to take on the responsibility of trying to restrain a fellow human being from taking that irreversible step of self-extinction, and to dispel the negativity that blankets our world today with despair and to replace it with the light of reason and hope.

Not for one minute do I overlook the threats that face this republic of ours. I believe that now, in the midst of turmoil, is the time to commit ourselves to a return to a normality that will enhance the quality of life of all our peoples, remove their fears and restore their faith in the values that are eternal and which noone can suppress in the long term.

Out there sits the nucleus of what I would describe as the army of renewal, the volunteers and unsung heroes of the nation. They are to be found in every field of human endeavour—in suicide prevention; crisis intervention; crime prevention; mental counselling; drug counselling; and family counselling. The list is endless. They do this work often in difficult circumstances without thought of reward or thanks.

With respect, Sir, I believe that the time has come for the the Government to mobilise this army with sorely needed material and, above all, moral support. As we know, however, the effort cannot come from one side alone. Each and every citizen who has the welfare of South Africa at heart must get involved. Above all, they must get involved in caring for each other because we are, after all, our brothers’ keepers.

By caring we can demolish the walls of mistrust and hatred overnight. We can contribute to the stability of our loved ones, our friends and even total strangers. Each one of us is a drop in the magnificent and awesome ocean that is South Africa.

By caring we can combat the pedlars of drugs and the havoc they wreak among the youth in our society. We can also combat the tide of crime and, I venture to predict, turn it back. This we can do by joining in the helping professions, such as the Police Reserve thus helping the authorities not only actively to fight crime but to identify timeously potential sources of trouble, thus enabling the forces of law and order to neutralize them before they can do any damage.

By caring we can stop urban blight and renew pride in our environment. We can raise the level of awareness of the God-given beauty of our country and preserve and protect its resources.

By caring, and not turning away from a fellow human being in need, we could well prevent a suicide, prevent yet another soul from falling prey to drugs and other evils, and prevent many of those miseries to which so many people fall prey.

By opening our hearts and caring we can realise our full potential as human beings and, by so doing, enrich our whole society and all of mankind.

Above all, we must do everything in our power to protect the family and its values and do away with all the threats that undermine this. Destroy the family and one has destroyed the nation.

*Mr Chairman, I sincerely believe that a serious attempt must be made to establish the root causes of the escalation in the number of juvenile delinquents, and why contempt of law and order is on the increase amongst young people. We must return to that sound system of values in which the parental home is the mainstay that guarantees the security of society.

†I recognise that there are compelling needs in virtually every sphere of our national life. Yet, if we ignore our most precious resource of all, our people, we shall lose the battle against totalitarianism and the dehumanising effect it has on societies. I for one, and hon members of this House I am sure, will not, for the sake of the future of this country, shrink from this challenge, perhaps the mightiest challenge of them all.

I have seen the Bill and I support it.

Mr Chairman, it is a great pleasure for me to congratulate the hon member for Bezuidenhout on his maiden speech. It is evident that he has a profound philosophical insight into the problems he discussed. It is also clear that he is a man of exceptional experience which could undoubtedly be used to great advantage in this House.

As someone with years of experience in the legal profession, I wish to pay tribute today to those members of that profession who are responsible for the particularly fine image enjoyed by our judiciary, even in a hostile world. This image could only have been established and can only continue to exist because different groups work together to this end. I am not referring only to presiding officers, but also to those who appear to argue a case, as well as those who combat and investigate crime from day to day. These people, each in his own context, jealously guard this image. I shall come back to this later. On the other hand, it is a fact that were any of these components to fall short of the mark, that image could not survive.

I can speak from experience, of an exceptional fraternal spirit which exists, not just within each of these respective groups, but in their relations with each other as well. In this regard, I wish to point out that each of these groups is aware that the orderly course of justice can only succeed if each one regards its task as part of a team effort. It is as a result of this that I believe that each of these groups jealously guards against the destruction, by its own members, of that fine image. It is this self-discipline and its maintenance internally in each group that is responsible for the continued existence of order.

I believe that we must never allow that awareness to fade. If it were to fade, we would all suffer. What I mean by that is that it is essential that each of these groups is respected and allowed to keep its own house in order. We must not allow members of these groups to be undermined by external criticism. On the other hand, one cannot simply stand here complacently, thinking that an existing situation cannot be improved upon. It is in this regard that I wish to enter the debate on the legislation before the House, and in particular that aspect of it which gives rise to the better use of existing manpower, as would be the case if, say, two judges instead of three were used to decide on certain appeals.

I believe there is room for improvement, particularly as regards specialization in the legal profession.

I am aware that in the Hoexter report, for example, there had been an investigation into the possibility of the creation of special courts for customs and excise. However, this was rejected by the Hoexter Commission, only because it was not comprehensive enough and therefore could not be justified.

I do believe, however, that on the other hand it is possible to say that the time is ripe for this and that the need is great enough for us to allocate our judiciary and our judicial personnel on a much wider basis; on the basis of civil and criminal law. In the future, therefore, we must introduce a new classification. In this regard I wish to appeal to our Supreme Courts in particular, to make use of a permanent classification of a civil and a criminal bench. It is true that the Hoexter Commission investigated certain aspects of this. However, it did not approach the matter from this angle. With regard to the lower courts—I believe that this is the way it will happen—I accept that there are certain suggestions which will, in time, be brought to the fore. However, it is not my intention today to suggest that the pool from which these people are recruited must be altered, but rather that it should remain as it is. Instead, I ask that we make use of an existing classification, which is a natural one, namely that in the normal course of events people specialise under the supervision of attorneys and advocates, in either the criminal or the civil field, and that recognition be accorded by way of appointment to the bench.

I mention the following because I believe that it will be to the advantage of everyone, including the public. Every competent lawyer, although his practice may be restricted to criminal matters, could be utilised in the civil bench, whilst every competent advocate, who could make his Contribution in the field of civil law, could easily adapt to the law of criminal procedure, and vice versa. However, there is nothing quite like experience. It happens time and again that an advocate gains limited experience in a criminal court at the beginning of his working career. Years later, having had no further experience of or participation in criminal practice, he is suddenly appointed to the bench. There he is obliged to make decisions which, as a result of his lack of background knowledge, are often to the detriment of those concerned.

This chopping and changing would be equally detrimental if someone who had never in his life set foot inside a chamber court, were suddenly to find himself in a position in which he had to adjudicate civil matters. I do not say that this is always the case. However, it does happen occasionally, to the detriment of the litigants.

My argument, then, is that I believe it is time to consider this broader classification and that it should be implemented on the level of the lower courts as well. It would only be possible, however, in the spirit of the Hoexter report’s proposals as to how this should operate.

Mr Chairman, it is a privilege to participate in debate in this House for the first time. As my first task I should very much like to congratulate the previous speaker, the hon member for Ermelo, on his contribution. It was a contribution that may well be accorded fruitful consideration in the legal sphere. I wish him everything of the best for the future.

Before exchanging a few ideas with hon members on the Bill before this House, permit me to touch on two matters. I should very much like to take this opportunity to pay tribute to my predecessor who, in a thorough, quiet and dignified way and with undoubted integrity set me and others an admirable example. I refer to Mr Frans Conradie who served in the legislative assemblies of South Africa over a long period. From 1958 he was an MPC and he also served with distinction as MEC from 1965 to 1976. He was leader of the House during that period. He served as acting Administrator. He was also a member of this House from 1976 until he retired recently, and he acted as chairman of the Standing Committee on Constitutional Development and Planning. We wish him and his wife pleasant years of rest after his many long years of service.

Then, too, I should like to convey a message of thanks—and I believe that all new members will endorse this—to the Secretary of Parliament and his staff for the excellent assistance provided to newcomers to enable them to find their feet in the corridors and offices of this place.

I should now like to discuss the Bill. The Criminal Procedure Act is one of the most important instruments whereby order and justice are ensured in South Africa. The Bill at present before this House represents an effort to streamline the operation of the Act. It is an effort to build further refinements into the system. It is an adjustment process. For that reason it forms part of the general process of legal reform that takes place on an ongoing basis in South Africa as well. This process of law reform is essential because from time to time altered circumstances come into existence but also—and this is very important—because profounder insights emerge and from time to time new value judgments may also be passed. In the endeavour to achieve order and responsible justice it is of the greatest importance that community and law should not be separated because the law at all times reflects the prevailing values in a particular community. The law is therefore a product of culture and will always reflect the basic characteristics of the creative spirit.

The law is the result of the endeavour to achieve order and justice. Therefore it is something that cannot survive in the long term if it does not come from within. It is something that cannot be imposed on a community by force and violence if it does not live in the very soul and spirit of that community.

Permit me therefore, Sir, to state very briefly and very gratefully that I am in a privileged position in that I represent a constituency the people of which are constantly engaged in establishing something lasting. Indeed, that is the mark of a stable community—that there is a living expectation of the future.

If we look at the outstanding milk-producing regions of Alexandria and Paterson, we note that herds of Frieslands have been built up over two to three generations. If we look at the fine citrus producing area in the Sundays River Valley, it is striking that people plant orchards and then look after the trees for many years before plucking the fruit—because they have expectations of the future. The cradle of the chicory industry is situated in this constituency; probably the finest angora farms in South Africa are to be found in this constituency; the prosperous principal town of the constituency, Despatch, has left its mark in the field of sport.

Within the borders of the constituency there is also an area known as Motherwell where the major new Black city of the Eastern Cape is arising. This fact raises a very important question fact that is important not only for law, order and justice in the future of South Africa; it is also of importance for community and constitutional development. The question concerns the value judgments and criteria prevalent in that new, developing community.

Over the centuries, at various times and places, various criteria have been set by communities to determine what constitutes justice. At certain times and places the maintenance of a strong line of authority has been accepted as the criterion and at other times, the protection of individual liberty. At other places, so-called social justice has been the goal. In the Western world the strongest emphasis in recent times has been on human rights as the fundamental criterion for determining whether justice is in fact being upheld. Over the decades, Africa has shown that it has made an absolute of one criterion, to its own detriment; it has elevated political self-realisation to the one criterion for justice.

We live at a time when the Whites are being called upon to think afresh, and to come forward with new ideas. I wish to make the statement that the time has come for the Black man, too, to come up with new and fresh ideas. The most important aspect of such new thinking is understanding that political self-realisation should not be singled out at the expense of or to the exclusion of other equally important values. I therefore believe that for the sake of a stable community and legal setup—for the sake of order and justice itself—it is also important that everything possible be done in the new Motherwell and other Black communities to create a framework within which people can live their lives to the full. They must also be given expectations, because when people concern themselves with lasting values, the future holds much promise.

I wish to conclude by expressing thanks for the time accorded me. As the representative of a constituency which sets great store by lasting values, I commit myself to serve unconditionally the cause of order and justice, because the people of Sundays River have entrusted to me and to this high Chamber for safekeeping and enhancement their highest good, namely their expectations for the future.

Mr Chairman, I want to congratulate the hon member for Sundays River sincerely on his maiden speech. I shall return to him presently, during the course of my reply.

The hon member for Losberg introduced this debate and placed the emphasis on legal security, which runs almost like a refrain through this Bill. I think he summed it up correctly. I think he also identified the addition of the four crimes to Schedule 1 of the Act as being of the utmost importance, particularly in these times. I think I must discharge my duty by pointing out that section 49 (2) also becomes applicable to these four crimes now, since it is included in Schedule 1, to which I have referred. That Schedule provides that when the person concerned is about to be arrested for such an offence on the grounds that he is reasonably suspected of having committed it, and the person empowered to arrest him cannot arrest, or prevent him from fleeing, in any other way than by killing him, that act ought to be deemed to be justifiable homicide.

This is important for the following reasons: While we are, on the one hand, making it possible for the man in the street to discharge his obligation to his fellow-man—he is also being authorised by this measure to assist a policeman—when he sees a crime being committed or when he has reasonable grounds for suspecting that a crime is going to be committed, we are also ensuring, on the other, that there are limits to this power of justifiable homicide. Consequently we are appealing on the one hand to the man in the street to be conscious of his rights and not to adopt a cold, neutral attitude when he is witness to crimes such as kidnapping, childstealing, damage to property, and the other crimes set out in Schedule 1. This is our appeal to the man in the street: Do not adopt a cold, indifferent attitude when you see these crimes being committed.

On the other hand we are saying that there are responsibilities that have to be complied with when this arrest is carried out. This is very well-analysed and neatly summarised in most of the manuals on South African Law of Criminal Procedure. The starting-point is of course the case of Britz 1949 (3) SA 293 (A), in which it is stated:

By this is meant the man in the street, and other authorised persons:

This brings us face to face with the basic premise of so many of our legal principles, namely that an equilibrium is sought between the law and the duty of the man in the street, while the State similarly has a duty to discharge.

I do not want to anticipate matters. The hon member for Bezuidenhout referred to elderly people. Our elderly people, as well as our young people, are so frequently the victims of such crimes. These crimes are witnessed by others, but they do not want to become involved and they walk past because they do not want to be called as witnesses. In this way crime and not justice triumphs.

The hon member for Losberg, very fittingly, placed emphasis on these four crimes. I therefore felt that I had to make this contribution to point out the rights on the one hand and the duties on the other.

The hon member for East London City was the main speaker on this side of the House. He made a neat analysis and demonstrated in that way that he had definitely not wasted his time on the standing committee, but had used it to become conversant with this Bill.

The hon member for Sandton, similarly, made a significant contribution. He supports the Bill; he understands the logic behind it.

†I think that the caveat I have added now must bring some peace of mind to the hon member. I thank him for his support.

The hon member for Bezuidenhout delivered his maiden speech. His speech contained an extremely concise analysis of important sectors of our society. Commencing with our senior citizens, he went on actually to pay tribute to them and drew our attention to their plight.

I want to add that our senior citizens are often left defenceless by their next of kin and under circumstances where they really need protection. Many a time the harm that comes their way could have been prevented if they had been properly protected. I think it is the duty of each and every one of us to bring to the attention of our elderly people that they must, in the first place, be wary of common crime, and also of possible atrocities. Unfortunately we live in a society—I would not say where it is rampant—where this does occur. Too often nowadays cases come to our attention where the victims are senior citizens.

*The hon member for Bezuidenhout also requested us to take cognizance of juvenile delinquency and its incidence as well as its prevention. This is a task which rests with other departments, but certainly with the Department of Justice as well. We do take very thorough cognizance of the standpoints the hon member stated here. He called upon everyone to become involved, and we cannot do better than to say that we support him in that appeal.

The hon member for Ermelo, in his maiden speech today, paid tribute in this House to the disciplines in which we are involved. He then made the very interesting suggestion that we should have specialization in the Supreme Court—he said it could also be expanded to the lower courts. He then came to the crux of the matter, and said that we would do better if there were specialization in respect of criminal law and civil law.

I think he has a point there. We must take cognizance of the fact that we empower the Judge President to arrange his court rolls according to the knowledge, experience and competence of his judges and that we must not interfere with that without good reason. The hon member is aware, for example, that not all advocates are well enough equipped to deal with commercial law cases, tax cases etc. One inevitably has specialization in these fields. The Judge President takes this into consideration.

When the Judge President allocates criminal cases to people and a judge—and this is our dilemma—deals with many criminal cases and attracts attention owing to his judgements and sentences, that judge is frequently crucified. It has been our experience in this House, and in the other place when we sat there as a committee, that a specific judge was crucified because he supposedly dealt with too many criminal cases.

It has been stated in evidence before the Hoexter Commission that the impression is being created that specific judges deal with criminal cases. In fact, the Hoexter Commission appealed to the bench to insure that judges were called upon to adjudicate all kinds of legal cases. With this I am not trying to say that the hon member does not have a point. I am merely sketching the background for him, and stating our dilemma.

The Hoexter Commission also examined another facet, namely the infrastructure available in South Africa to serve its courts. We have a manpower shortage. Specialisation is required in virtually every support service, and we are experiencing a shortage of manpower.

In addition our present Constitution, as did our two previous Constitutions, states that our administration of justice rests in the Supreme Court. Consequently every legal development in respect of the administration of justice and the judiciary has to comply with this condition. On the basis of this argument, and other less important arguments, the Hoexter Commission states that we should not encourage fragmentation. From my experience up to now I will not be able, nor will I wish, to encourage fragmentation—although I can understand the advantages of specialisation. This would harm the wonderful overall picture, which the hon member mentioned at the beginning of his speech. Once again I say that this does not mean that the hon member did not have a very good point.

We are living in an age of specialization, and labour law is an example. This is an area which is becoming more prominent in South Africa, and whether we want to admit it or not, the administration of justice in this area is still in its infancy. Where does it belong, however? The Hoexter Commission said at the time that it functioned well where it was, namely under the Industrial Court.

They were of the opinion that it worked well, though the ideal situation might be to entrust it to a court of law. At that stage, however, only a few cases were brought before the court every year. The number of cases has now soared, however. When one begins to look at control, efficiency and the development of the administration and the principles of justice, the question which now arises is where does it belong? In my humble opinion it should probably be the responsibility of a specialized court falling under our Supreme Court. Consequently the contribution which the hon member made was extremely stimulating, and I should like to give attention to it. The possibility that I might come to this House with proposals in this connection is not excluded at all.

This brings me to the hon member for Sundays River. Now I know that we are constantly engaging in trials of strength here. I heard that the official spokesman of the Conservative Party on one of the other portfolios …

Who is that?

It is the hon member for Overvaal. I realise that I have not replied to him. However, I shall write him a letter. I just want to point out in passing that at the time the Conservative Party agreed with us on this Bill. Consequently we made good use of our time, and succeeded in convincing these hon members.

When I refer now to people who are at all times able to pull their weight when they come up against other parties, I must admit that the hon member for Sundays River is a heavyweight in his own right, particularly in the sphere he ventured into this afternoon. For several years the hon member was a member of the SA Law Commission, which is held in high esteem in our dispensation of justice, and also in a far wider area. Consequently I want to thank the hon member very sincerely for that unstinting service he rendered there. He now finds himself in the political arena, to which much of the work done by the Law Commission will be channeled, and in future we shall definitely be able to make use of his experience. The jurisprudential bent of the hon member’s speech angers very well indeed for Justice. It does seem that even agriculture will be able to benefit from the presence here of the hon member for Sundays River.

I should very much like to thank all the hon members of all the parties here in this House sincerely for the meaningful debate they conducted here.

Question agreed to.

Bill read a Second Time.

Mr Chairman, I move:

The Bill envisages, firstly, bringing section 34 of the Insolvency Act into line with the interpretation of a court decision, and by so doing rectifying a defect in the English text. Secondly, it is proposed that provision be made for the convening of a special meeting of creditors for the purpose of interrogating an insolvent.

Section 34 (1) of the Insolvency Act provides, amongst other things, that if a trader alienates his business and does not advertise this in the prescribed manner, the alienation, amongst other things, is void for a specific period after such an alienation has taken place. The purpose of the provision is the protection of creditors against traders who run into financial difficulties and alienate their businesses.

In the Transvaal case, Cronje v Paul Els Investments, 1982 (2) SA 182 (T), the court pointed out that the word “vervreem” as used in section 34 (1) and defined in section 2, cannot be reconciled with the word “alienation”. A meaning is given to the word “vervreem” which is wider than normal, whilst “alienate” is not defined at all. The court held that to give a restricted meaning to “vervreem” would mean curtailing the scope of section 34 (1), with less protection for creditors, which is in conflict with the intention of the legislature.

The court’s view is considered to be correct, and in pursuance of uniformity it is proposed that the words “alienate” and “alienation” in the English text of section 34 be replaced by the words “dispose of” and “disposition” which have a corresponding meaning to “vervreem”. The word “disposition” is, in fact, defined and this definition, which is also wider than the normal meaning, corresponds with the definition of “vervreem”. It is also proposed in clause 1 that the word “dispose” be inserted in the definition of “disposition”.

The further amendment is in terms of section 42 of the Act. In terms of the provisions of section 65 of the Insolvency Act, 1936, an interrogation of an insolvent takes place only at a meeting of creditors, convened for the purpose of proving claims. No provision is made for the convening of a meeting solely for the purpose of interrogating the insolvent in connection with his insolvent estate.

A trustee’s investigation of an insolvent estate is at present being defeated in the case of his having to interrogate the insolvent, for example, after the second and final meeting regarding the estate. In clause 3 it is accordingly proposed that section 42 of the Act be amended to make provision for a special meeting to be convened at any time in order to conduct such an interrogation.

Second Reading resumed

Mr Chairman, the Conservative Party takes pleasure in supporting the amending Bill now before this House.

I just want to refer briefly to the two important aspects that are receiving attention at the moment. The first of these of course simply concerns a definition in that the word “alienate” in the English text is being brought in line with the word “vervreem” in the Afrikaans text. As the hon the Minister set it out, we have no problem with that. We believe it is a good thing that this amendment is being effected. It strengthens legal security, as well as eliminating certain problems.

As far as clause 3 is concerned, which deals with extending the trustee’s power to convene a meeting, we just want to indicate that we should very much like to support this, as it concerns a very important aspect of the trustee’s work. It concerns the interrogation of the insolvent, and at this stage it is clear that the interests of the creditors will be better served in future, as well as that creditors—if this has been the case until now—will not be further prejudiced by the fact that the trustee was unable to call for a meeting for the special purpose of interrogation. At this stage the interests of the creditors are being hampered in this respect, as the hon the Minister pointed out, because a special meeting of creditors cannot be convened with the specific purpose of interrogating the insolvent.

The hon the Minister pointed out the problems that arise because this meeting cannot be held after a second and a special meeting. This problem has now been solved, and I should like to point out that an exceptionally good aspect is the fact that the provisional trustee is also now given the opportunity to convene such a meeting very quickly. In terms of the definition in the principal Act, which is now being amended, the definition of “trustee” also includes the provisional trustee. We find it as follows in the definition concerned:

This is very important, since a provisional trustee is appointed very soon after the sequestration has taken place.

Why are you so responsible today?

I am dealing with estates now. I have to be very responsible about that.

In terms of clause 18 a provisional trustee is appointed as soon as an estate is sequestrated. Now we have the problem, in the practice of the trustees, that someone is sequestrated within a week and the provisional trustee is appointed within a few days, but it then takes a very long time before the provisional trustee can interrogate the insolvent properly. The advantage of this legislation is that the provisional trustee also has the legal power to convene a special meeting in order to interrogate the insolvent. I must say that it definitely serves the interests of creditors, because the provisional trustee is often in the dark. He has just been appointed and he does not know precisely what the facts are, but he cannot get hold of the insolvent to ask him important questions, to locate assets and to serve the best interests of the creditors.

I just want to ask the hon the Minister a question with regard to clause 3, and it concerns interpretation of the law. I am sure that what I am going to say now is correct, but if this is not the case, the hon the Minister can just correct me, and then we are going to differ on that score. The clause reads:

Now I just want to state unequivocally that as we understand the clause, there is no restriction on the trustee, and consequently on the provisional trustee, to convene the meeting at any time. I suggest that the words “provided that the Master consents thereto” in lines 17-18 undoubtedly apply to the case in which a creditor requests the meeting and the the Master consents thereto.

You are going to confuse the Minister.

As we understand it, there will therefore be no restrictions in future on the power of the trustee or the provisional trustee to convene a meeting as envisaged, and the consent of the Master is not applicable. It does not restrict his power if he decides to do so himself. It only applies to the case where the creditors ask him. Only when a creditor asks him must he obtain the Master’s consent.

I want to leave it at that by saying that as we understand it, the trustee has no restrictions. He can convene the meeting at any time without the consent of the Master.

I shall let these few remarks suffice and say that we think that these amendments in respect of the trustee in particular promote sound legal practice. They strengthen security in law, they facilitate the work of the trustee, and serve the best interests of the creditors. We therefore take pleasure in supporting the Bill.

Mr Chairman, at the outset may I on behalf of this side of the House express our sincere appreciation to the hon member for Overvaal for supporting this Bill today on behalf of the CP, the Official Opposition.

When his Second Reading speech was laid upon the Table the hon the Minister gave this House a complete resumé of why this amending Bill is necessary, and I do not intend dealing with everything in detail today. However, by way of introduction and support of this Bill from this side of the House I want to emphasise the following important aspects of this legislation.

Firstly, this legislation and Sections 34 and 42 of the Insolvency Act, although they have no connection whatever, have one thing in common, viz that both concern the protection of the rights of creditors. The amendment of Section 34 is essential since there must be no uncertainty whatever in either of the official languages about the what the word “alienate” means and entails. This is essential and mandatory, since this specific section of the Insolvency Act is the one section that has to be strictly adhered to when a dealer decides to sell or dispose of his business. The aim of this legislation, and specifically clauses 1 and 2, is to alter the English text of Section 37 of the Act and to include the word “dispose” in the definition of “disposition” in the Act for the sake of uniformity, thereby eliminating any doubt concerning what the legislator originally meant with this section. Apart from supporting the proposed amendment of Section 34 on behalf of this side of the House, the hon the Minister will permit me to say that I am of the opinion that it could prove fruitful to reconsider the practicability of this section as a whole. It contains mandatory provisions, viz that when a business is sold, the advertisement announcing the disposal must be placed at least 30 days, and 60 days at most, before the date of such disposal.

The point I should like to emphasise today is that this mandatory section is not always practicable. The Act should also make provision for the many cases where one owner takes over the business immediately at short notice or transfers his rights to someone else. The rights of creditors should therefore also be protected in such cases without free enterprise being hampered in any way.

In support of this argument I want to point out that there have been a number of court rulings in this regard, and I am referring specifically to the case of Castleden v Volks Furniture Stores (Pty) Ltd, in volume 3 of the 1967 Law Reports. The court ruled that the sale, which was advertised after the date of transfer, was in fact with retrospective effect.

With the greatest respect, as someone who has worked with this for years in practise, I request that we reconsider these aspects of Section 34, as well as its total practicability.

This brings me to the other amendment contained in this amending Bill, viz clause 3. I want to tell you that clause 3 contains a very important addition to the present Section 42 of the principal Act. That is that in the case of insolvency the rights of creditors are being better and more effectively protected.

In terms of Section 65 of the Insolvency Act, an interrogation of an insolvent may at present only take place during a meeting of creditors convened for the purpose of proving claims. The Act does not provide for the convening of a meeting for the sole purpose of interrogating the insolvent concerning his assets and other related matters. As the legislation is interpreted at present, the objective of the original Section 65 of the Insolvency Act is not met with in full. This was proved in the case of Costas Viannouilis v Grobler and Others. In this case Mr Justice J Marais defined the objective of Section 65 as follows:

Mr Chairman, the principle of interrogation at any time when the financial interests of creditors and people are at stake, is not strange to our law. A similar section, Section 32 of the Estates Act, Act No 66 of 1965, provides that the Master can hold an interrogation at any time in order to obtain more details concerning certain aspects of contested claims.

These amendments to the Insolvency Act will streamline it more and bring it in line with the demands of modern society in which people’s rights are being assailed more and more. This legislation is by no means controversial, and has been approved by all the institutions consulted. We on this side of the House fully support it.

Mr Chairman, in regard to this measure, there is no single aspect that I would like to emphasise. There are no clauses which I think require any further explanation. I also wish to make no query at all about the wording and say only that we support the Bill.

Mr Chairman, after all the useful contributions have been made and everything possible said, I should also like to add something.

This legislation arises from practice which makes it practical in the first place and good in the second. I think it comprises two different aspects, the first of which I shall now discuss.

This amendment was essential as a result of circumstances, especially after the case of Cronje, Domino Vicio v Paul Els, etc, quoted here. This legislation is necessary because the first priority in any insolvency always is and will remain the interests of the creditors. Consequently this Bill was vital to bring the Act into line with practical legislation and its practical application.

In tracing the history of the situation, it becomes clear that the legislation was required to be signed in only one of the official languages. Because only the Afrikaans text was signed, the discrepancy in meaning between the Afrikaans and the English text resulted in the validity of the Afrikaans text only. It is interesting to speculate what the state of affairs would have been if the English text had been signed. It would then have been impossible to have had the same ruling.

The second aspect is that it became popular to go bankrupt during the recessionary conditions we experienced. This amendment to legislation was therefore essential. Over the past few years the courts experienced great difficulties with the problem of insolvency. It was accepted that a woman apply for her husband’s sequestration. As I said initially, the priority that the interests of creditors should be paramount fell by the wayside. In various instances the bench had to intervene in general administration of justice from day to day and attempt to overcome this problem by demanding security. I think our present circumstances are a great improvement on those in the past.

Secondly, rectifying the difference between the wording in the two languages of this legislation has also resulted in legal certainty. This is obviously essential because the ordinary man should at all times be aware of what the legal position would be should he find himself in those circumstances. Consequently I welcome it and should like to support this legislation most vigorously. I believe this type of amendment should be placed in the Statute Book as soon as possible.

I have one last question in mind for the hon the Minister, however, and that is whether he does not wish to explain the bureaucratic operation of legislation such as this. Five years have elapsed since 1982.I want to know when the situation was brought directly to the people’s attention and when it posed problems. How does one explain that the problem arose in 1982 but that we are only now addressing it through legislation in 1987?

Mr Chairman, since its inception as the highest Council Chamber in our country, Parliament has developed a certain hallmark of dignity and discipline. It is true that newcomers have to abide by this hallmark and give it substance. Therefore when a newcomer is preparing for his maiden speech, he must constantly bear in mind the concept “controversial”. Whether the concept is interpreted in a narrow or broad sense, the ultimate yardstick is fairness and reasonableness.

Before briefly elucidating the amending Bill, I just want to express the hope that I shall honour the conventions and traditions of Parliament and that through me Bloemfontein North will make a positive contribution to the responsible work being done in Parliament. In regard to constituencies, I should like to attest in this Council Chamber to the very high level at which the election campaign was fought. Malice and acrimony were completely absent, and for that thanks are due to the CP and PFP opponents, and their supporters. In the same vein, I should also like to attest to the important work the NP supporters—Afrikaans and English speaking, as well as the immigrant communities—did in the election campaign. It is also my prayer that I will serve the best interests of all voters, irrespective of party affiliations, in this Parliament to the best of my ability. Furthermore, it is my considered opinion that political parties have one common purpose, and that is the welfare of this country and its people. The only difference between the various political parties is the course that has to be pursued. It is also the task of the various political parties to try and convince the voters on a balance of probabilities in respect of a particular course. This, then, is the vision prevailing in Bloemfontein North, and this is the reason for such a special attitude prevailing in Bloemfontein North during the election.

I now come back to the proposed Insolvency Amendment Bill. Much has already been said about the first amendment—it is a linguistic amendment—which in fact makes a great deal of sense. It ultimately gives creditors in an insolvent estate more real protection of their interests.

Secondly, a very important gap in the existing Act is being filled. It has already been mentioned that an insolvent can be interrogated, but this can only take place at a meeting of creditors the main purpose of which is to appoint a trustee to prove their claims, or to issue instructions to the trustee.

In 1983 there was a ruling in the Cape—Essop v The Master and Another. On page 926, Volume 1 of the Law Reports of 1983, Mr Justice Tebbutt, referring to such meetings of creditors, has the following to say in this regard:

Such a measure would by no means hand the insolvent over to a merciless creditor because such an interrogation is mainly to determine facts. In any case, there can be no particular point of dispute between two parties. A situation like this may well develop. The only real objection there could be is that no provision is made for legal representation.

I shall refer to another case—that of Van der Westhuizen v Roodt and Others, 1986 (1) 963 N. This case appeared in Natal last year, and Mr Justice Wilson concluded in an obiter dictum that neither in common law nor in the rules of natural justice is there any reason why such an insolvent would be entitled to legal representation. Then comes the remark obiter that it is rule of practice, however, that he may have legal aid, and more specifically in respect of his rights as a citizen.

In conclusion, the passing of this amending Bill will necessarily contribute to streamlining the Insolvency Act. It will also be a step forward in bringing about a comprehensive law on bancruptcy, as has been pleaded for since February 1985 by a standing advisory committee on company law.

I take pleasure in supporting the present amending Bill.

Mr Chairman, I should like to extend my hearty congratulations to the hon member for Bloemfontein North, who delivered his maiden speech in this House this afternoon, and to welcome him here. He comes from the same province as I do and I therefore feel that we should and could have strengthened the law component. The hon member’s analysis leads me to believe that that this is indeed the case. I should like to wish him a long and happy period of service in this House. I shall return later to a specific practical point raised by him. I shall presently react to each hon member who made a maiden speech.

The hon member for Overvaal supported the Bill, but he asked me what my attitude was towards an interpretation of the particular clause. The hon member’s interpretation was, if I understood him correctly, that the qualification requiring the Master’s consent applied only to one facet, that is the second. This would mean that if the creditor proved his claim against the estate, the Master would have to give his consent. In other cases the trustee would have all the authority.

No, Sir, I do not agree with the hon member, and for a simple reason. In the interim I received the support of our official legal advisers in this matter. This will also happen frequently in the future. The fact of the matter is that the trustee, who is operative as a functionary at any time, convenes a meeting. When does he convene a meeting? He does so when he feels of his own volition that it is appropriate, but he also does so at the request of a creditor. He is operative then. The fact remains, however, that it is he who convenes the meeting. In one respect he uses his own discretion and in the other he responds to a request.

One should examine the rationale involved here. Who has to convene the meeting? Who has to provide the infrastructure? Who has to ensure that the requisite office is arranged for? Who has to ensure that everything is ready for such an interrogation? The Master has to do these things.

Let us assume the hon member is correct. That would mean that when a creditor has proved his claim, the trustee could ask the Master to convene a meeting for them. Otherwise, he could convene a meeting at any time on any day of the week. What would happen then? He would arrive and discover that no courtroom or other infrastructure was available for the interrogation. Surely that cannot be true.

As far as the practical application of the provision is concerned, that could not have been the intention of the legislator. The intention of the legislator was that the Master, who is in fact the person who takes the requisite steps in such matters, should be allowed the opportunity of saying that it should preferably be done on another day, and that he is not available on the day proposed. Who takes the chair on these occasions? It is the Master, the Assistant Master or a senior staff member who assists him.

I regret cannot therefore agree with the hon member. I am quite prepared to examine the legal point involved at a later stage but at this point, as I told the hon member, that is and must be the intention.

Finally, let us examine the original situation. Originally, the interrogation of an insolvent took place only during a general or special meeting at which claims were proved. What is actually required, however? I am referring to our practical experience and not even to the Patterson case. The requirement is that one should at an early stage be able, together with a trustee, to interrogate an insolvent swiftly and efficiently about assets, asking questions such as: Where is this or that, and what happened here or there? That is what is required.

The requirement therefore exists at a very early stage, before further claims have been proved. That is the rationale behind this provision. I shall examine the point raised by the hon member. Perhaps it is a clinical point but our interpretation is that my thesis reflects the true intention, and that the wording of the provision before us gives substance to that intention. I regret that, right at the outset, I am unable to support the hon member’s point. I think this might well happen again quite a few times but we do it firmly and with a smile and then we understand each other.

If we had taken over, the boot will be on the other foot.

That is not a political point. It is an interesting point of which we take note.

The hon member Mr van Gend also referred to the Bill, and in particular to clause 2 which amends section 34. What is the rationale behind section 34? It is to prevent the owner of a business from disposing of his assets at the expense of his creditors in such a way that the creditors have the worst of it or, to put it colloquially, are ripped off.

There are two ways of doing this. Section 34, in its present formulation, deals with these two ways. In principle, section 34 says that if the trader does not advertise within a certain period, the sale is void. The sale is then not merely voidable; it is summarily void. This is a very serious sanction. A buyer’s attorney should take care to ensure that such an advertisement does in fact appear because it is for his protection.

The hon member asks if it is practical, because it can happen that a broker brings the parties together and that the business is sold on that very day. The buyer is then afraid that the trader will come in by the back door during the night and remove some of the assets. So he tells the broker he wants the keys to the business there and then. In such a case transfer of the property takes place at that moment and disposition in terms of the section, as the hon member for Vasco indicated, takes place there and then.

This can create a practical problem. I agree with the hon member, and in my opinion he made a very useful contribution in this respect. The matter must be examined in the future but, until we find a solution, this section remains an important means of offering protection both to the creditors and to the buyer. When the period has expired, the business becomes the property of the buyer and he has nothing to worry about.

There is, of course, another dilemma which has to be faced by the buyer. As soon as the advertisement appears, all liquidated liabilities are dealt with in terms of claims. As I understand it, liabilities falling due on a future date are also dealt with as liquidated liabilities and therefore in accordance with claims. This may place the buyer in a dilemma but he must be aware of it. It puts a great burden on the shoulders of the attorneys in that, in advising their clients, they have to ensure that these requirements are fulfilled.

In practice I have found—the hon members who took part in the debate, and apparently others too, have made the same discovery— that, although people advertise, it can easily happen, because a creditor’s legal advice is often not up to date, that he is not aware that claims can be lodged and then the matter simply lapses. That is why one sees so many of those notices in newspapers but often never hears of them again.

I have taken note of the hon member’s point and we shall continue striving to find solutions. In the meantime, however, the provision will have to remain in its present form, because it provides legal certainty as well as security for creditors and ensures a sound economic basis for purchases and sales.

The hon member for Vasco likewise made his contribution both as a practitioner and from other points of view. He asked why the legislation had been brought before the House only now although it had already been ruled upon in 1986. I think the hon member knows as well as I do that that ruling was made in a Transvaal court. It was not an Appeal Court ruling and that meant that we had to establish how it was applied in the other provinces. We then had to consult all the functionaries and parties involved—the attorneys, advocates and Masters of the various provinces—to see how serious the problem was before the legislation was altered. On the other hand, it was ready last year but, owing to circumstances and also as a result of the election, it has been been submitted only now. This does not mean, however, that it is a less sound piece of legislation.

I think it was the hon member for Bloemfontein North who raised the important point of legal representation in his maiden speech. In my opinion, there is a difference between legal representation and legal assistance. I believe it should be a fundamental principle in South Africa that all people whose rights are at issue be entitled to legal assistance. There are numerous courts and other institutions where cases can be put on behalf of individuals even by laymen, for example the many councils which grant licences and other privileges. They do not necessarily have to make use of attorneys and advocates. The fact remains that they themselves have to pay the price in one way or another because of a poorer quality of legal assistance. The importance of the legal profession is that the practitioner can advise his clients when their rights are at issue, even though he does not necessarily have to assist them by means of cross-examination or by using what we call the accusatorial or challenge system. I should like to thank the hon member for his contribution; it was most interesting.

Question agreed to.

Bill read a second time.

Mr Chairman, I move:

Agreed to.