laid upon the Table:

1. (1) Powers and Privileges of Parliament and the Constitution Amendment Bill [No 108—85 (GA)]—(Standing Committee on Constitutional Development and Planning).
2. (2) Payment of Members of Parliament Amendment Bill [No 109—85 (GA)]—(Standing Committee on Constitutional Development and Planning).

To be referred to the appropriate Standing Committee unless the House decides otherwise within three sitting days.

as Chairman, presented the Sixth Report of the Standing Select Committee on Finance, relative to the Second Finance Bill [No 99—85 (Ga)], as follows:

CH W SIMKIN,

Chairman.

Committee Rooms

Parliament

4 June 1985.

Report, proceedings and evidence to be printed.

Order! The hon member for Swellendam has asked me for an opportunity to make a personal explanation. Accordingly I now give him leave to do so.

Mr Speaker, I thank you for the opportunity you are affording me.

In the debate on the Defence Vote I referred to the hon member for Pinelands and said that he was faced with a crisis in his home because he had someone there who had in fact evaded national service and who was opposed to conscription. The reason I said that was that the person to whom I referred completed only a part of his national service in 1977. Since then I have ascertained that the person in question did not evade national service as I had suspected. Accordingly I withdraw my allegations in this regard. If I caused any inconvenience thereby then I apologize for that as well.

Mr Chairman, after the hon Mr Justice Diemont, Judge of Appeal, as a one-man commission, had investigated the desirability of converting the Witwatersrand Local Division of the Supreme Court into a separate provincial division, he recommended inter alia that there should be a Deputy Judge President, permanently resident in Johannesburg, and permanently in control of the Johannesburg court. This recommendation was given thorough consideration and it was concluded at the time that there was a real need for a judge to be in control in Johannesburg, as recommended by the commission. In certain respects the volume of work in Johannesburg is even greater than in Pretoria. In the year 1983-84, for example, there were more than 23 000 motion court appearances in the Witwatersrand Local Division, compared with 19 000 in the Transvaal Provincial Division. During that year 28 753 processes were issued in the Johannesburg area, compared with 22 900 processes in the Transvaal Provincial Area, that is to say, in Pretoria.

On the other hand the volume of work in the TPD is of course far greater, and the area of jurisdiction of the TPD is also larger. All things considered, though, it would seem to me to be the ideal situation if there could be two Deputy Judges President in the Transvaal, which is the largest provincial division in the country, one in Pretoria and one in Johannesburg. Consequently it was decided, after widespread consultation, to take steps to make two such appointments possible, and the matter will be disposed of shortly. Further announcements will then follow.

†I want now to deal with a matter relating to the Republic of Bophuthatswana. To be admitted to practise as an attorney in South Africa, the minimum academic qualification required is a B Proc degree of a university in the Republic. The Attorneys Act of 1979, however, also makes acceptable the degree of a university in a country designated by the Minister of Justice, after consultation with the presidents of the law societies, if a South African university has certified that the syllabus and standard of training of that degree are equivalent or superior to those required for the B Proc degree at a South African university. The Admission of Advocates Act of 1964 contains similar provisions, but in that case the qualifying degree is an LL B and the country can be designated after consultation with the General Council of the Bar of South Africa.

It gives me great pleasure to announce that I have today signed the designation of Bophuthatswana under both Acts. I did so after both the law societies and the General Council of the Bar of South Africa had agreed to this step, and after the University of South Africa had issued certificates in respect of the B Proc and the LL B degrees of the University of Bophuthatswana. The designation will be published in the Gazette as soon as possible.

I now revert to the matter of small claims courts. On 1 March 1985 I announced that due to the financial circumstances and the curtailment of public expenditure, it was not possible at that stage to launch the pilot projects in respect of small claims courts, assisted by the State’s infrastructure, as originally planned. Accordingly I appointed an Implementation Committee under the chairmanship of Mr J J Noeth, Chief Director: Legal Services in the Department of Justice, and consisting of Mr L S van Zyl, Adv I W B de Villiers, SC, Proff F J Bosman, D W Morkel and J T Delport, Mr O A de Meyer, Chief Magistrate of Johannesburg, and Messrs A M Brokenshaw and S W van der Merwe, Attorneys. I requested the Committee to investigate and report on the implementation of pilot projects at certain centers at the lowest possible cost to the State; to advise me on the financial implications of the recommendations; to draw up a suitable set of rules for the courts; and to advise me on the appointment of local advisory committees for each project.

The Implementation Committee reported back on 14 May 1985. The committee really deserves sincere acknowledgement for the performance of a comprehensive task carried out in a very short space of time.

*The Committee’s most important recommendation was that pilot projects could be launched in nine centers—Pretoria, Johannesburg, Cape Town, Port Elizabeth, Pietermaritzburg, Bloemfontein, Rustenburg, Durban and Springs—at an estimated cost of R75 000 for a period of six months. This was made possible by an exceptionally favourable reaction from branches of the legal profession, the universities and bodies such as the Consumer Council. No fewer than 257 advocates, attorneys and law academics offered to make their services available free of charge as commissioners in the envisaged centers. In addition the law clinics of universities offered their co-operation at each of these nine centers. The estimated cost includes the remuneration of a recommended co-ordinator who will serve as a permanent clerk of the court, at each court, during the course of the pilot project. The appointment of these co-ordinators is of course subject to the approval of the posts in question by the Commission for Administration. An alternative would be to pay existing staff undertaking voluntary service overtime remuneration.

In view of this my colleague the hon the Minister of finance, generously agreed that a grant of R120 000 be appropriated for the pilot project for six months. Of significance is the fact that the departmental estimate for one year for these projects, if they had been organized entirely by the State on State premises, was put as high as R2 million.

Local advisory committees were established at all main centers, the members of which I shall announce soon. The committee found that there was great interest on the part of the public. An investigation by the Consumer Council in fact revealed that as many as 97,9% of the people questioned, welcomed the establishment of the court.

In view of the abovementioned factors and the committee’s recommendation I decided to amend and extend the directive for implementation so as to deal with the continuation and planning of the pilot project as well. The object will be to launch the pilot project at Springs, Rustenburg and possibly two in Pretoria, Pietermaritzburg and Port Elizabeth by 1 October 1985, that is to begin with the issuing of processes so that the hearing of cases can commence soon afterwards. At the other identified centers the courts will be launched as soon as those centers are ready.

I would like to ask the hon the Minister why he has excluded from his first pilot schemes the largest city in South Africa, namely Johannesburg.

Perhaps I can deal with this issue more comprehensively when I reply to the hon member later on.

Well, I am not going to deal with this point, so I am asking the hon the Minister now.

As a matter of fact, there are a number of ancillary matters that had to be co-ordinated. They relate to the building in which the court will be conducted. They also relate to various other matters, but mainly to the building, the personnel and so on. As I pointed out, however, I have budgeted for Johannesburg as well. We will conduct proceedings at Johannesburg. The hon member need not worry; I have excluded Bloemfontein also at this point in time, and it is my home town. [Interjections.] So the hon member must not think that his home town is being discriminated against in any way. After all, the Appellate Division is located in Bloemfontein as well. [Interjections.]

*As I have already said, the courts will be launched at the other identified centres as soon as they are ready.

The rules of court recommended by the Committee are at present being finalized and will be ready for promulgation by 30 June 1985. I want to emphasize that although I have mentioned centres such as Springs, Rustenburg and possibly Pretoria, Pietermaritzburg and Port Elizabeth as well, this does not exclude other centres. If they are ready by that time, they will also be launched. I want to emphasize very emphatically that they are not being excluded from also beginning on 1 October.

I cannot omit to express my appreciation for the rapid and effective handling of the situation by Mr Noeth and his Implementation Committee, as well as the unselfish attitude of the legal professions and universities. These small courts claims are regarded as a community project. I am therefore appealing to the communities, when the recommended local advisory committees approach them for assistance and co-operation in the course of the other projects, to follow the example of the aforesaid bodies. This does not mean that the Government wishes to reduce or evade State responsibility for effective adjudication. The Government is continuing to discharge the obligation of the State—on this level as well. In an effort to save on the costs and to expedite the administration of justice, the Government however supports informal means of settling disputes whenever this is possible without sacrificing quality, as is the case here and also in regard to our tried and trusted system of arbitration.

It was necessary for me to make this announcement. I want to add that I am grateful that there are so many members of the personnel of the Department of Justice and Prisons present. Hon members will permit me to refer to the Director-General, Mr Fanie van der Merwe. As far as I can remember, this is the first opportunity he has had since his appointment to be present at the discussion of this Vote in this House. I think I am speaking on behalf of everyone when I wish him a very fruitful and interesting future career.

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

I should like to commence the PFP’s participation in this debate by thanking the Director-General Mr Van der Merwe and his staff for a year’s dedicated service. Much progress has been made by the department during the past year under the guidance of the Director-General and his executive members.

I have read with interest the annual report of the Director-General which contains a full exposition of the widespread activities of the department and its branches. It is a pity, however, that by the time this report is debated, its facts and statistics are already about one year old and thus one year out of date. Perhaps some thought should be given by the hon the Minister and the Director-General to providing a report which is more current in its information and thus more relevant to the annual debate on the Justice portfolio.

I do not intend this afternoon to deal with the Government’s tabled response to the final recommendations of the Hoexter Commission. This will be done later in the debate by my colleagues the hon members for Berea and Durban Central. Similarly, the question of small claims courts will be dealt with by the hon member for Berea.

I would like to discuss briefly a few diverse but not unimportant matters. Firstly, I should like to say in response to the hon the Minister’s announcement relating to the Witwatersrand Local Division and the steps that he intends taking, that I will certainly lend my support to those steps. I think they are in the interests of the profession and of the public on the Witwatersrand. However, the Diemont Commission report regarding the status of the Witwatersrand Local Division of the Supreme Court was presented as long ago—the hon the Minister will concede this—as August 1980. Virtually all the recommendations in that report have been implemented by now with the exception of its first and main recommendation. That recommendation is now nearly five years old. The changes that Mr Justice Diemont recommended are as follows:

In this connection the hon the Minister is aware of at least two points: Firstly, that all the other recommendations were no more than ancillary to the main recommendation; and secondly, that both he, the Minister, and I have received serious representations from elements of the judiciary and also from senior members of the Johannesburg Bar urging the speedy implementation of this recommendation. No doubt the hon the Minister has had his problems—I think some of us are aware of those problems—but they are not insurmountable. The status of the Witwatersrand Local Division and the efficient functioning of that division are more important than any difficulties the hon the Minister may be experiencing.

A year ago the hon the Minister promised to make an appointment “Very soon”, and we are still waiting. The hon the Minister has now given us an undertaking, and he must make the necessary appointment and rectify the matters complained of in that report. I do hope that he will not delay in implementing the main recommendation of the report of that commission.

Also about a year ago my colleague the hon member for Yeoville raised the question of the escalating costs of litigation. In particular he raised the question of the contribution made to these high costs by the continuing division of the Bar and the Side-Bar. In his reply to the debate, the hon the Minister replied in somewhat vague and, in my opinion, inconclusive terms, preferring to leave the whole problem to the profession itself. Since then, however, nothing has been achieved, and the duplication of effort and legal representation continues to put legal redress far beyond the means of many thousands of South Africans. I would be grateful if the hon the Minister would give us the benefit of his 1985 thinking on this issue and tell us what positive steps he intends taking to relieve the position. In this connection the hon the Minister must remember one thing and that is that he does not only represent the legal profession. What is more important, he should also represent the broader interests of the public at large.

Mr Chairman, the Appeal Court judgment handed down last week in the case of Oscar Mpetha creates for the hon the Minister two rather unique opportunities for doing good, firstly, in regard to the person himself and secondly, in regard to the South African judicial system. I do not intend to summarize the Mpetha case this afternoon as I am quite sure that the facts of that case are completely within the knowledge of the hon the Minister. However, certain facts are relevant. Firstly, Mr Mpetha is 75 years old and is in illhealth. Secondly, Mr Mpetha has already served 34 months in custody during the course of his trial. Thirdly, in sentencing Mpetha to five years imprisonment the trial judge stated that had he not been obliged to impose a minimum sentence, he would totally have suspended whatever sentence was imposed. Fourthly, while reluctantly confirming the sentence, Appeal Court Judges Van Heerden and Hefer stated that the facts of the case served to underline the lack of wisdom of mandatory sentences, and expressed the hope that Mpetha’s sentence would be ameliorated by administrative action. Fifthly, Mr Justice Corbett in a separate judgment wrote of the injustice that could flow from a statutory enactment that laid down compulsory minimum sentences and took away from the trial judge the discretion he normally enjoyed in the imposition of a sentence. Mr Justice Galgut and Mr Justice Kotze echoed these sentiments in the Appeal Court judgment.

Mr Chairman, similar principles—not exactly the same but similar—are involved in two judgments delivered in Natal earlier this month. The first, handed down by a full Bench of the Natal Supreme Court in the bail application of various members of the UDF, was severely critical of the provision entitling the Attorney-General to block bail applications. According to the Natal Mercury of 25 April, Mr Justice Friedman went so far as to say:

In granting bail at a later hearing, Mr Justice Milne, the Judge President of Natal, said that he fully agreed with that judgement, and that the section involved made serious inroads into the role of the courts. Age, Mr Justice Milne said, was the section’s sole claim to respectability. He added, and I quote from the Sunday Times of 5 May 1985:

Mr Chairman, I mentioned that these two judgments have provided the hon the Minister with an opportunity of doing good for our country. Firstly, in regard to Mpetha: he is aged; he is sick; he has already spent 34 months in prison. Mr Justice Williamson of the Cape Provincial Division would have suspended his entire sentence had he the power to do so. The hon the Minister does, however, have the power to rectify matters and to show mercy. I appeal to the hon the Minister to take seriously the words of all the judges I have quoted and to leave Mr Mpetha be. If he does this he will invoke much goodwill here and abroad.

There is, however, a second opportunity available for doing our country good in the very near future. That is to take heed of the concerned comments of all the judges I have mentioned, and to announce an immediate investigation into all statutory provisions—whether they relate to bail applications, to minimum sentences or even to detentions or bannings without trial—which hinder the independent courts of our country in the exercise of their judicial discretion and which prevent them from being the final court of redress, where the rights and the liberty of individuals are at stake. What, I ask you, Mr Chairman, is the use of having an independent judiciary if that judiciary’s hands are tied? Sir, if the hon the Minister does this, if he accedes to this request, he will have struck a resounding blow for the cause of true justice in our country.

Mr Chairman, I now wish to turn to a somewhat delicate aspect. There are some facets…

Is the matter to which you have just referred not a delicate one too?

No, it is very straightforward! [Interjections.]

That was very straightforward indeed, Mr Chairman. It is of course just that little bit too subtle for the hon member for Mossel Bay. He should, however, listen and try hard—he might perhaps grasp something. [Interjections.]

The matter to which I want to refer now, Mr Chairman, is, as I have already indicated, somewhat delicate, namely, some facets of the role of the Department of Justice and of the courts in our evolving society, a society which is deeply divided on ideological, cultural, racial and other grounds. The Department of Justice, I submit, should never be seen as just another branch of law enforcement or just another instrument in the application of Government policy. The Department of Justice should be more than that. It should be a department geared primarily to the needs and the problems of the individual citizen, seeking justice above the demands of political expediency, for no matter what régime governs this country in the future, if an equitable system of justice for the individual can be maintained and even broadened, and can continue to enjoy public confidence, then that new society of the future need not spell disaster for individual aspirations. Allow me, Sir, to give but two examples of what can be done to promote both the substance and the image of justice in our country.

Firstly, I want to refer to commissions of inquiry, irrespective of whether they be into unrest, police activities, corruption or law reform. Far too little logistic back-up for commissions of inquiry is provided by the Department of Justice. Judges are not detectives neither are they inquisitors, and their findings are nearly always limited to the evidence submitted to them. The Kannemeyer Commission, which has not yet reported, is a case in point. It is quite wrong that nearly all the relevant evidence should be brought at the expense of the community. Whenever a commission of inquiry is appointed the Department of Justice should provide it with an investigative arm sufficiently staffed and independently oriented so as to ensure that all the facts of any given issue are uncovered and are aired. To second one junior advocate who sees it as his role to back up other Government persons and bodies is to destroy the credibility of the department in the eyes of the public, Black and White.

Secondly, in regard to legal aid, not nearly enough is being done in this field. Too much goes by default through lack of proper representation. The latest report of the Legal Aid Board, cash-strapped as it is, bears witness to this cavernous gap in our system. I have no time to quote its views, but suffice it to say that its activities are severely hampered by a lack of funds. Thousands of persons are denied legal representations by a paucity of knowledge of what is available to them and the board itself is frustrated by the lack of Government response to the task it is undertaking. A dramatic increase in the funds available to the Legal Aid Board should be considered as a matter of urgency.

Finally, it is essential not only that the courts be even-handed but that they be seen to be even-handed. It takes only a few really bad decisions to bring into public disrepute, both here and abroad, the high standing our courts should enjoy. For example, for magistrate S J Coetzee, whom I assume is no relative of the hon the Minister, to fine a White policeman the princely sum of R30 for a vicious and unprovoked assault which led to the death of a Coloured man in Johannesburg recently is to bring the racial fairness of the lower courts into doubt.

Have you studied that judgment?

I have looked at it in depth. Another example relates to magistrate M P Prinsloo, also of Johannesburg, who in March 1985, on the same day, heard three very similar cases, namely that of using a drink-can ring in a parking meter. A Mr Levy of Yeoville was fined R50, a Mr Steyn of Hillbrow was fined R50, while Mr Victor Thanjekwayo of Soweto was fined R200 or four months. There are many such cases. I have corresponded with the advocate who appeared in all three those cases and I have discussed these cases with him on the telephone, so I know the facts of these cases. There are many such cases which have occurred in past months.

I would now like to quote from the Financial Mail of 29 March 1985. Among these judgements are the following:

Appalling!

Yes, I regard that as being appalling. I do not have intimate knowledge of the judicial officers concerned and do not ascribe malice to them, but there is something drastically wrong in a system which allows these injustices to occur. The damage done to race relations and to the image of justice in South Africa is immense. I believe that the whole question of sentencing should come under ministerial scrutiny.

There is much that can be done. Retraining, specifically geared to this problem, should be embarked upon by the department throughout the country. Seminars for judicial officers can play a useful role. Perhaps even the use of computers might be considered.

Most important, however, is the comment of Advocate Jules Browde, SC, the chairman of the Johannesburg Bar Council, who recently said:

I want to say that Mr Browde is not that far off the mark. 98% of all magistrates in South Africa are White, and all the judges without exception are White while the overwhelming majority of those who appear before them on criminal charges are Black.

What are you insinuating?

I am not insinuating anything; I am making a statement. The CP need not worry too much about it because I know that they are going to disagree with me anyway.

The time has come for the department to make a real effort to recruit, train, promote and advance Black, Coloured and Indian persons within the structure of the courts. They cannot be held back any longer. The face of justice should not be snow white in this country at the tip of Black Africa.

The same goes for the Bench. If we can have Coloured and Indian Cabinet and Deputy Cabinet Ministers, there is no reason why the Bench should not be non-racial. Indeed there are several suitable candidates whose elevation to the Bench would grace the South African judiciary.

In this way a start can be made to bring justice closer to the people and to create a climate in which the people identify more closely with the system of justice in our country.

Mr Chairman, the hon member for Sandton raised a number of unrelated matters, and the time at my disposal does not allow me to react to all the matters raised by him. No doubt he will in due course receive adequate replies from the hon the Minister.

I do wish to refer, however, to the last matter raised by the hon member and that is the appointment of persons of colour to the Bench. The hon member should know that all appointments to the Bench at present are strictly on merit.

Do you say at present or always have been?

At present and always have been.

Mr Chairman, may I ask the hon member whether he is aware that a former NP Minister of Justice admitted that when it came to appointments to the Supreme Court by him he took matters other than merit into consideration?

I am not aware of such an admission and I should like the hon the Chief Whip of the Official Opposition to substantiate his statement.

Mr F C Erasmus.

The fact is that appointments to the Bench are made strictly on merit and the hon member should know that. The present hon Minister is on record—and here I refer to the Hansard of the House of Representatives—as saying categorically on 19th April of this year:

When the hon member for Sandton pleads for the appointment of people of colour to the Bench, therefore the reply is simply that there is nothing whatsoever preventing that at present.

Why has that not happened once in 60 years?

We do not have a legal system functioning in abstracto in this country. The legal system is part of the social structure of the society and therefore the legal system also reflects the social situation appertaining in the country at a particular time. However, I do not propose devoting all my time to the hon member for Sandton. He is not all that important. I prefer making a positive contribution to this debate. After the denigrating statements made by the hon member for Sandton I believe that someone should speak up for the judiciary for a change. People should not always try to run to the judiciary down as the hon member for Sandton has been doing.

*During the past decade, the esteem for, the credibility and the integrity of, and the respect for, many institutions, offices and persons in South Africa have been seriously jeopardized. This applies not only to State institutions and Statesmen, but also to churches, ecclesiastical organizations and church leaders. It also applies to political institutions and politicians, as well as business undertakings and businessmen, government officials as well as members of professions, and cultural organizations and cultural leaders, as well as agricultural organizations and agricultural leaders. Virtually every facet of South African society is being questioned in some respect or other, and indeed to such an extent that it has already been alleged that there is ostensibly a crisis of confidence in the country.

In the midst of all this confusion and doubt the South African administration of justice and the judicature stand out as a symbol of hope and confidence. Even South Africa’s severest critics readily concede that the standard of the administration of justice in South Africa is of the highest order. In the recent television programme which the hon the Minister of Foreign Affairs and Mr Andrew Young took part in, Mr Young spontaneously and readily conceded that the South African administration of justice complied with the highest standards.

Harsh criticism is sometimes levelled against the South African administration of justice, as the hon member for Sandton has also just done, but on closer inspection it appears that this is motivated by ignorance or maliciousness, or both. The hon member for Sandton can decide for himself into which of these categories his criticism falls.

Usually it does not concern the administration of justice or the judicature as such, but the alleged absence or disregard of human rights or the “rule of law”, which are both political concepts and not legal concepts. It concerns matters such as discriminatory legislation, for which the courts are of course not responsible, or police action under and by virtue of legislation, for which the courts cannot be blamed either. Consequently the criticism levelled against our administration of justice …

Did you say the rule of law is not a legal concept?

Of course it is not and the hon member knows it, or should know it.

I know the contrary.

Well, we can debate that on another occasion if necessary.

*The criticism levelled against the South African administration of justice is therefore of a political nature and should be levelled against the Government or the legislature and not against the administration of justice as such.

There is no justification for questioning the administration of justice or for expecting judges and magistrates to make a stand against security legislation or at least speak out against it, as Prof Dugard said in an article in the Rand Daily Mail of 29 March of this year. If judges and magistrates were to comply with this request they would definitely not be doing the South African administration of justice a service, but they would immediately place it in the political arena, as the hon members of the Official Opposition would like to do. I shall get back to this matter later on in my speech.

One asks oneself what the high esteem and respect for the South African administration of justice is attributable to. I find the first reason for this in the independence of the South African courts of law. This was and still is above suspicion. [Interjections.] The Hoexter Commission pointed out that in South Africa recognition was given to the doctrine of the separation of State powers. South Africa adopts the standpoint that separation between the government organs which carry out the judicial and the executive state functions is a necessary outcome of this doctrine.

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

Mr Chairman, I stand up to give the hon member the opportunity to complete his speech.

The hon member may proceed.

I thank the hon member for Pietermaritzburg North.

*The Hoexter commission has made certain recommendations to promote the independence of the courts further. In a report by the US State Department which was quoted in The Star of 15 February 1984, it was specifically stated: “South Africa’s judiciary is independent.” This was said by the US State Department. The report by the US State Department than went on to criticize our security legislation, but it was stated categorically that “the judiciary is independent”. [Interjections.]

A second reason for the high esteem for the South African courts of law is their efficiency. The Hoexter Commission investigated the efficiency of the South African courts in depth and made a number of recommendations to increase the efficiency and eliminate bottle-necks. Several of these recommendations have already been implemented, with good results for the efficiency of the courts, while others are still receiving attention. The fact is that there is a constant endeavour to achieve even greater efficiency.

I find a third reason for the esteem for the South African courts in the adaptability to changing circumstances of the law applied by the courts. Along with other norms the law is one of the instruments of social control. Consequently it is essential for a legal system to be flexible enough to be able to adjust without unnecessary delay to changed circumstances.

According to the learned writers F J van Zyl and J D van der Vyver in their book Die Inleiding tot die Regswetenskap of 1982 our law certainly does have this characteristic. They point out that the South African Parliament is fairly diligent as regard its task of establishing new law, and in this way making provision for changed circumstances. The South African Law Commission also regularly recommends statutory amendments to the authorities after thorough investigation. Our present matrimonial property law was changed drastically only last year on the recommendation of the South African Law Commission. At the moment we have proposals before us in connection with the adjustment of the law of succession and the law in connection with women and sexual offences. This prevents the prevailing law from lagging behind social development, and it is ensured that the law will fill its important role as an instrument of social control effectively.

I find a fourth reason for the esteem for the courts of law in the unimpeachable honesty, impartiality and professional competence of judges and adjudicating magistrates. I am specifically including adjudicating magistrates in this too. These qualities are assured, inter alia, by the high standard of the legal training of the universities and the Department of Justice. They are also assured by the thorough experience which advocates, prosecutors and other legal officers gain in practice, as well as by the responsible way in which appointments to the Bench take place, ie after thorough consultation and strictly on merit.

The status and esteem enjoyed by judges and adjudicating magistrates is apparent, inter alia, from the recent announcement that in future hon Ministers of the Cabinet will no longer be entitled to use the title “The Honourable”, but judges will. I believe that these are all factors which help to keep the esteem for our courts of law so high.

But the most important reason for the high esteem and respect for our courts of law is the political non-involvement of the courts of law and the judicial officers. Traditionally the South African courts of law are apolitical. Appointments to the Bench do not take place for political considerations and judges and adjudicating magistrates avoid political rulings or political involvement. Even if the South African courts of law were to have all the virtues I have mentioned this afternoon, they would nevertheless jeopardize their esteem, credibility and integrity if they were to land up in the stormy waters of politics.

I am not merely arguing for good administration of justice, but for far more when I make this appeal: Let us keep our courts of law out of party politics, and party politics out of our courts of law. Then we will be able to continue to be proud of the high standard of the administration of justice in South Africa. The very last thing we need in this connection is speeches like the one the hon member for Sandton made here this afternoon, when he made an issue of and questioned the courts of law. [Interjections.]

Mnr Chairman, I want to associate myself immediately with the hon member for Mossel Bay by expressing my strongest misgivings at the deplorable remark which the hon member for Sandton made with reference to the “Snow Whites” who preside over judicial proceedings in the supreme courts and magistrate’s courts. This cannot be interpreted in any other way than a direct insult to those persons. [Interjections.]

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

Sir, I am not prepared to reply to any questions. [Interjections.] Such a statement is in line with the obsession of that hon member and his party to try to compel integration on all levels.

The Department of Justice has the knack of literally inundating us with reports a few days before the discussion of the Vote. I hasten to add, though that they are excellent reports. If we look at the annual report of the department and the Twelfth Report of the South African Law Commission, as well as the memorandum to which reference was made this afternoon, and even at the report on Project 45 on the woman and sex-orientated crimes in South Africa, which has just been made available to us, we see that these are all very important reports and documents which we shall go through in due course. If I look at this report on the person going under the alias of Adv De Jager, which we received this afternoon, together with its supplementary report, and I read in annexure A of all the successes he achieved in the cases in which he acted, I think that if he had been here, he would also have been able to take up the cudgels very successfully for us in dealing with all these very good reports.

As regards the annual report, I should like to associate myself with the hon member for Sandton by saying that it was a very complete and excellent report which gave us a very good picture of all the activities of the Justice Directorate as well as the Prisons Service Directorate. Unfortunately we cannot pause for very long on the report, except to say that the CP wishes to convey a special word of thanks and appreciation to the Director-General, Adv Fanie van der Merwe, whom we welcome officially here today, after having welcomed him in the old Senate Chamber last year, and to General Willemse, and also in particular to the parliamentary staff for their service to us which is always willing and excellent when we approach them with problems and queries in connection with the matters and activities of their directorates.

We also have a memorandum on the Hoexter Report in our possession. We have studied it and we shall probably study it further in depth as we devote attention to all the matters mentioned in it. The findings and recommendations which we read, as well as the Government’s standpoints and decisions concerning these recommendations, are important. Many of those recommendations have already been incorporated into legislation and we take cognisance with gratitude of this memorandum which has been submitted to us. I should also like to give attention today to the various reports of the South African Law Commission, including the twelfth report. Over the past decade and longer, this commission has submitted important reports to this House. Very important legislation has already been placed on the Statute Book arising from the reports and investigations of this commission. If we were to glance at annexures B, C and D to the twelfth report, we would find a list of numerous projects and investigations already disposed of by the commission or which they are still dealing with. In one of its previous reports the commission emphasized that all developing and dynamic communities are constantly making new demands on the law.

It is not only desirable but also essential that the law should constantly be reviewed, adjusted and supplemented. In fact, we are all aware that the Act under which the commission came into existence imposed an obligation on the commission to undertake research into many branches of the law of the Republic of South Africa for the sake of the development, modernization and the improvement of our law and legislation. Thus the commission points out in one of its reports that in respect of the privacy, the rights of personality and other rights of the individual, there is a constant need for new and better precautions to protect such rights of the individual.

We are aware that the commission always welcomes proposals or requests for specific aspects of the law to be investigated. Today I want to avail myself of this opportunity to raise a matter which, it is to be hoped, can be included by the SA Law Commission in the commission’s project No 44, a project which envisages a comprehensive and a comparative investigation into the protection of all rights of personality. When the commission made a few remarks on the aforesaid Project No 44, they said:

A year or so ago, while we were conducting a debate on the Rabie Report, voices were constantly being heard raised in protest that the rights and liberties of the individual were being shifted further and further into the background when it came to security legislation. In conjunction with this protest that individuals were increasingly being deprived of their freedom, we find that in recent times strong protest is also being made against what is called an “invasion of the rights of the privacy of the individual”. In this connection I am referring to the entire question of the so-called illegal tapping of private telephone conversations by the SA Police. I am raising this matter here today because, as I said, I should like to use it as an example, and because I should like to bring it to the attention of the SA Law Commission.

We are all aware that in section 118A of the Post Office Act, No 44 of 1958, provision is made for certain Government bodies to be authorized to intercept telephone conversations, if such interception is essential for the preservation of the security of South Africa.

Recently there have been quite a number of Press reports to the effect that investigating officers of the Police, in their investigations of ordinary criminal cases, are making illegal…

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

Mr Chairman, I am merely rising to say that I am prepared to give the hon member an opportunity to complete his speech.

The hon member Mr Theunissen may proceed.

I thank the hon Whip for the opportunity.

Recently there have been quite a number of Press reports to the effect that investigating officers of the Police, in their investigations of ordinary criminal cases, have intercepted telephone conversations in an illegal manner.

Order! The hon member refer red a moment ago to the participation of the Police, as well as to the Post Office Act. Neither of those matters has any bearing on this department. To say in a roundabout way that the matter should be referred to the SA Law Commission is not, in my opinion, sufficient justification either to discuss the matter under this Vote.

Mr Chairman, I want, if I may, to address you on your ruling. I used it as an example of a matter affecting what I call the invasion of the privacy of the individual and rights of personality. In this way I want to bring the matter to the attention of the SA Law Commission. I feel it is entirely relevant in respect of the matter which I should like to present under this Vote. This Committee is after all the correct platform for this matter, because the SA Law Commission itself says that they listen to and take cognizance of what happens in debates in this House, and therefore they will in this way, too, take cognizance of this submission which I am making precisely in order to point out what I call an invasion of privacy in these spheres. Therefore I really cannot understand why you wish to deprive me of that opportunity in the discussion of this important Vote.

Order! It would seem to me that under that pretext any aspect of other Votes could be discussed under this Vote. I therefore think it is a little far-fetched. Nevertheless I shall give the hon member an opportunity to refer briefly to this matter again, but I would appreciate it if he would then return to the Vote.

Mr Chairman, when Mr Justice Piet van der Walt, in his capacity of Advocate-General, instituted an investigation in 1980 on the basis of a complaint which was made that dealt with what I have just mentioned to you now, he said inter alia that one of the most important rights of personality of a citizen of a democratic state was the right to privacy. Of equally great importance to the community of South Africa, however, is the security of the State. It is clear that the interests of the individual and the interests of the community are constantly coming into conflict.

The Rabie Commission, too, said in regard to the question of the illegal monitoring of telephone conversations that although it was inevitable that cognizance would have to be taken of the demands made by the reality of the internal security situation of the RSA, it was at the same time necessary to strive to maintain a proper equilibrium when the interests of the State on the one hand were weighed up against those of the individual on the other.

It is a fact that a recognized principle of our legal system is that the individual may not be deprived of the rights which he normally enjoys as citizen of the State through the actions of executive and administrative officials unless such actions are properly authorized by legislation. Moreover, the Rabie Commission found that the interception of telephone conversations, for example, was an essential means of ensuring the security of the State, but since the use of this means was a serious invasion of the privacy of the individual, it had to be applied with great care and responsibility.

That is why we say that there is indeed a very fine dividing line between the privacy of the individual and the security of the State. No one will deny that this question of monitoring is a very delicate matter. Because there are increasing numbers of enquiries as to the desirability and legality of Government bodies intercepting private telephone conversations, and because feelings are constantly being stirred up in regard to the actions of the Police, I think it would be very desirable if the SA Law Commission included this alleged invasion of the privacy of the individual and of his rights of personality in its Project 44. There is a very strong feeling that the Police may in fact have the right to tap telephone conversations in their task of combating crime, subject of course to specific restricting conditions. It may be necessary to extend such monitoring rights to cases of serious crime. We know, too, that in other states, such as in the state of Israel, such provision has in fact been made.

Similarly it may be pointed out that no body may in an irregular and illegal way commit such an invasion of the privacy of the individual, because if that happens, it would be a gross violation of the personal rights of the individual.

We therefore wish to suggest that the SA Law Commission should submit to a very serious investigation the right of the individual to privacy and his personal rights on the basis of the use of these methods.

The SA Law Commission is there to help ensure legal certainty. We make the laws, and frequently the assistance of the SA Law Commission has to be called in to help ensure that justice is done to the community as well as to the individual.

Mr Chairman, I thank the hon member Mr Theunissen for his very interesting contribution. I shall follow him by referring to one of the reports by the SA Law Commission dealing with women and sexual offences.

†The speech of the hon member for Sandton should be mentioned. The first part of his speech was quite balanced. He expressed certain criticisms but I believe that they were constructive criticisms that one could debate. I believe, however, that when he attacked certain sentences of courts and gave examples, he did South Africa and our jurisprudence a great disservice. The facts he quoted were just so blatantly unreasonable that they could not possibly have been a reasonable reflection of what happened. To suggest that a man was fined only R50 for murder and rape is just so far-fetched that it could not possibly be true. I believe he did our jurisprudence a great disservice in this regard.

*I should like to associate myself with the congratulations extended to the Director-General, Adv Van der Merwe, on an excellent first annual report. It is more comprehensive than last year’s report and gives a very good broad insight into the department’s activities.

I should like to take one figure from this annual report. It is contained in chapter 5, paragraph 2 on page 29, namely that the Master dealt with only 775 accounts of appraisers during the year under review. When this figure is compared with the 14 931 dealt with during the previous year, it is ample proof of the tremendous success that has been achieved in regard to the simplification of the administration of estates.

This must have given rise to great improvement as far as the utilization of the staff of the Master’s office is concerned. Over the past few years we have systematically simplified the administration process, and I hope that this simplification process will continue in the same way. Ultimately, the executor should accept full responsibility for the administration of the estate concerned, and the Master of the Supreme Court should only have to decide in cases where a dispute develops.

In its report on women and sexual offences in South Africa, the SA Law Commission did our system of justice a very great service. It remains a fact that rape has become one of the most controversial offences of our time. The reason for this is to be found in the emergence of certain activist groups in the ranks of women’s organizations which consider this crime to be a reflection of the view that women in society occupy an inferior position. Throughout the world these women’s organizations are agitating for a review of the approach to this crime. The particular demands they are making in this connection include, inter alia, amendment of the definition of rape; the emphasizing of the violent rather than the sexual nature of the crime; the fact that, furthermore, rape be regarded as legally possible within marriage; and that the irrefutable presumption that a boy of 14 years of age is unable to commit rape be changed in law. There are various other aspects as well, including the contribution of district surgeons regarding the after-care of rape victims.

It is clear that the abovementioned demands and the insistence upon reform with regard to the legal approach to rape, cover the whole spectrum. It is not only a question of substantive law but also of the law of evidence, of procedures and of the practical aspect of after-care. It is also clear that there is strong insistence upon an inquiry in this connection; in fact, that such an inquiry has become essential. Actually, I believe the report of the Law Commission in this respect meets this need and this necessity fully. The inquiry was started in 1982 after the hon the Minister had requested that such an inquiry be undertaken, and the scope of this inquiry was also extended at a later stage.

A serious problem with regard to such an inquiry is that it is an emotional matter, that people who are not lawyers are involved in it and that they feel very strongly about this matter. I believe that in this enquiry the Law Commission obviated this particular problem to a large extent by holding a seminar and affording those who felt so strongly about this matter the opportunity to put their case.

This report consists of more than 200 pages. It is fully founded in theory. It deals with the background and the historical course and refinement of the process involved in the crime of rape. It also indicates that should the emphasis again be placed on the violent aspect of this crime, it would in fact amount to a return to Roman law in terms of which violence was the decisive factor in a crime of rape. The great value of this report lies in the fact that it is directly practice-orientated. In fact, the basis of the report is the relief of the trauma suffered by rape victims. I believe, too, that the report contains important proposals regarding the relief of the trauma caused by the so-called second victimization of rape victims.

Important recommendations that were mentioned in this connection, which unfortunately one cannot deal with thoroughly now, include the fact that the commission has asked for legislation that will rule out all possible identification of rape victims and will also provide that evidence in rape cases must automatically be heard in camera.

As far as the treatment of rape victims is concerned, the commission recommends, inter alia, that greater publicity be given to the procedures followed by the SA Police, that aid centres be extended, and that district surgeons also address the problem of resultant pregnancies and venereal diseases, as well as the fact that the medical treatment of such victims will be at State expense. The commission also recommends that prosecutors be instructed to hold more extensive and more intensive pretrial consultations with the complainants.

As far as the substantive law is concerned, there have also been proposals regarding the irrefutable presumption with reference to a 14-year-old boy, and it has also been proposed that rape should be possible within marriage but that only the Attorney-General may institute such legal proceedings. I have problems with this aspect, even if one were to accept the arguments that have been advanced; and strong arguments have been advanced. For example, it has been asked whether we had a rule of law in terms of which rape could not take place within marriage. Our law also includes the rule that reasons can be given within a marriage for the refusal of intercourse. The fiction that a woman by her marriage contract has irrevocably consented to sexual intercourse can simply no longer be accepted. On the other hand, rape is a very serious crime which simply does not belong in a marriage, which is a special sort of relationship, particularly when the spouses are still living together or when there are no injuries. This definitely has the potential to endanger marriages and to disturb relationships.

The aspect with which I particularly cannot agree is the other proposed solution, namely that in such cases the Attorney-General should have a discretion, because that is in effect what is being proposed. This will create simply endless uncertainty, examples of which are in fact to be found in our law. One cannot make something an offence and then water it down by making its implementation dependent on someone’s interpretation of the law.

In spite of this criticism I want to suggest that this document is an extremely valuable one and could make a great contribution towards solving the problem.

Mr Chairman, it is always a pleasure to follow the hon member Mr Schutte. He will notice that I did not shortchange him with any time despite the fact that this bench is somewhat divided on occasions.

I think the department deserves great praise for its very swift reaction in implementing far-reaching changes as a result of the report of the Hoexter Commission. In addition to our thanks for the document issued by the department in response to that report, we would like to add our thanks to that of other members who have spoken about the services rendered by the staff of the department over the years. They have always been extremely courteous and willing to help. I must say, however, that the mine of documentation this year seemed to have appeared in a rather short time. It is always nicer to have it spread out a little, because to be able to go through it and make proper use of it, one needs a little more time.

One of the most obvious things that comes to mind when one goes through these documents, is how one ever got on before in the swiftly moving South Africa without a Law Commission. The work this commission is doing today in respect of the workings of the department, the amending of legislation and the considerations that come before this House, is of such monumental importance and of such value that it must have been extremely difficult to have performed this task in the past, unless everything had remained stagnant for a very long time. When one combines this work with the recommendations of the Hoexter Commission in regard to the structure and functioning of courts, the endeavours of the department and those of the Legal Aid Board, one has all the components for a very effective system of justice with ongoing changes and hopefully far greater accessibility to the courts.

Certainly in the Legal Aid Board’s report one detects a very distinct note of frustration with regard to both the question of the awareness of people of the availability of legal aid and its availability in terms of proximity to certain areas. The board put forward certain suggestions and recommendations but the department itself, on the strength of an investigation by their work study officers, turned them down. The board responded that it was adamant that in the Mitchell’s Plain area, for instance, an office was required. They then took that to the Minister for his approval.

On page 8 of the board’s report one reads:

One finds running through this report a feeling of frustration at the degree of attention the board is getting. One can also see it in the Budget itself, because in fact there is only a very slight increase in the amount budgeted for the board this year compared with last year’s figures. Certainly, if the administration of justice is to be improved, the Legal Aid Board’s accessibility to the man in the street is a critical factor.

Another aspect concerning accessibility is the cost of litigation, an aspect also mentioned by the hon member for Sandton, and the question of what some people call the division in the legal profession and others call the monopoly of the Bar. I think it depends on which side one is on as to what one prefers to call it.

Which side of the bar?

Yes, it depends on whether one is serving or receiving. The Hoexter Commission’s report gives plenty of information and indicates amply that this has been an ongoing debate for many, many years. The departmental response has been a very weak one. It simply fobs the matter off and says the profession itself must decide on what it is going to do. The question has been raised whether attorneys be granted right of audience in the Supreme Court. Naturally, standards would be set. Whether, as indicated here, the requirement of 10 years’ service as an attorney is necessarily the right one, I would not like to say, but certainly there is a case to be made out for broadening the base of legal representatives who have right of audience in the Supreme Court. As has also been mentioned, this would allow a greater choice in the selection of judges. Already in some pro Deo cases attorneys are asked to act in the Supreme Court.

I should also like to remark on the Advocate-General’s report, because there is something in it that puzzles me a little. If I may make this point, it will also give the hon the Minister an opportunity to reply to it. I refer to page 12 where reference is made to a complaint that was received concerning several alleged irregularities at the Water Research Commission. Reading through this, it appears to me that after the complaint was received, a copy of the complaint together with copies of all the supporting documents was sent back to the commission. The commission itself then went to the Minister of Agricultural Economics and of Water Affairs who appointed a committee. The committee then investigated the matter after which the Advocate-General saw the results of that investigation.

To me this looks rather like a departmental inquiry into its own matters. It looks like a department investigating itself. I do not think it has done the Advocate-General’s status or the people’s opinion on that system any good especially if in future complaints are going to be referred to the Advocate-General, he is going to allow the department or an arm of the department in question to appoint a committee to investigate that complaint. Perhaps the hon the Minister will reply, but this is how it reads in this document because the committee had conducted that investigation and the Advocate-General later on in the report stated that he agreed with the findings of that committee. I should be grateful if the hon the Minister could comment on this.

There is another point which I should like to make. The hon member for Sandton made some remarks about the question of the severity of sentences, but there is the other side of the coin too. Not long ago the House increased the penalties for stock theft. In certain parts of the country stock theft is an incredibly serious problem. Although there is provision for these increased penalties the tendency is not to impose them. I ask the hon the Minister to go into this very carefully because it appears that some magistrates, when a sharp stock theft squad or for that matter the ordinary policemen stationed in the area show a success rate which seems above average or normal, doubt their credibility. The magistrates then question the Police as to why in all their cases stock theft is admitted. It appears that the more the successes are that are achieved by stock theft units the less prepared the magistrates are to apply these stricter penalties.

Will you be more specific?

Order! I regret that the hon member’s time has expired.

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

The hon member for King William’s Town may proceed.

Mr Chairman, I thank the hon member for Swellendam.

The hon the Minister asked me whether I could be more specific. I should like to be more specific when I discuss this matter with him privately because I think it would be better if I gave him some details.

Certainly the stock theft situation has not improved as a result of the increased penalties. I know that there are a great number of policemen who get absolutely exasperated by the amount of work they do in the field to bring stock theft offenders to court only to find that the cases are thrown out of court because of some minor technical point. One should not for a moment think that it is only the odd chap stealing for the pot. There are a lot of people in this business who make a lot of money. They go about this very professionally and I think they should be hit well and hard. I really should like the hon the Minister to comment on this. The hon the Minister asked me to be more specific, and I shall certainly supply some facts about this.

The last point to which I should like to refer is one with which the hon member for Sandton has also dealt. With the Law Commission now in full swing with an extended staff and more members, it might well be an extremely interesting and important exercise and a very valid one for South Africa if the Law Commission were to investigate all our statutes to establish the existence of discrimination on our Statute Book. This exercise should be undertaken in order to give the legislature of this country some idea of what is before it and to establish whether it is at all possible for Parliament to proceed on a planned basis of whittling away those discriminatory provisions. I would be very interested to see where it will lead us. One might find in certain cases that inverse discrimination applies and not only discrimination in one respect. I would certainly support the request of the hon member for Sandton that the SA Law Commission should look into the whole spectrum of legislation and identify those Acts which are discriminatory.

Mr Chairman, the hon member for King William’s Town will forgive me for not reacting to his speech because I want to hurry on to address a few words to the hon member for Sandton and his party.

In general I find his party amazing and even puzzling. His party’s policy, behaviour and particularly its usual kicking up of dust in the justice debate defy comprehension. I think the reason for this is the contradiction in their origin. On the one hand they stand for the so-called rule of law and they actually absolutize it, but one need only consider at the way they dealt with the Constitution of the Republic. One need only consider the way they dealt with the Hoexter Report in contrast to the way our Government dealt with it. That party criticized certain judges and magistrates by name. That is presumptuous. Surely the hon member for Sandton knows that no two cases, sentences or accused persons anywhere in the world are identical? One cannot therefore compare sentences. That party continually denigrates aspects of our law but at the same time they ostensibly stand for the law, if one can believe that.

On the other hand, the PFP advocates the freedom of the individual to such an extent that they absolutize the freedom or libertas of the individual and elevate it to the highest level. That is their liberal outlook, so much so that the PFP seeks to place the freedom of the individual above the law and above authority, as they have once again confirmed here this afternoon. This is the way in which they fail to acknowledge the law and authority. Authority and freedom are a problem to them because they do not realize that authority and freedom are two sides of the same coin. Authority and freedom do not have to clash; they serve each other reciprocally because limited authority guarantees freedom and limited freedom has respect for authority.

I want to tell the hon member for Sandton that it is easy to criticize and to idealize, but one must take practicalities into account. One has first of all to make some calculations to see what is attainable. For example, last year the hon the Minister calculated the approximate cost to the State of implementing the Hoexter Report. An amount of R250 million was estimated to accommodate family courts, and to refurbish the court accommodation etc, a further R350 million. The provision of posts for the separation of legal and administrative work would amount to another R150 million. The total would therefore be approximately R750 million, which is four times larger than the annual budget of this department.

I want to tell the hon member that in spite of all their criticism and negative actions, the legal system in South Africa is a beacon in the development of Western civilization and law. To support this statement I should like to touch on a few aspects. One aspect of which we can be very proud is the independence of our courts. I say this in spite of the cynical interjections by hon members on that side of the House. The standpoint of our Government is that the judicial officers in the Supreme Court and the magistrates’ courts have been and are independent of the executive authority.

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

No. I am very sorry but my time is limited. As far as the judicial officers in the inferior courts are concerned, our Government is in favour of all possible and feasible steps being taken to retain and consolidate the existing reality as well as the image of an independent Bench.

The report by the Implementation Committee regarding the separation of the judicial and administrative functions of magistrates really is an informative document, particularly inasmuch as the Free State has been taken as an example.

It contains extremely practical and simple proposals which, viewed in retrospect, are actually quite obvious. I want to address an earnest plea to the hon the Minister not to follow a line of action for the sake of the ideals and objectives of the Hoexter Commission that will lead to the withdrawal of the magistrate, as one qualified in law, from the platteland. I am strongly in favour of a reconciliation between the objectives of the Hoexter Commission, practical requirements and whatever may emanate from the recommendations of this Implementation Committee.

Several advantages can result from this of which I should like to mention a few: Firstly, magistates qualified in law are retained to perform, inter alia, a large amount of administrative work arising from statutes for which a knowledge of the law is essential. The Hoexter Commission’s recommendation of a resident magistrate will therefore not be a practical solution.

A second advantage is that the depopulation of the platteland will be countered, and judicial officers will be retained on a decentralized basis; thirdly, the magistrate will continue to remain in control of the magistrate’s office; fourthly, the new post of office manager is the starting point of a new administrative model for the magistrate’s office, it is therefore not a revolutionary process; we are only building on what already exists. A fifth advantage is that more opportunities for the sound administration of justice are being afforded the magistrate; and sixthly, it means that the best service to the public on a judicial and administrative level will continue to be available.

The appointment and responsible approach to the Hoexter commission is an outstanding example of our Government’s sincerity regarding the administration of justice in the RSA. The Government is also proud of the rights of the individual and guards them jealously, although it does not absolutize them. That is why the Legal Aid Board exists. It is the Government’s considered opinion that the extension of legal services by the Legal Aid Board should remain a living ideal that should continually be pursued.

In this regard the HSRC has found, inter alia, that it is not possible from the data available to explain why the needy of all population groups do not make freer use of the services offered by the Legal Aid Board. It is recommended that further research be undertaken in this connection. I should like to know from the hon the Minister why further research was decided against.

In my humble opinion the root of the problem in this respect is that thousands of people do not apply for legal aid because they are not aware of the board’s services. This really is a great pity. The simple solution is obviously the question of advertising and the provision of funds for this purpose. Perhaps the attorneys’ Fidelity Guarantee Fund could make a useful contribution in this connection.

Another excellent example of the Government’s sincerity in maintaining the standard of our legal system as one of the best in the world is the South African Law Commission. Legal reform is essential for an impartial and vigorous legal order. This Law Commission has high aims, namely to carry out research to all branches of law in South Africa in order to make recommendations in respect of their development, improvement, modernization or reformation. When the legal history of South Africa is written, the contribution of the South African Law Commission will have to be outlined in red.

Lastly, the correct view of authority and freedom, and the correct approach to the Hoexter Commission’s recommendations, the independence of our courts, the Legal Aid Board and, inter alia, the SA Law Commission are all that factors contribute to the ongoing improvement of our legal system, so much so that other countries in the process of legal reform have recently to a large extent consulted the South African legal system for examples in the field of legal reform. This is why we can speak with pride today of our own South African legal system, which really is a beacon in Western civilization and legal history.

Mr Chairman, the hon member for Bloemfontein East has followed the hon member for Mossel Bay, the hon member Mr Schutte and others in attacking the speech made by the hon member for Sandton earlier this afternoon. However, the hon member for Sandton raised a number of very vital points of concern to the Department of Justice in South Africa. He also raised a question which is of considerable interest, namely the question of disparity of sentences coming particularly from the lower courts in South Africa. The fact that the Government is sensitive on this matter, is of no real importance to this debate. What they should realize from a factual point of view is that this disparity in sentences is a matter of considerable comment, both here and overseas, whenever the South African judicial system is looked at.

The hon member for Sandton was saying, in the most responsible manner, that the hon the Minister should take note of this fact, and he came forward with constructive suggestions in this regard. He said the matter needed the attention of the Minister and suggested certain things which the Minister could do to deal with the situation. It does focus criticism from overseas on South Africa and also causes considerable comment from within South Africa when disparity in sentences, such as those indicated by the hon member for Sandton, come to light and are published. I do not want to go further into this matter because there are a number of matters I want to raise with the hon the Minister this afternoon.

I want to join hon members on both sides of the House in talking about the functions of the SA Law Commission. The commission, as we know, has recently reported on two very important aspects, namely the law of succession and the question of women and sexual offences in South Africa. One will await, with interest, the Government’s response to the commission’s comments with regard to those matters and also the response from other interested parties in the legal system in South Africa.

In its twelfth report, the commission sets out what I believe is an interesting and far-reaching catalogue of matters which are receiving its attention. They cover a review of the law of evidence in South Africa, a review of the law of trusts, a project relating to risk as a ground for liability in delict, an investigation into the legal position of illegitimate children, an investigation into the advancement of the age of majority—and so one can go on, including the question of marriages and customary unions of Black persons, penal reform etc. These and the other projects referred to in the twelfth report cover a very wide variety of matters which are of vital concern to the society of South Africa as a whole. They are not merely matters of academic interest; they are matters which from day to day need to be investigated because they deal with the direct interests of our society. As events develop in South Africa, many of them are becoming urgent because of the needs of society in South Africa.

I need name only one of these and that is the question of marriages and customary unions of Black persons. We know that when the Matrimonial Property Act was dealt with last year, it was generally conceded at that time that this matter relating to the rights of Black women should receive very special attention. When one reads the commission’s report, it is pleasing to note that on the instructions of the Government—presumably this hon Minister’s—it is receiving priority attention. It is also apparently receiving—and one must applaud this—voluntary assistance from academics and other experts in this field around South Africa.

The commission reports that it has now appointed a formal committee to hear evidence and give these matters further priority this year. I think this question of the rights of Black women is a good example of the important work of the commission and also of the urgency of some of the work it has undertaken. When one looks at this particular example one realizes that some aspects of the need for change in the marital rights of Black women are, of course, already being anticipated by legislation which is before this House and standing committees at present.

You have received it already.

No, I am saying that in legislation before the House and the standing committees at the present, some aspects of the question of the rights of Black women are already being anticipated. This shows the urgency of the situation. That is the point I want to make.

We know that as a result of the initiative of the kwaZulu Assembly in doing away with the old Natal code, it is necessary for this Parliament to give attention to dealing with the rights relating to the matrimonial circumstances of Black women, at least in Natal. We know that there is a further amending Bill relating to the rights of Black women in respect of leasehold title.

I raise these matters, not merely to commend the commission for what it is doing but also to urge the hon the Minister to give as much priority as possible to taking steps to facilitate the function of the commission in the enormous task which it is undertaking. I hope the hon the Minister will recognize the need to do this. I know he has problems …

Are you talking to me?

Yes, I am talking to the hon the Minister, and I hope I can reinforce his hand in influencing his colleagues in the Cabinet to realize the vital work of this commission in regard to the whole legal system in South Africa. If the hon the Minister does not need convincing, I am just trying to strengthen his hand.

When one looks at the report one sees that the commission with commendable responsibility and restraint in dealing with its own administration and the resources which it has, says that it recognizes the need to use available funds with circumspection in the present economic climate. I want to ask the hon the Minister if he is satisfied with the staff situation as far as the commission is concerned in the light of the importance of the work which it is doing. When one reads the commission’s report, one finds a few disquieting references couched, as I said, in responsible terms. For example, on page 21, the commission talks about its functions and it says:

There is that reference to the withdrawal of a vital official. The hon the Minister may have had very good reason for doing so, but I want to indicate that if that is going to impede the commission, if that is the sort of thing that is going to impede the commission, this is to be regretted.

On page 15 the commission refers to the fact that when it comes to drafting amending legislation it has not even the facility of a legal draftsman to do this. This is clear from the commission’s own report on page 15. Again I raise the question with the hon the Minister: Is he satisfied that having regard to the importance of the work of the commission its staffing requirements are sufficient to carry on that work efficiently?

I want to touch on other matters relating to the aspects of the recommendation of the Hoexter Commission. This afternoon the hon the Minister dealt with small claims courts, and I welcome the statement that he made because I was going to ask him a number of questions relating to possible problems that were being experienced. The hon the Minister has indicated that most of these problems, as is common at the present time, relate to the lack of finance and money to back them up, but he has come forward with a report which indicates that despite these difficulties, the problems are being properly addressed. I think that is reassuring. I also think the public should know about the response which has come from the legal profession around South Africa generally to the prospect of small claims courts. We know that this has received very considerable approval from most quarters in South Africa. I think it is important to note the information given by the hon the Minister this afternoon as to the response from the legal profession in this regard. It would appear that there have been savings as a result of the voluntary contributions which are being made. The hon the Minister indicated that without these savings the cost might have been R2 million, whereas at the present time R125 000 is going to be made available for the pilot project. I think it is important that this should be noted. He has also indicated that the Consumer Council has intimated that 97% of those approached welcomed the arrival of the small claims courts. [Time expired.]

Mr Chairman, the hon member for Berea supported the hon member for Sandton in his allegations of disparities in certain sentences. However, I want to pose the question to the hon members for both Berea and Sandton whether these discrepancies are not more apparent than real. During this debate two years ago I pointed out that for the Press to be interested in certain matters, those matters must contain particular elements.

*Mr Chairman, frequently the subjective circumstances of accused persons are not reported properly by the Press. It is obvious that what this means is that to the layman certain penalties appear to be irreconcilable.

The hon member for Berea also devoted a great deal of his attention to the SA Law Commission. It was also striking how many other speakers referred to the SA Law Commission. I want to make so bold as to say that this is owing to the fact that, as was the case in the past, the SA Law Commission again supplied us with a very good annual report. One can congratulate them on that. We have also become accustomed to the very high standard of their work.

I think that all the members who served on the Select Committee on Matrimonial Property Law, will attest to the fact that we would not have been able to complete our work, or even do it, without the assistance of the reports of the SA Law Commission. This also applies to the people who dealt with the essential Admiralty Courts Act. We have also just received the report on the matter to which so many speakers have referred, namely Women and Sexual Offences in South Africa. But I do not want to refer to the various reports because I do not have the time.

I should like to single out one matter, namely the commission’s realization—and I think this is why their work is of such a high standard—that as a servant of the entire community the commission must not lose touch with the community; that its rulings must be related to reality; and that because legal reform is continuous, priorities must be determined correctly. In this respect finance is of utmost importance—and the hon member for Berea also asked questions about this. If I am interpreting the Appropriation correctly it would seem as if there is an increase of 54% in the funds being voted to the commission this year. I trust that this is generally welcomed.

It is also gratifying that methods are being used which give good results but which do not have additional financial implications. Let me mention a few. In the first place the SA Law Commission has the co-operation of the media. The report says that this has improved a great deal and that the media has been very helpful in bringing the work of the commission to the attention of the general public. The commission also has the co-operation of the law faculties of the universities and of other institutions, the Magistrates’ Association, the Afrikaanse Handelsinstituut and Assocom, for example.

During the year under review the commission’s researchers were involved in 25 seminars and simposia, 21 by universities, one held by the South African Institute of Patent Agents, one held by the Tygerberg Hospital, one held by the SA Institute of Public Administration as well as one held by the Association of Law Societies. This is interaction which can be very beneficial to legal reform of a very high standard and in many spheres. This ensures the creation of a better legal order, the increasing of legal certainty, the streamlining of procedures, the removal of anomalies, etc.

One of the limiting factors is possibly the non-availability of a legal data base making use of modern technology. I do not think that I am qualified to comment further on this and I doubt whether any institution is in fact properly qualified to comment on this at this stage. This is directly linked to costs. The question can be asked how many people would make use of that service and what they would be prepared to pay, in other words, how much of the costs could be recovered. I want to suggest that this matter justifies continuous investigation and when the time is right, serious consideration must be given to taking such a step and harnessing the technology in the interests of the judicature.

Last year in this debate the hon the Minister announced the appointment of the Implementation Committee regarding the Separation of the Judicial and Administrative Functions of the Magistrate’s Courts. We were very glad to receive that report. Of course the Hoexter Report recommends the ideal, namely that the judicial officer should be relieved of his administrative duties. The existence of 264 magisterial districts, 308 magistrate’s offices, 41 detached offices, 32 branch and 245 periodic courts, serve as proof that we enjoy the benefit of decentralized administration of justice. This is a very great advantage and must be maintained as ideal. Consequently it is quite clear to me that a certain degree of compromise will have to be made between the two ideals. I do not think that they are necessarily conflicting. In many offices, even decentralized offices, the workload is such that the judicial officer can be relieved of administrative functions, but in other offices the appointment of additional staff is not justified. However, if we allow this to hinder decentralisation of a legal presence, it would be a retrogressive step. The commission puts this very well in its report where it says:

I believe that the commission put forward very practical solutions. In the Hoexter Report the idealism is tempered by a certain degree of realism and I trust that the hon the Minister will give us more information on this.

The creation of the position of office manager affords opportunities for specialization which will lead to the better utilization and application of the available manpower and will also create other occupational opportunities. The position of office manager need not be an inferior career. I want to suggest that this commission should be congratulated on the very thorough investigation which they undertook and the report which they published.

Mr Chairman, it gives me great pleasure to follow the hon member for Nelspruit. I want to thank him for the very useful contribution he made here today. It bears witness to far more insight than the hon member for Sandton displayed.

I paid tribute to the hon the Minister and his department on a previous occasion for the legal reform that has taken place under their leadership.

The present parliamentary session has produced further evidence of revitalizing legislation after a critical evaluation of the state of affairs by knowledgeable people. Of course, those who make their specialized knowledge and particular abilities available to the law in our country also deserve our appreciation. All the reports that have been tabled—and there are several of them—prove that a particularly in-depth and thorough study was done by those responsible for them, a study that certainly covered a wide field. It is clear that all the available facts were carefully considered and that carefully considered recommendations were submitted to the department and the hon the Minister.

All these studies and reforms would, however, be meaningless if the department did not have at its disposal a knowledgeable work force to interpret and implement the law correctly. That is why it is encouraging to note in the department’s annual report that functional and academic legal training is being provided for officials in the magistrates’ courts division. Just as this department serves other departments, so the legal training branch serves the officials of other departments as far as training is concerned. I am referring, for example, to the fact that courses are offered to the staff of the deeds offices. We are told that during the previous year second-year students achieved a pass rate of 100%. Only 1 student enrolled.

The position was somewhat better during the year under review, though. There were six second-year students. Even more students enrolled for the Iuris Diploma course, and also for the B Iuris course. It is pleasing to note that training is being given to people who, for one reason or another—usually financial—cannot attend a university full time.

The training the department provides for interpreters is of the greatest importance. One realizes that in South Africa considerable numbers of Blacks are not proficient in either of the country’s two official languages and therefore, if qualified interpreters are not made available to them, justice and right cannot be properly applied.

I now want to make an appeal. I want to ask that consideration be given to the inclusion of a Black language as a compulsory subject in the B Iuris degree and Iuris Diploma courses. I want to suggest furthermore that a Black language be a compulsory subject for bursary-holders for the degree of B Iuris. In my opinion it would be a great help to all judicial officers if they had such knowledge at their disposal and it would also contribute to the respect the magistrates’ courts command in the eyes of Black litigants.

I notice that the term “excessive cost of litigation” is used in the Hoexter Report on the Structure and Functioning of the Courts. I wonder whether it would not be more correct to talk of the high cost of litigation. When one compares the cost of litigation with the costs of other professional services, one realizes that professional services are simply not obtainable cheaply. It is therefore fortunate indeed that such a thing as legal aid exists, otherwise access to the courts would be available to only a very small group of privileged people. It should be clear, however, that the means test applicable at present for the granting of legal aid is too strict under the present circumstances and that access to the court can still be denied to a large number of people. I therefore welcome the proposal that legal clinics be established and officially recognized. I also support the idea that law students serve at such clinics in their final year of study and that such service receive recognition for study purposes.

Furthermore, I want to suggest that consideration also be given, in more or less the same way as in the medical profession, to assigning practising attorneys and advocates spells of duty at such clinics on a session basis so that they can give guidance to students because of their greater experience.

Of course, both of my proposals involve additional expenditure which will not necessarily be recoverable by the awarding of costs. Members of the standing committee, however, as a result of the enquiries by the hon member for Sandton—and I am happy to associate myself with those enquiries, although not with his party—discovered a possible source of finance. The Fidelity Guarantee Fund is now showing extraordinarily high growth as a result of the banks’ decision to pay interest on credit balances. If I remember correctly the fund’s income has more than doubled since then, and the income during the first year in which the new arrangement applied already amounts to R7 million, while the assets of the fund at present exceed R43 million. I want to ask that consideration be given to this fund’s making a contribution towards the provision of legal aid.

Mr Chairman, the hon member for Port Elizabeth North made a few valid points about legal aid and legal aid clinics and later in my speech I should also like to briefly touch on a few points in this regard.

Fristly, I would like to come back to the speech of the hon member for Mossel Bay. He criticized my colleague the hon member for Sandton’s speech sharply and then went on to speak about the administration of justice in general in South Africa. Quite rightly he commended it and contended that our administration of justice stands out as a symbol of hope. I agree with that. He went further and gave reasons why our courts enjoy such high standing. The first reason he mentioned was the independence of our courts. With regard to the Supreme Court the hon member is correct, because our Supreme Court is independent of the Executive, gives independent verdicts and is not seen as part of the Executive or the Public Service. This is one of the reasons why the Supreme Court of South Africa enjoys such high standing.

†However, the hon member for Mossel Bay knows that as far as independence is concerned, that is not the case with the lower courts. We all admit that magistrates in the lower courts do magnificent work. Their integrity is not in question but they are not independent from the executive arm of the State. They are not perceived to be independent and they are in fact not independent. That is something the Hoexter Commission investigated.

What is the factual position? Let us look at what the Hoexter Commission finds as a fact on page 56 of its report. I quote:

The Commission finds as a fact that they perform executive functions and that they are part of the executive organ of the State. It is interesting to see what the Government’s reponse was to this finding last year. The hon the Minister last year in the debate on his vote said (Hansard, column 948, 17 May 1984):

He says directly the contrary to what is stated in the report of the Hoexter Commission. He went on to say:

Nonsense, I say. The Hoexter report states exactly the opposite. The Hoexter report says that magistrates in the lower courts are part of the executive organ of the State. The Minister continued:

The question is whether the hon the Minister accepts that magistrates in the lower courts are in fact part of the executive organ of the State. If he does not, it does not help to try to find a solution to that problem along the lines of the Hoexter Commission. When one looks at what the commission recommends, one finds the following on page 41 of its report:

The Commission recommends—

The hon the Minister has responded to this with a very good report and the department is already in the process of trying to implement this recommendation of separating judicial and administrative functions. They ought to be congratulated.

Mr Chairman, may I ask the hon member whether he has taken cognizance of the fact that I also said in the debate that the way the lower courts should be made independent was not necessarily the way recommended by Hoexter because there were also other ways and means of doing it?

But you are now taking his time.

Is the hon member aware of the fact that I said that the question of separating the legal work from the administrative work was the only point of departure? Will he admit that?

I shall deal with that.

The commission also recommended that after the separation of judicial and administrative functions had been achieved, the judicial officers in the lower courts should be made independent of the Public Service. I should like to ask the hon the Minister how he is going to react to this recommendation. Is he going to make the magistrates in the lower courts independent of the Public Service one way or the other? I do not really mind what method he uses, but I ask him whether it is the intention of the Government to accept this recommendation and whether they are going to comply with it.

When one looks at the report which was handed to me yesterday and which contains the Government’s response to these recommendations, one gains the impression that the Government intends separating the magistrates from the Public Service but that, as a first step, the Government wants to separate the judicial from the administrative functions. I ask the hon the Minister please to give us clarity: Are the magistrates going to be removed from the Public Service as recommended by the Hoexter Commission?

Why is it necessary to remove the judicial officers in the lower courts from the executive organ of the State? If one looks at page 57 of the report of the Hoexter Commission, one finds one of the many reasons:

The commission then refers to various examples and mentions, for example, the Internal Security Act.

Magistrates are tainted by the work which they do for the executive arm, and I want to give just one example. In terms of section 46 of the Internal Security Act—this section deals with the banning of funerals—the order is signed by the magistrate of the district concerned. We know that in most of the unrest areas in our country there have been incidents where magistrates have had to sign such an order. When he signs such an order, he is immediately tainted by those who are affected as an arm of the State with political and security connotations. That is why the magistrates must be separated from the Public Service in order to have independence from the executive arm perceivably.

I want to refer briefly to legal aid because that is also dealt with in the report of the Hoexter Commission. I believe it is not sufficient merely to increase the budget; one also needs to recognize the problem of the standing of the Legal Aid Board. On page 22 of its report the Hoexter Commission recognizes that the composition of the board must be perceived to be independent of the State. It must consist mainly of individuals from the legal profession and must not be dominated by public servants.

The statistics of the Legal Aid Board are disturbing in the sense that they show that the poorest section of the population makes the least use of the facilities. When one compared the figures of the previous year with those of the present year in so far as applications for criminal cases are concerned, one finds that among Coloureds and Asians there is an increase of 74%; among Whites, 55%; and among the Blacks, only 43%. There is something inherently wrong with the Legal Aid Board and its approach.

There is obviously a lot of ignorance about it too. I would suggest that the department should take the initiative to organize a national conference on legal aid which would draw in all the legal aid clinics, all the bodies that do provide some form of legal aid, and also, obviously, the department and the Legal Aid Board itself, in order to try to work out a national legal aid scheme or process whereby legal aid can be dealt with in a more co-ordinated way in South Africa. The problem areas should be identified so that the concept of due process can be made more of a reality than it is at present.

Order! I regret the hon member’s time has expired.

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

Sir, I should like to deal with one further point and that relates to the Matrimonial Property Act that was passed last year. The latest statistics show that very few people have made use of the new provisions of that Act. The position is that as at 29 April 1985 only 94 couples who were married in community of property had contracted to abolish the marital power of the husband over the wife and only 264 couples had made the accrual system applicable to their marriages. If one tries to find the reason for this, it seems as though there are a number of reasons, one being that married couples appear to be quite satisfied with the previous system. It is quite clear that there is tremendous ignorance and lack of knowledge about the details of the Act and the advantages it provides for married couples. It is not clear to me whether the legal profession has done enough to inform the public about the benefits of this Act. Perhaps the hon the Minister would also inform the public about these benefits through the department. I think he could perhaps also approach the legal profession to see whether the profession as such cannot do more to inform their clients and the public at large about these benefits. It seems to be so wrong for this Parliament to have passed such a positive measure after so many years and for that measure then, as it appears, not to be made use of by members of the public to the extent one expected.

Mr Chairman, the hon member for Durban Central will forgive me if I do not react to his speech, because I want to single out a few other points which do not link up with the speech he made.

With effect from 1 September 1984 the judicial functions, the application of the related statutory provisions, the legal bodies and the relevant staff of the Department of Co-operation and Development were transferred to the Department of Justice. This transfer was preceded by a thorough investigation by a project team consisting of officials from the two departments involved as well as the Commission for Administration.

†In total 19 functions were identified as judicial functions and the related administrative tasks were taken over by the Department of Justice. The department made officials available for secondment to the justice components of the national states and provided legal training for the staff of these components. The inspection services in the national states and the related organizations and establishment investigations in the Departments of Justice and magistrates’ offices of the national states were also taken over by the Department of Justice. An additional 567 posts of which 274 were for magistrates and public prosecutors, were created. Legal staff for 89 posts in the national states and the former national states were provided by the Department of Justice. In the transfer of the judicial functions 91 magistrates’ offices were affected and 570 officers of the Department of Co-operation and Development were transferred to the Department of Justice.

*The fact that this task was completed within such a short time and the change-over took place so smoothly and with so little disruption, attested to the competence, co-operation and dedication of the staff of these departments. We should also like to have our thanks to them placed on record. It is already clear that this was sound development which has given the desired results in practice.

I want to draw the Committee’s attention briefly to a few matters which in my opinion must receive further attention. The first matter I want to raise concerns maintenance payable by Blacks. Both the investigation into an the determination of the amount of the maintenance, as well as prosecution for non-payment, are now handled by the magistrate’s office. But maintenance as such is still paid out at the commissioner’s offices.

Although most problems in this connection have been eliminated, there are still possible procedural law difficulties when a person is charged with non-payment of maintenance. Because payment takes place at the office of another body, the non-payment must first be proved by way of a sworn affidavit from the commissioner. If it is contested, the relevant parties must give evidence, and this could give rise to delays. I therefore want to ask that consideration be given to having maintenance paid out at the magistrate’s office too, as is the position for other population groups. It goes without saying that this will give rise to far more administrative duties, and the necessary facilities and staff must be made available for this. If there is then a prosecution, the information is immediately on hand at the relevant office and this could contribute to cases being finalised more efficiently.

A second matter I should like to refer to concerns the application of indigenous Black law in civil cases. Although this law no longer applies to a large part of the Black population, particularly the urban Black population, it is still the applicable law for a large part of the Black population. Today provision is consequently still made for the presiding officer to be able to determine in his discretion which legal system he will apply. In the course of this debate one of my colleagues will elaborate on this matter further.

I merely want to ask that when the appeal and divorce courts for Black people are abolished and are incorporated in the Supreme Court and the Family Court, respectively, the officials of these courts, who have built up a great deal of expertise in the field of indigenous Black law, will still be available to the courts, possibly in an advisory or assessorial capacity. This is a highly specialized field which is made even more difficult by ethnic and even regional differences. It is essential that this knowledge remain at the disposal of the courts.

Problems which crop up in practice, for example, are that civil law content are given to the concepts and systems of indigenous law. As regards bequests, for example indigenous Black law recognises the system that the oldest son inherits the entire estate from his father, but in addition to this he also inherits the accompanying and equally important obligation to take care of the rest of the family. By linking the absolute content of property rights, to the exclusion of any obligation in terms of the civil rights, to this system, one has the untenable position that the heir takes everything as his sole possession and deals with it to the exclusion of his duty to support the rest of his family.

It also happens that Black litigants resort to indigenous law when it suites them, rather than that it really applies to them. A case one can mention here is where, in a effort to avoid paying maintenance, a person offers to pay the necessary fine in terms of Black law in exchange for the child—this is the so-called isondhlu head of cattle—and then need not pay any further maintenance. Obviously this is frequently to the disadvantage of the child. If the expert officials of the appeal and divorce courts could possible be made available to the Supreme Court and the magistrate’s courts on a regional basis, this could make a big contribution in this field.

A final matter I want to touch on concerns the application of influx control measures. In this regard it is gratifying to see that the percentage of the total prison population of transgressors of this measure dropped from 7,09% on 15 March 1984 to 2,79% on 15 March 1985. This figure is a reflection of the number of cases appearing in court. It is also very clear that these legal proceedings fitted in very efficiently with the ordinary proceedings of the magistrate’s courts. It is generally accepted that there has been a great improvement in the position. Even an organisation like the Black Sash has praised the magistrate’s courts in this connection in an article which appeared in The Cape Times, in November last year.

A problem which has cropped up in this respect, concerns the position of prohibited or illegal Black immigrants. I want to make it clear that I am in no way advocating a tightening of influx control; on the contrary, the new measures which have brought about an easing of the position, are to be welcomed. As a matter of fact I want to go further and state that these measures will also have to be reconsidered, so that freedom of movement will be granted to all people at all levels, while the control measures should rather be aimed directly at orderly urbanizations as such.

But what has happened is that the aid centers of the development boards which helped people who were prosecuted in terms of influx control measures have been disbanded. The registers and expertise of these centers are therefore no longer available to the courts. This has led to Black people who are in actual fact illegal immigrants, not being charged with this offence, but being treated the same as ordinary influx control offenders. They are then charged with not carrying a passbook or being present in a particular area for longer than 72 hours, for example. There is no mechanism in terms of which their actual place of origin can be readily determined.

I am requesting that an urgent investigation be launched into the introduction of an effective administrative process, through which the courts can be helped to take effective action in respect of illegal Black immigrants as well. In this respect I am definitely not referring to people from the national states but to people who enter the country from the foreign states around us. These people must be treated on an equal basis—as is the case with every other illegal immigrant. The large numbers involved here may create a problem. But the necessary mechanisms simply must be created so that stringent steps can be taken against illegal immigration.

Mr Chairman, I take pleasure in speaking after the hon member for East London City. He raised matters of topical importance which certainly deserve attention. In the five minutes at my disposal I should very briefly like to touch upon two matters. The one matter deals directly with my constituency, and the other matter with the situation in prisons in general.

In a town or community such as Randfontein, where one does not have a concentration of Government departments, the only real display window of the State is the magistrate’s office. It is unfortunately a fact that the magistrate’s office in Randfontein is in a dilapidated condition. There is no other way I can describe it; it is really in a dilapidated condition. The image which the State therefore conveys to the outside world, is everything but desirable. I do not wish to take up the time of this Committee by going into the condition of this building in detail, but I trust that the hon the Minister will take my word for it. Apart from the fact that the construction of the building is in a dilapidated condition, the building cannot accommodate the facilities which center around a magistrate’s court as such. At present the sittings of the regional court have to be accommodated elsewhere. This for example places an unfair burden on the clerk of the regional court, who has to keep on shuttling between various premises. It is also a fact that the courtrooms themselves are of such a nature that prisoners who have to be taken from the cells to other courtrooms are all required to pass through one courtroom while the court is in session. The facilities in regard to cells, therefore, are also totally inadequate.

It is also a fact that the law dispensing functions previously dealt with by the commissioner’s courts, which now have to be dealt with by the magistrate’s courts, cause such a situation there that it is entirely impossible to accommodate all these activities. I really want to ask whether serious attention cannot be given to this situation.

There is one last aspect in regard to which all I really want to do is merely ask a question. It is a matter which has been troubling me for a considerable time, and I would appreciate it if the hon the Minister could reassure me on this specific matter. It is in connection with possible conditions in a prison cell. A few year ago I saw a film entitled Brubaker, and a film is going to be shown in South Africa under the title Beyond the Walls. In Brubaker a situation was depicted which I found disturbing, namely that enforced homosexuality is a commonplace occurrence owing to a specific structure which develops in a prison. I do not wish to refer to the other related matters, but this a matter which I am personally concerned about, and I should like to ask what the situation in South African prisons is. If this kind of thing occurs, I want to know what is being done in order to try to prevent it. I trust that I will receive a reply to this last question and that the hon the Minister will truly give very serious consideration to the question of a new magistrate’s court or office or building in Randfontein.

Mr Chairman, the hon member for Randfontein will pardon me if I do not follow up on what he had to say here. I share his concern about the things which sometimes occur in prisons, but perhaps he will know that it is a problem which has been receiving attention for a very long time and which is very difficult to resolve.

I should like to draw the attention of this House to section 49(2) of the Criminal Procedure Act of 1977, which deals with what is described as justifiable homicide. Chapter 5 of this Act deals with the whole question of the arrest of persons who are suspected of having committed offences. Now, first of all, I specifically want to quote section 49(1). This deals specifically with the question of the use of force in regard to an arrest. It reads as follows:

1. (a) resists the attempt and cannot be arrested without the use of force; or
2. (b) flees when it is clear that an attempt to arrest him is being made, or resists such attempt and flees,

It seems to me as though this subsection makes ample provision for the use of force in order to arrest a suspect. If judicious use is made of the powers granted by this section, one will readily find oneself acting within the limits of meaningful application of the law. The actions of police officers or other persons will then be justifiable, measured against normal civilized standards. I just want to mention this qualification in respect of section 49(1), namely that it should perhaps be borne in mind that a life ought not to be taken, unless this is absolutely unavoidable.

My objection, however, is more concerned with the definition in section 49(2). This section reads:

It is clearly stated, therefore, that under certain circumstances, which are defined here, a person may be killed by a police officer, or to a lesser extent perhaps by Prison Service officers, or in certain cases by private individuals, in order to prevent such a person from fleeing.

There is a reference here to Schedule 1 of the Criminal Procedure Act, in which a list of certain offences appears, which are relevant to this subsection. If a person is suspected of any of these offences and an attempt is made to arrest him, he may, in an emergency, be killed if he cannot otherwise be arrested. I want to say at once that I consider it to be unfortunate that such a reference should exist in the first place, because the impression is created that, just as certain penalties are prescribed for certain offences, which is normal and correct, there is also a list of offences in respect of which it may be accepted that it may be justifiable that a person may take another person’s life if he experiences problems in arresting that person. I say that this is an impression which is being created, and I think it is perhaps an unfortunate impression.

This provision is relevant not only to policemen, but also to ordinary members of the public and other departmental officials who have the right of arrest. If we look at some of the offences in Schedule 1, we see that certain serious offences are mentioned, such as high treason, murder, culpable homicide, rape and so on. However, offences are also mentioned which in this specific context are considered to be less serious—and I am saying this with circumspection—offences which I should like to consider in this context to be less serious offences if they have nothing to do with violence. Consequently we are not referring here to a person who is prima facie a violent person, but to people who have for example committed theft or fraud, perhaps offences relating to forgery or uttering, offences relating to the coinage, and so on …

What about morphine pedlars?

Yes, it is interesting that the hon member should mention that now. Perhaps he knows something about what is stated here that I do not know. He should perhaps read what is stated in Schedule 1.

I just want to make the point that it therefore means that a person who steals a small item in a supermarket or elsewhere, who is caught red-handed and tries to flee—which is a natural reaction—can, in an emergency, be killed in order to prevent his fleeing.

That is a very unfortunate state of affairs. I do not think that such a statutory provision should appear on the Statute Book of a civilized country. As far as I am concerned, these provisions have nothing to do with the right of self-defence—the right which a policeman or any individual ought to have to defend himself against being injured or killed, or even to indemnify himself against material loss if property of his might be damaged. In such a case common law makes provision for that in an absolutely clear way. Here, however, we are dealing with an authorization which, over and above that right of self-defence, is being given to a person to take the life of another.

What is the scope of this section? According to the reply to a question of ours, 98 people were killed in 1984 in terms of this provision. We are not therefore talking about a small number of people. This is a considerable number of people. This is roughly the same number as the number of people who are executed in South Africa in one year. Consequently, if one compares those two figures, one concludes that we are referring here to material numbers. We know that in certain cases it led to contraventions. I am thinking of the unfortunate Duvenhage case of two years ago. Of course the person concerned was in fact charged and found guilty. Nevertheless I wish to argue that the mere existence of such a statutory section gives rise to people committing such errors.

I therefore want to ask the hon the Minister, in all earnest, to give his attention to the wording and the existence of this section, in order to see whether a drastic amendment of this section and its definition should not be effected, so as to bring it closer to what I really believe civilized standards ought to be.

Mr Chairman, the hon member for Green Point raised a particularly interesting subject here today. I listened to him carefully and want to say that there are aspects of his argument with which I am in agreement. I think that certain of the proposals the hon member made can very profitably be considered. I do, however, think that the hon the Minister and the directorate will, to a greater degree, have background knowledge of the deep-lying historic aspects of this specific section. We can therefore ascertain from them why this is indeed the case. I shall not reply to this in any further detail, however, because my time is relatively limited.

To start with, I want to express my appreciation to the hon the Minister for his comprehensive and patient liaison with hon members who are interested in this particular Vote. We want to thank him for his continual accessibility. We also want to express our thanks to the Director General, Advocate Van der Merwe. It is always a privilege to work with Advocate Van der Merwe. We also sincerely thank General Willemse and his staff for the assistance they granted us and for the privilege of recently being able to pay a visit to certain prisons. We thank him for the special effort they made. Our special thanks, too, to the Ministerial and Parliamentary Services Division for the selfless assistance granted.

Sir, I feel I want to agree with the hon member for Sandton about his criticism in regard to the annual report. I think this would have been a more meaningful debate of one could have referred to more up-to-date figures. The figures I am going to refer to are already outdated and there are certain aspects in regard to which there have already been changes and improvements. We could therefore be expressing unfair criticism of the relevant directorates in this respect.

According to the report there is an increase in the financing of the directorate, the amount being approximately 32,98%; this means an increase of R101 million to R135 million. Staff expenditure comprised approximately 80% of the total budget. The economic slump in the country, however, and the price and tariff increases on a wide front, have largely absorbed this increase in funds. The work and the service of this directorate may not be scaled down. Nor may it, in any respect, be neglected. The maintenance of law and of justice within a state by a civilized, impartial legal system, which subscribes to the best of traditions, is an absolutely minimum requirement for the preservation of confidence and stability.

We are grateful for the efforts already made to maintain these fine ideals and standards. We are, however, still concerned about staff shortages in, amongst other things, the Registrar’s section where there is a 47% shortage in clerical posts. The time of professional officers is wasted if there is a shortage of administrative staff, and that is really just not good enough. There are still too many public prosecutors, too, without the minimum qualifications. Those who prosecute should not, in any case, have merely minimum qualifications. Serious consideration should again be given to granting bursaries for LLB-studies and a great deal more should be done to retain legally qualified people in the Department.

According to the directorate’s report there is a need, amongst other things, for the creation of the following posts: Magistrates, 62; public prosecutors and advocates, 85 and court interpreters, 48. There is a need for at least 32 regional courts, with only approximately 15 being made provision for as a result of a shortage of funds. This results in long delay periods. On page 28 of the report it is indicated that cases have to be postponed for up to 19 weeks. This leads to an escalation of costs as far as clients are concerned, and many magistrates insist on the appearance of a legal representative, in spite of the fact that a case is merely being postponed. Witnesses also have to appear in court repeatedly, and this also wastes time and manpower, costs money and makes people reluctant to come to court and uphold their rights. In the Hoexter Report this problem was examined, amongst other things, with certain recommendations being made. It is worthy of note, however, that there are still many vacancies, particularly in the professional division. On page 36 of the report we see that this is still on the increase. The numbers of students taking the various legal courses, as indicated on pages 38 and 39 of the report, are generally declining, and this is also disturbing. There are still too many resignations. On page 36 of the report it is indicated that vacancies in the professional division increased from 53 in 1982-83 to 105 in 1983-84. The commencement of the civil jurisdiction of regional courts has also been deferred, again as a result of a shortage of funds and manpower. These are serious matters that ought to be given attention. I think that as soon as the necessary funds are available, the hon the Minister will be giving the matter serious attention.

The directorate must accept that as soon as there is a resurgence in the economy they will again be relinquishing staff to the private sector. Then the shortage will be even worse than it is at present. The directorate must endeavour to retain officials who have established positions in relevant departments, to build up an experienced staff and to ensure that when legal representatives appear in the numerous court cases, there are prosecutors who are properly able to oppose them. When there are no properly qualified individuals available to oppose such highly qualified advocates, this could lead, at times, to disrespect for the legal system. According to the composition of the population in South Africa, Brown and Black people should, in greater numbers, enter the employ of the Directorates of Justice and Prisons. At present the composition in the relevant directorates, particularly Justice, is unbalanced, in spite of this government’s policy. In the memorandum of the hon the Minister in his comment on the report, we find the following on page 39:

It is worth noting—I have requested information in this regard from the directorate—that at present there are only two Black people in the directorate who are legally qualified. The Black legal men normally ask for a transfer to the independent Black states. We are also expected to grant assistance to these independent Black states, and we therefore do not like to compete with them as far as legal men are concerned. It is therefore not as a result of government policy that the appointments are not made to such posts.

As far as Coloureds are concerned, there is one person with legal qualifications at present acting as a magistrate. There are also five Indians. There are 19 Coloureds and 16 Indians acting as prosecutors.

In conclusion I want to tell the hon the Minister, like my colleague the hon member for Randfontein, that we hope and trust that the plan to call for tenders for a magistrates’ court in Roodepoort in December will be adhered to. Roodepoort does very badly need this.

Mr Chairman, to start off with I want to deal with a very sensitive matter relating to a report tabled today. It is the report of the Commission of Inquiry into the Appearance of Advocates in the Supreme Court of South Africa. This commission was appointed on 31 May 1984 to investigate, and report on, the circumstances under which a certain Sebastiaan de Jager professed to be a practising advocate in the Supreme Court of South Africa.

According to the commission’s report Mr De Jager had never been allowed by any court to practise as an advocate of the Supreme Court. As Jacobus Willem Pienaar Mr De Jager did, in fact, appear as a pro Deo advocate for 10 accused in the Orange Free State Provincial Division of the Supreme Court. Of these 10 accused, four were found not guilty and released. The remaining six were found guilty and sentenced.

In 1983 and 1984 he also appeared in the Transvaal Provincial Division of the Supreme Court, under the same name, as pro Deo advocate for 11 accused. Of these accused, four were found not guilty and released. The remaining seven were found guilty and sentenced. The sentence of one of those sentenced to death, a certain Johannes Buti Mokoena, has already been carried out.

The commission regarded it as undesirable to express any opinion about whether justice was done in the case of Mokoena. The commission did indicate that it would report on this question after any appeal is lodged by the co-accused, a certain Motloung, and any legal steps, which might result, are concluded. Motloung wants to appeal, and in due course the Appeal Court will have to decide this issue. If necessary, the Smuts Commission will report on his case at a later stage.

What have we done about this? We have meanwhile received the report, and as a result of the commission’s recommendations in paragraph 7 of its first report, pro Deo advocates have been appointed to notify each of the above-mentioned sentenced offenders of the irregularities which took place during the court proceedings with a view to making a special entry to appeal. Copies of the case records were also made available.

Of the 12 convicted offenders, five indicated that they wanted to appeal, four were satisfied with the court proceedings in which Mr De Jager was involved, two cannot be traced, whilst the decision of a further convicted offender will be made known in due course. Other than that, effect has been given to all the recommendations.

I should like to thank the chairman of the commission, the hon Justice F S Smuts, for the tremendous task he took upon himself. I should also like to thank Adv I W B de Villiers and Adv G A Hattingh, chairmen of the relevant bar councils, and also all the other advocates who quickly came forward to grant assistance when they were approached. Their conduct again confirmed the high premium they place on having justice done.

In his supplementary report to the first report, the commission states that Mr De Jager testified before the commission and that it confirmed the findings in regard to Mr De Jager’s activities.

I have already decided that the State will bear all the costs in order to ensure that justice is done. The first supplementary report is being tabled in parliament today, and it will also be made available to the relevant advocates for use in furthering the appeal applications. A few days ago the chairman of the commission meanwhile handed me the second report. The findings and recommendations contained in that report will be studied by the Government. This report deals with paragraphs (b) and (d) of the commission’s terms of reference. It contains relevant recommendations and relates to the admission and identification of advocates.

This brings me to a matter that was broached earlier this afternoon in the debate. I want to link up with the announcement I made, in connection with the government’s approach to the Transvaal Provincial Division, in which I indicated that we had decided that two Deputy Judges-President should be appointed in that division. I said that we would make announcements in this connection at a later stage. In the meantime the State President has confirmed the appointment of Judge-President Boshoff to the Appellate Division of the Supreme Court of South Africa, this being with effect from 16 June 1985. Judge-President Boshoff of the Transvaal had a long period of service as an ordinary judge, and subsequently as Judge-President of that division. As a legal man he is highly regarded and greatly esteemed by his colleagues on the Bench. During the period he distinguished himself, in particular, as an administrator with outstanding abilities, particularly when viewed in the light of the fact that he administered a very large division. The State President furthermore approved, and has already confirmed, Mr Justice Henry Moll of the Transvaal Provincial Division’s replacement of Judge-President Boshoff from the same date, ie 16 June 1985, in the post he previously occupied.

This brings me to the hon member for Sandton. The hon members for Mossel Bay and Bloemfontein East and other hon members reacted to the principles adopted in his speech. The hon member for Sandton, however, did not learn his lesson after Prof Dugard, apparently one of the hon member’s spiritual allies, said earlier this year in a seminar, inter alia:

Mr Justice Coetzee of the Transvaal Provincial Division, however, asked him on the same occasion to say on what basis he made that statement. Prof Dugard intimated that he was referring to instances which had occurred prior to 1970. Mr Justice Coetzee replied to that by saying that in the 17 years in which he had had knowledge of the Bench, he had not encountered any such discrimination. Sir, that included all aspects. On the same occasion Mr Justice Goldstone said:

Now, in 1985, the hon member for Sandton is dragging South Africa’s name through the mud. [Interjections.] The matter has two sides, because sentencing is a very difficult and complex task. Just to indicate how complex it is, I want to quote what Nicholas said in his book Crime and Punishment in South Africa:

It must, of course, also be applicable to a magistrate’s judgment. That goes without saying. I see the hon member indicating that I am right.

The matter does, however, have two sides. Let us look at the other side of the coin. In the 1977 Scheepers case a magistrate sentenced a livestock speculator to 12 months imprisonment for having stolen a single head of cattle from a Black man. The reasons he advanced were that he regarded a White man stealing from a Black man to be an aggravating factor. The man appealed to the Transvaal Provincial Division, but the appeal was set aside. He then had recourse to the Appeal Court, and there Judge of Appeal Viljoen, one of the leading lights in regard to the meting out of punishment in South Africa, heard the case.

†He conceded that the fact that the accused was a White and had stolen an ox from a Black, was an extremely reprehensible act. However, he said:

Where will one ever find a clearer directive that there should not be any discrimination? The magistrate who erred …

I have no argument with that judgment.

He had no argument. [Interjections.]

*We take it one step further. In his speech the hon member for Sandton also referred to the case of the parking meters. I took the initiative in this case and asked Judge President Boshoff to have a look at it. [Interjections.] He thoroughly checked the records of all three cases. He then came to the conclusion that these cases were tried strictly in accordance with the legal rules of this country and could therefore not be reviewed. In the case of the White who used the ring from a soft-drink can, the parking meter had not been activated. Consequently he could only be charged in terms of a by-law of the relevant local authority, which carried a maximum penalty of R50. The Black man, however, was charged with a completed act of fraud, because he had activated the mechanism. He was charged and fined R200. That is what the hon member is going on about. [Interjections.] In the Transvaler of 27 April 1985 a brief report appeared under this heading: “Man swaar gestraf vir gordynringgeld”. According to the report a White man, Carlos Vierra, used three curtain rings in a parking meter. He received a fine of R300 or 3 months’ imprisonment.

Now that is rubbish!

The hon member did do it, because here is …

I raised it because I noticed that you had not even bothered to reply to my letter on the subject.

Order!

The fact is that the hon member would have raised it in the House, and I knew he would because other hon members had dealt with my query.

If you had I would probably not have brought it up.

Other hon members also did.

It is your fault.

Because the hon member erred?

I have not erred. You have been incompetent and inefficient … [Interjections.]

Order!

The point is that we should not place ourselves in the position of an appeal court or a higher court of review merely because newspaper reports give us the impression that there is some disparity. [Interjections.] I have no fault to find with the hon member about that. All I want to point out to the hon member is that there are various sides to this matter, and what has indeed happened here is that the hon member, by implication, has acknowledged as much. He presented the case from a completely unnecessary angle.

I shall come back to the hon member at a later stage, but I just want to deal with another matter of particular importance.

There are at least seven questions you have not replied to yet.

I shall be coming to them.

*The hon member referred to the question of outdated statistics. The hon member knows, however, that he can place a question on the Order Paper at any time and that we would give him the latest statistics. I myself am unhappy about the fact that our annual report is discussed virtually a year late, because this could create a wrong impression. I shall definitely be regarding the point the hon member raised in a positive light.

Now I come to the case of Oscar Mpetha. He lost his appeal on 29 May 1985. The clerk of the court immediately issued a warrant for his arrest, but before this warrant could be executed, he was admitted to Groote Schuur Hospital on 3 June 1985 for kidney tests. We understand that he probably also has other problems. In the light of his illness the responsible functionaries have not, at this stage, yet issued the warrant, and on the basis of the hon member’s representations we shall be looking into the matter. The hon member will concede, however, that I am right in saying that the crime of which has was found guilty would definitely have been regarded as a serious crime if he had been a younger man. His age, however, does not detract from the seriousness of the crime, and I shall also have to view the matter in that light.

May I ask the hon the Minister whether he will give us the assurance that he will take into account the statement made by Mr Justice Deneys Williamson when the sentence was first handed down and, secondly, the statement made by all the judges, both the majority and the minority decisions of the Appeal Court, when they reluctantly confirmed the sentence. They all appealed to the administration to ameliorate that sentence, and I am asking the hon the Minister to take that into account.

When questions of pardon or reprieve are considered by the Department of Prisons or by the State President, all relevant factors such as asides from the Bench and directives from the Bench are taken into account as a general rule. Of course the severity of the sentence and the seriousness of the crime must of necessity also be taken into account.

Of course. But there is a minimum sentence which is mandatory.

I think we have now satisfactorily dealt with the question of sentences, except to tell the hon member that he is correct in saying that we must continually keep up to date in regard to our need for a correct system of sentencing. That is why the Rabie Commission recommended that minimum sentences, as far as security legislation is concerned, be abolished. The Government has meanwhile given attention to this. The hon member is also aware of the fact that we go out of our way to ensure that we do not prescribe to the courts in regard to sentences in connection with other statutory provisions to which sanctions are attached. As far as that is concerned, I should like to add a few words tomorrow.