I wonder if the hon. the Minister could explain the proposed new section 25C to us. What does this re-insurance really mean? Does it mean that the M.V.A. fund will take over the entire re-insurance of the companies forming part of the consortium; in other words, will the new M.V.A. company run the whole show?

As I stated in my Second Reading speech, this only means that the present fund, consisting of a company, is taken over by the new fund. It means nothing more and nothing less.

I am afraid that the hon. the Deputy Minister’s reply in regard to the proposed new section 25C is still not very clear. My hon. colleague has asked whether this fund re-insures. I would be pleased to hear from the Deputy Minister whether the re-insurance is only an excess loss treaty, or whether the full amount of any claim is met by re-insurance? In other words, are claims under a certain amount met by the fund, and over a certain amount re-insured? Sir, there are other items which I should like to raise in connection with the same clause. In respect of section 25C (d) the hon. the Minister said yesterday that investigations of claims were undertaken by officials of the Department. If that is so, then I would like to suggest to the Minister that this is the first time that that is happening because up to now all claims have been investigated by the consortium companies’ own officials or by assessors or attorneys appointed by them and not by members of the Deputy Minister’s Department. Sir, if they are to investigate claims, I submit that they know nothing at all about third-party insurance claims and that they are not the proper people to investigate such claims.

I would also suggest to the hon. the Deputy Minister that the investigations that the officials of the Department make are investigations merely into the issue of tokens of insurance and into the rendering of agents’ accounts, but they do not investigate claims. But if the Deputy Minister now tells us that the officials of the Department are going to investigate claims, I submit that this is an entirely new departure and one that does not augur well for the motoring public of South Africa, because these people do not have the qualifications to carry out those investigations.

There are one or two other points in this regard, and here I should like to refer to the new section 25C (j). I would like the Deputy Minister to tell the House how he envisages that this fund will lend money because this, too, is a new departure from insurance practice, namely that they will be able to lend money. I would be interested to know to whom they are likely to lend money. Then section 25C (3) deals with the proper keeping of accounts. I mentioned yesterday that the problem with the fund so far is that the accounts submitted to us do not tell us which accounts the various members of the consortium are meeting. I should like to know from the Deputy Minister whether an inspection is made of these accounts, because information is definitely available to show that many of these companies are financing other aspects of their business out of the commission that they receive. This is a most serious aspect, because ultimately, I can assure the Deputy Minister, he will return to this House and ask for higher premiums for third-party insurance.

Then in regard to section 25D, the question is raised about the Minister appointing various officials to this fund, and particularly as regards subsection (2) (b) which includes a condition as to the payment of allowances out of the M.V.A. Fund. I would suggest that any funds paid out to officials, bearing in mind that these officials come from the consortium companies, should be paid out of the commission received by those companies, and not out of the premium funds, because here again it will have a detrimental effect on the insuring public.

As I said yesterday, it is very clear to me that the hon. members have not read this Bill at all, and because that is so, I want to explain section 25C to the Committee paragraph by paragraph. Section 25C (1) (a) contains the main object of the Act, i.e. to undertake re-insurance, as is the case in any reinsurance company; para, (b) is to indemnify registered companies. Therefore it is necessary that this Committee should know what a registered company is. I discovered during the Second-Reading debate yesterday that hon. members do not know this. I want to refer hon. members to the original Act in regard to section 25 (c) (1) (b). Then they will see immediately that “registered company” is properly defined in the definitions. It is not just any insurance company. It is a company that has been included in the group in terms of the agreement. In addition they will find that section 24 (1) also makes provision for stating very clearly what a registered company comprises. It provides that the State President may, in his discretion and without prior notice to any person, from time to time enter into an agreement with one or more insurance companies, whether registered or not. In other words, a registered company, as I now read it in this clause, is only a company with which the State President has entered into an agreement. I want to make this clear first. Now we come to paragraph (c), which deals with reinsurance, which was also referred to by the hon. member for Port Natal. The re-insurance referred to here is the same sort of re-insurance one finds in any insurance company that spreads its risks. This means that such a company does not carry the risk of possible major disasters alone. This is found throughout the insurance world. The risk is spread among other companies in case a heavy claim is received. This is all that is being done here. The hon. member also referred to para. (d) of this clause, which reads as follows—

I want to tell the hon. member he should not suggest that we do not have the necessary staff. The Department of Transport, which has always had to exercise supervision over third-party insurance, has the necessary trained, qualified staff to do this work. It already has special inspectors to carry out inspections and exercise supervision. They have to see how these companies have fulfilled their agreement and in what way the work has been done. This is not all. This clause does not provide, as the hon. member incorrectly interprets it, that this fund will now do all this work. As matters stand at present, the 16 members of the consortium will normally handle the claims, undertake the necessary investigations, and so on. This measure also provides for a new agreement to be entered into between the fund and the Minister, and this new agreement relates to uninsured vehicles. If a vehicle is uninsured, it cannot be pegged down to one of these consortium members. There is also the question of hit-and-run drivers, the people who simply disappear, the unidentified vehicles. Claims instituted as a result of such vehicles will have to be investigated and handled by the staff of this fund. I want to make this very clear. I want to go further. If the fund itself has to do the necessary inspection and checking it should be enabled also to investigate, to determine the liability of the other companies, and to exercise the necessary supervision. Therefore this clause is worded as it is, so that the necessary investigation can be carried out.

The hon. member also referred to para. (j), which reads as follows—

I want to inform the House that the fund has an accumulated amount of capital and that the fund must see to it that the money is handled in two ways. A certain amount must be kept liquid with a view to claims being made. Claims against the fund are often paid as long as three years after the accident took place. Sometimes as long a period as four years elapses after the premiums have been collected and before claims are made against the fund. We therefore do not want to leave that amount of money in a current account. A field of investment must be found for it. If hon. members look at the reports, they will see that large amounts have already been invested with municipalities and building societies, so that the fund earns interest in order to strengthen its position. Moreover, in this way savings are effected which enable us to maintain the premiums at a low level.

†The hon. member also asked a question about 25C (3) (a), which stipulates that the fund shall keep proper records of all its financial transactions, assets and liabilities. It is not the intention that record shall be kept of the assets and liabilities of the consortium companies, but only of the proper financial transactions of the firm itself. The fund has not been established to do the work of those people.

*In conclusion the hon. member asked a question in regard to the payment of the staff. I have already said, and it is stated very clearly here, that the staff is being made available because the Minister appoints the manager of the fund. The manager makes use of the staff of the Department of Transport in order to handle the administrative work, the accounts and so on. They are paid by the Public Service. Therefore a readjustment has to be made, so that the revenue that is obtained may go back there.

Mr. Chairman, having listened to the hon. the Deputy Minister’s explanation, I am more than ever convinced that he does not know what he is talking about. He told us about re-insurance. Many of us had a lot to do with insurance. Well, this is not the true insurance company that one sees outside. There is no spreadover. One M.V.A. company is going to do the entire reinsurance. This one company will receive and control all the cash from the corsortium.

That is right.

It will reinsure all their risks. It will investigate all their claims.

No!

Yes. The clause reads as follows: “to investigate and settle claims, and commence, conduct, defend or abandon legal proceedings;”.

Not their claims.

What claims then? We are talking about insurance. The hon. the Deputy Minister does not understand this Bill. This is something new, something we have never had in the past. This is a new company which is going to have a manager appointed by the Minister. It is not a company in the true sense of the word, but a Government sponsored organization, called the M.V.A. Fund. This is no true reinsurance company. Let us forget about that. Reinsurance is spread over a very wide field. If one reinsures an aeroplane, some companies may be only liable up to R2,000. But this particular company that is being created reinsures at a complete risk. I would like to ask the hon. the Deputy Minister—this is hypothetical if there were a run of claims and the company ran out of money, where would they get the money to meet the claims? The Deputy Minister must not tell us that this is a reinsurance company. It is nothing of the kind. It is a holding company. The Deputy Minister is now going to appoint a manager. It is a growing empire. It is going to be very costly. On top of that, the 16 companies of the consortium receive 20 per cent commission for administration. On the whole they receive 25 per cent.

Mr. Chairman, the point the hon. member for Salt River wants to make is still not clear. Does he not understand the words before him? Surely it is quite clear that this fund has the power to do certain things. It is not provided at all that they have to do it. There is also the agreement between the State President and the insurance companies, which may be amended. It is not the intention that the Committee should determine the contents of that agreement. In other words, it is quite possible that it may be stipulated that the insurance companies will investigate those claims. That is possible, but at this stage it is only being stipulated that the M.V.A. Fund has the power to do certain things, but this does not mean that they will do so. As regards the other aspect, i.e. who is going to meet the claims, surely it is very clear that the insurance companies will retain the amount they are entitled to, that is to say, the 25 per cent, and that the reinsurance amount will probably be 75 per cent, in other words, the net effect of this will be to eliminate what has happened in the past, that is, that the public paid their premiums to the insurance companies. Then one day the company goes bankrupt and the claims of the public cannot be met. But what will happen now? The risks of these insurance companies now have to be re-insured. They pay that amount into the fund, and when any member of this consortium that entered into the original agreement becomes insolvent, the money required for meeting the claims is available in the fund. Surely this point is very clear. This refrain by hon. members on the opposite side that it is a State-controlled body is nonsense. The Act provides very clearly that the State President may in his discretion establish a corporation to handle this third-party insurance. This provision occurs in one of the sections at the very beginning of the Act. The State has not yet used these powers at all, and therefore I want to suggest that the hon. member for Salt River should reconsider the matter before raising further objections to this Bill.

Mr. Chairman, the hon. member for Bloemfontein (West) made a very interesting observation. He said that this paragraph (d) whereby the power is given to the M.V.A. Fund to investigate and settle claims and commence, conduct, defend and abandon legal proceedings, is not intended to be carried into effect.

He did not say that.

The power has been given, but they may not necessarily exercise that power. He said that the power is given in terms of this clause, but that it does not necessarily mean that they will exercise it.

Yes.

That is quite clear. That is quite different from what the hon. the Deputy Minister said. The Deputy Minister said that the officials of the fund will investigate and settle claims. I would like to have some clarity on this point. The hon. the Deputy Minister is aware of the fact that the companies which are members of the consortium are entitled to retain 25 per cent of the premiums they receive. The purpose of that is to cover their commission and administrative expenses. I would not hazard a guess as to how many claims are lodged each year in this country and how many of them are third-party insurance claims. The simple issue we want the hon. the Deputy Minister to clarify is that while the companies retain 25 per cent of the premiums, of which they pay 5 per cent commission to the various agents, the companies will investigate claims which are made against them and that they will finance the staff, the investigation, the assessors and everything else that is brought into such an investigation when a claim is put in. Apparently the State is not going to perform that function although it has the power to do so through the fund, and the insurance companies will continue to do that.

Yes, definitely.

I am glad that the hon. the Deputy Minister said that. Unfortunately confusion has arisen, not from our side of the House or from our misreading the Bill, but because of the statement made by the hon. the Deputy Minister that, in fact, officials will do the investigation. If he means the officials of the insurance companies concerned, then we are with him and then it is a continuation of what is happening at the present moment. In other words, if I should be a claimant, as a result of an accident, for personal injury and make a claim against Company X, I will be concerned with Company X and they will conduct the investigation as the insurer of the other party. It will therefore not be the establishment of some large central organization which shall have to investigate every claim arising out of third-party insurance throughout the country. If that is the position and if this paragraph is really superfluous in that the Minister has no intention to put it into operation, then the matter is clear to us and we know where we stand. However, at the moment it seems that although the companies within the consortium retain 25 per cent of the premium they can in terms of this provision be relieved of the cost of staffing and connected with any other matter incidental to the investigation of claims. In any event, we should like the hon. the Deputy Minister to explain to us exactly what he intends by this particular provision.

Mr. Chairman, it is just possible that the hon. member didn’t follow me yesterday. I then stated that the investigation of claims would remain as it was at present. The only claims that would be investigated by the personnel of the fund would be those claims against the fund itself, claims connected with motor-cars not insured and unidentified.

*I now want to come back to the statement made by the hon. member for Salt River. It seems to me as though the hon. member does not quite follow this matter of reinsurance. The position is that the fund carries the total reinsurance risk of the consortium.

And the consortium carries none of it.

But the fund is a reinsurance company. The fund itself, however, undertakes further reinsurance in an attempt to reduce its own risk in cases of disaster. At present, for example, there is a reinsurance with the Swiss Reinsurance Company. In this way one can relieve one’s own burdens as far as possible. This is what I explained to the hon. member.

So this is reinsurance.

Yes, which I referred to yesterday.

No.

I am pleased that the hon. the Deputy Minister has made the statement he has just made because that has cleared the air. In support of what he has said, I should like to point out that it is quite obvious that the M.V.A. Fund will have to reinsure certain risks. In terms of the existing agreement all the consortium companies have had to provide guarantees and sureties in respect of misappropriation of funds and M.V.A. tokens. In order to ensure that each consortium company can carry out its obligations the M.V.A. Fund at present has to reinsure the responsibilities of each of these companies by taking out, as the Deputy Minister has pointed out, a comprehensive reinsurance coverage with the Swiss Reinsurance Company and others. If that is the obligation of the M.V.A. Fund at present, then, surely, that obligation must be passed onto the proposed company and in the circumstances the Minister is quite correct in taking power in paragraph (a) of the proposed section 25C “to reinsure any assurance or risk which any registered company has undertaken pursuant to the provisions of this Act”. It is an obligation which every company has undertaken and it is only right that the new company should have this right to reinsure. Therefore, I can see nothing sinister in that at all.

The Minister then goes on to provide in paragraph (e) of this proposed section that the Fund shall have power “to guarantee or insure the obligations of registered companies arising from the application of this Act”. This is just a mere reiteration of paragraph (a). Therefore, there is nothing sinister there either. Then there is paragraph (c), “to cause any risk which it has undertaken to be reinsured in whole or in part”. I think this is only a reasonable business precaution. The fund may reach a stage where the volume of claims lodged against it is out of all proportion to its income. Therefore it is only right, now that it is to be a company, that it shall have the power to reinsure comprehensively any loss that the company may suffer in excess of its assets. Therefore I think the Minister is quite right to embody this precaution in this measure.

There is another matter which the Deputy Minister has settled and that is in connection with paragraph (d). Of that I am glad. The fund is given power here to “to investigate and settle claims, and commence, conduct, defend or abandon legal proceedings”. The Deputy Minister has made it clear that this will apply only to uninsured and unidentified vehicles—in other words, hit and run accidents in respect of which the fund may be faced with very substantial claims. It is in such instances that the officials themselves will have the power to investigate and settle claims and commence or abandon legal proceedings. As I have said, I am pleased that the Deputy Minister has clarified this particular point.

You seem to be the only hon. member who really followed what I said.

I am pleased that the Deputy Minister has clarified the position because these consortium companies have established at great cost to themselves very extensive claims departments all over the country and if suddenly they were to be deprived of their right to investigate claims it would amount for them almost to a catastrophe. Hundreds of men will be thrown out of employment thereby …

What is more, we won’t be able to cope with all that work.

Yes, that is true. Another hon. member raised the question of the right of the company to lend money on such conditions as the Minister deems advisable. I cannot understand his criticism of this provision. After all, this is a precaution which every company should have. When they have an excess of liquid funds they should have the right to lend that money to the best advantage; to let that money earn income so as to build up this very important fund in the interests of the citizens of Southern Africa.

Even on the grey market.

Yes, if you like, even on the grey market. But I am sure the Minister of Finance will control that aspect. However, I feel the company should have this right. In that I see the means of building up this fund.

May I just point out to the hon. member who has just resumed his seat that I did not actually criticize the lending of this money. I merely asked the Minister to explain the position to us.

Did you get that explanation?

Yes, not from the hon. the Deputy Minister, but from somebody who understands this thing better.

As regards the investigation of claims by the consortium I agree that this matter has now been cleared up somewhat. But the Minister did not say this afternoon what he said yesterday. If there has been any misunderstanding of this matter then that has been brought about by the Deputy Minister himself. I want to add to what has been said by the hon. member who has just sat down.

You do not understand Afrikaans.

I understand this Bill well enough. Sir, I would like to add to what has been said by the hon. member who has just sat down about investigating claims in respect of uninsured vehicles paid for by the M.V.A. Fund. This is, of course, nothing new at all. It was done in the past, but what happened in the past is that the M.V.A. Fund instructed an attorney and the attorney generally instructed an assessor, and those were the people who did the investigation, not officials of the Department.

If you give the instruction, you have to have the power to do it.

The Deputy Minister has said time and time again that the officials of the Department are going to do the investigation. We do not seem to be getting anywhere with this at all. If the same thing that happened in the past continues to happen then there is certainly no objection on this side, because we know that it was handled then by people who understood the requirements of this type of investigation. Sir, there is just one further point that does need clarification. The proposed new section 25D (2) (b) says—

Then it goes on to the point which I made earlier, that payment of allowances will be made out of the fund. The point I made was that these members of the committee are members of the consortium companies who are receiving 25 per cent commission for this very work. Now we are going to find that the fund is going to pay allowances in addition. They are going to get allowances in addition to the 25 per cent which they are already receiving as commission. I find this most strange because under the system as it has existed heretofore members of the committees did the job merely as representatives of their particular company. I think it is a very strange thing to say now that the fund is also going to be saddled with their expenses when they are already receiving 25 per cent commission. I think this needs a little more clarification from the Minister if at all possible.

Clause put and agreed to.

House Resumed:

Bill reported without amendment.

I wish to raise a matter with the hon. the Deputy Minister in connection with funeral insurance. I wish to ask him a question, but before I do so, I would like to refer briefly to a debate which took place a few years ago in which the Deputy Minister, who was then the hon. member for Queenstown, took part. In that debate the hon. member said there is actually no possibility of exploitation in regard to funeral insurance. Subsequently the hon. member went on to say that in 1965 there had been 138,000 funeral policies taken out, but almost 102,000 of these had lapsed, and he indicated that he felt that this was a matter deserving attention. Then he went on to say that he wondered whether it was not possible to introduce the concept of the surrender value in respect of funeral insurance as well.

I should like to submit to the Deputy Minister that he has received evidence and information which I believe imply that there have been irregularities in regard to the handling of insurance policies. I should like to ask the Deputy Minister, when he comes to implement the amended clause, whether he will agree that the matter should be closely investigated with a view to eliminating any exploitation or any abuses that may exist in regard to these funeral policies.

The hon. member has referred to a speech I made in this House about two years ago, in which I stated there was no exploitation in regard to insurance business.

Funeral insurance.

Well, I see nothing in this clause to repudiate me. This clause does not deal with exploitation. The subsection to which the hon. member was referring is 2 (d), which reads as follows—

This stipulation is exactly the same as the one we are introducing in respect of the other types of insurance. This means that when an insurer, whether he deals in long-term life insurance or funeral insurance, decides to close down his business, he will be allowed to do so without having to pay a deposit, on condition that he fully re-insures his unmatured policies and that he conducts his business as a closed business, which means he just finishes off. I hope this satisfies the hon. member. If not, perhaps he will rise once more and explain his point to me again. This is what we are doing, and we are not doing this in respect of funeral insurance only but also in regard to other types of insurance, as the hon. member can see.

Mr. Chairman, I am grateful to the hon. the Deputy Minister for his explanation. I appreciate what he has said and I accept it. I raised this point because obviously the clause had been under review since there was an amendment to the provision affecting funeral insurance policies. I felt that the reasons behind the amendment were that the Minister now had information which led him to believe there may be exploitation and that, under the circumstances, he would investigate that aspect. If the reason, however, is that he wants this clause to fall in line with other aspects of insurance, then I accept his explanation. However, I still appeal to the Deputy Minister to investigate the other aspect, the details of which I have placed before him.

Mr. Chairman, I appreciate the hon. member’s remarks and I thank him for what he said. I wish to make it very clear again that this is not a case of closing any loopholes or any gaps in the Insurance Act with regard to funeral policies and funeral insurance. It does not affect insurers still doing business under the Act at all; it only affects an insurer who wishes to close his business; he will enjoy the new privilege embodied in the second part of this clause.

Clause put and agreed to.

Clause 12:

Mr. Chairman, this is a remarkable clause in the sense that it provides for a remarkable thing to be done. I am glad the hon. the Minister of Justice is here and is at the moment consulting with the hon. the Deputy Minister of Finance. I wish they would sit together because the Minister of Justice will be interested in this clause, too. This clause provides for the first time in our legislation, so far as I am aware, that Judges can be law-makers. We had provisions in other measures that we have discussed this Session where Ministers can override Acts of Parliament, but this is the first time that I have ever seen a provision where a Judge may in fact give a direction and override an Act of Parliament.

The clause provides that in the circumstances where a company is wound up—

and then it provides, and this is what we are here to discuss—

“Law” is defined in the Interpretation Act as meaning any law whatever, including an Act of Parliament. One wonders what other laws the Minister has in mind when he proposes this amendment, whether there are any Acts of Parliament involved, and why it is felt that the law as it stands should not stand in the way of any direction which a Judge may give to the liquidator with regard to the winding up. The difficulties are myriad if one takes this matter very much further, but perhaps the Deputy Minister could give us an explanation at this stage and we need not protract the discussion.

Mr. Chairman, I do not profess that I would be able to give the hon. member a complete answer which will be to his satisfaction; but the position is, I am told, that the Insurance Act, on account of the nature of insurance business, contains certain provisions with regard to liquidation and winding up of insurance business. Naturally, when an order of court was given, it has happened that there has not been complete agreement with regard to the orders issued by the court. May I repeat this to the hon. member in Afrikaans.

*I am told that the various courts do not agree on the extent to which orders are issued to liquidators in terms of section 32 (4). Some provisions of existing Acts, particularly the Companies Act, may differ in this respect. Certain court orders issued in terms of the Insurance Act, contain directions to liquidators which are set aside by the court in other cases by reason of the fact that these directions are not quite consistent with the liquidation provisions of the Companies Act. The position therefore exists that different decisions may be given by the various courts. Directions issued by one court giving certain decisions and liquidation directions in terms of the Insurance Act, are tested again and declared invalid in terms of the Companies Act. Whereas it is clear now that the Insurance Act is laying down a distinctive liquidation procedure for insurers, a procedure which relies in particular on the powers of the court to adapt the course of the liquidation to fit the particular circumstances prevailing in the insurance field, it has happened in the past that the authority granted by the court in this respect did not quite stand the test in respect of the Companies Act in another court. Apparently the court has quite wide powers for drafting its liquidation orders in such a way that they are adapted to fit the particular circumstances prevailing in the insurance field. It is now felt that the power granted to the court in this respect, namely in terms of the Insurance Act, for the purpose of issuing full directions as regards the liquidation of insurers, should be brought into line with the less narrow interpretation attached to this power by some courts, as against the restrictive interpretation which has been attached to it by other courts in this regard. I do not know whether this explanation will satisfy the hon. member in any way.

Mr. Chairman, we appreciate the hon. the Deputy Minister’s explanation, but I think we are going to be in as difficult a position in the future as we have been in the past. As this clause stands now, having regard to the hon. the Deputy Minister’s explanation, a liquidation procedure is provided for insurance companies. Where the Insurance Act makes no special provision, as the Deputy Minister knows, there is an overriding clause, to the effect that the Companies Act will prevail. The provisions in terms of the Companies Act in regard to liquidation deals with the liquidators’ preferences as to the settling of claims and the priority of creditors in a liquidation, particularly in those liquidations where there are insufficient assets to meet the different claims. It seems to me, according to the Deputy Minister’s interpretation, when this clause goes through, it could be possible that different Judges could give different rulings. There will be no certainty in the law, because the Judges’ decision would override the various Acts as contemplated by this amendment. It appears to me, Mr. Chairman, that there is going to be more difficulty in future than there has been in the past. I suggest that the hon. the Deputy Minister’s remarks could almost be regarded as being a reflection on the Judges. Because Judges have given different decisions in the past he has introduced this amendment to get over this difficulty and I submit that the difficulties will not be overcome and subsequent litigation will show that.

I am not sure whether the hon. member for Pinetown is right. I think the position is being put more clearly now. The Insurance Act contains a long series of provisions regarding the liquidation of insurance companies. These provisions lay down the manner in which liquidation should be effected and grant certain powers to the courts in this connection. These powers are exercised by the courts. When this provision is approved there will no longer be any doubt whatsoever and the courts will no longer exercise these powers at their own discretion, but will be bound by the provisions of the Insurance Act, which will lay down the liquidation procedure of insurers. This will be the only basis of liquidation, and only on the basis of the provisions of the Insurance Act will the courts issue and adapt these orders according to the circumstances prevailing in the case of the particular company. I do not think that the uncertainty which existed in the past was because different interpretations were attached to the Insurance Act by the courts, but it could possibly be that, in cases where a liquidation order was issued by a court on the basis of the provisions of the Insurance Act, other interested parties which were affected by such order, took recourse to the Supreme Court and had the liquidation order of the court which was based on the Insurance Act, set aside on the basis of the Companies Act. This is what we want to eliminate now, and I want to put it to the hon. member that this Bill will make for greater clarity and certainty. The hon. member may possibly think that the liquidation provisions of the Insurance Act, which are contained mainly in sections 30 to 33, are incorrect. However, these provisions are not inconsistent with the Companies Act, but because insurance business is a distinctive business and because the courts may, for that reason, issue certain orders for the liquidation of an insurance company, we feel that only the Insurance Act should be applicable to and binding on the courts here.

Clause put and agreed to.

Clause 19:

Mr. Chairman, I move the amendment standing in my name, as follows—

Agreed to.

Clause, as amended, put and agreed to.

Clause 26:

Mr. Chairman, I move the amendment standing in my name, as follows—

Agreed to.

Clause, as amended, put and agreed to.

House Resumed:

Bill reported with amendments.

Mr. Speaker, I move—

On 23rd February 1962 I introduced a motion as an ordinary member in this House in which I expressed the opinion that the jury system had no further useful function to fulfil in our jurisprudence. To-day, as Minister of Justice, I am responsible for the introduction of this Bill in which the abolition of the only remaining form of trial by jury is being envisaged, which may create the impression that I am waging a vendetta against this system. Nothing is further from the truth however. One does not throw a traditional establishment overboard, particularly not if that establishment extends over a period of 700 years.

The motion I previously introduced in the House was not subjected to a division because time did not allow, but a fruitful debate was conducted on it, from which it appeared that hon. members were not in agreement on the subject. In the seven years which have elapsed since then nothing has happened, however, to cause me to change my point of view; on the contrary, my convictions have been confirmed by the experience of the system which I have gained in the meantime as Minister of Justice. Consequently I trust that the facts which I am now going to submit against the retention of the system will persuade those members who did not support the motion at that time to change their minds.

As hon. members will recall, the history of the system was subjected to a thorough scrutiny in 1962, and consequently I do not want to dwell on that topic again. For the purposes of my argument it is sufficient to know that the system was introduced with regard to criminal proceedings with the establishment of the first Supreme Court at the Cape. During 1854 it was extended to civil cases. During 1852 the system was introduced in Natal for criminal and civil proceedings. At approximately the same time the South African Republic and the Republic of the Orange Free State also accepted the system, but only in respect of criminal proceedings. Since Union, however, we find that the system has been slowly but surely dismantled by legislation. As far as criminal proceedings are concerned, this process was slightly more protracted than was the case with civil proceedings where trial by jury was summarily abolished in 1927. As far as criminal proceedings are concerned, various methods were followed. Firstly the establishment of special courts was authorized in 1914, in which certain offences could, under certain conditions, be tried without a jury. In addition the accused was in 1917 given the choice of being heard by a jury or by a Judge and assessors. Up to that stage all criminal cases in the Supreme Court, with the exception of those heard in the special courts, were heard by a jury. In 1935 a further change was made by a provision in terms of which the Minister of Justice could, at his discretion issue instructions to the effect that certain cases could not be heard by a jury regardless of the desires of the accused. The cases where a jury could be excluded in this way were in due course extended to a list of considerable proportions which is to be found in section 111 of the Criminal Procedure Act 1955 (Act No. 56 of 1955), which is now being repealed. In 1952 regional courts were established which functioned without a jury and which caused the number of cases which could come before a jury to decrease to a marked extent. A further heavy blow followed in 1954 when the accused’s right of choice was reversed. In all the cases where a jury had not already, as mentioned above, been excluded, an accused has subsequently appeared automatically before a Judge, with or without assessors, unless he specifically requested a jury. Formerly the position had been that he automatically appeared before a jury unless he specifically requested to be tried before a Judge. Gradually, and through the joint operation of the legislature and of the choice made by accused persons, trials by jury have decreased in number to such an extent that they have in practice almost disappeared completely. Let me furnish hon. members with the figures in this regard. They can judge for themselves. In 1943 27.9 per cent of all criminal trials in the Supreme Court were trials by jury. In 1948 this figure had decreased to 15.2 per cent, in 1953 to 5.4 per cent, and in 1958 to 3.9 per cent. In 1963 there were 2,900 cases of which 84, i.e. 2.89 per cent, were trials by jury. In 1966 there were 3,312 cases, of which 15, or .4 per cent, were trials by jury. In 1967 the figures are 3,640 cases, of which 21 were trials by jury, which represents .57 per cent. In 1968 there were 3,073 cases, of which 15 were trials by jury, which represents .48 per cent. In 1965 there were no trials by jury in four of the eight divisions of the Supreme Court. In 1966 there were no trials by jury in three divisions. In 1967 there were no trials by jury in four, and in 1968 there were no trials by jury in five divisions. I can assure hon. members that I am not juggling with figures. Nor do I want to take up any more of your time with such figures. I have a complete statement in this regard which contains all the statistical data from 1943 up to the end of last year for each division of the Supreme Court. If hon. members on the opposite side are interested in this, they can request a copy from my Department. The figures which I have mentioned support the standpoint I adopted in 1962 and indicate that there is no longer any future for this system in the Republic. The system has, for all practical purposes, fallen into disuse.

The question as to why this should be so now arises. The reply is of course self-evident. Neither the State nor accused persons like the jury, and it is an open question whether jury members themselves like the system. As far as the State is concerned, it is only necessary to note the legislation since Union in order to see what little liking it has for the jury system. As a starting point here I want to refer hon. members to the book “Suid-Afrikaanse Strafproses” by Mr. Justice Hiemstra, which appeared recently. On page 128 the hon. Judge expresses the following opinion on the system (translation)—

Hon. members must concede that this is straight speaking. What gives it added force is the fact that it was expressed in public and that as far as I know the hon. Judge has not brought any criticism down upon his head. To seek efficient administration of justice among laymen in our modern society is to expect the impossible. If this is accepted, the justification for the existence of juries falls away in my opinion, because they are then not serving the purpose for which they were sworn in, namely in the words of section 135 (1) of the Criminal Procedure Act, 1955, to "… give a true verdict according to the evidence upon the issues to be tried by them”. I want to state clearly that I am not ascribing ulterior motives to every citizen of the country who is chosen as a jury member. It is to a far greater extent a question of every man to his trade.

But it is not only the State which holds this view on juries. Accused persons, in the same way, do not trust the findings of juries. There is an old saying, the wisdom of which is undisputed, that if a person is innocent he must not request a jury, but if he is guilty, then he must. The hon. member for Durban (North), who by his own admission has experience of these things, assured me during the 1962 date that this was in fact the practice. In the circumstances one would of course have expected him to support me on this measure. I hope that he will do so. In addition he appeared to be of the opinion at that time that such behaviour was quite consistent with our legal system and that it was better to free 99 guilty persons than to hang one innocent person. I do not want to dispute this matter with the hon. member, but I want to rest my case on the words of Lord Shawcross, an eminent English jurist, who expressed himself as follows—

This brings me to the ordinary citizen, who is appointed as a juror. This aspect of course affects the fundamental principles of the jury system, namely that trials by jury entail that a person is heard by his peers, and that it affords the ordinary citizen a share in the administration of justice. Seen in the light of our present legislation this is a theoretical rather than a practical truth. In the white areas in our country the administration of justice is in the hands of the Whites, and it is not possible for any non-Whites there to be tried by their peers. I would like the hon. member for Durban (North) to react to this. Hon. members on the opposite side of the House will have to concede that they cannot be tried by their peers either, for by this token all members of Parliament, for example, are exempt from jury duty. All public servants are exempt, all members of the Police Force, all teachers, all railway officials, etc., until one wonders who can in fact serve as jurors.

Only the farmers.

In 1962 I made a little calculation and came to the conclusion that barely 2 per cent of the population shared in this privilege, or should I rather say, bore the burden of trials by jury. Hon. members will agree with me that very few of these principles have been preserved in the South African jury system.

I do not really take it amiss of the public for not wanting to serve as jurors. In modern times it is no trifling matter to set aside his duties, trade, business or what have you for a day or more. Financially it must always mean a loss to him, and very often his loss, which cannot be calculated in financial terms, becomes an even heavier burden. I wonder, too, whether our country with its shortage of manpower can afford this luxury. Strangely enough the strongest representations for the retention of the jury comes from those who are exempt from jury duty. However, I want to proceed and put the popularity of the jury system to a further test. As hon. members know all women are exempt from normal jury service.

I think that is all wrong.

In 1931 the Female Jurors Act, 1931, was passed which made provision for female juries under certain circumstances. I wonder whether hon. members will believe me when I tell them that this Bill, 38 years later, is abolishing that measure without one single female jury ever having been empanelled.

That is very bad. What about equal duty for equal votes?

In addition I want to devote my attention to certain aspects of trials by jury which I have not touched upon yet. It is sometimes stated that it is an advantage of trials by jury that one can in this way get rid of unpopular legislation, or as the hon. member for Durban (North) put it in the 1962 debate, “juries temper strict legislation with the morality of the day”. Those are fine words. Mr. Speaker, but how do they fit in with our legal system? Juries must determine the guilt or innocence of a person according to the facts of the case. Punishment or reprieve are no concern of theirs at all, these are matters which are the concern of the Judge or the executive respectively.

However, the direct reason for the introduction of this Bill is the numerous problems which crop up in the practical application of the system. The following state of affairs in the Transvaal Provincial Division of the Supreme Court was recently brought to my attention. Although no trials by jury occurred in the Transvaal during 1967 it was necessary at almost every criminal hearing to assemble a jury. This is necessitated by the fact that accused persons indicate at preparatory examinations that they prefer to be tried by jury. At the trial it is then decided at the eleventh hour that use will not be made of a jury. To assemble a jury is no easy task under present circumstances. As many as 150 jury summonses have to be issued in order to assemble 21 jurors. That is what happens. It can be ascribed to the following: In terms of section 117 (2) of the Criminal Procedure Act the Chief Electoral Officer must, within three months after a general registration of voters, send a new jurors’ list to the magistrate in question. It is found that even when the new jurors’ list is received, which is only a few months after registration, numerous persons are no longer living at the addresses appearing on the list, and as the list becomes more dated the position deteriorates. We all know from bitter experience in what condition such a list is shortly before a general registration, which now takes place every five years. It became apparent that legislation was imperative in order to alleviate the position. Over and above the expenditure which this entails, a great deal of useless work has to be performed by officers who are already bowed down under a heavy burden of work owing to the present shortage of manpower. Consequently I found myself faced with the choice of continuing with extensive amendments and keeping the jury system alive by artificial means, or of abolishing the jury system. In the light of my views on this matter, I chose the latter course.

This Bill was not sent out for comment in view of the fact that interested bodies have since 1962 already, after the introduction of my motion, been consulted by the Department of Justice in this connection. An overwhelming majority of the Judges were in favour of the abolition of the system. The Attorneys-General were of the unanimous opinion that the system was no longer serving any purpose. On the other hand the General Bar Council and the Association of Law Societies expressed themselves in favour of the retention of the system. I have no reason to believe that they have in the meantime altered their opinion, but in the light of what I have said here, the abolition of the system can no longer be delayed.

I want to conclude by referring to the Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters, under the chairmanship of the hon. Justice of Appeal Rumpff. The report has already been tabled. You will recall that the inquiry was ordered after the death of Dr. Verwoerd. Paragraph 9.83 of the report reads as follows—

I also want to quote paragraph 12.22 of the report. This part of the report bears the heading “Summary of views and the recommendations of the Commission”. I quote—

This, then, is the finding of the commission, of which one of our Judges of Appeal was the chairman.

Mr. Speaker, I believe that the advocates of the system in the Republic cannot complain that the jury system here was not given enough time and opportunity to indicate that it could be a workable system. This country gave the system the proverbial nine lives of a cat and even more, and nevertheless the system could not succeed, during all the years of application, almost a century and a half, in becoming established here. After all the changes which have been made in the system, after all the occasions on which the pruning shears were used, the system still displays no vitality. It is in fact pining away even further. Apart from that, while it remains on the Statute Book, it makes for useless work. I feel that the time is ripe to delete the system from the Statute Book.

It is interesting that the hon. the Minister’s speech began with an event with which I would have begun my speech, too, and that is that on 23rd February, 1962, when the hon. the Minister was the hon. member for Klerksdorp, he moved a motion to the effect that this House was of the opinion that the jury system had no further useful function to fulfil in our administration of justice. I suppose the hon. the Minister is in the unique position of being able to move this motion, seven years later, with more assurance that this House will be with him, sitting where he sits, in regard to precisely the same matter.

He is older but not wiser.

The hon. the Minister says that I gave the assurance in 1962 that if someone was guilty one would ask for a jury and not for a judge to try him. If I did in fact say that, I do not deny that, but I want to remind the hon. the Minister that it is not the function in any event of an advocate to determine whether his client is guilty. That is the exclusive function of the court. It is the function of the advocate to put up the best defence possible for his client, but I will come back to this point because I think that this is perhaps the kernel of this whole matter: What is the best thing for one’s client? What is the best mode of trial for one’s client? What is the best way in which to find out the truth? What is the best way to find out whether a witness is lying or not? What is the best way of testing the demeanour of someone who is deposing to facts upon which a judgment might be given which might result in the death of the person being tried? This is what has entertained, especially in Great Britain over the centuries, the best brains in the legal world. We have adopted the result in our law. One of the systems that developed over those centuries was the jury system. It developed, as I shall indicate, from what was originally an administrative process. This system made possible the information (the facts) in the Domesday Book. It developed, and the rules of evidence developed, because of the jury system. During the course of my speech I want to come back to the question of who and what is the best forum for determining whether a man is guilty or not. I want to say at once that I will develop the theme that one man should not sit in judgment, whether he is a judge or not, to determine the facts which might result in the death sentence being imposed. Put in a nutshell, what this Bill in fact says is that you shall not have the right to have the question of your guilt or innocence, in a case in which you might face the death sentence, determined by more than one person. Because if this Bill is passed in this form it will be the decision of the judge himself and no one else as to whether he will in fact call anyone else to his aid in deciding. I shall come back to that.

The hon. the Minister mentioned Sir Hartley Shawcross, a leading member of the English legal profession, who said that it was an affront to justice that a guilty man should get off, as much as vice versa. Looking through the Library, I came across a rather quaint book called “The Golden Rules for Jurymen”, by Sir Richard Phillips, published in English and in Dutch in Cape Town in 1828. On page 4 of this rather quaint little pamphlet, in paragraph 7, having given the jury all the advice they should have, it says “The accused ought to enjoy the benefit of all doubts and of all uncertainty in the evidence, because it is better that 100 guilty persons should escape punishment than one innocent man be unjustly convicted; and because the issue of a criminal trial involves everything dear to the accused, if he be found guilty; but his acquittal, though perchance he might be guilty, is comparatively unimportant to the public”. I think, Sir, this is the sentiment in which our legal system has grown up. This is the sentiment, I think, which has nurtured the development of our rules of evidence which are so important in the determination of our criminal cases. What has happened over the years is that there has been a diminution of the rights of the accused person. He has been discouraged to have trial by jury. At the time of Union, all cases in the Cape and Natal, even civil cases, were heard by a jury. In 1914 the first series of special criminal courts began. From then one could not be tried by a jury in certain cases. In 1927 other courts, dealing with cases of high treason and public violence, were set up excluding juries. One can see straight away that these are matters which should perhaps not be dealt with by a jury.

In emotional cases.

Yes, emotional cases. The development went further and the Minister then had the discretion to direct that a trial should not be by jury in matters not emotional, but technical, like insolvency, prosecution under the Atomic Energy Act and various other matters. But one must also remember that those were the days in which the Supreme Court heard most of the serious criminal cases. If you go into the Supreme Court to-day, then I should say that 90 per cent of what you will hear will be “drink and dagger” cases, if I may call them that. It is a variation on the theme of a number of people, usually non-Europeans, getting together on some occasion; they drink and argue, somebody gets stabbed and the accused then appears before the Supreme Court charged with murder. The cases that were heard by the Supreme Courts before, are not heard by them any more. Today the regional courts have such an enlarged jurisdiction that I would say that most white people to-day are tried before regional courts in respect of the most serious offences. There are, of course, certain matters which the regional courts cannot deal with.

In 1935 the hon. the Minister of Justice and his predecessors, took for the first time the power to direct that a trial should not be by jury. To-day the list of matters in which the hon. the Minister may direct trial to be without jury, is quite phenomenal. These include: Under the Riotous Assemblies Act, which is understandable: the Atomic Energy Act; illicit dealing and illegal possession of precious metals and precious stones—no doubt it is due to the great success of one adv. Beau Upington, in the days that he used to persuade the juries in the Cape of the innocence of his clients in illicit diamond sale cases. Intoxicating liquor—one wonders why that is still there; relating to insolvency; atomic energy; bookkeeping. It also says “towards or in connection with a non-European, if the accused or any of the accused is a European, or towards or in connection with a European if the accused or any of the accused is a non-European”. And, lastly, under the Suppression of Communism Act. One appreciates that in some of these matters the hon. the Minister should exercise a discretion.

Why?

Why? It is because a number of these matters are technical. This works in reverse as well. You can sometimes get a group of brilliant not ordinary people as a jury. During the debate in 1962 I gave the example of a jury being empanelled in Cambridge. Great Britain. Not Cambridge, Massachusetts. There they in fact empanelled a jury of brilliant gentlemen, dons of the University. The issue which they had to try was that of a collision. They were asked by the judge, as he had asked all the juries of ordinary people before, more or less the following question: “The issue you will have to determine is whose negligence was the proximate cause of the accident?” They did not understand what he meant. They came back and returned in fact such a verdict that they did not understand the directions of the judge. The laymen in cases before understood the question perfectly. Then one wonders what exactly was meant and whether the judge in fact new what it meant. But the ordinary juryman knew and decided.

The most important examples of the hon. the Minister’s exercising his discretion, are the cases of White on Black and Black on White, for the obvious reason that in this field there might well be emotions which should not be allowed to enter the arena. I am sorry if I take the risk of boring the hon. the Minister, but there is this remarkable example which occurred somewhere in the Transvaal. In this case Mr. Justice Greenberg was on circuit. One of the local farmers was accused of murdering one of his labourers; he had beaten the labourer who afterwards died. The farmer acquired the services of the then greatest criminal advocate in the country, namely Harry Morris. Harry Morris saw his client and he did not really know what sort of defence he could put up against the charge. The only one that occurred to him was the defence of temporary insanity.

So he asked for a jury.

Yes, a jury was in those days empanelled as a right. A local jury of farmers was empanelled and Harry Morris addressed them after the evidence indicated that the accused was guilty at least of some lesser offence than a murder, if not murder, at any rate of some offence. Then the jury retired and returned a verdict of “not guilty”. The Judge learnt forward and said that while it was not his right to know, he was nevertheless curious to know on what grounds they came to their decision. The forman of the jury said: “Temporary insanity.” The Judge looked down and said, “What, all nine of you?”

As a matter of fact, I was going to quote that example myself.

Well, the hon. the Minister was going to quote it himself, therefore it must be true. That is the example of the sort of case where this should not happen.

On whose side are you, Mike?

I have indicated that the hon. Minister in some cases has to-day a discretion to avoid the situation. I have had clients who have been served with this warrant of the hon. the Minister and, if I may say so, in every case properly; because this is not the sort of situation where we expect them to have trial by jury. This does not mean that this must be abolished.

The hon. the Minister may preclude a jury under certain circumstances. It is now proposed, because of disuse of the jury system, to abolish it. I do not think that there is any case to be made out for the misuse of the jury system. It may not be as popular, but it has not, so far as I am aware, ever been misused. Going back to 1954 we find a reversal of the trend. Before that you were tried by jury unless you asked for a trial by assessors. The rule then became that you would be tried by Judge and assessors, unless you asked for trial by jury. The hon. the Minister described it as the coup de grace of the jury system with great respect, I do not think it is correct, not any more than you could have said that before this a Judge and assessors were not part of our criminal procedure. In the same year as this coup de grâce was administered, this Parliament passed the Women Juries Amendment Act. One wonders whether a female jury has ever been empanelled and, if I understood the Minister correctly, they never have. Because this sort of jury does not exist unless people put their names on the jury list.

It shows you they have no interest.

Well, I do not know whether it shows one they have no interest, any more than one can say jurymen have no interest, that the man in the street has no interest in serving on a jury. He does not have to go and put his name down. He is on the voters’ list and the sheriff takes his name from the list and serves him with a subpoena to attend court. I wonder—and this is the point—how many women would have asked for a trial by a women’s jury had there been one available.

It can be empanelled.

Yes, but you can only have a jury of women empanelled if there are enough women on the list, women who have put their names on the list. That is the point. One wonders why this was done.

Another thing the Minister said was that I had said in 1962 a jury tempered the harshness of the law with the morality of the day. I think there is no doubt whatever that this is so. I see the Minister shakes his head.

That is not a jury’s function.

This is one of the functions it has to perform, and I think usefully perform, to society. In England not so long ago, only 150 years ago—and those were extraordinary days—there were something like 210 different capital offences. Theft, larceny, was one of them, and if you stole something worth more than is, it was a felony for which the death sentence was compulsory. If you stole something worth 11d. then the death sentence could not be imposed. You found juries in those days in Britain returning a verdict of guilty of theft of £1, and because they had to place a value on the article stolen they valued it at 11d. This is what they did and one looks at it now and says, “thank goodness they did it.” Because the law in England at the time was in a state of barbarism so far as capital offences were concerned. In those days the condemned people were strung up publicly and great festivities were held because they were regarded as public occasions. But the morality of the day of the man in the street prevailed by him placing a value of 11d. on a pound and avoiding the barbarism of the law. That is, perhaps, a little far-fetched, but nevertheless that is what happened. I am not sure this is not sometimes the function of a jury and should not be the function of a jury.

You see, Sir, a Judge is, after all, a lawyer first. He is not a person who is concerned with the effects of the law being applied in a certain way or not; he is concerned strictly with the law and with its application. Where a law is for instance absurd it leaves him no room in fact to say the law is absurd. Only in 1914 did the Appellate Division of our Supreme Court determine that adultery was no longer a crime; it decided it had become abrogated by disuse as a crime. I think a jury would have acquitted an accused in an adultery case on that basis before the A.D. ruling; it would have decided what absolute nonsense the law is that adultery should be a criminal offence.

I do not think they would have.

I think they would have, but unless you had been charged before a court with a jury this could not have happened; you would have been found guilty of that offence, and then you had a criminal record. It is in this type of case that a jury can, and in fact does, perform a function.

I want to come to the difficulties that will arise if you do abolish the jury system and have the Bill passed as it stands at the moment. Once you abolish juries they will never come back. The system is unique, it can be adapted, it has been adapted. Why reduce the possible flexibility of our legal system by scrapping juries altogether because they have fallen into disuse? The time may come when people will want to use juries more. The time may come that more people will use juries or will want to use juries. This is a fluctuating thing. It is part of our legal machinery and heritage and I do not think it ought to be abolished altogether. If it is not being used, leave it there, let it lie on the shelf without being used until such time as no one wants to use it, until, like adultery, it is a matter which should not be a crime—a matter which could be abolished by statute because it had not been used at all for such a long time.

Mr. Speaker, mercy is a most important part of justice. The Minister said in 1962 that mercy belonged to the Executive. Strictly speaking, the Minister was right. But mercy and justice go together, and mercy belongs to the people. Our system is such that one cannot do what one thinks one should do, one cannot show that mercy one should show, following strictly the lawyer or Judge’s view of the law. But the jury can do it, and a jury very often does.

In 1962 the Minister said if the verdict of a jury is regarded as “a surprise by a Judge I feel in that case the law has not been watered down by mercy shown. I feel a mockery has been made of the law and we should guard against that.” This is not quite right.

That was the Greenberg case.

It does not matter. That was the one case, but there are other cases. There are cases where a Judge is overruled by his two assessors when he sits with them; they may overrule him on the facts. There are Judges who have been overruled by other Judges on appeal. In some cases the Appeal Court has actually said in respect of some people, “We cannot understand why this man was not discharged at the close of the Crown case because there is no evidence whatsoever that he was there.” I will come to that case. How can the Minister say when a Judge expresses surprise at a jury’s decision, then there must be something wrong with it, when Judges themselves make mistakes because they are only human? They make mistakes usually in cases where they sit alone. So that is no criterion. Moreover, Judges are upset not only on the law but also on the facts.

The Minister asked me to deal with this question of judgment by one’s peers. It is not an expression that I am necessarily fond of; it means different things to different people. As a lawyer it does not mean that much to me. It is not because it is judgment by one’s peers that I want this jury system retained; it is for all the other reasons I have given and the reasons which I shall still give. There are people, including laymen who will take part in this debate, who will indicate what this expression means to them, what this concept is as far as they as laymen are concerned and how much they value the thought behind it, so I will not deal with that. In Great Britain the word has a certain meaning. Even there they abolished trial “by your peers” so far as a peer of the realm was concerned inasmuch as he could no longer, after a quite recent date, be tried in the House of Lords. Peer means equal. I leave that aspect to the hon. member for Durban (Central) to deal with.

Let us come down now to the meat of this Bill as to what in fact is going to happen if the Bill is passed in its present form.

Surely, when one tries people, especially when one tries people for their lives, there should be as many people as possible applying their minds to the matter. Why does this Bill not provide, as was provided before, that if there shall not be a jury, that a Judge shall call to his assistance two assessors if the case is one in which the death sentence may be imposed? I think it is because of a mistake due to oversight in an amending Bill. That is the question I ask, and that is an amendment which we hope the hon. the Minister will accept in the Committee Stage, if this Bill is passed at the Second Reading. The position before 1950 was that, when a person asked for trial by jury, and the Minister directed that he should not have trial by jury, the Judge had to call to his assistance two assessors. As I have said, I think it was a case of legislative oversight at the time. I think it was something that was overlooked. I do not know. But whatever the reason was, does not matter. If we are going to abolish juries, let us then make it compulsory for Judges to have assessors.

When one advises someone at a preparatory examination, one can give him but three bits of advice. This is a man who is about to be committed for trial for murder in the Supreme Court. The first thing is to accept short service, because that will ensure that you come to trial within five months, at any rate. In the second instance, he should shut up and not say a word, nor ask any questions, and reserve his defence. The third bit of advice is to ask for trial by jury, because one can change one’s mind if one has applied for trial by jury in the prescribed time. One can change by the time the trial is at hand. Then one sees who your Judge is and who are likely to be the assessors that will form the majority of the court. Not the Judge, but the two assessors he calls to his assistance will determine the issue. They are entitled on the facts to overrule the Judge. It is all very well to talk about “unpredictable” juries. There are assessors who are as predictable at times as juries are unpredictable. I say that in all sincerity. I wonder whether it is worse to have the majority of the court, whose attitude one knows beforehand is predictable, than nine good and true men, nine reasonable men, who have not made up their mind in any way. I say this, having regard to the fact that the practice amongst Judges in calling to their assistance assessors varies from Judge to Judge. There are some Judges who have the same two assessors with them, usually two retired gentlemen from the department; at any rate, retired persons who enjoy this sort of work. They have the same two assessors sitting with them for the whole of their criminal session, and almost inevitably in all the other sessions. That is why I say that the best advice is to ask for trial by jury, and then see what sort of court one is going to get. I am casting no reflection on the Judge whatsoever, because he is not the majority of the court. That is one of the factors that is involved here.

Just to show hon. members what can happen if my suggestion is not going to be adopted, I want to quote the case of Regina v. Mati and Others, which is reported in Volume I of the 1960 Law Reports at page 304. This is an Appellate Division decision. It involves an appeal from the Vereeniging Circuit Local Division, in which a Judge sat alone, trying three people for housebreaking with aggravating circumstance. He found them guilty of several offences, sentenced two of them to death and the matter went on appeal. The Appeal Court upset the convictions and the death sentences were set aside. What is really interesting, is what the court said in that case where the Judge was sitting alone. I quote: “This case itself illustrates what may happen if the trial Judge is without the advantage generally derived from the assistance of assessors in difficult cases or in cases where the outcome for the accused may be very serious.” This decision has been followed by the courts generally. The Judges generally call to their assistance two assessors, and I think that should be the rule. But not always, ever since that decision, has this been the case. This sort of thing can happen and it can happen with one man more easily than it can with nine men. It can happen with three people less easily than it can with one person. But it is at least a protection against arbitrariness, against the inherent nature of one man’s personality. In the rather quaint little book, which I have quoted before to-day, “Golden Rules for Jurymen”, 1828, published at Cape Town, paragraph 25 reads as follows:

I think that is rather nicely put. A Judge may well be wrong and it is the function of the jury to decide whether his opinion (if expressed) is wrong or not on the facts of the matter. The very same principle applies to assessors. Assessors also take the same sort of oath, and it is their duty also to see that they are not dictated to by the Judge, to see that they express an independent mind. If one compares the system, I wonder who is less independent of the Judge’s view, the assessor or the jury? For my money, by and large, I shall take the jury. They do not depend upon the Judge for their sitting in the court. They are summonsed to appear, because the sheriff happens to have taken their name off the voters’ list. They are probably never going to sit there again. The independence of a jury is a very important factor. I would say that they are more independent than assessors.

The hon. the Minister has indicated that juries have no idea of sifting evidence. I wonder whether in fact it is not because of juries that we have our rules of evidence, for the very fact that one has to be careful as to what evidence was given and how it was given. Juries might be misled by it, because they are not trained persons in the law. I wonder whether there really is any chance of their not being able to sift the evidence. The evidence has been sifted by the rules of evidence and by the Judge, who allows in only the evidence which is proper and excludes that which is not.

All people are subject to these human feelings. They are all human and suffer their own prejudices and Judges are no different from anyone else. While listening to the hon. the Minister’s remarks when he introduced the Bill, I wondered whether they had any validity when he said that it was spread over nine persons and therefore it did not seem to have any cohesion. I would say that, seeing that the decision has to be made by at least seven persons, it probably has more cohesion and accounts for all the various tastes and frames of mind embodied into one which is, in fact, the essence of that general feeling. If one should, however, get a person with the Judge’s frame of mind on the left side or the right side of the spectrum of that opinion, there would be two different versions and this does happen with a jury. I can remember one occasion, and I will mention no names, when I went into one court to defend an accused who was charged with attempted rape. In those days the Judge had to have assessors in the case of a charge of attempted rape. Someone thought that the charge was assault with intent to commit rape and therefore no assessors were called. That Judge found the accused guilty on the charge of attempted rape. When it was then discovered that the Judge should have had assessors, the trial was declared pro non scripto. The same day we went into another court before another Judge who took two assessors and the accused was then found not guilty of attempted rape but guilty of indecent assault, a lesser offence. This can happen on the same day in respect of the same evidence with two different Judges. This is not a case of sifting evidence. Judges do the same thing, and magistrates do it every day. One only has to go to the courts of Criminal Appeal to realize how many mistakes are made. But how fewer mistakes are made, how much more is the protection against the possibility that a mistake will be made if there is more than one person who makes the decision. Far from this being only my own view, it is the view of no less an authority than Mr. Justice Devlin in Britain, who said the following on the subject of trial by jury—

This does not of course flow from what legislators think and is not the traditional view, but the same Mr. Justice Devlin said that he thought that the jury is in fact the best instrument for deciding the reliability or the credibility of a witness. There is an awful lot to be said for this where you have nine people who have a look at a witness. They have to determine whether this witness is credible, what his demeanour is like, and whether he is talking the truth. What better assurance than nine ordinary people, who know the sort of person who is probably giving evidence, applying their minds jointly to this particular subject. I think such an authority as Mr. Justice Devlin deserves at least to have some answer.

One has to ask oneself the question why did the Appellate Division ask all the Judges to sit with assessors in cases where the death penalty may be imposed. It was for that very reason. Perhaps they appreciated themselves that they, of necessity, live in ivory towers. I say of necessity, because Judges are removed from the world they lived in before and of necessity they do not mix in the normal circles. They are people apart, they are pillars of society and they have to remain so. The days when they went into the local pub or witnessed a bar brawl (if ever) are long past. It is sometimes hard for them to understand how ordinary people behave, and why they behave the way they do. I have no doubt that the hon. the Minister will appreciate that there are some Judges who are very good in one court and not so good in another court for the same reason that everyone is human and everyone has his particular virtues and failings.

I think that the General Council of the Bar is the body most interested in this subject and has more experience than any other body. I have not been able to determine whether they have changed their attitude or not, but they took a unanimous decision before 1962 that they were against any further inroads being made into the jury system. As far as I am aware, and the hon. the Minister can correct me, that resolution remains the official view of the General Council of the Bar.

I have no reason to believe that they have altered it.

We on this side of the House are reassured by this view expressed by the people who are, after all, the ones who would know, if there is anyone in South Africa who should know.

I know that the argument that a jury is easily persuaded is going to be used. You get some people who have a particular knack of being jury persuaders. I wonder about this, however, advocate always has to play up to his audience. One handles one’s case quite differently before one Judge than one would handle it before another Judge. One would handle it differently according to who was on the Bench, whether there are assessors or a jury. I do not think that the one is more or less swayed than the other.

When one looks at this Bill one sees that it is just a part of a cold-blooded systematic analysis of a situation, with the determination to make it all look orderly and to take out this rather disorderly looking institution of a jury. I wonder whether we might not find that we can use this jury system and that we can adapt it in various cases in the future. No case has been made for it being scrapped. The expense involved is a mere drop in the ocean when one is dealing with the administration of justice. The thought that the citizens can take part in the administration of justice is a very important one. I wonder how many people have ever complained that they have been called up for jury service.

Ninety-eight per cent of the people are excluded.

Let us examine the statement by the hon. the Minister. Who is excluded from serving on a jury?

All the Bantu, all the Coloureds, parliamentarians and many others.

The hon. the Minister thinks everyone is excluded. I am only talking about white persons now. Members of Parliament are excluded; members of city councils are excluded. Then there are Ministers. Judges, officers of Parliament, ministers of religion, advocates, attorneys, medical practitioners, dentists, chemists and druggists; persons who are serving or undergoing training in the army …

Railway servants.

… members of the Public Service; deputy sheriffs, college professors, masters of vessels, persons engaged as editors or journalists, persons accredited in the Republic as consuls, persons incapacitated by deafness, blindness or other permanent infirmity—I may say, Sir, that nowhere in the law do I find that this is an incapacity for a Judge or an assessor; perhaps the hon. the Minister could tell me where I could find it—municipal councilors, heads and sub-heads of municipal departments, traffic policemen employed by the local authorities.

Who is left?

The hon. the Minister asks “who is left”? Those left are just about the rest of the population—all the people who are not connected with Government service; the ordinary man in the street who is not to be swayed by the fact that he is in the Public Service or that he is an advocate. For convenience a lot of people are excluded, and properly a lot of others are excluded. But, Sir, there still remain at least 500,000 people or probably more, probably a million, to choose from.

What about all the women?

This Government has chosen so far as the women are concerned, to put them on a separate jury roll and not to summon them for service, but to say, “You shall put your own name on the jury panel and then you may be called upon”. But, as the hon. the Minister says, they have perhaps excluded themselves. But that does not mean to say that they are not entitled to be tried by a jury of nine men; they are still entitled to that.

Let me come to one other matter. If one considers that we only have one offence in which there is a mandatory death sentence and that is the crime of murder without extenuating circumstances, I wonder whether a jury is not the best body in many instances to determine whether there are extenuating circumstances. What does this mean? It means that they find on the facts whether you did have the intention to kill and whether you are guilty of murder, and then they have to make another finding and that is that there are or that there are not extenuating circumstances in that case. In other words, whether there are circumstances which reduce the moral guilt of the accused, albeit not his legal guilt. Who better, Sir, to determine an issue like that than the people themselves, than the nine ordinary citizens? Surely what the Judge has to decide in that case is what are the moral views, what is the morality of the people, and who better to determine that than the people?

The principle that we are dealing with here is whether as the Bill stands we are going to exclude forever the right of an accused person to have the facts determined by one man or by more than one man. Sir, I will not quote what I see in my notes about Alice in Wonderland because it might seem to be frivolous and I do not want to appear to be frivolous, but when you read Mardi’s case where two out of three people were sentenced to death by a Judge, a sentence which was later upset, then you see what can happen. Then, Sir, you come to the situation which you had in the dagga trial, which hon. gentlemen present may remember, a trial in which 23 people were sentenced to death as the result of some murders arising out of a dagga raid in Bergville. One of the people sentenced to death, called Nzimandi, a day before he was due to be executed with the others, managed to get a stay of the execution in court because he said he had new evidence that in fact he was not there. I want to say that up to that stage he had applied to the trial Judge, who sat with assessors, for leave to appeal against his sentence. It was refused. Then when the record was ready the accused petitioned the Appellate Division for leave to appeal. Another Judge, or may be more than one, looked at it there. It was refused. Then this urgent application was made and his execution was stayed a day before the date set down for it. Sir, when that matter came before the court, when five Judges applied their minds to it and had the benefit of counsel to argue the case, they found that, on the facts before the trial Court, that person should have been discharged at the close of the State case, because there was no evidence at all that he was there. Sir, this really makes one wonder whether we should not examine the whole system, whether one is entitled to say that because the trial is before a Judge, therefore it is all right. Sir, Judges can make mistakes. Judges should have people to help them, as the Appellate Division has said. The hon. the Minister, while he is dealing with this very subject, may very well also consider whether there should not also be an automatic right of appeal against the decision of one man where the death sentence has been imposed, to appeal to another court which of necessity must comprise at least three Judges.

I wonder what we are really going to abolish when we abolish trial by jury? If we kept it, what would happen? What accused person has ever been aggrieved by a decision of a jury? I do not think there are any stories, apocryphal or proved, which relate to the agreement of an accused by a jury decision. I want to repeat that I think juries do temper the harshness of laws with the ordinary morality and fairness of the times. You know, Sir, we make laws every day. None of us know really the circumstances in which these laws are going to be applied. Of course, one never can because there are no two cases that ever come before the court which are identical. The circumstances of each are different; each has to be measured and weighed against the law, and juries do this. Lawyers merely weigh the facts against the law and say: “Yes, he falls within that; he is guilty”. A jury will say: “Yes, he may be guilty but we are quite sure that the Legislature would not have intended that in these circumstances this should apply” and to some extent therefore they take back some of the functions which they have delegated to us here, namely, to decide for themselves how the law should be applied in those particular circumstances.

Mr. Speaker, there is a lot more that I could say about this. One could go on forever, but the rules do not permit it, and I can feel that members have heard me long enough. But I want to say this: The golden rule in all our criminal cases is that one has to determine whether the story of the accused, if he gives evidence, might reasonably be true, in other words, might according to the thoughts of ordinary, reasonable men, be true. Who is better able to judge what the ordinary reasonable man thinks than the ordinary reasonable man himself, referred to as the man on the Clapham omnibus. Perhaps one could describe him here as the man in the suburban train, in that part reserved for Whites, of course. But, Sir, who is better qualified to say what a reasonable man thinks than a reasonable man? Judges themselves disagree about what reasonable men should in fact think about the evidence. When reasonable men themselves decide the matter, there is no question but that the law was applied properly.

Mr. Speaker, let me end by asking the hon. the Minister seriously to reconsider, if he is determined to push this Bill through, if he really wants to get rid of juries forever, to ensure that in their place we have at least some substitute, and that in all cases where the death sentence may be imposed, it shall be obligatory for the person trying that case to have with him at least two other persons and that the majority of those three persons shall determine the issue as to the facts. The Bill that we have before us at this stage contains the provision that the jury shall be abolished and that trial of any matter before the Supreme Court, whether on a capital offence or not, shall be determined by one man. That is what we are voting for at the Second Reading and that, Sir, is why we cannot support the Bill at this stage. No reason has been advanced by the hon. the Minister as to why we cannot stay this decision for a few more years. For all these reasons we will oppose the Bill at this the Second Reading.

Mr. Speaker, the speech made by the hon. member for Durban (North) has a great deal of merit, most of which lies in the fact that he made a very dignified farewell speech to an aspect of the British legal system which has served its purpose here. The merits of the Bill itself lie in the fact that we in this House are going to take leave of that obsolete system in a very dignified way and, if need be, with the vote of 126 or more National Party members. But apart from that it is of importance because it moves a motion of full confidence in our judiciary, in its ability to pass judgment in such a way that justice is done, and in such a way that an accused will enjoy the full benefit of the doubt. Why, because—and this is a very important point which the hon. member for Durban (North) did not mention—the onus in our law rests on the State to prove that the accused is guilty. I am referring to those cases in particular to which he would have referred if he had argued this point. Mr. Speaker, the advantages associated with this Bill can be proved beyond the doubt, merely by referring to a debate in the Other Place in 1962, but it is not necessary. I am merely going to refer here and there to aspects which were argued—the reasons why this system ought to be abolished. Inter alia, the following was quoted here from Welburn Mayock’s “Juries”—

These and other arguments would only have been necessary if we were to-day enjoying the full use and usefulness of this system, but we are arguing here about an obsolete system. That is why to my mind the important question is: What remains, and will what remains further the ends of justice justly? That is the fundamental question. The hon. member for Durban (North) suggested here to the hon. the Minister that he should also consider the addition of two assessors in all criminal proceedings where a Judge was presiding alone. I leave it to the hon. the Minister to reply. It sounds to me as if it has merit, but I shall leave it at that. The fact of the matter is that we must consider what remains after we have abolished this system. What remains in fact is that in certain cases the Judge may, at his own discretion call upon two experienced persons to assist him, and I cannot imagine that a Judge in this country of ours will not avail himself of that opportunity of calling in two such persons, persons who can advise him on the local customs of Bantu populations, for example, and local conditions, because that was the original purpose of the jury. In other words, with the introduction of this system of assessors, we had already paved the way for the demise of the jury system.

But it goes further. In certain cases the Judge must call in two assessors to assist him. This in cases of capital crimes, such as murder and treason. Consequently there are very few opportunities left where the Judge will not have the benefit of other persons to assist him. What do these persons do? They decide on the facts, precisely the same function as the jury had; it is nothing more and nothing less. That is why it is to me very clear that if we had been able to argue to-day that there was a threat to the just administration of justice, then the hon. member for Durban (North) would have had a case, but he does not have a case, because it is definitely not being threatened. Let us consider for a moment, what a person such as the former Appeal Judge Schreiner has to say—

In addition it is very important to note that in the final analysis public opinion is the jury. What I mean by that is that public opinion would not allow a Judge to condemn an innocent person or give an interpretation to facts which is clearly erroneous and in conflict with the public opinion. Last but not least it is in the power of this Parliament, through the Government, of removing such a Judge if it should happen. So the arguments put forward by the hon. member for Durban (North) do not hold water if he wanted to allege that the accused persons are being deprived of the opportunity here of having justice done as far as they are concerned.

In addition the hon. member for Durban (North) mentioned that a case had come to his attention in which the system of a trial by a Judge alone had been pointed out as being an undesirable situation. I want to ask him whether he remembers the Moodie case. This to my mind is the reply to the question of why we want to remove this system from our Statute Book. I want to ask him whether he remembered what happened in the Moodie case. I do not want to repeat the gruesome facts here, but we know that there were proceedings which were prolonged, tension and a family which were wondering what would happen. The newspapers were stating, and the public at that stage realized what dangers were inherent in this system, for nobody can deny that it is still susceptible to more and greater human error than the other system which is all we will have left here soon, namely trial by a Judge or a Judge and two assessors.

I want to conclude by saying that to my mind it is not the final word that when a jury commits an error, as happened in the Moodie case, not even as a result of their own actions but as a result of circumstances beyond their control, how much the greater is the opportunity for a miscarriage of justice where we are dealing with more fallible and untrained persons. It is very clear to me that as long ago as 1962 the hon. member for Durban (North) was already in full agreement that this system had served its purpose. At that time he said in this House, col. 1505, vol. 2—

I think that by so doing he admitted by implication that the jury system was in fact obsolete, because what good advocate is going to violate his conscience to such an extent by giving his client advice like this.

Mr. Speaker, the hon. the Minister and the hon. member for Bloemfontein (West) have attempted to present a case for the abolition of the jury system to justify the Bill which is before the House.

I would like to examine again some of the arguments which both the hon. the Minister and the hon. member have used, because I suggest to the House, through you, Mr. Speaker, that the arguments do not support the case for the abolition of the jury system. The hon. the Minister gave statistics to the House to indicate the fact that the jury system has been used less and less over the past few years. This is correct, Mr. Speaker, and this cannot be denied; the jury system has in fact been used less frequently over the years. But I fail to see how that justifies the hon. the Minister’s argument that because the system has been used less often, it should be abolished. Surely if some people prefer the system and choose to use it, they should have the right to do so. In any event, the right to have a jury has been whittled away over the years and the cases where a jury can be asked for by the accused to-day are very limited. I would have thought, Mr. Speaker, that the test in order to justify the hon. the Minister’s argument is: Does the jury system lead to an abuse of justice, or does it not? If the hon. the Minister and the hon. member for Bloemfontein (West) were able to show to this House that the jury system leads to an abuse of justice, then …

The hon. member for Durban (North) did so by referring to the Greenberg incident.

But that case can be excluded now.

Perhaps the hon. the Minister could be just a little patient while I elaborate my argument. I shall deal with the point the Minister made. I was saying that if the Minister had made the case in introducing this Bill that the jury system leads to an abuse of justice, then I think he would clearly have been justified in asking the House to abolish the system. But short of that I cannot see how there can be any justification for abolishing the system merely because only a few people use it. If those few people use it and it does not lead to an abuse of justice, then it ought to be preserved for those people who choose to ask for a jury.

The hon. the Minister has quoted passages from learned authors and judges in which the view has been expressed that in some cases the jury system does in fact lead to an abuse of justice. Probably no one who is connected with the courts in any way would deny that in some instances a jury has brought in a wrong decision. In those cases it could be said that there has been an abuse of justice because, as the Minister has rightly pointed out, it is an abuse of justice for a guilty man to be found not guilty just as much as it is for an innocent man to be convicted. With this sentiment I agree entirely. But I would point out to the hon. the Minister that it is not only juries who can come to wrong decisions. It is not only juries that can do an injustice in the sense of finding a guilty man innocent or an innocent man guilty. This happens with judges; it happens with magistrates, and it happens with judges and magistrates of experience and high standing, not because they are partial or biased, but just because it is human to err, and judges and magistrates are capable of erring. To refer to some instances where juries have brought in a wrong verdict does not prove that the system leads to an abuse of justice. It merely proves that the system, since it functions through human beings who are capable of error, does sometimes lead to error. But by and large statistics show that the jury system, at any rate in South Africa, has proved to be a good system in the sense that the verdicts have generally been right. The decisions arrived at by the jurymen have generally been right. The quotations which have been made in this House, both by the hon. the Minister and by the hon. member for Bloemfontein (West) have, in the main, referred to the jury system as it functions in Britain and elsewhere in the world. I believe it is quite wrong to make a comparison between our system and those systems, because certainly in Britain, the jury system in Britain is used far more widely: it is used in far more cases and it is used often without precisely the same checks against abuse which we have. It follows that if the jury system is used in Britain and America, where it is more widely used, it will be subject to greater abuse, especially since there will be more cases in respect of which the wrong verdict is given. The interesting point that has emerged is that neither the hon. Minister nor the hon. member for Bloemfontein (West) gave the House statistics or even referred to cases in South Africa other than a few isolated examples, which would indicate that the system leads to an abuse of justice.

The other argument used by the hon. the Minister to support his case was that neither the State nor the accused liked the jury system. He said that it is even doubtful whether jurymen like the system. I think that his view is probably correct. I do not suppose that any of these people really like the system but then the same argument applies to every criminal case that is heard before a judge only or before a judge and assessors. I should think that I is fair to say that neither the State nor the accused really likes to be involved in criminal prosecutions. I should certainly think it fair to say that there are not many judges or magistrates who really like to try criminal cases. The argument that the jury system is not liked does therefore not justify its abolition because to take that view to its logical conclusion would mean that all criminal cases held before judges and magistrates should be abolished because they are not liked.

The hon. the Minister then dealt with the view that since jurymen are unqualified they are liable to err. It is true that jurymen are unqualified but it is because they are unqualified that they are able to serve a very useful function within the limits of the task they are expected to perform. Jurymen are simply triers of fact. They are not triers of law. They do not try legal issues. This is left to the judge who is qualified to do so. They also do not try the admissibility of evidence. This is also left to the judge. Jurymen simply try the facts. If they are limited to this function I fail to see what qualifications they need except that they should be ordinary people with average intelligence and average experience of human frailties and the things that really go on in the world so that they will be in the position to judge whether or not the person before them has transgressed. Far from being a disadvantage. the fact that jurymen do not have legal qualifications is one of the reasons why the system has by and large proved successful up to now.

The hon. member for Bloemfontein (West) suggested that this Bill was a motion of full confidence in our judges. His argument was that the House was stating clearly that it had sufficient confidence in the judges and that it was therefore prepared to do away with other systems. There is no question of either a lack of confidence or a motion of confidence in the judges affected by this Bill. This question really does not arise at all. The fact that we have had a jury system up to now does not mean that until to-day we have not had sufficient confidence in our judges. This is an illogical argument, because in the cases where there has been a choice the accused has been able to say whether he would prefer to appear before a judge or a jury. The very fact that this Parliament has given its blessing to the jury system throughout all these years must indicate that this Parliament has indeed had confidence in our judges. If this were not so we would have expected that this Parliament would have done away with judges altogether and provided only for a jury system which has not been the case. I cannot see any logic in the argument of the hon. member for Bloemfontein (West), namely that this Bill is a motion of confidence in judges. I do not think that the corollary to this argument, namely that opposition to this Bill, is therefore a motion of no confidence in judges, can apply.

The hon. member for Bloemfontein (West) expanded his second argument to a considerable extent. He said that the test in deciding whether to abolish the jury system should be whether justice will be done by the remaining system. He said that the test should be whether justice will be done in as just and as faithful a manner by the judges as it would done by a jury. Here again this is not the test. One accepts that by and large judges give their decisions in a just and faithful manner. But the fact that the judges do a good job does not justify abolishing another system. You can still have two systems. I suggest that until such time as the hon. the Minister is able to show this House that the system is inherently bad and leads to an abuse of justice, there is no justification for abolishing the jury system. As neither of these points have been proved to this House either by the hon. the Minister or the hon. member for Bloemfontein (West), we remain opposed to this Bill. *

Mr. Speaker, I think that if the arguments raised by the hon. Opposition here this afternoon had been addressed to a jury, they could perhaps have got away with it, but unfortunately the arguments have been addressed to you with the other hon. members as assessors, and I do not think the hon. members of the Opposition will be able to get away with it now.

The hon. member for Musgrave who has just resumed his seat alleged that the statistics quoted here by the hon. the Minister were actually meaningless. The hon. member for Durban (North) in fact ignored them. The hon. member for Musgrave argued that even though juries were being used less often the system should nevertheless be retained. But our legal system is after all a growing and living system, and we must continually be adapting this system to changing circumstances and eliminate the dead wood. It is now time we eliminated this Act which has in fact fallen into disuse now. According to the hon. member Durban (North) we should retain this system; even though nobody uses it, we should nevertheless let it lie dormant. The jury system was established by legislation, and it must be removed by legislation. It cannot merely be allowed to go out of fashion through disuse; if that is the case it will always be on our shelves, even though we are no longer using it. The hon. member for Musgrave tried to make out that if our judges do not like the jury system they will not like the other system either. But what is being discussed here to-day is the legal system not the law itself. The fact of the matter is that the jury system has fallen into disuse; the people no longer like it. But there must be, and there will always be application of the law. Our legal profession has developed away from the jury system altogether, and there are in fact few advocates to-day who can apply the technique of addressing a jury. I wonder how many advocates like that there still are in this country.

Under the present circumstances this system no longer serves any useful purpose in the Republic. When I think of the jury system I think of the kgotla, the judiciary or the judicial system of the Bantu which they still apply in their tribal life. It is a completely primitive system, in fact the most primitive of the legal systems. Actually the Bantu based their legal system on natural law. They stand up and talk unceasingly, even though they are completely off the point, but they are satisfied as long as they can be heard, because then they have contributed their share. All kinds of people serve on juries. In this way we find butchers, mechanics, farmers, doctors etc. serving on our juries. At the trial these people have to decide on a case in regard to which they now have no knowledge whatsoever. They listen to the evidence and the judges’ summing-up, and they try to do the right thing, although there is no certainty that they will do so. Our legal system has now developed into an extremely exact science and only trained persons can do justice to that science. The old Romans always said “Fiat justitia et ruant coeli”—let the heavens fall, justice must be done, and according to them justice was done by applying the finer points of the legal system. They received their legal training as follows. Jurors of that time went regularly to the market places and sat there listening to how the advocates of that time applied the law. Only after they had listened for years did the jurors dare to act and apply the law. They could not merely come in from the veld and try to ensure that justice was done.

I want to refer briefly to another aspect of the jury system. I am now referring to the American system. I am referring in particular to the trial of Sirhan Sirhan which was held a short while back. Hon. members will remember how difficult it was to empanel the jury. It took days to get the jury ready. Objections were made to certain members, and then other members had to be found. Only when, after much delay, a jury had been empanelled, at tremendous expense, could the trial proceed. When a case such as the one I have just mentioned is heard, one must imagine how those jurors feel. They must be guarded, it is a political trial. If they should find the accused not guilty their lives are virtually in jeopardy, and should they find him guilty, their lives are perhaps as much in jeopardy. One should not really place such a heavy burden and responsibility upon the shoulders of the ordinary citizen, because he does not have an intimate knowledge of the law.

People say that if an accused is guilty, he must choose a jury, and if he is innocent, he must choose a Judge, who may perhaps appoint assessors. There is a further phenomenon of American trials to which I want to refer. Many of us are probably fond of going to see American films dealing with the application of the American law and the jury system in that country. A short while back there were quite a number of films of this kind. I am thinking of “Verdict” and “Anatomy of a Murder”, and there was also “Counsel for the Accused”, or something like that. In these films one can actually see how the advocates play on the feelings of the jurors. Actually the jury system and the application of law in general is turned into a farce. That is all the more reason why I feel that our South African legal system should be absolutely above anything farcical like this, above any suspicion. The law, purely and simply, must be applied.

In our country, the jury system has, as it were, disappeared completely. The hon. Minister pointed out that in 1967 only .5 per cent of higher court trials were trials by jury, which is a negligible percentage. Usually the circuit courts in the rural areas sit in the town magistrate’s court, and in the old courts we see the jury benches which were provided there years ago. During the past few years, however, when new magistrates’ court are built, no provision is made for seating arrangements for jurors. When trial by jury is chosen, chairs will have to be carried in. This shows us to what extent this system is disappearing.

One last point, Mr. Speaker. How does the ordinary citizen feel about serving on a jury? I hail from the platteland and I have often seen how the deputy-bailiff had to get people to do jury duty when the circuit court touched on there. A day or two before the jury had to sit, people in the town and the immediate environs were almost panic-stricken. My office receives numerous calls from people who say: “Man, what must I do? Would I not do the wrong thing? I have no idea what must be done.” This happens so often on the platteland.

I think the hon. the Minister has proved indisputably here to-day that the jury system serves no purpose in our country any more, and I consequently support this measure.

Mr. Speaker, the hon. member who has just sat down had to go to American Wild West films in order to find arguments with which to support the hon. the Minister’s Bill. He relies on the worst exhibitions of legal or pseudo-legal actions to support his case as to why jury trials should be discontinued. I will not follow him any further except to agree with one of his remarks. He said there are few advocates who to-day understand the jury system. That is perhaps an exaggeration. There are no advocates at the present time of outstanding ability, who would make a great impression on the jury, such as was made in the past by, for instance, men such as Renault of Durban or Morris of Johannesburg. But the day will come when we will perhaps produce a Cicero, and there will be no room for him. The only place where he will find a home, would be in this House.

He would not be at home here!

Well, Sir, there we are. It just so happens that the jury system has fallen temporarily into disuse, I feel, as much because of the absence of an advocate strong enough for this particular type of work as for any other reason.

The Minister quoted figures, dating back to somewhere like 1900, or perhaps a little later. He has shown us how the jury system has fallen away. But the jury system does not date from 1900. The figures produced by the hon. the Minister pale into insignificance when one thinks of the history of the jury system. It has lived for hundreds of years. It is a grave idea, a very serious matter to take away the right which we have inherited after all these years. Why take it away? What good is served by removing it? No good at all, even if it lies on the shelf, as was suggested by the hon. member for Durban (North). It is there, it is something which our forefathers fought for. It is something which has cost lives, which has caused great suffering in order to obtain. But by the simple dictate and by the whim of this Minister, who apparently has some grudge against this system since he has brought it up twice, we are going to make a law to take away a right which, as I say, has existed for hundreds of years. I am sure that he should take note of the fact that the General Law Council have told him—I think I heard him agree—that they feel it should not be interfered with.

The Judges told me the contrary.

When I have finished, I am sure he will have less faith in the Judges than he has at the present time.

As much faith as we have in the doctors.

The faith was even questioned by what one might call an aspirant Judge. No, Sir, this law with regard to the jury has been highly rated from the time it was brought into use and it has been used over hundreds of years. The argument that it has for the moment fallen into disuse, is neither here nor there. We are passing subjects in this world, but the law should go on. Where there are rights, it is the last thing that a legislator should take them away. The right of trial by jury is ingrained in our history and in our rights. It has been called “the palladium of justice”. The Cambridge don Forsythe says: “The whole establishment of King, Lords and Commons and all the statutes of the realm have only one great object, and that is to bring 12 men into a jury box.”

I will speak for a moment on the question of trial by your peers. I know that originally, perhaps, history shows that the trial by your peers was something which the aristocrats claimed as their right. But time has shown that trial by your peers means more than that, and even the so-called Peer with a capital P have ceased to use it. But, Sir, in 1928 this House gave to the doctors the right to try their own members, within the limits of his duty, his habits and his manner as a doctor, a right which they had enjoyed in England for some 90 years. That right has been carried out religiously by the doctors elected for that purpose. They have tried many doctors on questions of conduct, chiefly of ethics. The courts in the country never have interfered, except where they felt that the doctors’ court had actually done an injustice, which they had usually done through ignorance. The doctor has no right of appeal to the courts. This House said so. The courts have the right of review, but no right of appeal on ethical points. The doctors of the country are perfectly satisfied that this should continue. They are more than satisfied. They feel that they have a greater chance of receiving justice from their peers than they are likely to receive from the courts, who would not understand the principles involved. I am asking again: Why does the hon. the Minister want to take this right away? What is his object? What does he gain or do we gain by it? There is no object. One takes a toy away from a child if one thinks he might swallow it and choke, but one does not take away a right merely because it is not being exercised. The lack of exercise of the right does not hurt anybody, but the deprival of that right might hurt somebody. The day may come when somebody will die because he did not have this right. Lawyers are traditionalists if they are anything. When I see a lawyer, he is always looking back over his shoulder to see what the Judge said 10 years ago. He is always looking for precedents. What precedent is there that can be found for this deprivation of the right of trial by jury? What is the precedent that the average advocate follows? It is the dictate of somebody whose bones are now dry in the earth. But, Sir, this was a right which was fought for and exercised over the years. It is still being exercised in other countries. The other countries are civilized and no different from what we are. We are no better, not are we worse. What right have they to take from us this right? There should be adequate reasons given, and I have not heard one given by the hon. the Minister except that it is falling into disuse.

That is the sole reason. I have suits of clothes hanging in my cupboard but I do not throw them away if I do not want to wear them. I keep them there or give them away or sell them, but I do not just throw them out of the window. That is what the hon. the Minister now wants to do. He wants to take from us something that we value and if there is only one person that values it, he has no right to take it away. Legal practitioners have a habit of using Latin tags, so-called obiter dicta. One of the great tags is that justice must not only be done but that it must be seen to be done. If any lawyer can find any better way of seeing that justice is done than by a trial by jury with all its emotional hoo-ha and the clothes in which it is draped by the newspapers, then I would like to hear of it. It is a great place for the forensic skill of the advocate whom, for the moment, we do not possess. We have heard to-day of the importance of the Judge as a Judge of credibility, of whether a certain witness should or should not be believed. An experienced Judge can tell. I want to say that the most unreliable Judge of whether a man can be believed or not is probably a highly experienced Judge. A Judge almost never has his judgment questioned, it is never put to the test. He states what he thinks and it is rarely, especially in a trial by jury, questioned. A doctor, for example, soon finds out when he makes a mistake. A businessman will soon find out whether his decision has been correct or not. A teacher can test his judgment against examinations. But the Judge sits there in an ivory tower with an air of infallibility which I do not believe he deserves. Any person in the world who constantly makes decisions which are not questioned will sooner or later believe that he is infallible and that is the fate which ultimately comes to most of the Judges. The juryman, on the other hand, usually brings to bear the judgment, the thoughts of the common sensible man. The jury consists of men who live their lives in the ordinary way, mix with other people and understand what is going on around them. They understand the trend of life at the present time and know the thoughts of the people, but does the Judge know it? He is divorced from them from the time he climbs up on the Bench. The juryman may occasionally be swayed by considerations of sympathy but it is better that the jury should be swayed by considerations of sympathy than that a man should lose his life because the Judge is swayed too much by legal and technical arguments.

The juryman is the living guardian for his posterity and of those sacred powers of jurymen transmitted by his forefathers. The preservation of justice and liberty can depend on one firm and upright man doing his duty as a juryman. Sir, I feel that this Bill is unnecessary. It is more than that; it is undesirable and is a grave infringement on ancient rights. I cannot understand why it should be done. Judges and lawyers are not disinterested—and I do not want to hurt the hon. the Minister’s feelings, because I am speaking impersonally—in their desire to denigrate and to abolish trial by jury. They feel that jurymen intrude into their monopoly of the wisdom of right and wrong and they do so in the exclusive arena of the legal profession. To ill-treat jurymen is not a new thing. At one time the Judges used to cart the jurymen around from place to place until they agreed and at other times they went so far as to starve juries into decisions. This took place until that great poet Pope criticized this practice and said—“The hungry Judges soon the sentence sign, and wretches hang that jurymen may dine.” We abolish juries at our peril. The lawyers, in doing so, risk the dangers of exasperating an already frustrated public. The public feels that its rights are being taken away from it day by day. There is nothing new in this. Shakespeare said in “Henry VI”, when Dick the butcher went to join Jack Cade in his revolution that “the first thing to do is to kill all the lawyers”.

Mr. Speaker, I am grateful for the discussion which has taken place here, but I want to state candidly that with the exception of a few things which I will mention in a moment I have no reason to depart from the original intention, namely to abolish the jury system as it exists to-day. I would just like to say a few words to the hon. member for Durban (Central). It is not we who are abolishing the jury system, it has abolished itself. Usage abolished it. It has abolished itself to such an extent that in various divisions it is not being used at all. The hon. member asked why it is now being abolished in those divisions where it is in fact being used. We are abolishing the jury system for the simple reason that it entails so much trouble and is nevertheless not used. A list of jurors has to be drawn for every magistrate’s district, and that is a tremendous task. With each circuit a jury has to be empanelled, because accused persons always request a jury. As the hon. member for Durban (North) said, he advises his clients to ask for a jury, and then the accused person changes his mind. It requires as many as 150 jury summonses to empanel a single jury of 21 out of which nine can be selected. The facts prove it to us. The other arguments used here have detracted nothing from the fact that the jury system in this country has succumbed to its own weaknesses. It is precisely as Mr. Justice Hiemstra said. Tested against the original reason for introducing a jury system, i.e. that one must be tried by one’s peers, the system is obsolete. The hon. member for Durban (Central) pointed out that doctors are tried by their peers, but he was very careful to state that they selected a few to undertake those hearings. They do not take just any doctor to try such matters; they only selected a few. Well, we are also selecting a few people; we are selecting Judges, to try cases. The fact of the matter is that people in this country are not tried by their peers. I told you that not a single Black in this country is tried by his peers. Not a single Coloured person is tried by his peers, and only a small percentage of the Whites are being tried by their peers, when a jury is empanelled. As far as this is concerned, the system has fallen into complete disuse and has lapsed.

The other original idea was that one must afford the public the opportunity of sharing in the administration of justice. I indicated to you in my introductory speech, as I in fact also did in the debate on the 1962 motion that this is nonsense. The public simply do not have an opportunity of participating in the administration of justice, for most of the people are excluded. I say again, all the Black people are excluded, all the Coloureds are excluded, and the women exclude themselves. As far as men are concerned virtually all of those who have some measure of education are excluded. There remain a small group which can participate and they are to a very great extent unwilling and those who are not unwilling to serve on juries move around to such an extent that it is difficult to serve a summons on them to serve on a jury. Sir, I do not want to burden hon. members with figures again in order to indicate how the system has fallen into disuse here; I did so in my Second-Reading speech and it is on record.

But I want to say that there is one thing which impressed me, and that is the argument put forward by the hon. member for Durban (North), i.e. that it is better that more than one person should decide on the facts. I got hold of Hansard and I see he put forward the same argument in 1962, and I also see that my predecessor the present Prime Minister, when he was at that time Minister of Justice, replied as follows:

I want to admit candidly that when the hon. member spoke this afternoon his words made a great impression on me. He also informed me that he intended moving an amendment. I am not unsympathetic towards the idea but when we deal with the judiciary then we like to hold consultations. I therefore want to give the understanding that I will take up this aspect with the judiciary, and if I can reach an agreement with the judiciary on this, then I am prepared to give form to this idea in our legislation later during this Session. Hon. members on that side attempted to justify their case, but I am afraid that I could not agree with them. I was not impressed by the other arguments. I repeat that the system has abolished itself as a result of its own inherent weaknesses.

Motion put and the House divided:

AYES—94: Bodenstein, P.; Botha, M. C.; Botha, M. W.; Botha, P. W.; Botha, S. P.; Brandt, J. W.; Coetsee, H. J.; Coetzee, B.; Cruywagen, W. A.; De Jager, P. R.; Delport, W. H.; De Wet, C.; De Wet, J. M.; De Wet, M. W.; Diederichs, N.; Du Plessis, H. R. H.; Du Toit, J. P.; Engelbrecht, J. J.; Erasmus, J. J. P.; Frank, S.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, W. S. J.; Haak, J. F. W.; Havemann, W. W. B.; Hayward, S. A. S.; Henning, J. M.; Herman, F.; Hertzog, A.; Heystek, J.; Janson, T. N. H.; Jurgens, J. C.; Keyter, H. C. A.; Koornhof, P. G. J.; Kotzé, S. F.; Kruger, J. T.; Le Grange, L.; Le Roux, F. J.; Le Roux, J. P. C.; Lewis, H. M.; Loots, J. J.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Marais, W. T.; Maree, G. de K.; Martins, H. E.; McLachlan, R.; Meyer, P. H.; Morrison, G. de V.; Muller, H.; Pansegrouw, J. S.; Pelser, P. C.; Pienaar, B.; Potgieter, S. P.; Rall, M. J.; Raubenheimer, A. J.; Raubenheimer, A. L.; Rossouw, W. J. C.; Schlebusch, A. L.; Schlebusch, J. A.; Schoeman, B. J.; Schoeman, H.; Schoeman, J. C. B.; Smit, H. H.; Smith, J. D.; Stofberg, L. F.; Swiegers, J. G.; Treurnicht, N. F.; Uys, D. C. H.; Van Breda, A.; Van den Berg, M. J.; Van den Heever, D. J. G.; Van der Merwe, C. V.; Van der Merwe, H. D. K.; Van der Merwe, W. L.; Van Niekerk, M. C.; Van Rensburg, M. C. G. J.; Van Staden, J. W.; Van Vuuren, P. Z. J.; Van Zyl, J. J. B.; Venter, M. J. de la R.; Viljoen, M.; Visse, J. H.; Volker, V. A.; Vosloo, A. H.; Vosloo, W. L.; Waring, F. W.; Wentzel, J. J.; Wentzel, J. J. G.

Tellers: G. P. C. Bezuidenhout, P. S. van der Merwe, H. J. van Wyk and W. L. D. M. Venter.

NOES—25: Basson, J. D. du P.; Bennett, C.; Connan, J. M.; Eden, G. S.; Emdin, S.; Graaff, De V.; Hourquebie, R. G. L.; Lindsay, J. E.; Malan, E. G.; Moolman, J. H.; Moore, P. A.; Murray, L. G.; Radford, A.; Raw, W. V.; Steyn, S. J. M.; Sutton, W. M.; Suzman, H.; Taylor, C. D.; Timoney, H. M.; Waterson, S. F.; Wiley, J. W. E.; Winchester, L. E. D.; Wood, L. F.

Tellers: A. Hopewell and M. L. Mitchell.

Motion accordingly agreed to.

Bill read a Second Time.

I move—

Mr. Speaker, the provisions of the Bill before the House chiefly embrace four separate fields. Firstly, there are the provisions which relate to the application of the metric system of weights and measures; secondly, those in connection with qualifications of assizers; thirdly, those which redefine the present provisions of the Act in connection with the submission for approval for trade use of new models of weighing and measuring instruments and weights and measures; and fourthly, those which amend and clarify the procedure which the trade must follow in respect of the assizing and re-assizing of weighing and measuring instruments, weights and measures.

As far as the first group of 7rovisions is concerned, the Government decided in principle as long ago as 1966 to make the metric system of weights and measures applicable in the Republic and gradually, in the course of time, to eliminate altogether the foot-pound-gallon system of weights and measures for trade use.

This decision of the Government met with general approval. This is evident not only from the discussions on this matter which took place on previous occasions in this House, but also from the fact that organized trade and industry expressed their full support for this step and are at present giving their wholehearted co-operation in the steps being taken with a view to the metriculation of our weights and measures. The Weights and Measures Act has already made provision since 1922 for unlimited trade use of the foot-pound-gallon system and, with certain provisos, also for the metric system of weights and measures, so that metrication of our weights and measures can be commenced with in specific fields without prior amendment of the Weights and Measures Act. The Metrication Advisory Board which was appointed by the Government to do preparatory work in connection with the metrication of our weights and measures and to advise the Government about this subject, has, however, now indicated that the time has come to make provision for the systematic curtailment of the use of the foot-pound-gallon system and the removal of restrictions on the use of the metric system which still exist in the Weights and Measures Act. With a view to this the Weights and Measures Act is now being amended in the following respects.

In order to make provision for the systematic curtailment for trade use of the foot-pound-gallon system and the elimination of obstacles in the way of metrication, the amending Bill now provides that the State President may by proclamation in the Gazette delete a basic unit of measurement of the foot-pound-gallon system from the First Schedule to the Act, which means that such a unit may no longer be used in trade. In addition the State President is empowered to prohibit the possession or use of weighing and measuring instruments or weights and measures to such extent as he deems necessary for achieving the object of effecting the exclusive application of the metric system of weights and measures in the Republic. In this connection I must mention that, in contrast with the decimalization of the monetary system, the metrication of the system of weights and measures could not be effected on a general scale on a specific date, but must be implemented gradually and systematically.

In the field of trade more than 20 functional committees have to date been established to assist with planning and programming in the packing industry, where metric sizes must be applied in the place of existing standard sizes prescribed for specific pre-packed products. These committees consist of representatives of the agricultural control boards and of trade and industry organizations who have an interest in the production, manufacture, marketing and distribution of the commodities concerned. Quite a few more committees of this nature will still be constituted until all commodities to which prescribed packing sizes are applicable in terms of the regulations on weights and measures, have been dealt with. So much progress has already been made in this field that, according to present indications, metrication ought to be completed by the end of 1972.

Packing and weighing or measuring in the retail trade can only take place in metric units of measurement when dealers have metric weighing and measuring apparatus at their disposal. The rate of metrication in respect of commodities which must be packed, weighed or measured in the retail trade, is therefore closely bound up with the replacement or conversion of dealers’ weighing and measuring apparatus.

The use of non-metric weighing and measuring apparatus in the field of trade can be eliminated by means of the application of the process of obsolescence by replacing obsolete non-metric equipment by metric apparatus, but this procedure will entail a long drawn-out change-over period during which two systems of weights and measures will be applied in practice. A shortening of the change-over period will entail the replacement or conversion of serviceable apparatus.

For this reason the Metrication Advisory Board was requested by the Government to investigate the desirability and the practicability or otherwise of the payment of compensation in respect of the change-over or replacement of still serviceable non-metric weighing and measuring apparatus for trade use and to submit recommendations to the Government in that connection. The Board is at present giving attention to this matter.

Depending upon what the Board may recommend in connection with the question of compensation, and what the Government may consequently decide in that connection, it is possible that the conversion of weighing and measuring apparatus for trade use will also have been completed by the end of 1972.

As far as metrication in the industrial sector is concerned, 13 committees, which embrace all branches of industry, are functioning at present. Considerable progress has already been made in the determination of metric sizes for basic materials such as metal plates, several forms of steel and other basic metal products.

As a result of this progress, change-over programmes will already be planned during this year for certain industries which manufacture or make use of basic materials. Coordination of the supply and the use of basic materials in metric sizes will take place throughout the entire industrial sector during 1970. Finalization of the metrication process in respect of basic materials is envisaged for the first half of 1971.

Metrication in the fields of education, hospital services, road traffic, the surveying of land and mapping, sport and all other matters in which Government departments and provincial and local authorities have an interest, is also receiving attention. Thus far 17 functional committees have been designated in these fields. The activities of some of these committees have already progressed so far that in certain spheres metrication will commence during 1970.

When a unit of land measurement of the foot-pound-gallon system is eventually abolished, many existing deeds, contracts and agreements which were drawn up before the abolition of the non-metric units of measurement, will still contain references to weights and measures in the units concerned. The Bill therefore makes provision for the retention of such units of measurement in so far as it will be necessary for conversion purposes in connection with such contracts. For this purpose an additional schedule is being inserted in the Act in which relationships between the foot-pound-gallon system and the metric system are laid down in respect of weight, length and capacity units of measurement as well as relationships between geodetic measures and the metre for the purposes of the measurement of land.

The last provision which relates to metrication and to which I want to refer here, is the removal from the Weights and Measures Act of the restriction on retailers in terms of which they are prohibited from having metric weights or measures in their possession without the permission of an assizer, if they possess other weights or measures. This restriction is an obstacle to the application of the metric system of weights and measures in the retail trade because the use of metric weights and measures in conjunction with other weights and measures will unavoidably occur during the change-over process.

As regards the second group of provisions to which I referred, it was found that the field of recruitment for assizers could be extended by introducing greater flexibility in respect of the requirements for appointment of assizers. For this reason the Assize Board is being empowered to determine the subjects which assizers must have passed, instead of having these subjects prescribed by law as is done at present. In this way, for example, different entrance requirements and qualifications can be laid down in respect of assizers who are employed in specialized fields. The aim of this amendment is to try to relieve the existing staff shortage in the division concerned.

The third group of provisions contained in the Bill, deals with the obligations of the trade community in respect of the submission for approval of new models of measuring and weighing instruments and weights and measures. The existing position is that submission for approval of new models of weighing and measuring apparatus is not compulsory. However, assizers may not assize apparatus which has not been approved. The joint effect of the two provisions is therefore that new models of weighing and measuring apparatus must be submitted for approval before they may be sold for trade use. In practice this provision has created a measure of uncertainty in trading circles as to the procedure witch has to be adopted in obtaining approval for the use of new models of weighing and measuring apparatus. The new provision now makes it an absolute requirement to submit new models for approval, and will remove any uncertainty which exists as a result of the method of formulation of the present provision.

The fourth group of provisions to which I referred in my introductory remarks, relates to the procedure which must be followed in respect of the assizing and re-assizing of weighing and measuring instruments. These amendments are mainly aimed at clarifying the procedures to be followed in this connection. The existing provisions are only substantially amended in one respect. This amendment relates to the assizing and re-assizing of fixed and untransportable weighing and measuring apparatus. Under the existing provision the assizer is merely notified of the place where such apparatus is kept, after a notice to this effect has been published in the Gazette by the Superintendent of Weights and Measures. This procedure impedes the smooth execution of the assizers’ duties since itinerares must be drawn up beforehand. With a view to obviating this problem, it is now being provided that persons using fixed and untransportable weighing and measuring apparatus must notify the assizer who has jurisdiction over the area where the apparatus concerned is kept, before the 15th day of January of each year of the place where the apparatus is being kept.

In addition to the amendments which I have briefly dealt with, the Bill contains a further number of smaller amendments to the Weights and Measures Act which, however, do not effect changes to the existing principles and which it is therefore not necessary for me to go into at this stage. I want to inform the House that I shall move a few minor amendments in the Committee Stage. These amendments already appear on the Order Paper.

This is a very important Bill. It is a Bill that concerns every citizen of this country, every man, woman and child. The Deputy Minister, in his consideration of the details of the Bill, has given us the steps which will be necessary with the adoption of the metric system. I know that hon. members of the House will want to give very careful consideration to the Bill, and therefore I move—

Agreed to.